Zane and Windsor
[2014] FCCA 1217
•12 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZANE & WINDSOR | [2014] FCCA 1217 |
| Catchwords: FAMILY LAW – Parental responsibility – supervised time – whether the father’s conduct and beliefs are a risk to the child – where a recommendation was made for a psychiatric report – where no psychiatric report made available – where the conduct and behaviour of the father gives the Court serious concerns. PRACTICE & PROCEDURE – The Constitution – right to a jury trial – where no right exists in the Federal Circuit Court. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 65D, 61DA, 65DAA and 65DAB Commonwealth Of Australia Constitution Act 1900 (Cth), ss.80 and 109 Federal Circuit Court Act 1999 (Cth), ss.11 and 53 |
| Goode & Goode [2006] FamCA 1346 Hall & Hall (1979) FLC 90-713 MRR v GR [2010] HCA 4 Murphy & Murphy [2007] FamCA 795 R & R: Children’s Wishes (2000) FLC 93-000 |
| Applicant: | MS ZANE |
| Respondent: | MR WINDSOR |
| File Number: | CRC 288 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 29 November 2013, 2 and 3 April 2014 |
| Place of hearing: | Coffs Harbour |
| Date of Last Submission: | 3 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Priestley |
| Solicitors for the Applicant: | Savage & Love |
| Counsel for the Respondent: | Ms Oliver and then Mr Windsor in person |
| Solicitors for the Respondent: | Michelle Harding Lawyer and then Mr Windsor in person |
| Counsel for the Independent Children’s Lawyer: | Mr Theobald |
| Solicitors for the Independent Children’s Lawyer: | Flintoff Lawyers |
THE COURT ORDERS THAT:
The mother have sole parental responsibility for X born (omitted) 2008 (“the child”)
By consent, the child live with the mother.
The child spend time with the father as agreed in writing or failing such agreement, as follows:
(a)During the school term, every second weekend from after school on Friday until 5.30pm Sunday.
(b)By consent, during school term from after school until 5.30pm each Wednesday, with the father to return the child to McDonalds (omitted), unless otherwise agreed.
(c)By consent, during the second half of the summer school holidays and the first half of the remaining school holidays.
(d)By consent, from 4.00pm Christmas Eve until 5.00pm on Christmas Day in odd numbered years.
(e)By consent, from 4.00pm Christmas Day until 5.00pm on Boxing Day in even numbered years.
(f)By consent, from 4.00pm on the day before Father’s day until Father’s Day 5.00pm and that any provision that is inconsistent with this paragraph is suspended.
(g)By consent, any time the child by these orders is to spend with the father from 4.00pm on the day before Mother’s Day until 5.00pm Mother’s Day is suspended, with the intent that the child spend that time with the mother.
(h)By consent, on the child’s birthday at times agreed between the parents and failing agreement from 3.30pm to 5.30pm on a weekday. If the child’s birthday falls on a weekend, the child is to spend time on Saturday 9.00am to 3.00pm with the mother and on Sunday 9.00am to 3.00pm with the father and that any provision that is inconsistent with this paragraph be suspended.
(i)By consent, the child spend time with the father on the father’s birthday from 3.30pm until 6.00pm and that any provision that is inconsistent with this paragraph be suspended.
(j)By consent, at each alternate Easter commencing 2015 from 9.00am Easter Saturday until 5.00pm Easter Sunday and that any provision that is inconsistent with this paragraph be suspended.
By consent, the father may contact the child by telephone at 6.00pm on Mondays and Thursdays while the child is not in his care and the mother is to provide a telephone number to the father where the child is contactable at the time.
By consent, the mother is not to use any illicit drugs while the child is in her care.
By consent, each parent is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
Unless otherwise agreed between the parties:
(a)The time the child spends with the father in accordance with orders 3 (a), (c), (d), (e), (f), (g) and (j) above are to occur under the supervision of the paternal grandmother, Ms R (“Ms R”), at Ms R’s home or by Ms L (“Ms L”) at Ms L’s home (or with some other person and at some other location as agreed to by the parties in writing), except for the hours between 9.00am and 3.00pm.
(b)Holiday time may be spent away from the home of Ms R or Ms L or of such other agreed supervisor, provided that Ms R or Ms L or such other agreed supervisor accompanies and supervises the child;
(c)In the event that Ms R or Ms L or such other agreed supervisor are unable to carry out the supervision required by these orders, then the father must so notify the mother in writing (including by text message) and the time with the father for which Ms R or Ms L or such other agreed supervisor cannot supervise, shall not take place.
(d)The father is to notify the mother of the address of Ms L’s home, if Ms L is to supervise the father’s time.
(e)All supervision pursuant to this order will cease on 4 September 2022, when the child turns 14 years of age.
That unless otherwise agreed between the parties, all changeovers shall take place at McDonalds, (omitted), NSW.
That neither party shall denigrate the other, nor the other’s family in the presence of or within the hearing of the child and each party shall remove the child from the presence of any third party who denigrates the other parent in the presence of or within the hearing of the child.
Both parents shall have regard to the views of the child in the event that the child wishes to telephone the other parent and shall assist the child to do so, should she so wish.
In the event of a medical procedure affecting the child, the parent with whom the child is spending time or living shall inform the other parent as soon as possible of that procedure, preferably in advance and both parents should be entitled to access to the child’s medical information.
The matter be removed from the list of cases awaiting finalisation.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are included in these orders.
THE COURT NOTES WITH THE CONSENT OF THE PARTIES THAT:
The mother will actively consider agreeing to the time the child spends with the father in accordance order 3(a) being extended to before school the next day (Monday) from the beginning of term 3, 2014 and the mother will notify the father of her decision in writing within 7 days of the end of term 2, 2014.
IT IS NOTED that publication of this judgment under the pseudonym Zane & Windsor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 288 of 2012
| MS ZANE |
Applicant
And
| MR WINDSOR |
Respondent
REASONS FOR JUDGMENT
This is a parenting application commenced by the applicant mother on 25 October 2011 in the Local Court of New South Wales at Coffs Harbour, subsequently transferred to this Court, seeking various parenting orders in respect of the child of the relationship X, born (omitted) 2008 (currently aged five years) (“the child”), as updated, in accordance with a minute of proposed order as sought at the hearing, to the following effect:
1. That the mother have sole parental responsibility for the child.
2. That the child live with the mother.
3.1That the child spend time with the father strictly under the supervision of the paternal grandmother, Ms R:
(i)From 4 pm on Fridays to 4 pm on Sundays on alternate weekends at the paternal grandmother’s home;
(ii)Until the child commences school from 9 am to 5 pm on Wednesdays;
(iii)Once the child has commenced school, from after school until 6 pm on Wednesdays, and;
(iv) At such other times as the parties may agree.
3.2In the alternative, if the paternal grandmother will not supervise, for two hours fortnightly at Interrelate (omitted).
4.That unless otherwise agreed between the parties the changeover shall take place at McDonalds, (omitted), NSW, for time not being spent at Interrelate (omitted).
5.That neither party shall denigrate the other, nor the other’s family in the presence of or within the hearing of the child and either parent shall remove the child from the presence of any third party who denigrates the other parent in the presence of or within the hearing of the child.
6.Both parents shall have regard to the views of the child in the event that the child wish to telephone the other parent and shall assist the child to do so should she so wish.
7.In the event of a medical procedure affecting the child, the parent with whom the child is spending time or living shall inform the other parent as soon as possible of that procedure, preferably in advance and both parents should be entitled to access to the child’s medical information.
The father filed his Response on 1 June 2012 and now seeks parenting orders as set out in his case outline document, to the following affect:
1.That the child live with the mother.
2.That the child spends time with the father as follows:
(a)Every second weekend from Friday at 3 pm until Monday at 9 am.
(b)From 9 am Wednesday until 9 am Thursday.
(c)The second half of all school holidays.
(d)From 4 pm on Christmas Eve until 5 pm on Christmas Day in odd years.
(e)From 4 pm on Christmas Day until 5 pm on Boxing Day in even years.
(f)From 4 pm on the day before Father’s Day until Father’s Day 5 pm, and that any provision that is inconsistent with this paragraph be suspended.
(g) On the child’s birthday, at times agreed between the parents, and failing agreement, from 3.30 pm until 5.30 pm on a weekday. If the child’s birthday falls on a weekend the child is to spend time on Saturday with the mother and on Sunday with the father, and that any provision that is inconsistent with this paragraph be suspended.
(h)From 5 pm Easter Saturday until 5 pm Easter Sunday, and that any provision that is inconsistent with this paragraph be suspended.
3.That the father may contact the child by phone at 6 pm on Mondays and Thursdays whilst the child is not in his care.
4.That the child spends time with the father on the father’s birthday, from 3.30 pm until 6 pm and that any provision that is inconsistent with this paragraph be suspended.
5.That the mother is not to use any illicit drugs while the child is in her care.
6.That each parent is hereby authorised to obtain from the child’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
The matter was heard in the Coffs Harbour circuit. The busy nature of that circuit was such that the matter was not reached on 28 November 2013 when it was originally listed and, therefore, the matter commenced on 29 November 2013. On 29 November 2013, the mother was represented by Mr J Priestley of Counsel. The father was represented by Ms Oliver of Counsel. The Independent Children’s Lawyer was represented by Mr Theobald of Counsel. The matter did not conclude on 29 November 2013 and was listed for a further day on 2 April 2014.
On 2 April 2014, the matter was listed for resumed hearing. When the matter was called, the mother was again represented by Mr J Priestley, the father by Ms Oliver and the Independent Children's Lawyer by Mr Theobald. The parties indicated that they would like the matter to be stood in the list to allow some negotiations to take place. At 1.30pm on 2 April 2014 when the matter came back before the Court, Ms Oliver sought leave for both her and her instructing solicitor to withdraw. The Court was informed that the basis of the application to withdraw related to the father signing draft proposed terms of settlement with words “signed under duress”. After a short adjournment for the father to again seek advices from his legal representatives, the application for leave to withdraw was granted and the matter then proceeded with the father representing himself. Given that the matter then re-commenced after 2.00pm on 2 April 2014, it was then allocated a third hearing date on 3 April 2014.
Despite the matters referred to above, the father when self-represented indicated that he agreed to a number of proposed orders as agreed to by the mother and Independent Children’s Lawyer. Given the parties reached agreement, those orders will be made by consent being orders as set out in Exhibit “Court 2” and being orders 2, 3(b), (c), (d), (e), (f), (g), (h), (i) and (j), 4, 5, and 6 as set out at the commencement of these reasons. The parties also agreed to the Court noting that the mother would actively consider agreeing to the time the child spends with the father on the weekend being extended to before school the next day (Monday) from the beginning of Term 3, 2014 and the mother would notify the father of her decision in writing within 7 days of the end of Term 2, 2014.
As a result of the parties’ agreement, there were then a limited number of matters that remained in dispute, but in particular:
a)Parental responsibility. The mother proposed that she have sole parental responsibility whereas the father proposed equal shared parental responsibility.
b)Supervised time. The mother proposed that the father’s weekend time be supervised by either Ms R (“Ms R”) or Ms L (“Ms L”). The father maintained that there was no need for any supervision. The parties had reached agreement, however, that the father’s time would otherwise commence each alternate weekend from after school on Friday to Sunday evening (although the father wished Monday morning) on the basis that the mother would consider an extension of time to the Monday morning for the commencement of term 3, 2014.
There appear to be a number of agreed facts:
a)On (omitted) 1976, the father was born and he is currently 38 years of age.
b)On (omitted) 1984, the mother was born and she is currently 29 years of age.
c)The mother has 3 brothers, being the child’s maternal uncles, namely Mr C, Mr B and Mr G.
d)The mother’s mother is Ms G and her father is Mr T. Ms G lives in (omitted) and Mr T lives on a farm near (omitted).
e)The father’s father is Mr J born (omitted) 1947 (currently 67 years of age) and his mother is Ms R born (omitted) 1949 (currently 65 years of age) (“Ms R”).
f)The father lives in a household as part of a houseshare arrangement with Ms L, born (omitted) 1984, currently aged 29 years (“Ms L”). Ms L has two children namely A born (omitted) 2006 (aged 7 years)(“A”) and B born (omitted) 2011 (aged 3 years) (“B”). The father and Ms L appear to have houseshared both at homes in (omitted) and more recently at (omitted), which is a home on a 6 hectare property with a large garden.
g)On 16 September 1999, the father was convicted of using offensive language in/near a public place/school (Exhibit “D”).
h)On 20 June 2002, the father was convicted of a common assault and placed on a 2 year bond.
i)On 19 September 2002, the father was convicted of two counts of common assault and two counts of contravening an Apprehended Domestic Violence Order and received a nine month prison sentence, suspended on entering into a bond under s.12 of the Crimes (Sentencing Procedure) Act1999.
j)On 15 August 2003, the father was convicted of an assault occasioning actual bodily harm and received nine months imprisonment, with six months served. His appeal to the District Court of New South Wales on 17 October 2003 confirmed the sentence.
k)On 17 February 2005, the father was convicted of receiving and disposing of stolen property. His appeal to the District Court of New South Wales on 1 August 2005 confirmed his conviction.
l)On 11 December 2006, the mother had a charge of driving while licence suspended dismissed under s.10 of the Crimes (Sentencing Procedure) Act1999.
m)In June 2007, the parties commenced a relationship.
n)On (omitted) 2008, the child was born.
o)On or about 18 September 2008, the parties separated.
p)In mid-January 2009, the parties resumed cohabitation.
q)Between March 2009 and August 2010, the mother claimed that there were intermittent assaults on her by the father.
r)In August 2010, the parties’ relationship ended.
s)On 15 September 2010, the father kept the child and refused to return her to the mother (“the first retention”).
t)On 25 October 2011, (being the commencement of these proceedings) the mother sought a recovery order and a live with order for the child.
u)On 1 November 2011, the child was returned to the mother pursuant to an order of the Local Court of New South Wales at Coffs Harbour. That is, the father had retained the child for about 6 weeks.
v)On 5 March 2012, the Court provided an interim order for the child to live with the mother with equal shared parental responsibility for the parents and for the father to spend time with the child. He had not spent time for some 5 months since about 1 November 2011.
w)On 11 April 2012, the child was spending time with the father on Sundays and Wednesdays from 9.00am to 5.00pm and the parties were completing a parenting course.
x)In May 2012, there were allegations of threats or assaults between the father and the mother’s brother, Mr B, which occurred during a changeover. No convictions were entered and no Apprehended Violence Orders made.
y)On 1 August 2012, there was an assertion of some domestic violence between the father and his new partner.
z)On 21 November 2012, the father once again retained the child after the child had spent time with him (the “second retention”).
aa)On 5 December 2012, the Court made a further recovery order for the child in the mother’s favour. The father had retained the child for approximately 2 weeks.
bb)Between January 2013 and September 2013, the father had spent supervised time with the child. Between March 2013 and September 2013, that supervision had been effected by Ms L.
cc)The mother currently resides at (omitted) with her mother and discloses her occupation as (omitted), although she is currently unemployed.
dd)The father’s residence was unclear, having lived in (omitted), (omitted) and (omitted) at different points in time. His accommodation included a caravan at his father’s property, a room in a house in (omitted), a room in a home in (omitted) and also on a farm at (omitted), near (omitted).
ee)The father was in receipt of a full time carers’ pension for his own father who lived near (omitted).
The mother relies on the following:
a)Her affidavit, sworn/affirmed 27 September 2013 and filed on 30 September 2013.
b)Her affidavit sworn 28 November 2013 and filed on that day.
c)The affidavit of Ms G, (being the maternal grandmother) affirmed 30 September 2013 and filed on that day.
The father relies on:
a)His affidavit affirmed 19 February 2013 and filed on that day.
b)His affidavit affirmed 18 September 2013 and filed on that day.
c)His affidavit affirmed 6 November 2013 and filed on that day.
d)The affidavit of Ms R, (being the paternal grandmother) affirmed 18 September 2013 and filed on that day.
e)The affidavit of Dr S affirmed 24 September 2013 and filed on 24 September 2013.
f)The affidavit of Ms L affirmed 22 May 2013 and filed on that day.
The father filed a further affidavit on 27 March 2014 affirmed on 25 March 2014 despite the matter being part-heard. The father was granted leave to rely on paragraphs 29-35 of that affidavit.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Mr A’s Family Report
15/2/13
Court
Court 2
Document as per agreement of the parties initialled by Judge Kemp
Court
A
Document being diary record of the mother
Mother
B
The paternal grandfather’s book “(omitted).
Mother
C
(omitted) Medical Centre letter
Mother
D
Summary document regarding the subpoenaed documents including those documents in the subpoenaed material referred to within that document.
Mother
1
Letters from Michelle Harding to Flintoff Lawyers
29/8/13
Father
2
Report of Dr T ((omitted) Health)
21/10/09
Father and ICL
3
2 notes of Dr M
Father
4
Letter from General Practitioner to Dr S
22/7/13
Father
5
Letter from Michelle Harding to Dr S
9/9/13
Father
6
Letter from Michelle Harding to Dr S
12/9/13
Father
7
Photographs of the child, her neck and head
30/3/12
Father
8
Bundle of 11 photographs of the child
Father
9
(omitted) Hospital Discharge notes and letter from (omitted) Family Practice
21/11/12
Father
10
Father’s clinical urine drug test
5/7/13
Father
ICL2
Mother’s drug test results
ICL
The hearing concluded on 3 April 2014 with the Court reserving its decision.
On 17 April 2014, the day before the Good Friday Easter holiday, the Court was contacted on an urgent basis with the mother filing an Application in a Case seeking an order that the father return the child together with a Recovery Order, if he failed to do so. The matter was listed and dealt with by a telephone link up between the Court, the mother’s solicitor and the father at approximately 6.00pm on 17 April 2014. On that occasion, the Court made the following orders:
a)The mother be granted leave to proceed for the purpose of the recovery order on her Application in a Case filed today, made returnable instanter.
b)The mother’s solicitor be granted leave to appear by telephone.
c)The father be granted leave to appear by telephone.
d)Having heard the mother’s solicitor and the father, the father return the child to the mother at the McDonalds (omitted) at 5.30pm, 18 April 2014.
e)In the event that order (d) has not been complied with, a recovery order issue in the usual form as follows:
i)Pursuant to s67U of the Family Law Act 1975, a recovery order issue directed to the Marshall of the Federal Circuit Court, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child forthwith and to return/deliver the said child to the applicant mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
The Australian Federal Police confirmed on 18 April 2014 that the father had returned the child to the mother.
The Court has not relied on any of the matters set out in paragraphs 13 and 14 above in the determination of its decision. Those matters occurred after the evidence had closed. Indeed, given the urgent circumstances of the mother’s application, the Independent Children’s Lawyer was not heard on the application.
During the course of the hearing of the application, the father raised issues concerning the Court’s jurisdiction to make orders and in particular, challenged the Court’s authority over him, referring to s.109 of the Commonwealth of Australia Constitution Act 1900 (Cth) (“the Australian Constitution”) and the Magna Carta and further, his right to a jury trial. The father also referred to the “Bill of Rights Act”. From what the Court could understand, he believed that his hearing should have been conducted before a jury and that his legal representatives and the Court were remiss in not pointing out that matter to him. There is no Bill of Rights legislation in the Commonwealth of Australia or in New South Wales. However, the Court has had regard to the following provisions of the Australian Constitution.
Section 109 of the Australian Constitution provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The Court refers to s.80 of the Australian Constitution which provides:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.
As the Court has set out above, s.80 provides for a right to a trial by jury in criminal cases where there is an offence against any law of the Commonwealth and then only for those offences which the Commonwealth Parliament from time to time determines shall be indictable.
Section 11 of the Federal Circuit Court Act 1999 (Cth) sets out:
(1) For the purposes of the exercise of the jurisdiction of the Federal Circuit Court of Australia, the Federal Circuit Court of Australia is to be constituted by a single Judge.
(2) The Federal Circuit Court of Australia constituted by a Judge may sit and exercise the jurisdiction of the Federal Circuit Court of Australia even if the Federal Circuit Court of Australia constituted by another Judge is at the same time sitting and exercising the jurisdiction of the Federal Circuit Court of Australia.
Further, s.53 of the Federal Circuit Court Act 1999 (Cth) sets out
A civil proceeding between parties in the Federal Circuit Court of Australia is to be determined without a jury.
Noting the matters contained in paragraph 15 above, the Court has set out the matters in paragraphs 16-21 so as deal with what it understands to be a concern raised by the father, which was not articulated by him during the course of the hearing itself, but which he referred to on the hearing of the mother’s application for a Recovery Order.
The Evidence
Dr S
On 29 November 2013, Dr S, as a registered clinical psychologist, gave evidence. She had received a referral from Dr A in July 2013 to provide a “psychological assessment under a mental health care plan” (see Exhibit “4”). Her affidavit was read and she was cross-examined.
It was considered appropriate for her evidence to be taken first, as the family consultant, Mr A, had made a recommendation in his family report, dated 15 February 2013 and released to the parties on 25 February 2013, being Exhibit “Court 1”, that New South Wales health records for the father be subpoenaed and that there be a serious consideration of a psychiatric assessment for the father, if the matter proceeds. The Court notes at this juncture, that a full psychiatric assessment (not psychological assessment) would have been of significant benefit in this matter, particularly in light of the father’s presentation in Court.
Dr S’s evidence is set out in the terms of a report that she has provided, dated 23 September 2013. Dr S, as said, is a clinical psychologist and not a psychiatrist. Exhibits “5” and “6” were requests by the father’s solicitors dated 9 and 12 September 2013 respectively, addressed to Dr S describing her as “Dr S, Psychiatrist”. Nevertheless, Dr S gave evidence that she was suitably qualified to be able to provide a diagnosis, but not the prescription of any medication flowing from that diagnosis. Dr S’s report indicates that she had seen the father at an initial consultation on 31 July 2013 and then for three further sessions on 4 September 2013, 12 September 2013 and 19 September 2013, together with an interview with the father’s mother, Ms R, who she saw on 10 September 2013.
Ms Oliver submitted that Dr S had been retained given the paucity of psychiatrists available to provide reports in the (omitted) area. Indeed, Dr S gave evidence that she understood that only Dr M and Dr D fitted that description. Dr S’s oral evidence was that she did not carry out a detailed written assessment of the father, which, as she said, normally involves some 350 questions with the father reading and writing various documents. She felt that the father did not have the capacity to focus on reading and writing material and felt that there would be little utility in having him complete that task. Her view was that a clinical assessment was enough, and in that regard she examined the DASS criteria, being a depression, anxiety and stress scale which showed the father’s stress scores to be in the mild range and his depression and anxiety scores to be also in that range. The Court is of the view that it would have been assisted more by Dr S carrying out the detailed written assessment of the father which she would “normally” have carried out.
Dr S said that these were consistent with the father’s clinical presentation and that there was no evidence of any formal thought disorder, delusions or perceptual disturbances. Dr S reports that the father presented as a pleasant, lively and outspoken man, cleanly and casually dressed. He engaged well, made good eye contact during conversations and answered all questions, though he tended, she said, to veer off track a lot. Dr S also indicated that the father was quite verbose and would speak at length about subjects he felt passionately about, such as healthy living, peace amongst all nations, natural energy, fluoridation of water and the contamination of land and creeks.
Dr S reports that the father saw himself as an (omitted) and in his spare time created (omitted) using (omitted). The father reported that he had organised his work station at home so that he could work more efficiently and hoped to (omitted) at the local (omitted). Dr S noted that the father did not appear to have held any long term employment and that he had stated that, some time ago, he had worked on a (employer omitted) at (omitted), near (omitted), (duties omitted). The father claimed that he and his team had a contract to (duties omitted) using a (omitted). Dr S reports that she understood that the father had mentioned the almost “impossible” feat of (omitted) and it was likely he felt that his team had exceeded their target.
Mr Priestley examined Dr S about this matter and she indicated that she had carried out some internet searches to assess in her own mind whether the claim of (omitted) could be sustained using a (omitted). Dr S said that she believed that it could be physically done and, accordingly, accepted what the father had told her.
The father denied any abuse of alcohol, stating that he only drank occasionally. He also stated that he smoked cigarettes, about 10 per day, but that he would like to quit. The father reported occasionally using marijuana when he could not get to sleep, as he said it had a calming effect on him and stopped his brain “ticking.” Dr S reported in her oral examination that the father had said that he used marijuana up to four times per week.
The father reported to Dr S that he had only kept the child out of frustration when he felt that she was not being properly looked after. He reported that on both occasions the child had a head lice infestation and because her nails were not cut she scratched her scalp too hard and that this had become infected. The father said that he enjoyed taking the child out horse riding, to the beach or to the park and was eager to share photos of the child that he kept on his phone, which showed the child engrossed in many activities, including horse riding, playing with her pet bunny and baking muffins with her grandmother.
Of some relevance is Dr S’s description of the father’s past psychiatric history. The father denied any history of mental illness and any past involvement with a mental health professional. Dr S stated that when questioned about his referral to the (omitted) Centre and a short stay there, he reported that he was sent there by his probation and parole officer because he got very angry and was uncooperative about having to report regularly to him following a suspended sentence. Dr S stated, that based on the father’s and his mother’s accounts, she believed that he had attention deficit hyperactivity disorder (ADHD), in childhood that went undiagnosed and that some symptoms have persisted into adulthood. These symptoms being inattention, hyperactivity and impulsivity, leading to a somewhat chaotic and disorganised life, and that this explained why he has had trouble with steady employment and relationships, as well as generally managing his emotions, such as anger and frustration. The father having expressed some degree of frustration and that he tended to get very cranky when faced with what he regarded as incompetence, injustice and unfairness.
Dr S concluded that the father does not currently meet diagnostic criteria for any mental illness or disorder. It is not without relevance that the words “does not currently” are underlined in her report. Dr S stated that her report had been somewhat of a challenging experience in seeking to obtain a concise account of the father’s history, as the father had trouble situating events in time and would often go off on a tangent on a particular topic. Dr S was of the view that the father appeared to be in a happy, relaxed and stable place, which was mostly conflict free and that clinical intervention for him would ideally involve him reflecting on and understanding his difficulties so that he could learn to compensate for areas of weakness and to start taking advantage of his strengths.
Dr S believed he would benefit from learning to communicate more clearly and effectively, improving assertiveness and conflict resolution skills and learning to manage stress and frustration. Dr S did not believe that the father needed to be medicated. Overall, Dr S stated that the father appeared to be a kind and caring man, generous of his time and helpful with his family and friends. She stated that he did not seem to be an aggressive man by nature but could certainly be adversely reactive if he perceived that he was being unfairly treated. She further stated that he could come across “as a bit eccentric because of his strong and sometimes unusual/unconventional opinions and verbosity.” Dr S stated that she had no concerns about the father’s mental state and his capacity to parent the child. She stated that he appeared to be very fond of the child and was keen to have more time with the child.
Dr S was taken to a number of the subpoenaed documents, which subsequently have become exhibits. Dr S was asked to read a document prepared by Dr M on 9 February 2006, being a recommendation with respect to the father and being Exhibit “3” in these proceedings. That document records that the father had been admitted as an involuntary patient on 7 February 2006 and had been assessed as having a mental illness as defined under the Mental Health Act. Dr M is recorded in his letter of 9 February 2006, as stating that the father had been assessed as experiencing “delusional thoughts, likely auditory hallucinations and a disturbance of mood. His delusional thoughts include paranoid and grandiose themes.” The doctor recorded that the father felt under threat from current religions of the world, that he was being monitored, that he could hear voices no one else could hear and that he had special talents and powers. He further recorded the father as having “tangential disordered thought processes”. The father had been seeing the drug and alcohol counselling service at the hospital as part of a current probation and parole condition. There were concerns raised by a counsellor about his mental state and he was referred for psychiatric evaluation.
At that time, the father had also expressed a belief that he and his family were under threat because of a book his father was writing. He felt that the current religions of the world were threatened by the disclosures of this book and that there was a threat against his family. He expressed a belief that he was being monitored and that “they” could watch him through the television, as well as listen to his mobile phone, even if it was switched off. The father further said that he could “hear voices no one else can hear.” He believed that this was as a result of extraordinarily good hearing.
The father also believed that he had special talents and that he could directly control people’s actions with the power of his thoughts and that these powers were growing and that he had a special role to save the world’s environment and end government and police corruption. He felt that he had a mission to bring this teaching to the world and felt driven to communicate this to as many people as possible. The father described a dream he experienced where he dreamed his throat was cut. He said that this dream would definitely come true and that he knew who the assailant was. He would not disclose his name or contact details but did state he would not approach the man. When asked what he would do if approached he said, “defend myself by putting him in a submission hold and throwing him out and perhaps calling the police.”
Dr M further records that at the interview the father expressed that he was trying to influence him with his mind after an episode of intense staring. The father was offered a voluntary admission to hospital for treatment and assessment but declined. Dr M felt that because there was a significant risk of harm to his reputation, as well as a concern of harm to others, the father was admitted as an involuntary patient.
Dr S was also taken to a further note recorded by Dr M on 18 April 2006, also being part of Exhibit “3”, which records that the father had been enrolled with “PEET” being “Pathways, Employment, Education and Training”. The note records that the father says that he has been generally okay, but that he remained somewhat worried about the child and that he wished to employ a QC from America to take his case, as he felt he could not trust anyone local in Australia, maintaining an underlying loss of faith in the system. Further, this document recorded that the father maintained that 1000 people use him as a counsellor, that he discussed himself as humanitarian, that he was well-groomed, cooperative and had engaged with good eye contact, was not perplexed or distracted at the time. Further, that he was sad and worried about the child, was grandiose about his abilities and personal qualities and, generally, felt that the system “sucked.” These comments were accepted by Dr S as consistent with her own observations of the father.
Dr S also had regard to a letter from (omitted) Health dated 21 October 2009 to the Mental Health Review Tribunal referring to a psychiatric report for the father in relation to a hearing scheduled on 26 October 2009. The report was provided by consultant psychiatrist Dr T. That report refers to the father being a forensic patient under section 55(3) of the Mental Health (Forensic Provisions) Act 1990 since 23 September 2009 and that he was currently awaiting transfer to the Long Bay Prison. The father had been incarcerated since 15 September 2009. The report refers to the father’s discharge summary from (omitted) Hospital where he had been admitted to the Mental Health Unit in the period 7 February to 17 February 2006 and where his diagnosis was drug-induced psychosis with documented psychotic symptoms of a grandiose and persecutory nature. The father had also experienced auditory hallucinations and that this was believed to be in the context of THC abuse.
The father reported what were described as grandiose ideations and believed that he was “the most intelligent person in the world” and that “his brain should not be in jail.” Relevantly, Dr T reports that the father was transferred to the Mental Health Screening Unit at (omitted), where he presented as being “superficially pleasant and civil” but became “irate and angry when discussing about his beliefs concerning his father’s book, about his diagnosis of a mental illness or need for medications.” The father presented at the time as disorganised, irritable and hostile and became angry and threatened to sue Dr T, remaining totally lacking any insight into his illness and the need for treatment.
Dr T concludes that the father has a psychotic illness most likely schizophrenia and poly-substance abuse (alcohol and THC). Dr T concluded that there may be some intellectual impairment, with a learning disorder or borderline intelligence, and that the father remained highly preoccupied with varying well-systemised delusions of a persecutory and grandiose nature and, at the time, Dr T concluded that the father required a transfer to the Long Bay Jail Hospital for involuntary treatment as he had a significant mental illness and was a high risk of harm to his reputation and a harm to others.
After reading that report, Dr S said that this had not necessarily affected her opinion as what was described could have been a drug-induced psychotic episode rather than schizophrenia. Mr Priestley was somewhat critical that Dr S had taken on board at face value what the father had informed her without necessarily assessing or checking that information. The Court accepts that Dr S’s statement that the father denied “any past involvement with a mental health professional” cannot be sustained with respect to the clear history of involvement with the mental health professionals referred to above. To the extent that Dr S did not investigate these matters, little weight can be given to her report.
The father’s assertion that he had (employment omitted) or (omitted) in two different locations, namely (omitted) and on the (omitted) was not fully investigated. Dr S was taken specifically to paragraphs 44 and 45 of Mr A's report which stated the following:
As mentioned [the father] also spoke at length about a number of his concerns or theories. This included his concern about chemtrails, attributing this to a plan by the Rothschild, the Rockefellers and also the Illuminati to cull the population by 90 per cent for the New World Order. [The father] did talk about having some confidence that this plan may be stopped though, as the (religion omitted), which was made up of different Mafia groups around the world, was now taking on the Illuminati and the multi-rich in their own battle with them.
Paragraph 45:
[The father] also repeatedly spoke about the fact that he was suing the police in relation to how he had been treated and that the Attorney-General regularly called him for hour-long personal talks about his complaints regarding the police, the courts and the hospital, though he could not give any details of who the Attorney-General was. [The father] said that he had two police officers sacked over the charges against him and his being kept in remand, though [he] couldn't give any details of the officers or even actually the year it occurred.
Dr S conceded that whilst she was aware of those matters she did not further take them up with the father. This is of some concern. She agreed, however, that they were delusional or psychotic statements. Despite this concession, Dr S did not record that in her report and, indeed, she stated that the father did not present like that, that is delusional, to her. Dr S conceded that the father did not trust the system and that he was unhappy, but she accepted what he had said was the truth, including that he had kept the child because of a head lice problem.
Similarly, she accepted the father's history of his marijuana consumption. She further conceded that she had not carried out a psychiatric assessment in relation to the DSM-V standards as she believed that the father did not have a psychiatric diagnosis. Mr Theobald questioned Dr S about whether she had discussed with the father THC and she stated that she believed the father would become psychotic if he continued to use it “a lot”. Her recommendation was for no use but she conceded that she did not inform the father of that as she said she was not treating him but providing a report. Dr S also indicated to Mr Theobald that she had seen the father on two further occasions following her report, the latest being for one hour on Tuesday, 26 November 2013, prior to the hearing.
The Court has some real concerns about Dr S’s evidence. Those concerns were two-fold. First, Mr A clearly recommended that the father undergo a psychiatric assessment. As said, Dr S is not a psychiatrist. Although she stated that there was little difference between psychiatrists and psychologists and that she was qualified to diagnose psychiatric conditions, the Court does not accept that where there is a clear recommendation for a psychiatrist, a psychologist will suffice. The Court can take judicial notice of the fact that the training required for a psychiatrist is significantly different to the training required by a psychologist and it is, therefore, not correct to say that there is little difference between the two. Secondly, despite saying that the father did not have a psychiatric illness, even if Dr S did have the qualifications of a psychiatrist, she did not undertake a psychiatric assessment in accordance with either DSM –IV or DSM –V, relied on what the father had told her, without testing that history and failed to perform a full testing of the father, in any event.
Mr A
Mr A produced a family report on 15 February 2013 which was released to the parties and which has become Exhibit “Court 1”.
Mr A provided the following by way of background:
a)The mother stated that her relationship with the father was characterised by ongoing controlling behaviours by the father with numerous instances of domestic violence. She said that the Police attended on numerous occasions and also that there was one period of the father being held on remand for seven weeks for assaulting her. The father, however, claimed to be the victim rather than the aggressor and that there had been police bias or incompetence involved in the charges against him in relation to the issues of domestic violence. The mother also said that the relationship was heavily impacted upon by what she considered to be the father’s mental health issues, his erratic behaviours and also his heavy cannabis use.
b)The father stated that his relationship with the mother was characterised by the mother’s heavy drug use, including amphetamines, as well as her mental health difficulties with claims that she attempted to take her life on many occasions, some of these involving the police and Hospital, but many not. The father also alleged regular interference or threats by the mother’s brother and father, who he considered to be criminal figures.
c)The father claimed that the first retention of the child was as a result of his concerns over an infection to the child’s head caused by untreated head lice.
d)The father claimed that prior to the second retention of the child he had, himself, been treating the child’s hair for lice infestations every Wednesday and Sunday for several months. When he was challenged over this by the family report writer, Mr A records the father as having changed his account to say that the mother had withheld the child for 6 weeks prior to him keeping her, claiming that she had taken the child to (omitted). This account was rejected by the paternal grandmother during her interview, as she confirmed that visits had taken place, as per normal, until the father had kept the child.
e)The mother claimed that after the second retention she had suspended the child’s time with the father as she had made a report to the Department of Family and Community Services (FaCS) regarding concerns over statements which the child had made to her which left her worried about the possibility of sexual abuse or inappropriate behaviour by the father. The mother confirmed that there had been no follow up from FaCS nor any contact from the Joint Investigative Response Team (JIRT). The mother also confirmed that FaCS did not actually advise her to suspend visits but that this had been her own decision. The mother also confirmed that she had made no further contact with either FaCS or JIRT since her initial call. The mother stated that if there was no action taken by the said Department then the father’s time with the child could recommence, albeit, she was adamant that she would not support any overnight time given what she understood was the father’s “chaotic lifestyle” as, she believed, it was very likely that he would be without suitable accommodation to properly cater for the child’s needs.
f)From his review of the subpoenaed police records for the father, he refers to an incident on 14 September 2009 wherein it was reported that the father assaulted the mother while in bed, punching her several times to her head while she was pinned down, pulling her off the bed and down stairs by her hair and further punching her, biting her on her nose and arm with several resulting injuries. The father threatened to kill her if she took the child off him again, running the blunt side of a knife across her throat when she was holding the child at the time. The father has further hit her in the forehead and cheek with the flat side of the knife and then 3 times on the arms with the serrated side causing her to bleed.
g)From his review of the subpoenaed police records for the mother, he refers to the following:
i)On 18 August 2009, the mother overdosed on Lexapro and is taken to hospital.
ii)On 13 July 2011, the mother threatened to kill herself and is taken by ambulance to hospital where she is scheduled.
h)From his review of the subpoenaed hospital records for the mother, he refers to the following:
i)In May 2009, the mother reported an overdose on Panamax;
ii)On 17 July 2009, the mother overdosed on her medication (Zanex and Panadeine) and absconded prior to an assessment;
iii)On 19 July 2009, the mother called a mental health line and reported escalating depression over the past 18 months;
iv)On 18 August 2009, the mother was admitted to hospital (discharged on 19 August 2009) and reported an overdose of anti-depressants (Lexapro) which had begun in July 2009;
v)On 12 April 2011, the mother again overdosed on Lexapro and Panadol;
vi)On 18 April 2011, the mother again overdosed, did not report herself as suicidal and did not wait for any assessment or referral;
vii)On 13 July 2011, the mother presented threatening self- harm, following a domestic dispute at home;
and concludes that the records indicate that the mother was difficult to reach for follow ups and did not attend for organised sessions with a psychologist.
i)The father believed that the child should live 60% of the time with him, given the mother’s ongoing neglect of the child’s head lice.
j)The mother would not support any overnights with the father given what she described as his chaotic lifestyle and the unlikelihood that he would have suitable accommodation available to him.
k)Both parents raised serious child protection concerns regarding each other. The father’s concerns in relation to the mother related to neglect, amphetamine and other drug use, other people doing the majority of the child’s care as well as exposure to inappropriate people. The father also raised concerns about the mother’s ongoing mental health in relation to repeated suicide attempts.
l)The mother’s concerns in relation to the father related to his mental health and drug use, as well as risks to the child through his lifestyle choices, including lack of suitable and stable accommodation and exposure to inappropriate people. She was critical of the father’s controlling behaviour and the numerous incidences of domestic violence involving the police. She was also critical that he would go “missing” with nobody knowing where he was and that she believed he would say inappropriate things to the child concerning his conspiracy theories about chemtrails and that he would say things which may not be true to get what he wanted. Further, she stated that the father had never paid any child support.
m)The mother said that while she had been in a relationship with Mr R, as he had recently returned to (omitted), he was only going to be able to spend limited time in (omitted), with this, realistically, being about one week every second month.
n)The mother confirmed that she continues to smoke cannabis considering this to be costing her approximately $50.00 each week and that she had reduced her use since the parties’ separation. She confirmed that she had not used speed in ‘a couple of years.’
o)The mother referred only to one incident of self-harm in 2009 where she had taken all of her antidepressants at once in a suicide attempt. The report writer noted that the material produced on subpoena referred to above, contradicted this being the only incident.
p)The child was 4 years and 4 months old at the time of her assessment. No special needs were identified. Both parents considered her to be meeting her developmental goals and progressing well. The child presented as confident, outgoing and independent.
q)The father confirmed that he has a 16-year-old daughter from a previous relationship who lives in Queensland and with whom he spends time with during holidays. He strongly denied claims that he had any other children, despite the mother’s allegations that he fathered at least two other children with young or underage girls.
r)The father initially said that he used no drugs before stating that he occasionally smoked cannabis socially. He further acknowledged that he would fail a cannabis test if taken at the time of the report. Weight is attached to that concession. The father said that his drinking of alcohol was minimal.
s)That there were great difficulties gathering information regarding the father’s mental health. The father raised claims of police incompetence, bias against him and religious discrimination.
t)The father referred to a period in the (omitted) Centre at the (omitted) hospital (being the mental health unit), attendance upon a psychiatrist as part of his probation and parole and as being diagnosed by the hospital as “religiously delusional.” The father claimed that this diagnosis had been incorrectly applied as the hospital misunderstood him when he was explaining his father’s book about the origins of religion. The father said that he had been immediately released when his father came to the hospital and the hospital realised his statements were true. The father’s father’s book has become Exhibit “B” in these proceedings. The father maintains that his father was one of the most intelligent men living and that his book documented his father’s discovery of (omitted) and (omitted).
u)The mother maintained that her own mother had been a crucial part of the child’s life and posed no risk to the child. She said her mother worked three days a week in her own (omitted) salon and had no history or issues with drugs or alcohol.
v)The mother claimed that the father’s concerns about the child’s head lice were a nonsense given that she had taken the child to see a doctor the day before she went to see the father and that the doctor had told her that the child had dermatitis. The mother provided a letter from Dr B dated 19th November 2012 outlining this as well as a letter dated 15th February 2013 stating that the Doctor had known the mother for more than 13 years, as well as treating the child since she was an infant, and that he had never held any concerns, whatsoever, about the child’s wellbeing.
w)The mother was critical of the father’s retention of the child.
x)The mother agreed that Ms R, the paternal grandmother, was a positive part of the child’s life and was content for overnight time to be at Ms R’s home and under her general overview, trusting her to be able to protect the child and manage the father’s behaviour. Weight is attached to that concession.
y)The father’s interview was an extremely challenging experience with enormous difficulties gaining clear information or even maintaining him on topic. Many questions on issues to do with his life were often answered with long monologues that were usually not related to the topic or relevant to the current case. Many answers also tended to be relentless personal attacks upon the mother and her family. While the father did raise a number of issues about the mother, he was extremely focused on bias against him by the Police, the Courts and the Hospital and also upon the different Court cases or retribution he claimed he was organising for each. He was also very focused upon his personal relationship with the Attorney General and a number of his theories such as fluoride in the water, Chemtrails in the air and conspiracies by the Rothschilds, the Rockefellers and the Illuminati to cull the population by 90% for the new world order, although he also talked about having some confidence that these conspiracies may be stopped, as the (religion omitted), which was made up of different mafia groups around the world, was now taking on the Illuminati and the multi-rich in their own battle with them.
z)The father raised a number of issues and concerns about the mother including her cannabis use and a long history of amphetamine use (although he noted that she had recently gained weight, which suggested to him that she was not using speed any more), that she generally had other people care for the child, rather than herself and that she had failed to treat the child’s head lice notwithstanding that she was a (occupation omitted) and that he felt justified in retaining the child as the Department of Family and Community Services had done nothing. The mother acknowledged an ongoing cannabis use (see (n) above) but said that her amphetamine use was in the past.
aa)The father raised concerns about the maternal grandmother providing care for the child, though when pressed for details or reasons why, he seemed to focus upon her being a (religion omitted) who did not celebrate Christmas or birthdays, with no further suggestions of her acting inappropriately.
bb)The father was also adamant that the mother’s father was a criminal figure involved in the ‘Underbelly’ style history, suggesting that he was an assassin and a drug dealer.
cc)The father also spoke at length about the mother’s brother, Mr B, threatening to kill him and his father, as well as fracturing his eye socket when he first met him.
dd)The father also repeatedly spoke about the fact that he was suing the Police in relation to how he had been treated and that the Attorney General regularly called him for long personal talks about his complaints regarding the Police, the Courts and the Hospital, though he couldn’t give any details of who the Attorney General was. The father said that he had had 2 Police Officers sacked over the charges against him and his being kept on remand, though he could not give any details of the Officers or even the year it occurred.
ee)The father reported that he would soon have the Federal Police charge the local (omitted) Police for their failure to investigate and prosecute those responsible for putting fluoride in the water. He said he was forced to do this after he had personally visited the (omitted) Police with an article from the local paper on the topic, insisting that they arrest and charge those responsible, but they hadn’t.
ff)Ms R, the paternal grandmother, presented as extremely sensible and forthright and certainly focused upon the child and her interests. She in no way appeared to be colluding with her son (the father) and openly contradicted some statements he made to clarify that he was actually living in (omitted) and likely would continue to do so. She also confirmed that there had been no gaps in visits before the father kept the child in November 2012 and that she had seen the child herself twice a week right up to that time.
gg)Ms R was clear that she had a strong relationship with the child and that she wanted what was best for her. She stressed that most or all overnights had taken place at her home and that she was generally involved to some degree with most visits. Ms R was very open to the suggestion of the child spending every second weekend with the father at her home, and considered this to be a sensible and realistic way to organise visits, particularly given that the father was driving down twice a week and that they also didn’t get to see the child for full weekends themselves.
hh)Ms R was clear that she would put the child’s interests ahead of her son’s, if she ever felt the child was at risk and that she could certainly enforce and follow any Orders that required her to oversee visits at her home. Weight is attached to that view.
ii)The child was described as quite outgoing, confident and fairly mature. She was very well dressed, neat and tidy for the interviews and was exceptionally polite and well mannered. The child appeared quite independent with her parents, easily accepting the mother leaving and then welcoming the father. There were certainly no difficulties with transitions and the child was very keen and happy to see the father and also the paternal grandmother. Specific weight is attached to that.
jj)The father was observed to interact appropriately with the child and he was more centred, calm and focused during this time than at any other stage during the day.
kk)No formal interview with the child was considered appropriate, given the child’s age and maturity level.
Mr A provided the following evaluation:
a)The child was remarkably well adjusted and grounded considering the confused events she has been through with the changing routines with her parents and the periods of being kept away from the mother.
b)The child was certainly very keen on the relationships she holds with all of the important adults in her life and spoke about wanting to continue seeing the father and paternal grandmother.
c)There was no apprehension, withdrawal or sense of fear around the child spending time with either parent and she managed transitions easily.
d)That as the child had a history of doing multiple overnight stays with her paternal grandmother in the past that there would be an expectation that with her age, confidence and independence this would be an easily manageable experience for her again.
e)The mother has underplayed the level of her mental health issues over the past years, where she has experienced ongoing depression and has done little to address this through referrals made by the hospital. She was further not forthcoming with respect to her threats or attempts to self-harm. The mother would benefit through giving her confidence in coping, parenting capacity and her emotional availability to the child, if she was to follow through on some form of treatment or review, most likely a mental health plan and referral to a psychologist.
f)That the mother needed to address her cannabis use issue through either specific drug and alcohol counselling or within sessions with a psychologist. This, in turn, would give her greater confidence in her parental capacity particularly as she is applying to remain the child’s primary carer. The Independent Children's Lawyer tendered, as Exhibit “ICL 2”, a pathology test for the mother, which indicated a requirement for further testing with respect to cannabis metabolites detected in her system. The Court notes that the mother has agreed to an injunctive order restraining her from any use of illicit drugs while the child is in her care and this will be ordered.
g)The mother, whilst she seemed exacerbated at times about her experiences of dealing with the father and his erratic behaviours, gave the overall impression that she supported the relationship between the child and the father, regardless, and that she was committed to maintaining this and following orders of the Court. The mother was also open to different ideas about how arrangements could be improved for the child to spend further time with the father and extended family, though she seemed quite reasonably focused upon the safety issues regarding the father’s chaotic lifestyle. This observation is picked up in the agreed notation for the father’s expanded time commencing in Term 3 of 2014, if agreed to by the mother.
h)That the father’s comments about treating the child’s head lice infestation twice per week and then discovering an infestation, were fanciful. Further, regardless of whether there was a need for antibiotic treatment, this would be an issue for consultation and co-operation between the parents, and not a reason for withholding a child for long periods of time.
i)Notwithstanding the father’s repeated statements that he had made reports to FaCS there did not appear to be any investigation or any substantiation of those allegations.
j)The mother has facilitated the contact in the Orders throughout 2012 and it would appear that these visits have occurred largely without incident, as well as her provision of care for the child being seen as acceptable during that time.
k)The mother’s concerns that she feared the child had possibly been sexually abused by the father had not been pursued or investigated. Notwithstanding these concerns, the mother was open to visits with the father and the child spending overnight time at her grandmother's house. The mother’s initial refusal to allow the child to spend time with the father appeared to be a “tit for tat” response to the father retaining the child.
l)There were a large of number of concerns regarding the father’s mental health, his chaotic and disorganised lifestyle, the uncertainty of his living arrangements and a lack of faith in the truth or accuracy of what the father was presenting. This was so, given the difficulties in gathering information in the interview with him and his evasive and vague manner, including his inability to place events in time.
m)The issue which generated the greatest difficulty in clarifying information about the father was his habit of immediately launching into attacks upon the mother, her brother or father whenever questioned about topics relating to himself, as well as entering into quite long monologues on a range of topics which often were not related in any way. Much of the father’s interview could be described in this way, with continual ramblings or rants on a range of matters. The father appeared very willing or eager to either exaggerate or embellish information as well as to simply create new stories or histories whenever confronted with a flaw in his argument.
n)The father’s statements during interview, including his general demeanor, gave the impression that he could be considered to be either delusional or to be outright lying in an attempt to impress.
o)That it is strongly suspected that the father experiences mental health issues, including delusional thinking and grandiose ideas, together with a level of paranoia and exaggeration.
p)That the father conceded that he may fail a urine test himself in relation to cannabis use, but was critical of the mother for her use.
q)The father’s retention of the child on two occasions in October in consecutive years may be in some way related to a cyclic illness, such as Bipolar Disorder. That his withholding of the child with little verifiable reason and then going missing for 3 weeks, suggested a possibility of a manic phase.
r)That a full psychiatric assessment for the father should occur, if the matter proceeds.
s)That no recommendation could be made for overnight visits with the father at his own home given the lack of any clarity or certainty concerning his accommodation. The only history of the child spending overnights alone with the father would appear to be the 2 occasions when he has withheld her, with most or all other overnights being at the paternal grandmother's home with her present. This supports the orders promoted by the Independent Children’s Lawyer and the mother and significant weight is attached to that.
t)For long periods, the father’s 2 day visits per week had been occurring without incident and in a manner which both parents and others involved would have considered to be successful and largely cooperative.
u)It would seem that this arrangement has involved both sets of grandparents and that the child has enjoyed the visits and benefited from a relationship with the father and extended family.
v)It would seem that there is little reason why the day visits should not be occurring, even with the concerns about the father’s erratic behaviours or odd comments, as all involved seem to confirm that this is normal practice for the father, yet he still continued to maintain the orders and be an adequate parent in such times, particularly, with the assistance of his parents.
w)That the child and the parents may benefit from a model whereby the child spends each alternate weekend with the father, at his mother's house, as well as a weekday in the alternate week. The mother appeared open to such a proposal and this was also supported by the paternal grandmother, Ms R. The father also acknowledged that this model may well work for him, even though he was still adamant that the child should be living with him, even with his non-commitment to living in (omitted), due to fears for his life.
x)It is strongly recommended that the father seek assistance including a clear diagnosis to help inform him about his choices to support his mental health given that if his condition deteriorated this would certainly impact upon his relationship with the child, not only in the level of risk but also in the limits that it would place upon him sharing or developing a genuine relationship.
Mr A made, inter alia, the following recommendations:
a)That the child continue to live with the mother and spend time with the father the following ways;
i)Each second weekend as well as a weekday visit each week, if the father is available;
ii)That these overnight stays strictly be at the paternal grandmother's home under her general overview or supervision;
iii)That this initially begin as a one night stay and then be phased in, increasing to Friday night to potentially Monday morning; and
iv)That changeovers occur so as to avoid contact with members of the maternal family.
Mr A gave oral evidence in support of his written report. Mr A had heard the evidence of Dr S and expressed some concern in that he believed a psychiatric assessment of the father was required and that a review from a clinical psychologist did not suffice. He further reported that, in his view, Dr S had operated on an entirely self-report basis, without challenging the father's statements. Mr A also stated that he did not believe that there had been a full diagnosis as there had been limited information provided to her and that there were gaps in her level of awareness. Mr A still believed there was a need for a psychiatric assessment of the father. Mr A's view was that the father could present well and, at other times, demonstrated episodes of inappropriate behaviour, which could be psychotic behaviour, but that even his inappropriate behaviour could potentially cause great distress to the child. Weight is attached to that view.
Mr A, however, stated that he had a great deal of confidence in the paternal grandmother as someone that could intervene and prevent any inappropriate behaviour by the father impacting on the child. Mr A was somewhat critical that he had not been offered the opportunity of forming a similar view with respect to Ms L. Mr A did not believe that the father required “constant” supervision, but rather that the father spend time in a stable place where his accommodation and choices were, otherwise, to be known and where any inappropriate conduct or decisions could be tested. Mr A saw that place as the home of the paternal grandmother, where the father, at least, sometimes resides. He saw that as providing stability for the child.
Mr A was taken to the mother's latest affidavit sworn 28 November 2013, and in particular, the conversation referred to in paragraph 5 between the father and the mother and the child on the mother's mobile phone on 6 October 2013, where the mother says that the father said to the child: “Do not worry, you can sue your mother for child abuse one day, keeping you away from your daddy”, and further, in paragraph 9 where the mother refers to a conversation with the child wherein the child said: “[The father] said I am not allowed to tell you anything, mummy, because you will write it down and tell the Court. He said you are trying to get him into trouble so that I will not get to see my daddy anymore”.
Mr A considered that if these statements were found to have occurred, they evidenced a direct attempt by the father to align the child as against the mother and that this was psychologically harming for the child.
Further, Mr A considered that there was some risk if the father was in a relationship with Ms L. As it would appear, the father's previous violent behaviour was acted out not as against a child or children but as against a person who he was in a relationship with, and if Ms L was in such a relationship there was an increased risk. Mr A's view was that if the paternal grandmother was not available for supervision, then the contact centre was probably the only viable alternative. He was of this view given the father's concerns about authority.
At the time of the report, the issue of parental responsibility was not in dispute as both the father and the mother sought equal shared parental responsibility. On the morning of the hearing, Mr Priestley advised that his client now sought sole parental responsibility. Mr A was asked to comment on that. His view was that the parties should continue to exercise equal shared parental responsibility and that whilst there may be some episodes or periods of time when the father was not able to do so, that did not outweigh the benefit for the child in the father being generally able to exercise that degree of responsibility.
The fact that the father has had some stable accommodation at (omitted) since February/March 2013 went to the stability of that accommodation, but not necessarily suitability. Mr A saw the paternal grandmother's home as marked by suitability, as well as stability. Mr A could give no long-term prediction so far as ongoing supervision was concerned. As stated, he said he could not look into the crystal ball. He was of the view that if the same risks existed for the child, then supervision should remain until the child was 18. Mr A was of the view that the review of the medical reports and, in particular, the exhibits from Dr M indicated that the father could present on one day without a problem and on another day with a problem.
Mr A was of the view that the matter was not as he described “black and white” and that he, too, had concerns about the mother, including the mother not seeking treatment as recommended, her involvement with Mr R who, as the mother accepted, was not appropriate, given his previous criminal record. Further, that whilst wishing to conclude the matter on a final basis, it could be open on an interim basis for a six-month assessment with the father to have then had over 15 months at the same address and for a further proper psychiatric assessment to be undertaken.
Mr A’s evidence was given prior to the father’s and some of the father’s evidence is important in light of Mr A’s comments. Firstly, it became clear throughout the course of the evidence of both the father, his mother Ms R and Ms L, that the father does not appear to have current stable accommodation. Further, Mr A’s assessment that the father would be able to share parental responsibility with the mother is of some concern given that he stated that there may be periods where he is not in a position to do so given his mental state and indeed, that his mental state was such that he recommended supervision of the father’s time with the child until she turned 18 years of age.
The Court accepts Mr A’s report and the principal recommendations flowing therefrom, which are afforded significant weight, given that the recommendations and opinions expressed (and assumptions and observations which grounded them) were soundly based in accordance with the body of evidence before the Court and none of the relevant factual matters relied upon by Mr A have been found to be inconsistent with the such evidence. The Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713. The Court is of the view that the child should live with the mother (as conceded by the father) but given the issues identified by Mr A, that sole parental responsibility should rest in the mother and the father’s time should be supervised.
The mother
The mother gave her evidence and was cross-examined. The Court accepts her evidence that for most of the child's life she has been the child's sole carer and support.
The mother says that she has allowed overnight time with the father provided that that was at his mother's house in (omitted) because, she said, she was not comfortable with the father's friends being around the child because of their interests in smoking marijuana, loud music, women and partying. The mother expressed concerns that she had been forced to make two applications for the recovery of the child, when the father refused to return the child to her care.
Whilst the mother accepts that on the first retention, the child, no doubt, had head lice, she did not accept that that was a basis for the father to retain the child. Indeed, he did not discuss that matter with the mother at all prior to retaining the child. On the second retention, the father said that the child had lacerations on the scalp and he had taken the child to the hospital. The mother's evidence was that the day before she had taken the child to the GP who had not prescribed any medication. The mother was not critical that the father had taken the child to the hospital and received medication for the child but was critical of the father's failure to communicate with her about that issue.
Both the mother and the father and the mother's mother reported that while the child comes back from spending time with the father with some hyperactivity and negative behaviour towards them, they indicated that she settled reasonably quickly. The mother expressed concerns that the father permitted the child to attend the toilet with him, while he was urinating.
The mother maintained that the father had threatened to kill her and had given her some superficial lacerations on her arms from a sharp breadknife while she was holding the child and that he had struck her on the head. The mother conceded that she had not attended at Court when the matter was before the Local Court of NSW at Coffs Harbour in relation to those matters and that the police proceedings had been dismissed, as against the father. The mother said this had been arranged after a meeting with the father and his family and that she had signed a document which indicated that she no longer wished to proceed with the criminal proceedings. The mother also refers in her affidavit to an understanding that there was some jurisdictional error in the commencement of those proceedings in “a lower Court instead of hearing it in a higher Court.”
The mother gave frank evidence in a believable fashion. She conceded that so far as her view about the long-term issue of parental responsibility was concerned, she still believed things would run fairly smoothly and she did not see communication issues as impacting on making decisions. Despite this, the mother also gave evidence about the father’s erratic behaviour, uncertainty concerning his accommodation, the unilateral retention of the child on two occasions where she was required to commence recovery proceedings, the difficulties in contacting the father by telephone, the father’s concerns as to her level of care for the child, his threats to remove the child so that she would “never find” them and his disparaging remarks of her which all contraindicated equal shared parental responsibility.
The Court accepts that the mother has continued to use some marijuana, but is seeking to reduce her usage. The Court further accepts that the child is settled in the mother's care and is, otherwise, doing well. Both parties accept that the child will continue to live with the mother.
The mother says that she does not have a partner. The father’s mother reports that the child had informed her that her uncle Mr B, smacks her (not Uncle Mr C). The mother says that she was only aware of one occasion when the child was smacked on the bottom by Uncle Mr B, when she had run onto the road and the smack was “light”.
The Court accepts that the mother will continue to foster a relationship between the child and the father and the Court accepts the Independent Children’s Lawyer’s submission that the mother has actively done so. Significant weight is attached to that.
The mother, in her last affidavit, reports a number of concerns relating to the father spending time with the child since October 2013. Those concerns appear to relate to engaging the child in matters the subject of these proceedings and also in denigrating her. She repeated her concerns about the father allowing the child to go into the toilet with him and that the mother was writing everything down to inform the Court. The mother responded to the child: “That is silly. I think it is good for you to see your dad and spend time with him… I do not want daddy to get into trouble”. Notwithstanding that, the mother conceded that she had, in fact, maintained a diary of matters including those referred to in Exhibit “A” which she, subsequently, did write down and report to the Court in her affidavit. The Court enquired of the mother as to whether she also recorded positive things about the child's time with the father. The mother was less clear on that aspect, although she did state, frankly, that the child, generally, did enjoy spending time with the father.
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
“There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests".
The father asserted that given the child’s age, she should, herself, have a 90% say of where she should live. With this view, the Independent Children’s Lawyer submitted that the father could easily rationalise the retention of the child as he has done on two separate occasions.
The Court finds that considering the age of the child, little weight could be given to either party’s expression of her views. There is no doubt that the child loves both the father and the mother. The child has been under the primary care of the mother, yet spends enjoyable time with the father.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The Court finds that the mother has been the child’s primary carer.
The Court finds that the child has a good relationship with both of her parents. Exhibit “8”, reveals a happy child photographed by the father in a number of activities, including swimming, attending an amusement park, horse riding and engaging with friends.
However, the Court finds that if the child was to spend unsupervised time with the father, there would be an increased risk of the child being embroiled in the negative attitude expressed by the father towards the mother. Notwithstanding the father’s concession that the child should live with the mother, in his submissions he constantly raised the mother’s inability to deal with the child’s historical head lice issue and raised extreme concerns as to the child’s safety with the mother. Those extreme concerns were rationally at odds with his own concession that the child live with the mother and little weight can, therefore, be given to them.
and other persons (including any grandparent or other relative of the child);
The Court is of the view that the child has a good relationship with the father’s mother, Ms R and with Ms L.
The Court is also of the view that the child has a good relationship with the mother’s mother.
However, the Court accepts that the child’s closest relationship is with the mother who has been and is the child’s primary source of emotional security.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The Court accepts that the mother has sought to encourage the father’s time with the child. The fact that the child has a good relationship with the father is a testament to the mother’s efforts in that regard. Significant weight is attached to that.
The Court is not as confident as to the father’s willingness to promote the mother’s relationship with the child given the efforts taken by him recorded in the (omitted) Hospital discharge notes. The notes state that the father “drove up from (omitted) today and is seeking additional evidence against the mother in a custody battle between the parents”. The father was unfailingly critical of the mother, whereas the mother was not of the father.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents;
The orders of the Court do not effect any substantial change in the child’s current circumstances. The child will continue to live with the mother and spend time with the father, in a supervised environment.
The order for sole parental responsibility in the mother was reflected to some extent by the mother making a decision for the child to attend her current school, notwithstanding the father’s position regarding the (omitted) school and the mother’s initial position concerning (omitted). As the Court has concluded, the parties in this matter do not have the financial ability to provide for private schooling for the child. The father appeared to concede that the mother’s choice of school was, otherwise, working well for the child.
or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The orders which potentially allow the father to spend supervised time in the presence of Ms L will also provide for the child to continue her contact with Ms L’s children, A and B.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
The mother lives in the (omitted) area.
The father appears readily able to access the (omitted) area, although as said, his living arrangements are unclear. The two proposed supervisors, Ms R and Ms L live in the (omitted) area. The Court will provide in its orders for the parties to reach agreement in writing as to the identity of any other supervisor, if geography impacts on that issue in the future.
Ms R gave some evidence about moving to Tasmania, but it did not appear that she had any concrete proposals in this regard. In the event that Ms R did move to Tasmania, Ms L would still be available to supervise the father’s time with the child.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
The Court accepts that the child had a head lice issue. The Court also accepts that the father was most concerned by this and by what he believed to be the mother’s failure to adequately treat this problem which he said escalated into a very serious medical issue for the child, involving antibiotics to treat what the father said was a staph infection.
The mother’s evidence which the Court accepts was that she had, in fact, taken the child to a medical practitioner for treatment. The Court does not accept that in so doing, she was in anyway neglectful. However, the father’s response was extreme in retaining the child and placing the child in the middle of the parties’ conflict. Weight is attached in favour of the mother and the Independent Children’s Lawyer’s proposal in that regard.
The father concentrated not on his ability to particularly provide for the needs of the child, but on the assertion that he believed his character had been “demeaned, a form of slander, [his] religion has been slandered, [and it was] unconstitutional”. He failed when requested to focus by the Independent Children’s Lawyer on himself and the child’s best interests.
The father’s engagement of medical practitioners without the involvement of the mother was problematic and grounds an order for sole parental responsibility in the mother’s favour. The ongoing conflict over the child’s medical condition, when not supported by the objective material, in conjunction with the father’s extreme views about the same, again supported an order for sole parental responsibility in the mother’s favour.
any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
The Court accepts that the orders promoted by the mother and the Independent Children’s Lawyer will still enable the father and members of the father’s family and mother’s family to have the opportunity to provide emotional and intellectual support for the child into the future.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
The Court has serious concerns about the maturity, lifestyle and background of the father, based on his representations and presentation in Court, and indeed as observed by both Mr A and Dr S. The father’s beliefs are unusual at best, delusional at worst. His presentation clearly supported a live with order in favour of the mother (as conceded by him) and a sole parental responsibility order in her favour. Further, given the Court’s concerns about the father’s presentation and the potential risk to the child in being exposed to the father in an unsupervised environment, that any time with him (outside that contemplated by the mother and the Independent Children’s Lawyer during the day) should be supervised.
In relation to maturity and lifestyle concerns, the father asserted that his great grandfather was a showman and his cousin still came to (omitted) to perform, had travelled around Australia plenty of times and had no fixed address (this may have been the basis for the father’s reference to clowns, referred to at paragraph 91 above). Therefore, the father said it was irrelevant for people to have fixed addresses. The father asserted that when someone can travel around Australia with no fixed abode and attend carnivals, shows and circuses, they could still educate and look after their children. The father however, was not in this category or person. Neither was the child. The father focussed on arguments which had little or no relevance to the facts of his own case.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
Neither party gave evidence that they were of Aboriginal heritage.
It was not until the father went through the section 60CC factors during his oral submissions that he stated that he was Aboriginal. Rather curiously, he then went on to say that his mother was American Indian, “which was a form of Aboriginal”, with certain culture and customs, none of which appeared to be practised by the father, or put into evidence. The father stated that his father was on an Aboriginal Land Council. Again, there was no evidence, as to how this, if true, impacted on the best interests of the child.
The father’s mother, who the father says was Aboriginal, also gave no evidence about this.
When the father raised this matter during submissions he made no submission about how this matter may affect the Court’s consideration of the best interests of the child. Indeed, the only thing the father said about this was that the Constitution does not discriminate against religion and that the Court should read his father’s book. The Court has examined that book.
In those circumstances and with a lack of any admissible evidence in this regard, the Court finds that this factor does not, relevantly, apply to this child.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Although the father no doubt loves the child, the father has shown over a long period of time an inability to deal with the responsibilities of parenthood. Of most concern, is the father’s consistent refusal to seek any assistance for his mental health issues. Indeed, the father denies that he has any. The father’s inability to appreciate how his mental state and his beliefs may impact on the child is a serious concern and indeed, there is a need to protect the child from psychological harm, noting that the father has been described by medical professionals as, at times, delusional. As the father stated in paragraph 84 above, “I’m actually saving up for an independent psychological evaluation to prove that I’m quite sane”
The father’s manner suggested that he lacks the ability to be reasonable and was unable to react in a way that was proportionate to the actual issue. For example, his perceived ill-treatment by the criminal courts was tantamount to “treason, punishable by death”, the child’s head lice became a risk of “death”, when the original consent orders were removed by his legal representatives that amounted to “theft”.
The mother conceded that she continued to use marijuana, however, she gave evidence that she was trying to cut back. While the mother’s urinalysis test result which was tendered and marked Exhibit “ICL 2”, showed a positive reading, the father’s proposal was still that the child live with the mother. That implied, the father was not as concerned as he sought to maintain.
(j) any family violence involving the child or a member of the child's family;
The Court repeats the matters set out at paragraph 117 above. The Court also refers to the facts set out at paragraph 7(h),(i) and (j) above.
The father’s criminal history shows a history of some violence reported between him and his various partners over time. Much was made by the father in respect of the mother’s non-attendance at the Local Court of New South Wales, Coffs Harbour in respect of various charges against the father.
The Court is not satisfied that the father poses a physical risk to the child. The Court accepts, however, that the father’s presentation and his expression of his views (which he conceded were in a particularly loud voice) could be intimidating and of concern to the child. Further, it is the father’s potential for uncontrolled actions, without thoughtful regard as to how they may impact on the mother and the child, which poses a risk to the child and to which a supervised time order is directed.
(k) any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
The Court repeats the matters set out under s.60CC(j) above, so far as they are relevant.
The police records tendered as part of Exhibit “D” indicate that in early May 2012, the father was involved in an altercation with the mother’s brother wherein it was reported that the father stated: “Get fucked. I am here to pick up my daughter. Leave me alone or I will knock you out.” The verbal altercation continued with the father stating: “What about, I’ll kill you”. Both became involved in a verbal argument, swearing and yelling at each other which involved further investigation by the Police. The Police record states that as there were no independent witnesses no criminal action would be taken. The theme of “killing” was earlier repeated in September 2009, in an altercation between the father and the mother where the father, it is asserted, said “Don’t think you can take my daughter off me ‘cause I’ll fucking kill you before that happens”. At this time, the mother said she picked up a “Forever Stay Sharp” knife, which the father then pushed towards the left hand side of the mother’s neck and said she could feel the “two points of the knife on her skin”. The mother said that the father then, “turned the knife around and ran the blunt side, steadily from side to side across [her] throat”. The father denied that. None of these matters resulted in a family violence order.
Further police records tendered as part of Exhibit “D” record ongoing conflict between the father and the mother in March 2009.
(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
The mother’s evidence was that she had sought a recovery order on two occasions when the father withheld the child.
In relation to the recovery order sought on 5 December 2012, the father stated that he had been concerned about the child’s head lice. However, Exhibit “9” being the letter from the doctor that the father attended on, records the father being in “battle” with the mother and appears to suggest that the father was on an evidence gathering mission against the mother, despite there being orders in place and proceedings on foot.
The father gave some very concerning evidence about whether or not he was required to comply with orders. During the father’s cross-examination it became clear that the father had two issues with the Court’s orders:
a)The use of the term “Mr” before his name. The father appeared to suggest that he was a “man, not a person” and that because the cover sheet of the Court’s orders listed him as “Mr Windsor”, that wasn’t actually him.
b)The use of capital letters. The father gave evidence that where names are in capital letters the reference is to a corporation, not a person. Therefore, given that his name was in capital letters on the Court’s orders, they did not apply to him. Further, the father said that where the child’s name was in capital letters in the orders, that was not a proper reference to the child and, therefore, the orders did not apply.
The father’s disregard for orders because he objects to the formatting, gives the Court serious concerns as to his ability to be cooperative and reasonable and indeed, as to his parenting capacity. This, coupled with the two recovery orders that the mother has sought against the father, contraindicate equal shared parental responsibility.
Further, the track record of the father’s withholding of the child, his inability to say anything positive about the mother and his inability to take responsibility for his own actions would again suggest a high probability of future disputes, which would inevitably lead to further proceedings, if the father’s proposal was to be adopted.
The Court finds that the mother’s and the Independent Children’s Lawyers proposed orders are those which are least likely to lead to further proceedings between the parties and significant weight is attached to that.
(m) any other fact or circumstance that the court thinks is relevant
The mother’s attitude, as primary care giver, to the child spending time with the father, should be considered. There is a need for that parent to be assured of the child’s protection. The Court should take into account any anxiety on the part of the primary caregiver concerning a child’s exposure to potential harm, where such anxiety is likely to impact adversely on that parent’s care giving ability. Whilst a subjective test is employed in that a parent must genuinely hold that belief, it must still be shown that the belief is not irrational or baseless. That is, there must be some evidence upon which that party’s belief is based. Without such evidence, the genuineness of the belief itself must be called into question. The Court is satisfied that there is such evidence and that the mother’s belief is genuinely held and that as such, orders which provide for supervised time with the father are appropriate to deal with that concern, in accordance with the orders sought by her.
Parental responsibility
The Court is satisfied that as there has been family violence between the parties, the presumption as to equal shared parental responsibility does not apply. This is so, notwithstanding the father’s submissions that the mother was not hospitalised as a result of any asserted conduct by him and that she had come to his address which had lead him to being “falsely accused of breaking an Apprehended Violence Order”.
In any event, the Court is further satisfied that the presumption has been rebutted by the evidence which satisfies the Court that it would not be in the best interests of the child for such a presumption to be applied. The Court finds, as submitted by Mr Priestley on behalf of the mother, that given that s.60CC of the Act contains terms such as “responsibility”, “capacity” and “lifestyle”, the Court is satisfied that these matters are not able to be appropriate considered and applied by the father, given the uncertain position as to his mental state, his presentation in Court, his obsession with matters completely irrelevant to the welfare of the child, his apparent inability to contain his emotions and his inability to say anything positive about the mother or her care of the child. The Court further accepts the Independent Children’s Lawyer submission that it is unlikely that the father and the mother could possibly reach agreement about matters affecting parental responsibility of the child, unless of course “by happy coincidence”.
The father’s complaints concerning the child’s schooling were not grounded in any evidentiary sense. The Court accepts that the child has started school and appears to be doing well. The father also believed that, given the child was attending school, this provided a protective framework for any of his concerns regarding the mother. This appeared to be the basis for the father’s concession that the child should, otherwise, live with the mother. The father initially promoted the child attending the (omitted) school and the mother promoted (omitted). The child currently attends (omitted) School and is in kindergarten there. It is clear from the evidence that the parties’ financial circumstances are such that they would not be able to afford private school education. The Court accepts that the father genuinely wishes to encourage the child’s education and would, if he could, seek to cover or pay for private school fees. However, his evidence left the Court in no doubt that he is financially, at this time, unable to do so.
Spend time arrangements
The question of what time the father should spend with the child becomes a question of determining the child’s best interests. Indeed, given the agreement between the parties, the remaining issue is really whether the father’s time should be supervised or not. The Court is satisfied that an order which provides for the child to spend every second weekend from after school on Friday to 5.30pm Sunday and from after school to 5.30pm each Wednesday during the school term, as consented to by the mother, is in the best interests of the child, as promoting a substantial and significant relationship with the father.
Given the matters referred to above, the Court is satisfied that the best interests of the child can only be promoted by requiring that the father’s time is supervised.
Supervised time
The basis for a supervision order was described by Carmody J in Murphy & Murphy [2007] FamCA 795 as follows:
“Time with a dangerous or deficient parent may have to be regulated by the court for the child’s own protection but only to the extent necessary to avert or manage perceived risks while at the same time supporting worthwhile parent-child relationships. This may involve reducing the amount or nominating the place of contact eg, limited day time only supervised at a contact centre or by a designated person.”
The Court finds:
a)That given the father’s position, the Court accepts that the father may well rationalise removing the child from the mother and retaining her without accepting that it would be adverse for the child not to see the mother during such periods. There is a history of that behaviour. The father has not apologised for it and appears to believe that he was fully justified in so doing. The Court does not support the father’s view.
b)The father has and continues to denigrate the mother. The Court accepts the mother’s evidence of the child saying things to her which clearly suggest that she has heard such adverse remarks about the mother while with the father.
c)There appears a lack of direct evidence as to where the father lives and the Court accepts that the father has not been proactive in providing such evidence, notwithstanding that to do so, would overcome some of the mother’s concerns and goes directly to the trust issues between the parties.
d)That the father appears to be unable to control himself when he becomes interested in a particular topic notwithstanding that that topic may have little relevance to the best interests of the child and, in that regard, he appears to lack insight into the impact of his behaviour on the child and as such poses a risk to the child.
e)The father’s evidence was that he no longer consumed drugs and that his only fault was his continued smoking of cigarettes. Notwithstanding this, he agreed with Mr A that he would not pass a drug test and seemed to indicate that any restraint on the consumption of illegal drugs may be an “illegal restraint” on his freedom of religion. This is so notwithstanding that his evidence was that he was a (religion omitted). This is of continuing concern to the Court.
f)The above risk factors for the child warrant the imposition of supervision.
g)While supervision is generally not an appropriate long-term measure, given the presentation of the father, the Court is of the view that supervision should continue until the child is at an age when the child would be able, herself, to deal with any problematic issues surrounding the father’s behaviour, including being independent of the father and being able to truthfully report to the mother. The Court is of the view that supervision, given the practical realities of the same, need not occur between the hours of 9.00am and 3.00pm as agreed to by the mother and the Independent Children’s Lawyer. The Independent Children’s Lawyer submitted that in relation to the supervision of the overnight weekend and holiday time, this could cease when the child is 12 years of age, given the father’s forceful personality. Mr Priestley for the mother submitted that supervision should continue, unless the parties otherwise agree, notwithstanding as he said, being conscious of the practicalities of such supervision occurring until the child was 16 years. The Court is of the view, that supervision in this matter should continue until the child is 14 years of age. By that age, the child will be at high school and will have had one year of high school, subject to a regime of supervision. The Court accepts Mr Priestley’s submission, however, that an earlier time for supervision to cease could still be the subject of agreement between the parties.
h)The benefit of a supervision order will also provide a degree of comfort to the mother which will further facilitate a willingness to allow the child to spend time with the father. Weight is attached to that.
There appears no issue between the parties that change overs should continue to occur at McDonalds (omitted), unless otherwise agreed. That position has been effectively operating for some time, without difficulty.
Given the evidence and the matters set out above, the Court is of the view that the mother’s and Independent Children’s Lawyer’s proposed order (being order 9 above) in relation to both parties not denigrating the other or their family in the presence or hearing of the child should be made in the best interests of the child.
Given the age of the child, the order proposed by the mother and Independent Children’s Lawyer (being order 10 above) so as to implement any wish to telephone the other parent should also be made to provide a degree of security for the child.
Given the issue of the father and the mother both taking the child to various doctors for medical treatment, it is important that that information be provided to the other parent. Further, given the sole parental responsibility order in favour of the mother, it is important that the father be entitled to access the child’s medical information. Accordingly, order 11 above as sought by the mother and Independent Children’s Lawyer will be made, in the best interests of the child.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, the Court is of the view that the orders set out at the commencement of these reasons are, otherwise, in the best interests of the child and accordingly, the Court will so order.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Associate:
Date:12 June 2014
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Family Law
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