Witmore and Clements
[2018] FCCA 481
•28 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WITMORE & CLEMENTS | [2018] FCCA 481 |
| Catchwords: FAMILY LAW – Contested children’s matter – father self represented – four children – father engages in intimidating and abusive conduct towards the mother – applies pressure to children to express certain views – father engages in direct serious denigration of the mother to the children – involves the children in his plans for future litigation – father undermining the children’s relationship with the mother – children to live with the mother – father’s time restricted – no phone calls other than supervised. |
| Legislation: Family Law Act 1975 |
| Cases cited: Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MS WITMORE |
| Respondent: | MR CLEMENTS |
| File Number: | TVC 896 of 2014 |
| Judgment of: | Judge Willis |
| Hearing dates: | 3-4 November 2016, 3 August 2017, 24 November 2017 |
| Date of Last Submission: | 24 November 2017 |
| Delivered at: | Townsville |
| Delivered on: | 28 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Keegan |
| Solicitors for the Applicant: | O'Connor Patterson Smith Lawyers |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Mr Fellows |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
All previous Orders are discharged.
Parental Responsibility
The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children [W], born (omitted) 2001, [X], born (omitted) 2013, [Y], born (omitted) 2005 and [Z], born (omitted) 2010 (“the children), including but not limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
(f)All extra curricula activities involving the children.
Living Arrangements
The children live with the mother.
Time with the Father
Subject to the father’s compliance with the conditions referred to in this Order, the father is to spend only the following time with the children and no other, (without the prior written agreement of the mother):
(a)The first Sunday each month between 9.30am and 4pm. The mother is at liberty to change the Sunday to Saturday, or change the first week-end of the month to another week-end in the same month, from time to time and at her sole discretion on notice to the father.
(b)The handovers will occur to and from the (omitted) Contact Centre (or such other Contact Centre nominated by the mother from time to time) at her sole discretion.
(c)The cost of the contact centre and any cost associated in travelling to and from the contact centre for the father or children will be borne exclusively by the father.
(d)The father is to provide his residential address to the mother care of the contact centre prior to each day he spends with the children.
(e)The father’s time pursuant to these Orders will be suspended during the first half of all of the gazetted school holidays in 2018 and each alternate year thereafter, and the second half in 2019 and each alternate year thereafter.
(f)The father’s time with the children pursuant to these Orders will commence on the first month after the parties have completed their intake procedures at the Relationships Australia contact centre in (omitted) and the availability to conduct the handovers is confirmed by the contact centre, noting that the father’s time will not commence any earlier than the first Sunday (or Saturday if so nominated by the mother) in May 2018.
The father is to contact the mother immediately by telephone upon there being any medical or other emergency with the children whilst they are in his care.
The father is restrained from removing the children from (omitted) during his time with the children or at any time.
Telephone time with the father
There will be no telephone time with father unless and until the mother is able to secure the use of a telephone supervision service.
Thereafter in the event that the mother is able to secure the use of a telephone supervision service, she is to inform the father of the contact details of that service. Each of the mother and father will do all acts and things necessary to complete the intake procedures of the telephone supervision service.
Thereafter, the father will only have telephone time with the children upon his compliance with the following conditions and only at the following times:-
(a)The father complies with all requirements of the telephone supervision service including all of their intake procedures and rules applicable to the use of the Service;
(b)The father will be solely responsible for the cost of using the nominated telephone supervision service.
(c)The supervised telephone time will occur only:
(i)One telephone call per fortnight at a time and on a day nominated by the mother who is at liberty to change the day or the time from time to time, at her sole discretion.
(ii)On each of the children’s birthdays at a time nominated by the mother, at her sole discretion;
(iii)On Father’s Day, the Father’s Birthday and Christmas Day and starting from 2019, Easter Sunday.
(iv)The telephone call will be no longer than 20 minutes in duration.
(v)The regular phone call referred to in Order 9 (c) (i) herein is suspended during the holiday periods referred to in Order 4 (e) herein.
(d)The father’s telephone time with the children pursuant to these Orders will commence once the parties have completed their intake procedures at the nominated telephone supervision service and the availability to conduct the supervised telephone calls is confirmed by the service, noting however that the telephone time will not commence any earlier than May 2018.
The father is not to have communication with the children through telephone or any other method or any other time, other than specifically as provided for in these Orders.
Restraints
The father will be restrained from:-
(a)removing the children from the care of the mother or any person or place or institution at which the children are placed by the mother (including school or extracurricular activities);
(b)withholding the children from the mother contrary to the terms of this Order. This restraint applies regardless of any assertion by the father as to the views of the children.
The father is restrained from:
(a)Denigrating the mother directly to or in the presence or hearing of the children. This includes through any method of communicating with the children.
(b)Discussing any litigation he is or was a party to current, past or future (or any aspect of that litigation) with the children.
Recovery Order
In the event that the Father removes the children from the Mother, or withholds the children from the Mother, or acts contrary to the terms of these Orders in relation to his time with the children pursuant to these Orders, a Recovery Order is to issue for the return of the children.
The Recovery Order is to lie in the Registry and be uplifted upon the Mother filing an Affidavit deposing to the Father’s failure to comply with the terms of these Orders which will be sufficient evidence for the Recovery Order to issue.
If a Recovery Order issues, the Father’s time pursuant to these Orders is to be suspended until further Order.
Other Orders
The parents are to access and utilise the Talking Parents website in relation to all communication regarding the children except as provided for in these Orders.
The mother is at liberty to open all cards or presents or any other item sent to the children by the father or his agents.
That each party provide to the other a current email address and telephone contact number/s and advise the other party of any change within forty-eight (48) hours of the change.
The father is to keep the mother informed of his residential address at all times and any changes to his residential address are to be notified within 24 hours.
The mother will keep the father advised as to the outcome of any medical emergency involving the children as soon as practicable.
The Independent Children’s Lawyer is to make arrangements to explain the outcome of this litigation to the children in company with the Family Report Writer. The mother is to deliver up the children as and when directed to do so by the Independent Children’s Lawyer.
Thereafter the Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Witmore & Clements is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 896 of 2014
| MS WITMORE |
Applicant
And
| MR CLEMENTS |
Respondent
REASONS FOR JUDGMENT
The parents in this matter are not able to agree upon the final living arrangements for the four children of their marriage.
The applicant is Ms Witmore (“the mother’) and the respondent is Mr Clements (“the father”). The Independent Children's Lawyer is Ms Anne Murray (“ICL”). These parties have four children, [W], born (omitted) 2001, [X], born (omitted) 2003, [Y], born (omitted) 2005, and [Z], born (omitted) 2010.
At the time of trial, [W] was 16, [X] was 14, [Y] was 12 and [Z] was 7.
Background
The parties separated on 9 May 2013.
Following separation, the parties had a week about arrangement for the children.
The mother has another child, [A], born on (omitted) 2016. [A]’s father is Mr A. The mother and Mr A are in a relationship, however they do not permanently live together. Mr A is employed full time. There is no evidence that the father has re-partnered.
In October 2013, domestic violence proceedings were commenced by the mother. The parties consented to mutual protection orders on 2 April 2014. In July 2014, the father withheld the children. The mother then commenced proceedings on 28 August 2014.
On 15 October 2014, Judge Coker made an Order for the children to live on a week about basis with each parent and for the Child Dispute Conference to occur.
The first Family Report was completed by Ms P, pursuant to an Order on 18 December 2014 by Judge Coker. That report was released on 6 March 2015. In that report, Ms P noted that, given the complexity of the matter, the writer strongly recommended an Independent Children's Lawyer be appointed.
An addendum was prepared on 21 November 2016. The Family Report Writer conducted interviews on that date.
There was also a recommendation that [W], who was having extreme behavioural problems at the time, live on a week about basis between the parents and that the other three children live with the mother primarily. The children were to spend alternate weekends with the father. Following the release of the Family Report, the mother sought orders in line with that report.
In July 2015, the father withheld the children both from school and from the mother.
In July 2015 the father informed the mother via text message that the children would not be returned to her care due to a “quiet protest”. The mother’s affidavit of 17 August 2015 sets out the lengthy discussions the father had with the children and how inappropriate the whole topic was for the young children.[1]
[1] Examples Mother’s affidavit 6 July 2017, Paragraph 30 a. Father to [Y]: So in a situation like ours do you think it’ right that the children get taken away from their father. Paragraph c. So with all this court stuff…. Do you want me to keep fighting….Intervention by mother. Children distressed. Paragraph 41 and 42.
The children’s discussions with the mother about the protest were lengthy as seen in her affidavit filed 17 August 2015 including [Y] asking “What is a protest?”[2] The father texted the mother that he was withholding the children because they were “on a quiet protest they will not live with you full time u can collect them Monday after school” [X] explained that the father told them the purpose of the protest, initially planned by the father for the children to occur in the Court’s foyer, was “for the lawyer to talk to us so we can tell her we want to live with dad”[3] [X] also explained that the father told the children “if he doesn’t get us full time he is going to move overseas.” The mother was most concerned at the obvious coaching of the children and the discussions about their future living arrangements which she says were commenced by the father after she filed an application to have the recommendations of the Family Report implemented, namely the children live with her.
[2] Mother’s Affidavit filed 17 August 2015 at Paragraph 32.
[3] Mother’s Affidavit filed 17 August 2015 at Paragraph 31.
On 21 August 2015, Judge Coker ordered that the children live with the mother and spend time with the father each alternate weekend, except [W] who was to live with each parent on a week about basis.
In October 2015 the father left (omitted) and relocated to live on the (omitted) in (omitted), Queensland. In February 2016 the following year, the father withheld the child [X] from the mother, contrary to Orders. The mother filed a Contravention Application seeking Orders for the urgent return of [X] or that a Recovery Order issue.
On 9 February 2016 Judge Coker heard the application, and ordered that [X] be returned to the mother by 10 February 2016. Failing the father complying with this Order, a Recovery Order was to issue. The previous Orders were discharged. Orders were made for the mother to have sole parental responsibility and the father to spend supervised time with the children. On 15 February 2016 the mother had to travel to Brisbane to collect [X] from the father as the father did not return [X] in accordance with the Court’s Orders. The contravention was consolidated with the final hearing then listed for 16 and 17 May 2016. Judge Coker recused himself from further hearing of this matter.
The father refers to Orders for supervision as “having my children taken away from me”.
On 14 April 2016 an updated Family Report was released. As seen in that report, the father refused to participate. The Family Report Writer notes that the phone call to the father was made and he advised “he would not participate in Family Report interviews”. It was the father’s own choice not to be engaged in the first Family Report. His non-attendance at the interviews has been in keeping with his contrary and self-defeating behaviour, which he has engaged in throughout these proceedings.
On 3 May 2016, I ordered that an addendum be prepared and that the father attend with the Family Report Writer.[4]
[4] Order 7 of Order dated 3 May 2016.
I also made orders for telephone time with the children and other orders relating to the father having the opportunity to spend supervised time with the children.
The addendum Family Report was released on 18 May 2016.
A psychiatric assessment was prepared by a single expert, Dr R, of each of the parties on 14 April 2016. The father was diagnosed with a Personality Disorder with narcissistic features who finds it difficult to manage adversity and manage his anger and fury.
An Order was made on 3 May 2016 at the father’s request which enabled the father to have three phone calls per week with the children on each Sunday, Wednesday and Friday at 5:30pm. Each party was at liberty to record the conversations.
On 15 June 2016 the father sent correspondence to the Independent Children’s Lawyer saying he had difficulties filing material with the Court and then notes “[i] don’t want to have to do something bad to get attention.”
Both before and after June 2016, the father continued having discussions with the children during contact regarding their involvement in protesting about their future living arrangements with him and telling the children they are unsafe with the mother.
A feature of this case is that the children have been directly exposed to the litigation, as their father has been intent on exposing them to it. He has directly and continuously discussed with the children as a group that they would and should be living with him, issues to do with his dissatisfaction with the ICL, the litigation generally and emphasising that their mother is a liar. He has repeatedly made reference of what he proposes to do to change the Court system. This is but one of the grandiose ideas of the father.
Trial - 3 and 4 November 2016
The final hearing in this matter commenced on 3 and 4 November 2016. It was then adjourned unfinished and part heard. On the end of the second day of the trial, and facing a few months until the trial could be resumed, the father said he would comply with Court Orders for the return of the children to the mother, if given the opportunity to spend time with them.
In the hope that the father, through the process of the trial and hearing the evidence about how damaging his conduct was in his expletive-laden criticisms of the mother, the Court made Orders at the end of the second day of the trial, that the parties do all acts and things to engage with Ms V to enable the father to be observed having time with the children, as a precursor to him spending holiday time with them. At that time, the children had not seen the father for around 9 months since February 2016.[5] Significantly, the father had not spent time with the children because he refused to see the children at the contact centre.[6]
[5] And the father had refused to participate in the Family Report.
[6] As Ordered by Judge Coker on 10 February 2016.
Carefully constructed arrangements were made by the Family Consultant to ensure that the Family Report interviews occurred at the Contact Centre. After much organisation between the Court and the (omitted) Contact Centre, the observations and interviews proceeded at the (omitted) Children's Contact Centre in order to provide an interesting venue for the four children to enjoy time with their father but to also ensure that the children were not removed by the father again, as he had been threatening to do.
The addendum Family Report was released on 21 November 2016.
As identified in the addendum, the purpose of the report was to provide the Court with up-to-date information regarding the relationship between the father and the four children.
Addendum Family Report – 21 November 2016
The Family Report Writer recorded that father failed to make any eye contact on arrival with the Family Report Writer or Ms Murray, the ICL at the centre. The father did not give any greeting or acknowledgement to either person
Ms V reported the children interacted well within a sibling group. All of the children ran to the father when they saw him and hugged him. They were clearly delighted to see him. Mr Clements and the children were a little tearful and emotional at the time. Similarly, at the end of the period, the three elder children became a little tearful.
The Family Report Writer spoke with the mother the following morning to see how the children had managed after the meeting and noted that the mother reported [Y] and [X] cried all the way home and [X] declined to go to a pre-arranged dinner because he was “too sad”. The children had been arguing in the car on the way home about why they could not see their father for longer and were expressing their frustration about this. Ms Witmore said she did not engage in that conversation because “the blame gets put on me”.
Overall, the Family Report Writer considered that the visit went very well, particularly as the children were provided with a very welcome opportunity to spend time with their father. The children clearly love their father and they had missed him very much. Ms V noted that the children’s behaviour towards their father was consistent with previous assessments during which the children have expressed their wishes to spend regular time with their father. During those observations and within the environment of the Contact Centre, the father was child-focused and engaged well with each child. Ms V noted “The challenge for the report writer is that Mr Clements, as demonstrated again at the end of the observation, attempted to share Court information and discuss adult issues with the children”.
Ms V reported that the father could not contain himself for the duration of the session. On two occasions Ms V had to tell the father, in a very firm voice, to stop talking about Court and focus on saying goodbye to the children. The father was angry in response to Ms V. Ms V noted that the father said to the children, in an angry voice “This is the ICL. That is the report writer. When you are 18 I will tell you everything.” Mr Clements looked directly at the Family Report Writer and said “I have read your two reports.”
The observation by Ms V of the father’s angry demeanour and conduct towards the Family Report Writer and the Independent Children’s Lawyer was consistent with his previous behaviour.
Telephone mention 23 November 2016
The matter was brought back on before me on 23 November 2016 and was conducted by telephone from (omitted). With Christmas approaching, the parties agreed to Consent Orders that the children would spend time with the father from 9 December 2016 until 24 December 2016. Arrangements were made for Orders about the flight details. The mother was to deliver the children to the (omitted) airport and the father was to collect them from the (omitted) airport.
I listed the matter, again, for 1 March 2017.
On that occasion the Easter 2017 holidays were looming. Having heard from all of the parties that they did not have agreement about Easter holidays, I heard from each party briefly and made Orders that the children would spend time with the father for one half of the Easter school holidays, commencing on 1 April 2017 and concluding on 8 April 2017. The conclusion and collection times were to fit in with the transport arrangements. The Independent Children's Lawyer volunteered to assist the parties to reach an agreement as to the nature of the travel. The Court observed that neither party was in a position to pay for the costs for flights from (omitted) to the (omitted) or (omitted) to Brisbane. There were however other modes of transport.
I also directed that, if and when requested to do so by the Independent Children's Lawyer, the Independent Children’s Lawyer would, if she concluded it appropriate and likely to be of assistance to help the parties resolve the matter, give directions to the parties to attend a Legal Aid Conference prior to the trial resuming. I made orders also that the mother was to file updating material by her partner and file an amended application herself.
The father was to do likewise by no later than 12 May 2017 setting out his final orders sought. In the event the matter had not resolved, I ordered an updated Family Report.
Further trial directions for the resumption of the trial on 3 and 4 August 2017 in (omitted) were issued. Specifically, I ordered the applicant and respondent to file updated financial statements, particularly including reference to part N, being their weekly expenses. That affidavit was to specifically address the various methods of travel available between (omitted) and the (omitted) where the father now lived. This was to include the mileage between (omitted) and (omitted), the time taken to travel, the costs involved and how the travel for the four children and one adult was to be paid for.
The father did not file any documents in line with those Orders. He also failed to a file a statement of financial circumstances, as ordered. The mother has complied with all Orders.
The final Family Report was released on 17 July 2017.
Family Report 17 July 2017
The recommendation was that the children live with the mother and the mother to have sole parental responsibility for the children. As to the father’s time with the children, that if the Court was confident that Mr Clements will not retain the children and he lived in (omitted), it was recommended that the children spend every second weekend from Friday after school to 4:00 pm Sunday with their father and the children could also spend regular school holiday time with Mr Clements. If the father is not living in (omitted), it was the recommendation that the parents share the costs of travel for the children to spend time with their father, with the understanding that both parents are on low incomes and this will impact on the number of times the children can travel in one year.
The Family Report Writer recommended no phone calls between the children if the father lived in (omitted). If the father lived away from (omitted), the Report Writer suggested that the Court needs to consider how a weekly phone call between the children and the father can be facilitated without exposing the mother to the father’s verbal abuse and denigration which had been occurring.
Trial resumes 3 August 2017
The part-heard trial resumed on 3 August 2017. In the period between November 2016 and the resumed date on 3 August 2017, the father was unable to contain himself and continued to make abusive comments to the mother in the presence of the children during phone calls.
At the conclusion of the trial in August 2017, the decision was reserved.
During the trial, the Court heard evidence of the ongoing difficulties associated with the father’s telephone time with the children. This included the father engaging directly with the children and describing the mother in insulting terms, telling the children that they would be living with him and other inappropriate conversations. Orders were therefore made for the current Order providing for 3 phone calls per week to be set aside. Instead Orders were made for one phone call of no longer than 15 minutes at 7:00 pm and to be made through a Contact Centre for independent supervision of the phones if possible. In the meantime, the mother was permitted to cancel the phone call if the father discussed the details of the litigation with the children, their future living arrangements or engaged in abusive language. If this occurred while the decision was reserved, the ICL had leave to request the matter be re-mentioned.
The Independent Children’s Lawyer contacted the Court only weeks later. The ICL advised that the father had relocated to (omitted) in September 2017. Upon his arrival the father had removed [X] from school contrary to the Court’s Orders of 3 August 2017 which granted the father supervised telephone contact and which stipulated that there was to be no other communication between the father and the children other than in accordance with the Orders. The father removed [X] from school without the notice to or agreement of the mother. The father’s conduct in removing [X] necessitated police involvement and resulted in much distress for the mother and placed [X] at the centre of yet another dispute.
The father then initiated a Domestic Violence application in the Magistrates Court in Townsville against the mother and pursued criminal proceedings against the mother for an incident occurring 5 years earlier regarding the father’s motor bike being damaged. He blamed the mother. The mother denies this.
The Court agreed that the evidence in the trial would be re-opened. The parties were notified that the matter would be re-listed on 20 September 2017 for further directions.
On 20 September 2017, the father did not appear. At that time an email was tendered by the Independent Children’s Lawyer from the father.[7] The Court was satisfied that the father was aware of the proceedings and chose not to appear. Orders were made including that the father set out evidence of his current living arrangements, medical diagnosis, medications and explain his non-appearance on 20 September 2017. The father has not complied with this Order.
[7] Exhibit ICL4.
Trial re-opened 24 November 2017
The trial was re-opened on 24 November 2017 via video link from Townsville to (omitted).
During that hearing the father said he had relocated from the (omitted) and was living in (omitted) again. The issue of the cost of travel was no longer a live issue.
After the further evidence was admitted, the Family Report Writer was advised of the subsequent evidence and events. Hearing of the recent events, the recommendation of the Family Report Writer changed. The Family Report Writer noted that a permanent supervision Order presented difficulties, though she nonetheless considered that the father’s time should be supervised. As an alternative, the Family Report Writer recommended that the father spend very restricted time with the children of say one day each three or four weeks, as a final order. Serious reservations were expressed as to any phone contact at all occurring between the father and children, given the evidence of the father’s continued denigration of the mother and the exposure of the mother and children to the father’s inappropriate conversations and anger.
At the conclusion of the re-opened trial on 24 November 2017, the ICL’s Counsel, Mr Fellows, submitted that crafting final Orders in this matter has been a struggle for the ICL, given the need to weigh up the balance between the children having a meaningful relationship with the father and the likely long term destructive consequences of enabling the father to spend time with the children. Mr Fellows of Counsel submitted that the issue of ongoing permanent supervision would be impracticable for the children and beyond anything available. He reminded the Court that the father did not attend any supervised contact time previously Ordered and available to the father. The ICL had been wavering between no contact at all or a position of minimal contact. Mr Fellows submitted that the ICL supported a position of infrequent time between the children and the father consisting of day time only, every three or so weeks at the Court’s discretion in light of all of the evidence.
I have considered all of the evidence, exhibits, and documents filed by the parties and experts. A statement in these reasons represents a finding of fact unless stated otherwise.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of [W], [X], [Y] and [Z], I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for [W], [X], [Y] and [Z]’s, futures living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
The Witnesses
The Mother
The mother impressed me as a child-focused mother, well in tune with the emotional needs of the children. The mother has provided a stable home life for the children, unlike the father who is regularly moving and making changes to his life. The mother provides the stability required for the children’s education to be completed without interruption. The mother has provided for the children to be housed, fed and clothed. The mother has provided for their schooling, sporting and social lives to be maintained. The mother has provided the bulk of the financial support for the children.
The mother appeared tired and apprehensive about what the father was planning next. The mother has borne the brunt of the father’s anger directly and indirectly. The mother has been abused and insulted directly and indirectly by the father for years and there is no sign of it ending. In fact, Dr R notes with alarm the intensity of the father’s angry rage against the mother during the psychiatric assessment.
The mother has been prepared to facilitate a relationship between the children and father, despite the complete disregard the father has shown for the Orders of the Court and his continued abuse and involvement of the children in the litigation.
The mother gave her evidence honesty and openly. She is an accurate historian and does not distort the truth. I accept the evidence of her ongoing distress at the hands of the father. I accept that the father’s behaviour towards her has been threatening, menacing and deeply concerning. The mother has been the focus of the father’s fury as identified by Dr R. The mother has nonetheless exhibited sensible, responsible parenting throughout this ordeal.
The mother has demonstrated a maturity and stability in her parenting and in the way she conducts her life, which is not seen in the father.
The father filed a contravention application on 2 May 2017 regarding the mother not delivering the children to him during her half of the Easter holidays. The mother had no obligation to do so. I accept her evidence of offering the father holiday time and of his refusal to communicate with her appropriately[8]. The father refused to pay the cost of the children travelling to the (omitted) or to collect the children. He expected the mother to pay the cost or bring the children to him. There is no prima facie case made out. It is not for the father to dictate to the mother what she will do in her half of her holidays with the children. I dismiss the application for contravention filed by the father. I regard his contravention application as being vexatious and frivolous.
[8] Mother’s trial affidavit filed 6 July 2017 paragraphs 57-74.
In relation to the contravention filed by the father on 19 August 2016, regarding a missed phone call on Friday 5 August 2016, I am satisfied that his refusal to agree to change the Friday phone call was deliberately obstructive. I accept that the mother had a reasonable excuse. The father did not usually take up the one or other of the phone calls on the other days of the week when he had every opportunity to do so.
I reject the father’s allegations that the children have been harmed by the mothers’ brother. I reject allegations made by the father against mother’s partner of sexual abuse and/or the children being flogged. There is no evidence to substantiate any such allegations. I consider them vexatious.
Wherever the mother’s evidence contradicts the father’s, in the absence of any independent evidence, I prefer the evidence of the mother.
The Father
The father is preoccupied with legal matters, terminology and phrases as seen in his affidavits such as, “I will do everything I can to set a doctorate of presidents so that other males coming in behind me have an easier chance in the system.”
Two different Family Report Writers have noted that the father holds this Court, the legal system and the mother in contempt. I accept this.
The father was asked about his past conduct which included regularly discussing the litigation with all of the children, telling them to hold a protest in the Court building against the ICL who the father decided was not listening to their views. When discussing the proposed children’s protest with the Family Report Writer, the father said ultimately he did not bring the children to the Court building for the protest but said he had a “quiet protest” in the foyer of the building himself.
The father was asked about having inappropriate conversations with the children including making extremely derogatory comments about the mother. The Family Report Writer notes the children talking about what the father spoke to them about, and one of the children asking “what does whore mean?” It is also clear that they did not understand what a protest was. The father’s discussions were entirely inappropriate and irresponsible and showed no understanding of the ages of the children.
The father was questioned extensively about the nature of his discussions with the children. He explained he believes the words and discussions he had, “It gave them hope. I don’t believe I have set anything into turmoil. They need to know their father loves them. It’s not destructive for them.” He has made no secret of this. At times, he has said to the children “remember what we agreed to” when discussing his plans with the children to fight for them and what this entailed for the father to keep litigating.
The father has given the children ultimatums saying things directly to them such as “they have two choices”. The first is that he can study the legal system so he can fix “this legal fuck-up” or, two, he could go to work and then pay to see the children for two hours. He asked the children which they prefer. He said they replied, “Win the Court case.”
The father has told them in relation to having supervised time, “If you want me to fight for something different, I will fight for that.” He informed the children that, “We all spoke about this at the beginning, didn’t we? This is what we will discuss at Court. You’re a young adult. I can’t afford to come up to see you for two hours. I don’t have that sort of money.”
The father said he told the children he could not come and see them for supervised contact before and after he had moved away from (omitted) to the (omitted) in South East Queensland. He chose not to see them from February 2016 through to November 2016. He told the children that he would have to stay in a motel just to spend two hours with them, that he would love to do it but “by the time I win this, I know it hurts me so much in the meantime not seeing my children, so I don’t have to pay see youse.”
This decision not to spend time with his children for most of the year in 2016 was not justified or satisfactorily explained. The distance is driveable, the father would have had discounted train travel as an option and the father had time on his hands. The father knew the children missed him as the Family Reports have regularly described that the children themselves enjoy their time with the father. He refused to see the children unless it was on his terms.
In the father’s view, the mother is testing him out to try and get some sort of “emotional response from him”.
In November 2016 in the first two days of evidence, Dr R gave evidence in accordance with his psychiatric report and the father’s diagnosis of personality disorder and narcissistic traits. The father heard Ms V give a comprehensive summary of the father’s objectionable, rude and abusive dialogue with herself and at times, the ICL and mother. Despite hearing this evidence, in August 2017, when the father had the opportunity to spend regular time with the children and demonstrate an ability to address his concerning conduct and show some maturity in his parenting, the father has nonetheless maintained his time wasting, illogical preoccupation with criticising the legal system and he has continued his smear campaign against the mother.
The father continues to act in a deliberately provocative and immature manner. Instead of filing documents in accordance with Orders, the father filed a self-styled and created document on 16 June 2017.
In the orders sought, it reads as follows:
Final orders sought 2017.
Is split up in three sections.
1st is mandatory, 2nd is if living in (omitted), 3rd is if I live abroad of (omitted).
(1)
·Full custody of all children.
·Ms Witmore have dues to pay for lying in affidavit, namely, when she said I held children back on Mother’s Day 2015. From that point, Ms Witmore has torched both children and father.
·76,000,000,00 in compensation for father and children.
·all children get catch-up time.
·all children live with father whilst Ms Witmore in jail.
(2)
·That [W] and [X] live with the father and spend every second weekend with Ms Witmore.
·[Y] and [Z] live week-on and week-off.
(3)
·All four children live with the father.
That self-created document is in addition to the “case outline” handed up by the father at the commencement of the trial in November 2016. That document had, as its opening:
For this to be a fair attempt, we should attempt a new way of thinking, so here is a new rule to adopt with the young Court system. It will be called the KISS RULE and here are the rules.
(1)All subpoena material be discussed in Court
(2)Get the children/young adults have their say to get points of interest proven
(3)Look at the productive force each parent has
(4)And do an argumentative essay on just this info
Reasons
KISS RULE – Keep It Simple (omitted) (the Court is told by the father this is meant to represent a generic female).
·Why – because the Family Circuit Court is predominantly run and influenced by women.
(5)All subpoenaed material discussed in Court
·Why – because, in this case, even if I could finish affidavit, the information in the subpoenaed material from Department of Communities is blocked. To make fair, this information should be accessible to both parties.
(6)Get the children to have their say
·Why – because, with the father having no access to the children, no affidavits have been done and the children have been muzzled. I do know, for this to work a doctrine of precedent needs to be done for late admittance of children’s evidence.
(7)Look at the productive force each parent has
·Take into account past and how successful in society they have become.
(4)Do an argument essay on this information
·Why – to give a new outlook or way of thinking with no manipulation of words from either party to help or making a ruling on.
I regard the father’s conduct in filing these frivolous documents as embodying his deep lack of respect for the Court combined with his ongoing attention seeking behaviour.
In his submissions at the end of the September 2017 hearing, the father made submissions that he would be coming back to (omitted), the children would be living with him and he will be collecting them. This was to the point where I reminded him on at least two occasions that the issue of him spending time with the children was before the Court, and the Court was deciding that issue, not him. That comment appeared to take the father by surprise.
The father has shown an inability to communicate with the mother in a civil fashion, no doubt due to his intense dislike and anger he holds towards the mother which the Court has observed and so too have each of the Court experts.
On 27 June 2017 the solicitor for the mother wrote to the father about the forthcoming school holidays asking if he was coming to (omitted) for the school holidays. The letter explains that they have been informed by [X], following his phone call with the father on 25 June 2017, that the father said he may be in (omitted) for the second half of the holidays. The father was asked to please advise details of when he plans to be in (omitted) as a matter of urgency as the mother is willing for him to spend time with the children. The father was still living on the (omitted).
The letter also noted it was [Y]’s birthday on (omitted) 2017 and the father was offered to spend time by phone with [Y] on the morning of her birthday as the family had plans after 11:00 am.
The letter concluded “Should you require any further information, do not hesitate to contact us”.
The father’s response about an hour and a half later is:
Bullshit is my response to you. Ms Witmore has not shown any concerns about the children and me. I will take the children if I am able to make it to (omitted) and if they want to stay with me they will leave with me and no more isolation from me on my kids’ birthdays. How is that for an answer? I am sure you will try to use it to your advantage.
This deliberately provocative ineffective response to an otherwise mundane request is typical of the father’s attitude towards the mother and his inability to engage in respectful, sensible or responsive communication. This exchange occurred only weeks before the trial resuming on 3 August 2017. There is evidence of many such exchanges.
On (omitted) 2017 the father sent an email to the solicitor for the mother and the Independent Children’s Lawyer. That date is [X]’s birthday. At 6:31 am the father writes:
As expected and yet again, no contact with the children. It is my son [sic] birthday today an I want contact. Get off your hands and do something. Regards, Mr Clements.
The father is unreasonable to expect a birthday call before 6:31am. It is clear to me that the father uses orders for phone contact as an opportunity or platform to be abusive, draw attention to himself and hopefully create some drama.
As to telephone calls generally, I accept the mother’s evidence that there have been many weeks when the father did not ring on the three days per week, set out in Orders and as sought by the father. When however, the mother has not had the child phone the father by 6:31am, the father is writing emails insulting the ICL and the solicitor for the mother. This is the behaviour that the father seems to relish, taking every opportunity to hurl insults and abusive comments to the mother, her lawyer or the ICL, amongst others.
The father offered up no sensible explanation as to why he did not phone the children as provided for in the Orders. The Orders were made when the father complained that he did not get to talk to his children on a regular basis. The father has again shown that his telephone contact with the child is secondary to his real agenda which is to use Orders to cast abusive comments to any target, portraying himself as a victim.
In similar vein, the father has said repeatedly through this litigation that he is not able to afford the cost of contact to spend time with his children when he moved to the (omitted). When the Court sought to explore this and made Orders that the father place his financial situation before the Court, the father refused to do so.
During the course of this trial in August 2017, the father has said that he moved to the (omitted) because he could not afford to live in (omitted). He said he has been living with his own mother. He suggested that he might be moving back to (omitted), though he provided no sworn evidence. In the adjourned period from November 2016 to August 2017 he filed no material indicating that he was changing his residence. During submissions in September 2017 the father said :
Forget any proposals in relation to living on the (omitted). I will be returning to (omitted).
It is difficult to accept that the father has any firm arrangement or stability. The father has moved from North Queensland to South East Queensland, then back to North Queensland without any satisfactory explanation as to why he had to move away or why he chose to leave South East Queensland.
The father said in November 2016 of his move to the (omitted) that he could not return to (omitted) as he was pursuing University studies, and he had met new people he really got on with and he liked the lifestyle and he was starting to get some work. None of those reasons seemed to address why he would leave all four of his children and move a couple of thousand kilometres away. He then chose not to see them for almost a year. The cost of contact with four children travelling to and from the (omitted) was an obvious issue relevant to him being able to keep up his relationship with his children. The father knew that the moment he left (omitted). Given that the father paid little to no child support, it was illogical of the father to suggest that the mother could pay all or even half of the cost of travel which was entirely due to his relocation. As I have said, the father was not prepared to put the evidence of his financial position before the Court. His attempt to gain University entrance could have occurred at (omitted) University in (omitted).
Material from the University of (omitted)[9] includes an “unofficial academic record” as to the program of tertiary preparation pathway as to the three courses that the father undertook. In November 2016 at the commencement of the trial, the father said he was undertaking these courses. The father has failed those courses. The records show, in semester 2 of 2016, the father has “voluntarily discontinued”. In the first semester of 2017 in relation to almost the same topics, the father has done no study and all the requirements are incomplete as of 6 July 2017. There is and always has been a University in (omitted) which has always been an option for the father to attend.
[9] Exhibit ICL 3
Issues relating to the Father’s telephone contact with the children, and all of the difficulties this has involved, have taken up significant time at the trial. I accept the mother’s evidence as to the abuse and insults that the father has said to her during the phone calls whilst she has tried to monitor the father’s dialogue and topics. I accept that the father uses the telephone calls for this purpose and to discuss inappropriate topics with the children. The father, in his evidence, glossed over his poor conduct towards the mother during phone calls and instead fixated on the Friday phone calls. The father complained that the mother did not make the children available for the Friday calls. He knew though that the mother had written to him saying that sport had now commenced and the children were involved in Friday sport. The mother requested that the father change the day of the Friday call. The father refused to do so. The father also glossed over the fact that he had opportunities to call the children on Sunday and Wednesday each week, which he was failing to regularly take up. His failure to do so were for his own reasons. The father has distorted the facts on this topic, falsely portrayed himself as missing out on phone contact through the mother’s actions, and then given himself something to get angry about. Reference to him playing the victim is referred to by Dr R who observed the father engaging in this behaviour during his assessment.
Both experts gave evidence that with the diagnosis of the father, for an individual to be able to change through assisted psychiatric intervention, they have to first recognise that they want to change and they want to be different. The father however, blames the cause of his distress on external issues and fails to see that his own behaviour plays a large part of all that he believes is wrong and fraudulent. Therefore he is untreatable. The father has no motivation to seek assistance.
In response to the suggestion of Counsel for the Mother, Ms Keegan and Mr Fellows for the ICL that the father was engaging in denigration of the mother to the extent of undermining her standing with the children, the father made a submission that he has never alienated the children and that “these are just words slung around the court. She has turned it into a circus, I have never done anything”.
The father was asked by Ms Keegan of Counsel for the Mother, whether he had ever stopped to think that his conversations with the children about his court struggles were hurting the children given what was contained in the reports. The father replied that “they ask about their future – its not meant to be derogatory”. There are many examples in the mother’s evidence of the father’s discussions with the children falsely claiming the mother has been unfair to him and the Court is being unfair on him and generally playing the victim. The mother explained the effect on the children of this ongoing narrative by the father. This causes the children to become angry at the mother. The children act out their sympathy for the father. The mother is left dealing with their reactions and being blamed for her alleged unfairness to the mother.
I am satisfied, having heard all of the evidence, that the father is persistent and uncontainable in terms of his strong desire to continue to demean the mother, have the children agree with his disparaging and insulting views of the mother and to join with him in his continuous campaign to have the mother found to be a liar, a fraud and be sent to jail.
Issues of the father improperly engaging the children in his campaign and his denigration of the mother were identified during the trial by the experts as being issues about which the children were at risk from. Despite hearing this evidence, the father has continued to engage in this behaviour.
Having had the benefit of observing the evidence and conduct of the father in November 2016 for two days, another day in August 2017 and another day in November 2017, I am satisfied that the father represents an unacceptable risk to the children through the Father’s destructive engagement with them. I am satisfied that through his persistent and strong willed deliberate behaviour encouraging the children to share in his derogatory views of the mother, and his encouragement of the children to join in with him as part of “their overall plan” (which by the end of trial included the children being taken by the father as his witness to the Domestic Violence Court to give evidence against their own mother) that the father is expressly and actively determined to undermine her standing as the children’s mother and to damage and hopefully end their relationship with the mother. I am satisfied that the father is deliberately trying to turn all of the children against their mother.
The father has made no secret that he wishes to exert “revenge” on the mother for what he perceives are her crimes. He has expressly stated this on multiple occasions, orally and in his material. These views are implacably held by the father. The father is incapable of understanding the psychological damage he is causing to the children and what this will mean in the long term for these four children in insisting that he will continue on with what he refers to as retribution. I am satisfied that the father is consumed by anger directed towards the mother, as observed by Dr R.
The father has given very little, if any, useful evidence in this matter. He is not concerned with the day-to-day care of the children or their long-term decisions. In fact there is evidence that he is very lax about serious medical matters such as having preventative medicine for [Y]’s asthma. The father has shown very little interest in the best interests of the children. He is instead fixated on his rights and entitlements and shows little genuine concern and no understanding about the children as individuals. The father has shown callous disregard for the effect that his abusive behaviour has on the children’s mother and primary carer. I am satisfied that the father exhibits contempt towards the mother and her efforts to co-parent with him. He has been disrespectful, untruthful and non-responsive in his parenting role and in his communication and conduct towards the mother.
The father’s style of communication with the children or the mother, is to bring every issue back to his entitlements or his criticisms as to how he perceives he has been treated or some illusory unfairness in the Court system. The father is oblivious to the children’s needs, emotional, educational or otherwise. I am satisfied that it would be impossible for the mother to hold a sensible discussion with the father about any aspect of the children’s parenting. The father just uses the opportunity to turn the issue to his own advantage and agenda.
The father is a poor historian. He is prepared to distort the truth to support his agenda. He has shown a lack of respect to the mother, the children, the Court, the single experts and the ICL. My strong impression is that this litigation provides an ongoing platform for the father to act out his abusive conduct towards the mother. He uses any opportunity for engagement with the children as a means to do this.
Throughout the trial, the father showed contempt to the court process and whether it was not coming to Court at all without explanation as the father did on 20 September 2017, saying he had not read reports or affidavits when he had them in his possession for weeks or months beforehand and wanting to use court time to do so, failing to have a list of questions prepared when asked to do so and clearly vexatious such as seeking ever increasing millions of dollars for compensation and confirming with the bench when asked, that he was continuing with those applications or sworn affidavits, or calling the Judge “Miss Willis” several times on the last day of trial or giving an entirely implausible evidence bordering on farcical as seen with the evidence of his alleged illness and writing emails from hospital, the Father has shown contempt for the Court.
Dr R – psychiatrist.
The parties were ordered to undertake a psychiatric assessment. That has been completed by Dr R whose report was filed on 10 May 2017. Dr R was cross-examined by all parties.
Overall he found the mother to be a competent caring parent. The mother had the more stable and competent personality with reasonable stability in her life, although she has suffered from chronic stress. Dr R considered the mother “had no evidence of any personality disturbance and that she was a capable caring individual who was able to cope well with significant responsibility and stress.” Dr R believed the mother cared a great deal about the children and wanted what was in their best interest. The mother presented no evidence of being an unacceptable risk to the children.[10]
[10] Affidavit of Dr R, Page 30 & 31
The father presented as a potentially unstable person with features of a narcissistic personality disorder who finds it difficult to understand and manage adversity and his anger and fury. Dr R noted that:
“there is a sense of entitlement and grandiosity about his presentation as well as some paranoid features as he fears others saying negative things about him.”
Whilst Dr R considered the father was an important person in the children’s lives, he also expressed concern that to be capable of caring for these children he needs not to be affected by anger. Dr R said the father’s anger and frustration are his dominant features and he queried the father’s ability to remain calm under adverse circumstances as this anger would impact on the children. Nevertheless, Dr R believed the father is a loving, caring parent, however, significant issues arise about his anger, lack of insight and the effect of his diagnosis. Concerns were held about the father’s wellbeing and potential for depression at times of great stress such as if he is disappointed by the outcome of a Court case.
The father’s anger issues were observed by Dr R who observed that on arrival the father had:
“a slightly intimidating manner as he queried my credentials and wanted to know the purpose of the interview as if he hadn’t been informed. The father arrived late and presented initially in a state of agitation, perspiring, thirsty and anxious. He seemed quite agitated and irritated.”
In keeping with his tirade of abuse about judges and the Court system, the father explained to Dr R that he did not want Judge Coker making judgments on the case, but he also does not want another Judge that he has appointed on his behalf “If I do not get my kids I will go to the High Court. I will tell the High Court about this Neanderthal Judge.”
Dr R described that the father was quite pejorative in his denigration of the Judge. He said the father appeared quite threatening in his matter towards the Judge with his anger and agitation. When Dr R asked what the father would do if the Judge decided the children should remain living with the mother, Dr R noted:
He looked at me and stared. At this point of the interview there was a deathly silence. He seemed to be shocked at the suggestion that the judge may make a final decision against him. He repeated, “If with Ms Witmore?” He then shook his head as if that will not happen. He began swearing and making expletives. He said he would not accept any decision against him. Then there was some comment about another judge in Cairns presiding over the case on behalf of Judge Coker. Then he added, “He is probably in bed with her. Judge Coker is wrong. I will get to his superior. I will go above his head. I mean, he was in bed with her metaphorically.”
The father explained to Dr R, towards the end of the interview that the children had made it clear to him that the children wanted to run away from the mother. They wanted to come to the (omitted) but he would not allow them to hitchhike. He stated “They are old enough to make their own decisions.” The children were 14 years, 13 years, 10 years and 6 years of age at this time.
The mother and father set out their personal histories. The mother explained that in 2010 the father decided to stop working. He was a trained (occupation omitted) and the mother did not understand why he decided not to work anymore. She said “He got to sit around. He said that I had been sitting around while he was working and now it was his turn.”
The mother continued working in her position in the (employer omitted) and occasionally the father would do a job. She explained that the parties attempted to reconcile their differences but the relationship broke down in 2012. The mother moved then to live with her brother. The father kept the children and the mother said the father refused to let her see the children. Eventually they agreed on a week about basis.
The mother explained to Dr R that after the Court hearings in 2013, the father was very erratic. Sometimes he would arrive and take the children. On one occasion he took two of the children one Sunday morning without telling her. She woke up and found two of them gone. On that occasion the mother relayed the father’s position that he took the children because the father claimed that the mother’s brother had wiped urine on the children. I am satisfied that this allegation is baseless, as with allegations against her mother and partner.
This allegation by the father was investigated and the mother said she thinks it was a big ploy. The father has made allegations against the mother’s partner, her brother, her mother. None of the allegations have been taken seriously by the Police or the Department of Child Safety. She also explained that her then boyfriend, Mr A, who she had known for a year, had been receiving threats from the father. Apparently, one of the children gave the father the number, and since then, the father had been texting him.
In describing his troubled younger years, the father said:
At school, he described himself as a good student and “I jumped a grade”. He described a family history with severe domestic violence and abuse from his father.
In relation to drug use, the father said he had tried marijuana as a younger person and that the last time he used marijuana was at Christmas time, that being Christmas 2015, and:
“He still uses the occasional joint. He said he doesn’t use it on a regular basis and didn’t really know why he had used it at Christmas time except to be social. Mr Clements has had two charges against him for drug possession. He has had two charges of driving under the influence of alcohol when he was a young adult.”
The conflict between the father and mother during the time they were married was explored and it is clear that the father blames the mother for many things surrounding the breakdown of their relationship including a lost business contract with the (omitted). As Dr R says:
“He projected his anger and business failure onto Ms Witmore. There were token comments about his responsibility for his business, but, ultimately, he said it was really Ms Witmore’s fault that the business failed.”
The observation of the father’s rising anger towards the Mother was made during the session:
Mr Clements seemed to be building up a head of steam in terms of his frustration as the history was unfolding: “She didn’t respect or care about what I did. She just wanted shoes and cars.”
The focus of the interview for the father was on how much he felt aggrieved by the mother, rather than being able to focus on the children. During the interview the father is reported as becoming “quite animated and incensed when describing the mother’s failings during their relationship.” Dr R noted “he seemed to feel a great sense of betrayal and intense anger towards Ms Witmore for her inability to perform household tasks as he expected her to do.” The father became even more incensed and as he did so he would say she was “fucking lazy”.[11] Dr R noted this description conflicted with and was contradictory to the description by the father of the mother’s being involved in the business, doing the paperwork and maintaining the books.
[11] Affidavit of Dr R filed 10 May 2016, page 25.
When the father was asked about what lead to the breakdown in the relationship, the father’s mood shifted to petulance and victimisation. The father projected his anger and business failure to the mother and concluded that ultimately it was all the mother’s fault. The father said he “has never forgiven her for the loss of the business. I was demoralised.” He said that therefore he allowed the mother to make crucial decisions for the business and then blamed her for what was really his responsibility. The father said he had other contracts but because he felt so angry with her, he let those contracts slide and the business imploded. The father said “I couldn’t be bothered, she destroyed the business.” As to their personal relationship, the father became quite incensed at how badly he felt undervalued by her.
The father described becoming suspicious of the mother’s boyfriend and he perceived the boyfriend was mistreating the children. The father did not like the way her brother treated the children alleging that her brother rubbed urine in their faces. The father then said, “The children did not want to go and see Ms Witmore.” The father reported that [X] saw his mother having sex on the couch and alleged that the children were exposed to denigration about him. The father was affronted by the suspicions that the mother’s family were portraying him in a negative light.
As to the allegation that their uncle had rubbed urine in the faces of the children, as alleged by the father, Dr R concluded that it seemed the father engaged in unusual questioning of the children. He considered that this was a rather odd disclosure and that it is not a normal response for children to naturally report that an adult is putting urine in their face. Dr R said parents need to be able to check out information in a balanced way and to try and understand what is said in a context and perhaps not taken at face value until further evaluated.
Significantly, when asked about the Court case, Dr R reported “the father erupted into an enraged state” saying “that judge is a Neanderthal.” The father did not feel the Judge had listened to the children.
Dr R continued:
He was incensed and swore at the judge. He believed that judge was completely wrong and didn’t listen to him, the judge made completely erroneous rulings, “I want retribution.” He did not feel that the judge listened to what the children were saying. The father said the judge accepted the mother’s account and not his. He claimed that the judge believed the mother that he had abducted the children whereas, in fact, the children wanted to stay with him, “The ICL did nothing. She never did the criminal law check.” He claimed that the judge did not have any idea. Mr Clements became enraged as talking about the judge had made decisions against him. He was angry and vitriolic. He tried to involve the police and they took her side. He felt they were meeting roadblocks consistently. The children had said to him they wanted to run away from the mother and run from (omitted) to Brisbane.
While saying that he did not encourage this because it would be too dangerous for them, Dr R stated[12]:
This infers that if they were in (omitted), that he would have allowed and encouraged them to run away. He then indicated that if the children stated to him that they didn’t want to leave, he would not force them, “I would never kick them out.” He then made a statement that the judge was treating him like a sex offender, “It’s like they’ve put me on the sex offenders list because I have to have supervised contact. That’s the same as sex offenders.” The father did not seem to understand the reason for the supervision.
[12] Page 28 of 37 of psychiatric report.
When giving his oral evidence, Dr R stated that the father’s reactions and behaviours concerned him, as did his lack of respect for authority and his sense of entitlement, which worried him a great deal.
While saying that he did not see a long-term supervision as a good outcome, Dr R said that in relation to the personality difficulties that the father has, as to whether or not he would continue to need supervision would depend on him having the ability to seek proper help.
The father had given evidence that he was seeing a counsellor. Dr R considered it would be useful for that counsellor to be able to read his psychiatric assessment and then try and assist the father to gain some insight into areas he may be blind to.
To make any difference at all to his functioning, Dr R said the father needs to commit and engage fully with his psychological treatment. He needs to do additional anger management and emotional regulation counselling as well as having psychological support. Dr R said that the father carries a lot of anger from early trauma that appears when he is in a conflicted situation. He considered that until he engages in proper treatment, he should have restricted unsupervised contact if the father continued to be well engaged in treatment and vocational development. Dr R commented that, “The father has such limited insight and such an inability to see his contribution to his own situation.”
If the father had been attempting to address those issues, and if Dr R was convinced that the father was fully engaged, then that augured well for the future. So too if the father understood that he had some emotional regulation problems that needed to be addressed and managed.
Whilst the father has been diagnosed with a personality disorder, Dr R said that is not necessarily for life, and that individuals with personality disorders can undergo engagement and therapy and improve their coping ability. Individuals with a personality disorder are not necessarily an unacceptable risk for children, however if the personality disturbance is of such a severity or antisocial or has severe impulse difficulties, it is then putting children at risk.
Such a person may have to undergo full treatment before having unsupervised contact. The middle of the road option is where a parent is engaging in therapy and they have developed impulse control. There are two themes: impulse and emotional regulation, and that is dealt with through dialectical behaviour therapy (“DBT”). Whilst the father advised the Court that in the last couple of months before the trial he had, through the student counselling on offer, been engaging in the type of therapy that Dr R referred to, at the resumed trial the correspondence[13] from the University of (omitted) had been obtained. Those documents indicate that the father has not engaged in the dialectical behaviour therapy referred to by Dr R but rather did two sessions of personal counselling.
[13] exhibit ICL2 and ICL3
The father was getting assistance on how to manage himself in Court and to remain calm when others are discussing his behaviour. There is evidence of only two visits. There is obviously a lot more professional input required other than two counselling sessions. There are years of specific DBT ahead of the father if he ever chose to undertake this behaviour therapy.
When cross-examined about the father’s time with the children, Dr R considered that until the father undertook the Dialectical Behaviour Therapy that the father should have very restricted time with the children. He did not consider that a permanent Order for supervised time would be a good outcome. He accepted the difficulties associated with a permanent Order for supervision on a long term basis.
When the trial was re-opened on 24 November 2017, the father gave evidence that since the trial had concluded, through the father’s own complaints to the police involving his motor bike being damaged, the mother has now been charged with the offence of damaging his motor bike and/or assaulting him at separation, 4 or 5 years ago.
The father submitted that if Dr R knew about these charges, that this would change his professional opinions he held regarding the father’s diagnosis. The father indicated he wished to further cross-examine Dr R on this issue.
Inquiries were made by the Counsel for ICL, Mr Fellows and the Independent Children’s Lawyer. Dr R was overseas at the time of the re-opened trial on 24 November 2017 and was in a different time zone. Given all of the circumstances, I directed therefore that the single question the father had for Dr R be sent to him for comment and that the question and response be provided to the Court and the parties. On 28 November 2017, Dr R provided a short addendum which was sent to the Court on 29 November 2017. That brief answer will be regarded and marked as part of the original report. This course was agreed to. Having been informed of the pending charges, Dr R was asked whether this altered or had any bearing on his diagnosis of Mr Clements or any other aspect of his report.
Dr R replied:
“that the charges outlined were not known to me and so I am not in a position to form a view about the nature of the charges. Nevertheless I do not, from the information given above, see any reason to change my opinion of the father’s diagnosis.”
As to whether it changed or altered his view upon any other aspect of his reports, Dr R said also that “I do not change my view from my previous reports”.
Dr R, a specialist child, family and adult psychiatrist with over 25 years’ experience, says that the emails (which form part of Exhibit ICL6) are consistent with the assessment he has already made for the Court of the diagnosis of narcissistic personality disorder.
Dr R notes that, unfortunately, the emails and communications do indicate the father does not have a concept of being able to understand perspectives other than his own, which makes him very upset and indignant when his demands are not met. He agrees that the father is likely to continue to be upset and angry with others for denying him his wishes and that others are likely to feel intimidated by him. Dr R says it is very unhelpful and damaging to the children for the father to denigrate the mother and say negative things about her to the children.
The father’s communications have placed the children in a bind; whether they support the father and reject the mother or reject the father and support the mother. Dr R opined that if the children support the father, their relationship with the mother will be threatened and they may become oppositional to her. Alternatively, if the children side with the mother, they would probably refuse to be associated with the father as they may feel afraid to disappoint him and face him. The ongoing disagreement between the mother and children will cause the children distress and impact upon their functioning and mental wellbeing.
Dr R agreed that it would be helpful for the children to have explained to them that their father has a personality disorder which effects his ability to cope and function in a constructive way and his emotional dysregulation. It was Dr R’s suggestion that when discussing the context of the father not getting the orders that he wants, that it would, in the immediate term, given that he probably doesn’t qualify for a court guardian, that it would benefit from him having an acquaintance or friend or police liaison officer who could act as a buddy or life coach to assist with his current responses to the court and that coach could try and help him remain reasonable and sensitive to the Court, the mother and the children, despite the disappointments it is likely to achieve a better outcome for the children and for him.
The need for the father to access therapeutic assistance from a clinical psychologist to manage his emotional dysregulation difficulties is identified. There is also a recommendation the father would benefit from treatment to assist with impulse control, anger management and emotional regulation, such as dialectical behaviour therapy (DBT) and Cognitive Behaviour Therapy (CBT). In addition, Dr R says in order to address the deeper longstanding feelings of rejection, the father would benefit from a more insight orientated interpersonal psychological therapy. The father may need to have some regard also for the need to remain calm and not to threaten others.
Dr R is an impressive witness and his evidence has been very helpful. In terms of the father’s conduct in involving the children in a power play against the mother, Dr R’s evidence is deeply disturbing. I agree with his opinions regarding the father as they accord with the evidence and my own observations. The father’s preoccupation with getting retribution against the mother, and manipulating the children to join him in this pursuit is deeply troubling to the Court.
Ms V, Family Report Writer
Given the length of time over which this trial was conducted and the intervening events, Ms V has had extended opportunities to see the father throughout 2016 and 2017.
I referred elsewhere in this judgment to the various reports prepared at different stages of this litigation.
Ms V also gave further oral evidence at the re-opened trial on 24 November 2017.
As seen in the Family Reports, the father has consistently used crude language in his exchanges with the Report Writer and shown an inability to understand that these children have a right to know both parents and not just one. The father’s engagement with the Family Report Writer, as set out in the Family Reports, is deeply troubling. The Father’s engagement with the Family Report Writer on every occasion reveals that the father is unable to contain himself emotionally or stop being abusive. The father resorts to foul, abusive language about the mother and shows no sign of understanding the harm that this causes when he makes reference about the mother in derogatory terms directly to the children.
The father also, rather than accepting that his persistent behaviour in directly discussing the litigation with the children is not appropriate, defends his right to do so and explains that the litigation will continue in one way or another, as far as he is concerned, until he gets what he wants. He has made reference to going to the High Court. In the most recent Family Report, the father has made references to being prepared to go to jail. When asked about his current proposals in his final orders, including his living arrangements, Mr Clements stated:
I want compensation ($76,000,000.00) because the Court has attacked my character, letting that lady (Ms Witmore) hurt me. It is torture. I have been tormented for two years. Who the fuck are youse [sic] to stop me seeing my kids? In the event of a false ruling, the Court has to give compensation. The Court is fucked up. That little bitch, Ms Witmore, goes to jail for lying.
The father starts discussions with the children such as “So with all this court stuff,” and, “So, do you want me to keep fighting?” The children are upset that their time is taken up with this line of discussion.
The children have told Ms V that the father is not listening to them. They say he starts to listen but then goes back to the litigation. When [X] was asked about the call, he says,
“They don’t go so well. Dad talks about things he is not supposed to, then mum hangs up. I want to yell at them to stop arguing. Dad talks okay for about 10 minutes, then talks for 20 minutes about what he should not talk about. I could ask dad to stop, but he might get offended.”
When [X] was asked what his father talked about that he should not, he said, “The Court matter and talking about the children going to live with him.”
[Y], who is almost 12, said she usually spoke to her father every week and she agreed that the parents ended up arguing and that the mother would hang up the phone. [Y] was reluctant to discuss in detail anything that happened. Ms V assessed that [Y] felt very uncomfortable being exposed to this parental conflict.
[Z] is very young, at age seven (7), and he said the phone calls with his father were good.
The father has not learned anything or shown any insight into his conduct during telephone calls between November 2016 and November 2017. I am not satisfied that that there is any genuine benefit for the children in his irregular phone calls. They know the calls will end up in a parental dispute and also that he is not genuinely listening to them. The father spends more time talking about topics that he ought not discuss than talking meaningfully with the children.
I am most alarmed at the father’s attitude towards parenting, his willingness to engage the children in his ongoing campaign and his lack of capacity to parent or understand the emotional harm he is causing the children in his quest.
I am satisfied that the mother has an appropriate attitude towards parenting and that she is able to provide for the children’s emotional and psychological and intellectual needs. The mother has been providing secure and stable parenting for these children in the face of experiencing much distress arising from the father’s conduct since separation in 2013. She is a very competent parent. During the litigation she has continued to educate herself in relation to the challenges of parenting four children. She has attended 124 Magic and Emotion Courses through Centacare. The mother has also enrolled and completed the “Engaging Adolescents” course through Centacare. The mother is very committed to the responsibility of raising these children.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the Court in, or in proceedings for, the order; (v) any other relevant matter.
The mother and father had mutual Domestic Violence Orders back in 2014 made by consent. The Order naming the mother as the respondent and the father as the aggrieved has expired. The mother was granted an extension and variation of the Order in which she was the aggrieved. The mother sought the variation in March 2018 to include as named persons her partner and youngest child.
In 2016 the father filed an application to have the mother’s Protection Order discharged. That application is no longer on foot.
I have made reference to the Protection Order being sought by the father against the mother, filed on 8 September 2017 and the variation to remove children from the Order.[39]
[39] Mother’s affidavit 10/10/17, annexure W2.
The mother included on the Domestic Violence Order that her other child, [A], was added as a named person as the mother said she had received threats after she was born[40]. I accept her evidence relating to the father’s threats.
[40] Mother’s child post separation with Mr A.
The Court was also informed in November 2017 that the father has filed an application to vary the mother’s Domestic Violence Order. The father seeks to remove the four (4) children, [W], [X], [Y] and [Z] as named persons from the mother’s Domestic Violence Order. As well as the father seeking compensation from the State Court that he believes he is entitled to, as has happened in this Court. He is now seeking the application in the Domestic Violence Court, and the attachments that application shows that the father “Compensation for the hurt and emotional abuse I am receiving by not answering my emails for collection times with the children.”
The father sets out that he seeks compensation for the “destruction” of a (omitted) motorcycle which he maintains the mother “destroyed with her fist and feet by punching and kicking and pushing it over to the point it was unregisterable, and the options being to replace the bike with a registered one or cash compensation to the value of 2500.”
The father indicates he wants all of the children, [W], [X], [Y], [Z], removed from the domestic violence order and:
…to give information as witnesses. I will be calling on this as their point of view has been hidden.
The father asks for “Ms Witmore to be held accountable for fraud within the courtroom” and says she “broke the Delecration Act [sic]”. The father includes his repetitive insults of the Court system, only this time directs it at the “Townsville Court system” and says that:
“I personally need to see that the Townsville Court system is not curpt[sic] for everything I have done has not been heard or accepted in forms or affidavits. I have again lodged for Legal Aid and my rights as an Australian have been broken, one, right to fair trial and many more.”
The other thing the father seeks is:
“The hurt and emotional abuse I am receiving from Ms Witmore in the form of holding children from the father and refusing to organise time with the children and myself. To prmote [sic]an aggression from me and use in a legal way emotional tourche [sic], both on children and me. Put her in jail.”
And the father has annexed photographs of a new motorbike.
Having heard all of the evidence about the fathers’ demeaning and abusive comments to the mother and the manner in which he has ignored the Court Orders and told mother basically, what he says goes, I am satisfied that the father has actively acted in an overbearing, abusive, bullying ,and intimidating manner towards the mother. The father has no respect for the mother and treats her with contempt.
I am satisfied that his behaviour falls within the definition of Family Violence under the Family Law Act.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As will be seen from my comments elsewhere in this judgment, I consider it is imperative that the Court make final Orders. This is because these children need certainty and security in their living arrangements, despite what the father has been telling them about coming to live with him and his ongoing Court battle for them. The mother needs to be free of the tirade of abuse directed to her by the father through the litigation, through his emails to her lawyer, through the children and through his phone calls to the children.
Moreover, the litigation in my view is being used by the father as a platform or vehicle to continue his abuse of the mother. The father’s juvenile requests for compensation of millions of dollars and the Orders sought by him as set out in his case outlines and Responses, demonstrate his contempt for the Court and his desire to prolong the litigation and cause the mother as much distress as possible.
The cost to the public purse of this litigation is significant. There have been five (5) Family Reports, a psychiatric assessment, the presence of these experts for cross-examination, the appointment of an Independent Children’s Lawyer and hours of court time allocated over the years.
The father has failed to show respect not only for Court Orders but to the Court and justice system as I have referred to elsewhere.
The father has told the children he will “lodge another application if he does not win”. Given the time and expense directed to this matter and the effect of ongoing litigation on the mother and children, it is obvious that the legal threshold in Rice and Asplund [41]will apply to any further applications.
[41] Rice & Asplund (1979) FLC 90-725.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
The nature of the father’s communication is that it is vast, abusive and, at times, threatening. I have had regard to the emails contained in the bundle tendered by the ICL[42]. These are examples of the father’s ongoing campaign. He has sent many emails long after the trial first concluded on 3 August 2017 to the ICL, solicitor for the mother and my associate. Some are addressed to my associate including an email in October 2017 which includes in part:-
“I am showing you this text wanting an answer from the court system who the fuck is telling my children they are not aloud [sic] to speak to me and this will be your last chance/attempt to give me a fair trial from hereon in.”
[42] Exhibit ICL 6
Other emails include the father’s email written on Saturday, 12 August 2017 , says:
“I have called contempt of court and made official complaints. If nothing done to Ms Witmore, that means this is a lawless society and I don’t have to listen to the rules, just like the people in the court and Ms Witmore. I will be collecting our children when I get back for I will not be with drawn from their lives due to false allegations and biased opinions.”
That is the father foreshadowing that he is going to breach the orders when he returns to (omitted) which he did.
In relation to his conduct in removing the [X] from school after the first conclusion of trial in August 2017 contrary to Orders, the father sent an email on 5 September 2017 saying :
“To whom that actually listen, yesterday I picked my son up from school and got him to help lift stuff in house and that pathetic excuse for a mother called the police and asked me to leave my daughter’s training thing. I will not be evicted from my children’s lives and if police tell me to leave, they will have to arrest me because you are only using fraud information and now you are in contempt. You will have to place a good father in jail and this is where the bill will get bigger and bigger as I need medical, you will have to take this into account as well. I will pick up all children from school this Friday and Wednesday, I will be collecting [W] to help with the unpacking.”
The father’s express refusal to comply with Orders and his intention of not complying with Orders could not be clearer.
In an email of 20 August 2017, the father writes “And I have shown the people in (omitted) are in contempt of court.”
As to the father’s unauthorised removal of [X] from school in September 2017, the mother subsequently found out that the father has used the opportunity during his “online gaming” time with [X] to tell him he would be coming by to collect him. In the messages the father also questioned [X] on his future living arrangements and told him:
“Your lying hoe of a mother got to you and you can’t think or remember who I was. You can only think how your mother has portraid [sic] me.”
The texts of those messages are annexed to the mother’s material and form part of Exhibit ICL6.
As can be seen, after the trial concluded in August 2017, the father has been unable to contain himself from denigrating the mother in a most disgraceful way directly to [X], aged 14 whilst playing the online computer game.
The mother subsequently found out that the father informed [X] he would be picking [X] and the other children up from school on the upcoming Friday and they would be spending weekend time with him. This is the sort of comment that the father was making in Court during what were then final submissions in August 2017.
The Father told the Court what “would be happening in the future”. Given that the father repeated this several times, I cautioned the father about his manner of telling the Court what would be happening, and reminded him these decisions were being considered by the Court and were not his decisions to make. Nonetheless the father returned to (omitted) and acted completely contrary to and in breach of Orders, without any reasonable excuse.
The father could have been having time with the children when he returned to (omitted). There were negotiations between the mother’s lawyers and the father, seeking to organise time during the week between the father and the children; however, the father refused to cooperate in providing his residential address, or providing the information in relation to his claimed fatal medical condition. Again the father chose to argue rather than come to an agreement and actually spend time with his children.
The father will be seen throughout the transcript attempting to use legal or academic terminology. This is to point where his statements have lost all meaning. The father himself does not understand what he is saying, but he clearly enjoys representing himself and having the Court room as his platform.
In prolonging this litigation and commencing new litigation, I am satisfied that the father is continuing his campaign and rage against the mother, as identified by Dr R.
The father has made this clear through the constant stream of emails which he sends routinely to the ICL, the mother’s solicitor and my associate, that:
“If nothing found soon, I will have to break whatever rulings to see them.”
At the conclusion of the trial on Friday, the 24 November 2017, when the matter was adjourned, the first thing the father said was, “So does that mean I am not seeing the children again at Christmas”. The answer to that was in his own hands. If he wished to do the intake procedures he would see his children. He is not prepared to do the intake procedures. He is therefore not genuinely interested in seeing his children at Christmas or any other time.
Emails can be seen in Exhibit ICL 6, of the father complaining about “broken procedures” and says that because of the broken procedures – (which amounts to his refusal to do the intake procedures at Relationships Australia); that he has been “held back from seeing his children and fraud in the courtroom”.
In the email of 15 October 2017, the father says that he cannot get in contact with his children and he has just called again and he is not going to wait for the next “fake court proceedings”. He then wrote:
“Making it clear again and for the last time get Ms Witmore to work for the common goal for the children (yeah right, that person have that ability bullshit. just a slut as for prof [sic]for that statement. The children’s lawyer I sent her porn of Ms Witmore has posted on the net. And that stayed quiet[sic].)”
He then complains:
“I’m emotionally abused here and you’ve no right get an earlier court date for the children and myself please.”
Then:
“Just realised that Judge Willis said in court that she doesn’t care what the children want and would not accept information for my case but I’m asking again.
From Mr Clements.”
This theme is repeated in other emails.
On 19 October 2017 the father sent an email to the mother’s solicitor and the Independent Children’s Lawyer. He wrote directing the ICL to find another Contact Centre and “If nothing is found soon I will have to break what ever rulings to see them. Because they were made from unfair procedures broke [sic] rules from Australian government. “
The following day Friday 20 October 2017, he wrote again saying he has asked for another Contact Centre, accusing the parties of negligence, hurting the children and helping with the cover up of fraud from Ms Witmore. The father signs off saying he needs a lot of things cleared up depending how that goes, suggests he is thinking of walking away or out of the court proceedings “calling contempt form[sic]the information I have been talking about. And yes I will go strait [sic] to my children.”
Late on the night of Monday 23 October 2017 at 10:20 pm, the father again wrote to the Independent Children’s Lawyer, the solicitor for the mother and my associate. When questioned about this late email, curiously the father could not recall where he was when he wrote this just a few weeks prior.[43] A reading of the email shows the father ranting and complaining. His email is entitled “contempt of court”.
[43] The hearing resumed on 24 November 2017.
The father anticipates that on the forthcoming Court date of 23 November, 2017 he will “walk from the court house and I expect they will call me in contempt to try to shut me up.” The father concludes that he “will go to jail if the judge continue to give an unfair trial.” The father accuses the Independent Children’s Lawyer of being in collusion with the mother’s lawyer.
The father has pretended to the children that he has a fatal condition and may not be seeing much of them anymore, as referred to elsewhere in these reasons. The father was shown an email he wrote late at night in October. The evidence he gave that he might have been in hospital and that he may have had some sort of attack and he would have written the email when he thought he was dying was implausible and unconvincing. It seemed at that stage, that the father had just descended to a level of simply wishing to consume and waste the Court’s time.
Parental Responsibility
In terms of the presumption of equal shared parental responsibility, I am satisfied that the presumption does not apply as the father has committed acts of family violence.
I am also satisfied that the presumption is rebutted as not being in the best interests of the children, given my findings about the father’s family violence. Also it would be impossible for the mother to be able to have any sensible dialogue with the father regarding long-term issues, given the communication difficulties I have referred to elsewhere. I am also satisfied that the father holds the mother in contempt. He tries to create conflict and refuses to be cooperative, even on minor issues. At times, I am satisfied he does not even know what he is saying . The father speaks to the mother in abusive terms.
It is deeply concerning that five years after since separation, the father is still hostile and overtly angry directly to the mother. I have no confidence in his ability to make any decisions that are child-focused. The decisions he makes are centred on what he wants and without any regard to the children.
I intend to make the order for the mother to have sole parental responsibility. I am satisfied the mother will exercise this decision-making in a child-focused way.
Summary
Having made an Order for sole parental responsibility, I must determine what Orders are in the best interests of the children.
The mother and the ICL submit that the children should live primarily with the mother.
Having considered all of the evidence, I am satisfied that it is in the best interests of these children that they live with their mother. It is obvious from what I have said in this judgment that I consider the mother has the intellectual and emotional capacity and maturity to provide for all of the children’s needs. The mother has shown a maturity and capacity in her parenting through very difficult times. The mother has kept the family together post-separation and ensured that all of the four children are housed, educated and live in safe family environment with their needs being met. I am satisfied that all of the children have a close and loving relationship with her. With the benefit of the mother’s parenting skills, these children have a chance of achieving their full potential in life. This will not happen if the children live with the father.
The issues which the Court is concerned about are generally beyond the understanding of the children and the long-term effects upon them of the father’s conduct. I do accept that the children have enjoyed the time with their father, however, I also accept the evidence that, as time marches on, the children are appropriately becoming involved in their own circle of friends and lives and they are becoming more aware that their father always wants to talk about the litigation and has a short attention span in relation to their interests.
Notwithstanding that I have made an Order for sole parental responsibility, I have nonetheless considered the fathers’ proposal. Having regard to all of the section 60CC factors, I am satisfied that it is not in the children’s best interests to live with the father, or to spend equal time and/or significant and substantial time with the father. That is because of the family violence which the father engages in with the mother, and the risk he poses in undermining their loving relationship with the mother. To make an Order that the children live with the father or spend equal time or significant and substantial time with the father, would result significant challenges and distress for the children, as their father is not able to accommodate their needs (emotional or psychological), I am not satisfied he has the parental capacity to provide an acceptable level of parenting and the result for the children would be that their loving relationship with the mother would be undermined. This is due to the father’s continuing abuse and anger directed to the mother. The father, in my view, would not tolerate the children holding any other view other than one which accords with his own. As Ms V said, the father is making these children chose between loving their mother and loving their father. Losing their association with the mother would leave these children in a desperate situation and would not, at any level, be in their best interests.
As to the time that the children should spend with the father, Mr Fellows of Counsel for the ICL submitted that it was a very difficult decision for the ICL. The ICL sought to create an opportunity for the father to maintain a meaningful relationship with the children, whilst bearing in mind the long-term destructive damage of the influences of the father that will be caused to the children whilst in his care.
The ICL had been weighing up the costs and benefits to these children in an Order providing for some form of continuing contact. In terms of supervision, the ICL supported Ms V’s evidence that no ordinary layperson would be able to make the father contain his derogatory remarks or prevent him directly discussing the litigation or overcome his belief that the mother has lied to the children. In this matter I do not accept that ongoing supervision is in the children’s best interests. Nor is it sustainable. I am troubled by the prospect of a prolonged period of supervision at the end of which more reports are prepared. To do so would simply prolong the litigation and enable the father to continue to perpetrate his abuse. I am satisfied that the father will not change his attitudes and that he has no insight into his condition.
I am deeply disturbed at the lack of capacity of the father to parent and his lack of insight into his own behaviour. He continues to abuse and denigrate the mother directly to the children without any evidence that he is going to desist from that behaviour. He continues to act erratically and in defiance of Orders and I am satisfied that he will continue to do so.
I am satisfied that the father will continue to communicate his demeaning views of the mother and his beliefs about her to the children. The father still shows no sign of understanding what is wrong with his discussions with the children or why he ought not demean and insult her to the children. Significantly reducing the time that the children spend with the father would hopefully ameliorate the risk of harm.
The Family Report Writer predicts that [Y] and [Z], the two youngest children, are likely to become more upset and distressed with the father’s continued open criticism of their mother. This may lead the children being reluctant to spend time with their father. [W] and [X], according to the Family Report Writer, may feel a divided loyalty and pressure to agree with their father when he criticises their mother, even if they do not believe what he is saying. [W] and [X] may feel they have to take the father’s side, to the extent of openly rejecting their mother and stating to the father that they want to live with him, even if their preference is to continue to live with their mother or live in a shared arrangement between the two households.
In his final submission, the father says that he would never say anything bad about the mother. I do not accept this. I am of the view that the father will continue to coerce [X] and [W] into running away to live with him or move in with him, as he has done in the past.
At the conclusion of this hearing, I ordered that the supervision period continue whilst the court considers its decision. It is open to the father to undertake the intake procedures. I consider that this matter needs to come to an end.
The father is uncontainable and unrepentant. He is fixated on retribution towards the mother. The father’s final position to the Court in November 2017, was that he continued to seek compensation of $760,000,000 for his hurt and distress. It is clear, from the way the father has conducted himself and all of the evidence, that he is treating this litigation with contempt. He is trying to draw out the process.
I am satisfied that, having considered all the evidence and primary considerations, the Order in the best interests of the children is the Order sought by the Mother and Independent Children’s Lawyer that is for daytime contact, only once a month. In making this Order the Court is satisfied that this is the only time that the children should spend with the father.
For the reasons outlined, the handovers will happen to and from the Contact Centre in (omitted), or at any other Contact Centre nominated by the mother from time to time.
That is the only way that I can contemplate the children spending time with the father without their own loving relationship with the mother being undermined. The father is driven by the issues of his strongly held beliefs of the mother and there can be no expectation, while he refuses to obtain any treatment for his condition, that he will ever desist.
As for telephone time, given the abusive way the father has treated this opportunity to communicate with the children, there will be no telephone time between the father and the children, unless the mother is able to make arrangements to utilize a supervision centre for this purpose. The father has demonstrated that he simply uses the opportunity to have inappropriate conversations with the children, and then to abuse the mother when she intervenes.
For years the father has used telephone time as another platform to engage in his ranting about the mother and the court system. If and when the mother is able to secure a supervision service to monitor the phone calls, the father will be responsible for any cost involved. If and when the mother is able to secure a supervision service to supervise the telephone calls, there will be one telephone call once each fortnight between the children and the father, (on a day and time to be nominated by the mother from time to time) as well as special occasions being Fathers’ Day, the Father’s birthday and each of the children’s birthdays, and Christmas Day. If and when the mother is able to secure such a supervision service, she will advise the father in writing of the identity of the service and the father will need to comply with all of their conditions. Other than phone calls supervised by a supervision service, the father is not permitted to contact the children by phone or in any other manner.
Given the erratic behaviour demonstrated by the father contrary to Orders over these past five years, the father will be restrained from removing the children from any person or place or institution at which the children are placed by the mother (including school or extracurricular activities), contrary to the terms of the Orders. In other words the father is not permitted to just arrive at school or the children’s sport and remove them from the care of the school or sport (or similar). The mother will be permitted to provide a copy of these Orders to the relevant authorities.
In the event that the father removes or retains a child contrary to the terms of this order as he has done in the past, a recovery order is to issue and lie in the registry, to be uplifted upon the mother filing an affidavit deposing to the father acting contrary to these orders. I will issue further restraints preventing the father from holding over the children or removing them from school or other place they attend when in the mother’s care.
The father can spend time with the children from 9:30am to 4:00pm on Sunday once a month. The mother is at liberty to change the Sunday to Saturday or change the weekend on which it occurs.
For the mother’s security and well-being, changeovers will occur at a Contact Centre nominated by her or, at her sole discretion, any other location.
During school holidays, the father’s time will be suspended in one half of the holiday period and this will alternate on the usual pattern. The father is not permitted to spend any time with the children, other than as set out in the Orders of the Court.
In the event that the father moves away from (omitted) again, the cost of contact will be solely a matter for the father. The father will always be responsible for the cost of the Contact Centre wherever he lives. I am satisfied that it is appropriate that the father pay this cost given the minimal amount of child support that he pays which effectively means the mother is left to support these four children.
I intend to make Orders that the Independent Children’s Lawyer in company with the Family Report Writer explain the outcome of the Orders to the children.
Given the father’s hostilities towards the Mother, I also intend that there be no contact via telephone or at the contact centre before May 2018 to allow the father to digest the contents of the judgment.
I certify that the preceding four hundred and fifteen (415) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 28 March 2018
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