ZEEGAS & DUFF
[2015] FCCA 865
•28 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZEEGAS & DUFF | [2015] FCCA 865 |
| Catchwords: FAMILY LAW – Children – unacceptable risk of physical, psychological and emotional harm to child from spending any time with or communication with the father – injunctive orders made for the protection of the mother, child and child’s sibling from contact or communication with the father. |
| Legislation: Family Law Act 1975 |
| M & M (1988) 166 CLR MRR & GR [2010] HCA 4 |
| Applicant: | MR ZEEGAS |
| Respondent: | MS DUFF |
| File Number: | PAC 4295 of 2011 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 9, 10, 11, 12 & 13 February 2015 |
| Date of Last Submission: | 13 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 28 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Shepherds The Family Law Specialists |
| Counsel for the Independent Children’s Lawyer: | Mr Sperling |
| Solicitors for the Independent Children’s Lawyer: | Marks Griffiths & Bova Solicitors |
ORDERS
The mother shall have sole parental responsibility for the child X born (omitted) 2010.
The child shall live with the mother.
The child spend no time with or have any communication with the father.
Pursuant to section 68B of the Family Law Act 1975 the father MR ZEEGAS born (omitted) 1970 is injuncted and restrained from communicating with the mother or children X born (omitted) 2010 and Y born (omitted) 2007 in any way whatsoever and is injuncted and restrained from approaching the mother or children’s home, school, place of work or any places of extra-curricular activity they may attend from time to time.
Pursuant to section 68C of the Family Law Act 1975 the father may be arrested without warrant if a police officer believes on reasonable grounds, that the father, against whom the injunctions are directed, has breached the injunctions set out in Order 4 herein.
The applicant father, by himself, his servants or agents are restrained from removing or attempting to remove the child X born (omitted) 2010 from the Commonwealth of Australia.
The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the Airport Watch List, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
The mother is permitted to apply to the Australian Passports Office for passports to issue and be renewed for the child X born (omitted) 2010 in the absence of the consent of the father or otherwise and insofar as it is necessary this order operates as an authority for the mother to do so.
The mother is entitled to remove the child X from the Commonwealth of Australia on any occasion she deems appropriate and for that purpose the child’s name is to be removed from the Airport Watch List on any occasion the mother requests in writing and the child’s name is to be replaced on the Airport Watch List upon the mother’s written request.
The mother be permitted to provide a copy of these orders to any preschool, school or places of extra-curricular activity the children may attend from time to time.
IT IS NOTED that publication of this judgment under the pseudonym Zeegas & Duff is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT SYDNEY |
PAC 4295 of 2011
| MR ZEEGAS |
Applicant
And
| MS DUFF |
Respondent
REASONS FOR JUDGMENT
The matter of Zeegas & Duff was a five-day hearing concerning the parenting arrangements for the parties’ child X, born (omitted) 2010.
At the commencement of the hearing, the father who is the applicant handed to the Court the orders he sought namely that the child live with the mother, the child spend time with his father, supervised for the next six months, then time every second weekend from 6 pm Friday to 6 pm Sunday, each Wednesday from 5 pm to 8 pm and half school holidays. The father contended both parents be able to take the child overseas. The father was born in (country omitted) the mother in Australia.
The mother’s application is that the child live with her, she have sole parental responsibility, the father have no contact whatsoever with the child, including by telephone or letters, that there be no communication with the child and that the child’s name be placed on the airport watch list to prevent the father from taking X out of the country. The mother also sought personal protection orders for herself, the child and X’s sister Y or Y, as was recommended by Dr K and supported by the ICL.
The mother was represented by Ms Gillies of Counsel, X was represented by Ms M, who briefed Mr Sperling of Counsel to appear at the final hearing.
The father was, most unfortunately, self-represented and was thus at a disadvantage. He commented many times that English was his second language however his English ability rivalled many a native born. He is clearly an intelligent and articulate man.
However, even though he had never contended the child live other than with the mother at the conclusion of the hearing he would not consent to an order to that effect to give the mother a level of comfort and security pending my final decision.
Accordingly, I made interim orders in similar terms to the final orders sought by the mother and supported by the ICL at the conclusion of the hearing pending delivery of this judgment to maximise her parenting and minimise further harm to the child from the mother’s fears of the father.
The Evidence
The evidence for the parties was as follows.
For the father.
Trial affidavit sworn 20 January 2015.
Affidavit of his friend, Ms S, sworn 30 January 2015.
The father’s exhibits were as follows.
Father’s Exhibit 1. Minute of the orders he sought the Court make.
Father’s Exhibit 2. His response to the mother’s affidavit being a document he prepared overnight after the first day of the trial addressing the mother’s serious and concerning incidents of the father’s behaviour towards her, which included manipulative, coercive, threatening and violent behaviour. I asked the father to prepare this document in response to the mother’s affidavit which was replete with concerning incidents of his poor behaviour to accord him procedural fairness.
Father’s Exhibit 3. An article from (country omitted), a translation of the father saving someone who jumped off a bridge in (country omitted) in 1990. Nothing turned on this.
Father’s Exhibit 4. Notes of conversations between the parents.
Father’s Exhibit 5. A rental agreement of his property at (omitted); irrelevant.
Father’s Exhibit 6. Emails between the mother and father dated 31 May 2010.
Father’s Exhibit 7. List of the paragraphs of Dr K’s report the father did not agree with which ultimately did not impact upon my decision.
Father’s Exhibit 8. Aid-mémoire of SMS between the mother and the father.
Father’s Exhibit 9. Transcript of SMS messages between the mother and the father from 2 January 2011 to 15 January 2011.
Father’s Exhibit 10. Transcript of SMS messages between the mother and the father from 11 August 2010 to 14 August 2010.
The father filed an affidavit of a Ms K sworn 17 October 2013, his then partner.
On 6 May 2014 the father told the Court his witnesses would be himself, Ms K and his friend, Ms P. Both ladies were involved in the family report. Neither lady came to Court. The father and Ms K’s relationship has broken down since the interviews.
The father and his witness were cross-examined.
For the mother.
Trial affidavit filed 29 January 2015.
Affidavit of Mr L sworn 30 January 2014. Mr L is the father of the mother’s eldest child, Y.
Affidavit of her mother, Ms M, sworn 29 January 2015.
Affidavit of her sister-in-law, Ms V, sworn 29 January 2015.
The mother’s exhibits.
Mother’s Exhibit 1. The father’s contemporaneous notes of the recordings he took of his stalking of the mother at her home on 17 August 2011.
Mother’s Exhibit 2. Last four pages of the father’s affidavit from Local Court AVO proceedings which were missing from the copy he filed with the Court.
Mother’s Exhibit 3. Log of text messages between mother and father.
Mother’s Exhibit 4. Photocopy of father’s Facebook page.
Mother’s Exhibit 5. Entry on the father’s Facebook page dated 14 April 2015.
Mother’s Exhibit 6. Entry on father’s Facebook page dated 20 December 2014.
At the hearing the father only cross-examined the mother and not her witnesses. He had confirmed at the commencement of the trial he was intending to cross-examine all the mother’s witnesses but did not pursue that course.
The Independent Children’s Lawyer’s Exhibits.
ICL Exhibit 1. Email from the ICL to the father dated 11 December 2014 relating to Dr K’s fees for court attendance.
ICL Exhibit 2. Contact records with Department of Family and Community Services, all reports to that Department by the father.
ICL Exhibit 3. Bundle of documents from NSW Police.
ICL Exhibit 4. ICL’s outline of costs.
Court Exhibit 1, Dr K’s report released 6 May 2014.
Chronology
The father is 44 years of age; the mother 40.
The mother entered a relationship with Mr L, Y’s father, in 2000.
In 2003 the father came to Australia met Ms J, married her, and they separated subsequently.
The mother and Mr L commenced cohabitation in 2006. The mother and Mr L married in 2007.
Y was born on (omitted) 2007.
The mother and Mr L separated in October 2008.
The mother moved with Y to her to her mother’s home in (omitted) in December 2008.
In June 2009 the parties meet.
In August 2009 the mother and Y commenced spending some time with the father at his rental property at (omitted) when he was not working in (omitted). They had a sexual relationship.
In December 2009 the mother becomes pregnant with X.
At Christmas 2009 the mother ceases living at (omitted) and returns to live to (omitted) with her mother.
The mother asserts this is the date of separation the father denies this. I accept the parents met at times, went out together and saw each other after this date however that does not necessarily mean they had an ongoing relationship.
In February 2010 the mother and Y move back to (omitted) and the father lived in a shed on that property.
The mother returns to live with her mother prior to X’s birth.
X is born on (omitted) 2010. The parties were seeing each other.
X was admitted to (omitted) Hospital in August 2010 with suspected meningitis when 5 days old.
In August 2010 the father moved to the (omitted) property, and the mother and children spend some time overnight at that property with the father on some occasions. After hearing the evidence I accept the mother’s assertions they were not in a relationship. I accept her evidence that she took this course to enable the father to spend time with the child supervised by herself and as a means of placating his harassing and persistent intrusions in her life. Otherwise I accept she lived with her mother.
In February 2012 the mother rents a unit in (omitted).
The mother moves to a semi-rural property at (omitted) in about July 2012 without informing the father of this move.
After hearing the evidence I formed the view the mother’s actions were justified on the grounds of protecting her child from his father.
24 July 2012, the father last sees the child X.
X has only ever seen his father in his mother’s presence. His mother would not leave him alone. X has no relationship with his father.
Unusually, the mother’s position, which at first blush may seem extreme is substantially supported by Dr K, child psychiatrist, in a report he prepared to assist the Court and released on 6 May 2014.
Dr K was called to give evidence via the telephone.
Under cross-examination Dr K not only adhered to his recommendations but expanded his reasons for his strong and forceful recommendations to the Court. Dr K’s recommendations were as follows:
a)That the mother have sole parental responsibility for the child; that the mother inform the father about decisions she has made provided this process does not disrupt the mother’s need for protection and personal security.
b)That the child live with the mother.
c)That the child have no contact or face to face communication with the father.
d)That the father be permitted to write the child letters twice a year with the child to respond and the mother have the veto over whether the child receive any letters.
e)That the Court put in place a personal protection order for the mother from the father with such order to extend to both the children and include places the children live or where they attend for extracurricular activity or education from time to time.
f)That if the mother wanted to relocate she be able to.
g)These last two recommendations were to minimise the mother’s fear of the father and thus maximise her parenting capacity
Under cross-examination Dr K adhered to his position that the child should have some form of written communication with his father, however, also opined that if the court was of the view that this would have a serious negative impact upon the mother’s functioning and that this would be a danger or detriment to the child, then there should be no order for any communication.
These are very severe and extreme recommendations for an experienced child psychiatrist to make.
Dr K said under cross-examination that there is a risk of harm to the child from time with or communication with his father.
Dr K accepted the mother’s fears of the father were real, that he had terrified her during their short relationship in part by his coercive behaviours and threats which he carried out, at times, on his own evidence, to take the children from her.
The mother’s affidavit is replete with many instances of what was for her examples of his terrifying behaviour. The mother alleges that from her pregnancy with X he threatened to take the child and her daughter Y whenever he wanted. Some of these threats are as follows.
6 August 2010. The father threatens to take X who is but one day old because the mother criticised his fitting of the baby capsule in the car.
September 2012. Further referred to as the movie incident. X is barely one moth old the father takes him from the mother and storms to his car.
September 2010. The father threatens the mother in the car with taking X as she varied the temperature to suit Y which did not suit him.
9 September 2011. The father threatens to report the mother to police and have the children removed from her.
November 2011. The father threatens to take the mother to Court.
It is the mother’s case the father’s threats and aggression increased in 2012 when she began to stand up to him and the evidence supports this position.
January 2012. The father tells the mother he will commit suicide and take X with him.
February 2012. The father tells the mother X would be better off dead than having a mother like her.
June 2012. The father threatens to kill himself and X.
July 2012. The father tells the mother he can take the children whenever he wants, while she is sleeping and speaks of the Melbourne tragedy of the father throwing his daughter from a bridge.
The father commented to the mother how he understood father’s hurting their children when their exes are bitches to them as the mother was to him.
July 2012. He asks the mother if she is protecting Y at school because he can grab her when he wants.
July 2012. The father says he will drive the kids into a dam and it is her fault.
14 July 2012. The ice skating incident. The father engineers a situation where he has both children in his control and possession and begins to exit a public place with them.
August 2012. The father diverts the mother’s business number she had for many years to his mobile phone.
The father’s affidavit and Father’s Exhibit 2 do not address any of the mother’s concerns or her description of his actions or the impact of his behaviour upon her and the children and paints a story that bears no relation to the mother’s position.
This dichotomy was clear to Dr K when he conducted his interviews and is stated this in his report. This dichotomy was clear to me from the mother response to the father being in the same room as him when endeavouring to answers questions about the past.
The mother could not answer the ICLs’ questions without crying, becoming very upset and profusely apologising for her reaction. Ultimately the mother was cross-examined by the ICL and father via a video link whereby she was in one courtroom with one Associate and the remainder of the participants in the trial in my courtroom. This physical separation from the father enabled the mother to answer questions put to her.
The father appeared calm, contrite and amenable and denied every allegation of coercive, threatening, bullying and non-child focused behaviour the mother described stating at times that the mother was the aggressor and not he. That the mother had assaulted him not the other way around. The mother’s reaction in court and when with Dr K were inconsistent with the father’s description of her as a person.
The father admitted to 3 instances of what I regard as extremely poor behaviour, yelling in her ear, pushing a mobile phone out of her hands when she was talking to her mother and forcibly removing X from his mother’s arms when he was not yet 4 weeks of age and taking him to the front gate of her property near his car.
The father proffered no reasons or excuses acceptable to the Court for this behaviour.
He said he yelled in her ear to get her attention and make his point but it was not so loud that he damaged her ear drum. I reject that evidence. Y described this incident to Dr K and said her ears hurt. Y’s father was very concerned when Y told him what had happened.
He pushed the mother’s mobile phone out of her hands because he did not like, to use his words, “her constructed story” to her mother about prior events. This is nothing but bullying, coercive and threatening behaviour and has no justification at all.
I accept the mother injured her hand and head in that incident.
The father said he removed X from his mother’s arms, said he was taking the child because he was angry that she did not want to go to the movies with him, that she was interfering with his relationship with X and was not putting their relationship at a proper level.
Those reasons bespeak of a total lack of child focus or capacity to put the needs of a child before your own and an unhealthy and disturbing obsession with having your needs as an adult met no matter the cost for those whom you come into contact with.
I accept Y ran after her mother as she chased the father down the drive to the front gate of her property and was calling out give him back and that this terrified the mother. Why did this behaviour terrify the mother? Because the father had made good his threat to “take the child whenever he wanted” simply by virtue of his size and strength.
I can only echo Dr K’s position that the mother is a witness of truth and like him I believe the mother’s version of events and not the father’s.
I will refer to the matters on which Dr K based his opinions.
At paragraph 140 of his report, Dr K says:
In my view, the father has demonstrated, over time, attitudes and behaviours typical of family violence perpetrators, these being superiority, entitlement, control, possessiveness, externalisation of responsibility, selfishness and self-centredness, denial, minimisation and victim-blaming, manipulativeness, contradictory statements and behaviours, confusion of love and abuse and, probably, serial battering.
The mother described the father behaving in an entitled, possessive, controlling, selfish and self-centred way over the time. When the couple were living together, the father would want to monopolise the mother’s time, would become resentful and aggrieved when she spent time with the children, in particular, with her daughter, Y. The father confirmed at the interview that he had challenged the mother to spend more time with him rather than just focusing on the children.
Under cross-examination by Mr Sperling, the father agreed that he did exhibit some of these behaviours as follows.
He did not agree he acted in a superior manner or an entitled manner.
He agreed he exercised control, that he was possessive.
As to externalisation of responsibility the father did not understand what that was. I said it was “you blame others for your actions”. Ultimately this explanation was confirmed by Dr K. The father agreed he behaved in this fashion.
He agreed he was selfish but not self-centred.
He agreed he was in denial and that he minimised his behaviours and victim-blamed.
He agreed he was manipulative and that he made contrary statements to the behaviours exhibited.
The fathers conduct at the trial supported Dr K’s diagnosis and opinion of the father’s personality traits and behaviours.
On many occasions during cross-examination, the father made concessions such as above. He conceded he had, perhaps, acted at times in a poor way, that now, looking back, he realised that his behaviour was, at times, threatening, coercive, controlling, demeaning and did terrorise the mother. However, he only made those concessions under strong cross-examination by Ms Gillies and Mr Sperling and when I questioned him. In other words when he was being hard pressed or bullied then he conceded.
When not being hard pressed such as drafting his own affidavit, or speaking with Dr K his view changed. His affidavit filed a short time ago on 30 January 2015 and Father’s Exhibit 2 drafted the first night of the trial show nothing of his so-called acknowledgement and understanding of his poor behaviours as he described it in court.
The father’s affidavits were read by Dr K and he confirmed they exhibited superiority, entitlement, control, possessiveness, externalisation of responsibilities, selfishness, self-centredness, denial, minimisation and, in particular, victim-blaming.
There is not one written word by the father where he concedes that he behaved poorly towards the mother, towards Y, her daughter, or to his son, X. No concession that his actions ultimately terrorised the mother resulting in significant and extreme anxiety levels for her at the mere thought of the father spending time with the child, coming into contact with the child or Y. The mother’s severe distress and anxiety just being in the father’s presence was evident in court.
One of the father’s reasons for the mother’s behaviours and fears as the father sees it is set out in the father’s affidavit at paragraph 15:
I noticed Ms Duff didn’t trust anyone other than her immediate family.
This is an example of victim blaming.
One of the significant issues of contention is the length of the parties relationship and what sort of a relationship it was. That is not, per se, a relevant matter to my determination but it is relevant to the father’s perceptions and functioning.
The father consistently referred to the party’s relationship. What he did to foster and promote the relationship, what he and the mother agreed was the basis of the relationship and the lengths he went to maintain the relationship.
It is the mother’s contention that parties had no ongoing or de facto relationship, that is, lived together in that sense. They clearly had a sexual relationship. X is the father’s child.
However the father is quite clear on this and contends they had a committed relationship and were looking to a future. This is another dichotomy or disconnect.
Dr K referred to this disconnect, as the father idealising matters. That is the father’s idealisation of a perfect life he had with the mother, which was far from the reality of the situation. Dr K, at one point, referred to the father coercing the mother to love him, such as threatening to take the children from her when he wanted to, with the consequence being he terrorised her and she is now extremely fearful of him. This in Dr K’s opinion justifies her fear and her fear is not put on or exaggerated.
The father said at paragraph 15 of his affidavit:
The mother said humans are a disgusting race. I was under no circumstances allowed to discipline Y, who was not my child. Y’s father wasn’t allowed to take Y to have sleeps overnight with him.
Once X was born, I wasn’t allowed to feed him or take the kids to the park. I offered to take the kids so she can have a break from motherhood and spend quality time for herself. Once X was born, his mother breastfed him.
The father said at one point, when he was cross-examining the mother that the mother was controlling of him in answer to an allegation of his control of her.
When the father was pressed on this he said this control commenced from X’s birth. The mother would not let him feed the child or hold the child or be alone with the child. The father could not understand the concept that upon birth of a child who is breastfed the establishment of the bond between mother and child is crucial.
Establishing a strong and connected bond with a new born is not controlling of the father. The father’s bond must take second place when a child is new born and being breast fed for some little time. Father’s take a backwards step for a little while by providing much needed support to the mother until the child can have some independence from the mother which may be within weeks or months depending on the child and other matters.
The father did not accept or understand these comments and this is a further example of the father blaming the mother for his behaviour. The father’s view is that, she was controlling of me with my time with my son and therefore I will control her when I can.
The father complained that the mother would not take on board information he received, such as that it was a good idea to express breast milk and let a father feed a child breast milk at a young age. Further that the mother threatened he would never see the child again, and then they had arguments. I reject this evidence entirely.
The parents each describe the incident on 26 February 2011 when X was about 5 months of age and the father yelled in the mother’s ear.
The father’s version is at paragraph 20 of his trial affidavit. He had been on the phone to a female friend for some time. The mother was upset. The mother and he had some words and the mother took Y to bed. The father waited for the mother to return to the downstairs lounge room. When she did not return he went into Y’s room, the mother was sitting on the floor. He explained in a calm manner that she had. The mother spoke in an irritated manner to him. “Don’t call my mum again she has high blood pressure it is going to kill her”. Y woke up and said “Don’t kill my Nan” and the father was shocked and went back downstairs to spend another night on the lounge.
The father gives a fuller explanation in Father’s Exhibit 2 at paragraph 7. After he returned to the lounge he asserts he sent her a text message at 10pm assuring her he loved her. At 11pm the mother walked down the stairs, threw X onto the lounge and said “here now you have him are you happy?” At midnight he was still holding onto X, they were arguing and the father yelled “There is nothing, there is nothing”. Ms Duff was still holding Y.
The mother took X and Y and left the house. The father was worried and rang the police.
The mother’s affidavit tells a different story at paragraph 51. The mother said she was staying at the (omitted) property for about 2 weeks. Mr Zeegas became angry with her and she attempted to leave with the children. Mr Zeegas was holding X, he cornered the mother and Y. The mother says “He was yelling straight into my left ear about 1 millimetre away. X was crying”. Y and the mother were crying, Y kept saying: “Mr Zeegas you are hurting my ears”. The mother managed to retrieve X from the father, went to her car and she observed the father calling the police.
Under cross-examination the father’s story changed again.
The father agreed these events occurred in front of both children. The father said he found it hard to believe he caused damage to the mother’s ear because he was not yelling that loud and was not that close. That the mother dropped X from a height of 30 to 40 centimetres to him on the lounge not threw him.
That he had nowhere to retreat and felt threatened because the mother said he would never see the children again. That the argument went on for 4 hours or so. It began at about 8pm and that he and the mother argued for 1 hour from 11pm in front of the children. That the argument was heated and that he shouted.
I prefer the mother’s description of these events. The mother was attempting to leave with the children and the father was preventing her from so doing. The father shouted loudly in her ear causing her pain and injury. I reject entirely the father’s story that “he tried to speak to her in a calm manner to assuage her that her fears were unfounded.”
The father further complained at paragraph 21:
I continued to see Ms Duff and X on many occasions. On a rare occasion, I was able to spend time with him alone. For instance, when she was working with her (omitted).
X was at this time under one year of age and being breastfed. His time with his father was patchy and disjointed. As the mother said at paragraph 52, “Mr Zeegas would go for a couple of weeks without seeing X then ring and demand I bring him to him. I would do this straight away to avoid conflict and antagonising him and therefore to protect my children”.
The father’s complaints fall on deaf ears. The child barely knew him, he was but a baby, he was inconsistent in the time he spent with the child and was ignorant of the importance of a routine for X or what X’s routine was. The father demonstrated no insight into the needs of a child.
The father complained in his material that the mother threatened he would not see the child unless he signed a consent order which he tendered in the proceedings marked Father’s Exhibit 4.
However, under cross-examination, it was revealed this was not a consent order or that the mother attempted to impose this regime upon the father. The document was an agreement the parties wrote out together, albeit in the mother’s hand. It was a joint effort in an endeavour to work out a proper arrangement for their child. The father’s evidence on this was disingenuous in the extreme.
The father further complains:
Over the course of 2012, our relationship remained volatile. She continued to push me to sign the consent orders. In January 2012, Ms Duff moved back together with me. Our relationship was unsettled and culminated in an argument and the police were called. Ms Duff continued to control access to X.
At this stage, X is around about 15 or 16 months of age.
The mother said 2012 was one of the worst years of her life whilst living at (omitted) when X was a baby. The mother describes her terror of the father constantly coming to her property at (omitted), unannounced and uninvited, ringing the doorbell and wanting to be buzzed in at any time of the day and night when it suited him. The father says that the mother:
Refused letting me see X. I got increasingly emotional about not being able to see X.
The ice skating rink incident. This is described at paragraphs 111 of the mother’s affidavit and paragraph 19 of Father’s Exhibit 2.
On 14 July 2012 the mother said the father sent her a SMS which said “Ice skating”. It is clear from his affidavit he knew Y was keen to go ice skating.
The mother said “Why ice skating X is too young”. He responded “Don’t be difficult do what you are told for once”. The father did not deny this is how he responded to the mother and could not as the thousands of SMS messages between the parents demonstrate this high handed and coercive means of dealing with the mother. The mother said out of fear of the father taking the children from her she agreed. A decision I suspect she regrets with hindsight.
The mother‘s version of events is terrifying. When they arrived at the rink the father took X from the mother and said “take Y ice skating”. The mother refused as she did not want to be on the rink with Y and X with his father and she confirmed her fears in cross-examination. As the mother gave this evidence she became tearful and anxious and was clearly re-living her terror and fears of that day.
The father said “If you don’t take Y will get a taxi and take X” the mother replies “I am not leaving you with X” the father said “if you don’t take Y, I'll get a taxi and take her too”. The mother was not shaken under cross-examination that these were the words the father said to her.
The mother and children were at the rink for 1.5 hours with the father and mother arguing. The mother said the father threatened to take the children at least 4 times. The mother said she and the children were crying. The father made to leave with X still in his arms. The mother followed fearful of what he was doing. The father put out his hand and Y took it. The mother said “Y let go, let go”. Y said “I have”. The mother grabbed the child’s wrist and said to the father “let her go, let her go”. He did not and pulled her arm up higher and then he released her hand.
The mother followed him as he was holding X. After some tooing and froing the mother removed herself and the children from the rink further traumatised by this manipulative and coercive behaviour.
The mother believes and I accept that the father engineered a situation where the mother would be preoccupied with Y, he would have X and as chance to decamp with him thus making good prior threats to remove the children from her.
In his affidavit the father blamed the mother for the incident at the ice skating rink. The father alleged the mother bent his finger back whilst he had hold of Y. He went to (omitted) Police Station to report the incident which he described as an assault. In the witness box he recanted that the mother assaulted him and said he went the police to only have a record of the incident.
Dr K said this is an example of manipulative and controlling behaviour. The father may have had good intentions for Y and her mother to enjoy ice skating. When the mother disagreed with him he became upset and panicked at the loss of control, attempted to coerce her to do what he wanted with a consequence that he turned what may have been a pleasant event into a terrifying event for the mother and an upsetting event for the children.
After this the mother would have no contact with him. The mother moved premises.
The father complained he did not know where his son was and that he was worried about him thus he formulated plan.
He put two and two together from words Y had said about where they had visited, where they had lived previously and that the mother still had (hobby omitted) to accommodate. He worked out where they were living. Knowing where the mother was living or being fairly certain he did not approach the house by the front door during the day, or leave a note in the letter box and attempt to contact the mother is a non-threatening manner.
Instead on 17 August 2012 the father went to the premises she was renting at 6 pm. 17 August 2012 is the middle of winter. It is dark by 6pm. He entered her property via a back paddock and not the front gates.
The father knocked on the door, a minimum of six times. Very loudly and insistently on the last occasion. He called out her name. I know this as he had recorded the event and this was played out in open Court as part of the father’s evidence to discredit the mother’s version of events.
Unsurprisingly, the mother did not answer the door. The father left. The mother was terrified and she reported the matter to the police. On 17 August 2012 an AVO was consented to by the father for the protection of the mother and children.
The father videoed and recorded the mother regularly and generally unbeknown to her. He recorded the events on the night of 17 August 2012 and this recording was played back at in Court. Thus I know the father knocked on the door and his knocking became louder and more insistent. I know he called out to the mother. I know it was a windy night as I heard the wind and that and that there were no other people about and only a lone dog barking.
The mother asserts the father has interfered with some recordings and does not accept that what he has produced is always accurate.
In Father’s Exhibit 2, his response to these and other allegations of frightening behaviour he does not acknowledge any poor behaviour of his, that he might have frightened the mother or acted inappropriately towards her and in front of the children or directly to them. The father’s affidavit asserts all the incidents are the fault of the mother or due to her issues and behaviours.
At paragraph 6 of her affidavit the mother describes an incident when she was pregnant and makes an allegation that, whilst they were unloading some bales of hay, the father hit her with a bale of hay. I accept she was hit however that may have been an accident at first. The mother further says when she said “You hit me with a bale of hay,” the father grabbed another bale and hit her hard in the stomach.
The father responded to this allegation as follows in Father’s Exhibit 2:
Her accusations have caused me a great amount of distress since the allegations began. I deny allegations that I would knee her in the stomach while she was pregnant with our child. We both wanted a child. After confirmation of her pregnancy, I had a tear in my eye because I was becoming a father.
This is not an answer to a specific allegation but is a statement about the father’s needs and perceptions.
At paragraph 13 of Father’s Exhibit 2, he asserts the mother hit him on two occasions, one being more like a shove with a plastic bag in her hand. The first event happened in (omitted) and the second incident was when X was a newborn at (omitted). I reject this evidence entirely.
The father deleted all the photographs on the mother’s iPhone. There were about 1,500 photographs. Although he admits to doing this asserting it was accidental he blames her because she hadn’t backed her iPhone content on to her computer.
The incident where the father removed the mobile phone out her hand when she was speaking to her mother. To use his words he acted this way because he felt “intimidated and cornered by the verbal abuse of both women”. At paragraph 17 of Father’s Exhibit 2 he says:
I deny hitting Ms Duff. After some more arguments, Ms Duff was talking to her mum over the phone. After listening to her constructed story, I had enough and asked her to hand me the mobile phone.
In oral evidence and under cross-examination, he admitted he pushed and shoved the mobile phone from the mother when she was speaking to her own mother and attempted to justify his actions on the basis that the mother was making up a constructed story about him and he had to stop it. The father’s own evidence supports the mother’s story that he was in a rage, flew at her and pushed her phone out of her hands whilst she was talking on it and she suffered injury as a consequence.
17 August 2012 was the last time the father saw the child and the mother until the family report and this trial.
The report was released in May 2014. When the father received a copy he told the Court he was so distressed by its contents and recommendations, he left Australia and went back to (country omitted) for five months. He did not tell the ICL or the mother’s lawyers or the Court that he was absent from Australia. He failed to attend at the call over to confirm the matter was ready for trial and I listed the matter for an undefended hearing. That did not take place as he turned up on the day. The father showed no remorse or regret for his sudden unannounced departure from Australia believing that the Court and mother would wait until he was up to running his case.
Dr K did not find the father depressed or suffering from any grief or anxiety. There was no evidence of a psychotic disorder. His presentation and mental state were complex, however.
Dr K says at paragraph 96 and 97:
I formed the view that it is likely that the relationship between the parents has been characterised by a pattern of family violence perpetuated by the father against the mother.
In using the term family violence, I am not suggesting that the father has necessarily been physically violent to the mother. I am using this term as it is commonly used in a clinical practice to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful and harmful to the other.
At paragraph 98 Dr K reports:
The mother described a pattern of intimidating, threatening, aggressive, intrusive, controlling and cruel behaviour by the father towards to her and, secondarily, towards Y dating back to early in the couple’s relationship in particular in December 2009 peaking at times when the mother began to resist and assert herself against the father to protect the children and continuing in interpersonal intensity until late 2012.
Dr K said at paragraph 99 that:
My impression is that this pattern of family violence was at the severe end of the spectrum. This pattern of coercive and threatening behaviour included some acts of physical violence, including one incident admitted where he shouted so loudly in the mother’s ear that he damaged her eardrum and others where he pushed or hit her such as including the mobile phone incident. This pattern of behaviour also included emotional abuse of the mother and Y.
This abuse included preferring X to Y, taking toys from Y to give to X, complaining about Y playing with X and interfering with his time with his son, running hot and cold with Y’s affections as she described to Dr K:
I like him when he was nice but he pushed me, he hurt my ears when he yelled at mummy, he took X away and mummy was crying…
I find that the father stalked and intimidated the mother going to her homes for example at (omitted) repeatedly without invitation and pressing the buzzer to be let in.
He stalked her at her home in (omitted) in August 2012 by piecing together bits of information where she was living in circumstances where he knew she did not want him to find her. Attending this remote property on acreage the middle of winter in the dark, finding his way in the dark, not by the front entrance but through a paddock towards the back of the house with neighbours many hundreds of metres way and knocking on her door and calling out her name knowing the children were inside.
For Dr K the most severe impact of the father’s personality and functioning on the mother is the father’s repeated attempts, at times successful to “control the mother through recurrent and intrusive, implied and direct verbal threats to take away or to harm the mother’s two children”.
Dr K continues at paragraphs 100 to 103:
This pattern of threatening behaviour commenced whilst the child was in utero, was reinforced by its success in enforcing a pattern of ongoing maternal engagement with the father in a pseudo-intimate and, at times, probably even intimate contact up until mid-2012 despite the mother’s decision to separate in December 2009 and her consistent fear of him and negative disposition towards him.
This behaviour by the father amounted to a pattern of severe emotional abuse of the mother rendered more severe by its manipulative utilisation of the mother’s protective concern for the child. The father engendered and maintained in the mother, over a prolonged period, an imminent fear for the safety and wellbeing of her children, which had a profound effect on her personal agency and led her life to being dominated by a reactive, protective, placating accommodation to paternal demands.
Whilst the father’s intrusions ceased in the mother’s life in about August 2012, she has continued to be profoundly affected by an ingrained awareness of the possibility of paternal harm to the children and a sense of foreboding and unease created by her current stance of assertiveness against the father.
I formed the view the mother’s account of the parental relationship was mostly reliable. The maternal grandmother and Y’s account were consistent with the mother’s account. The mother’s mental state and personality were consistent with her account. Records from the Anglicare and (omitted) Women's Health Centre corroborated her account. The father himself party corroborated the mother’s account.
The father’s attempted cross-examination of the mother and his attempts to justify his behaviours and blame the mother or her mother only reinforced Dr K’s assessment of him.
The father denied threats the mother said he made to take away the children, to end his life, to grab Y whenever he could, remove X so the mother would never see him again.
However Dr K says at paragraph 122:
The mother was not demonstrative, histrionic, attention-seeking or querulous in her expression of emotion. In fact, she appeared to be struggling to be constrained and to stay focused on articulating logically her concerns. She presented as vigilant and concerned about the risk posed by the father. She became bodily tense and focused in her discourse with tears coming to her eyes.
The mother’s fears are genuine and neither constructed nor misleading.
Dr K said in his oral evidence that both children appeared happy, not at all burdened by their mother’s clear concerns and emotional overlay. This presentation he said was consistent with a parent who was not histrionic or creating or making matters worse or embellishing a story but a parent who had suffered what she said she had suffered and was very protective of and able to protect her children from her own fears and disabilities.
Y’s father told Dr K that the mother seems “bloody well scared of this guy”, such that Y was taken out of school for 18 months and home schooled due to the mother’s fear that the father would kidnap her because of his threats to do so.
This real fear explains why she returned to the father again and again for brief periods and in particular in early 2012 for brief few weeks in January 2012. Y was to commence formal education. Dr K confirms her fears at that time lead her to form a view that the only, or the best way to protect her children was to live with the father then he would not be impelled to take them away from her.
Dr K says at paragraph 134:
Y herself carries fears of the father. She told me when seen with her mother, she doesn’t really think about him but the thoughts are he always comes at night and this wasn’t something nice. “Mummy gets sad. She cries. She thinks X’s dad might come.”
The father confirmed with Dr K that the mother is frightened of him. The father admitted she was frightened of him in the witness box. He agreed that the mother would sit in the driveway in her car whilst he spent time with the children, so fearful she was of what he would do.
However, having apparently made a proper concession the father quipped “This is because she is excessively anxious, not because she has a genuinely held fear of me”. The father gives with the one hand and takes with the other.
I find the evidence supports that the mother’s fears are genuine and justifiably held. If she is anxious it is due to the father’s disgraceful behaviour and lack of any remorse or insight into what he has inflicted on the mother of his child.
The only insightful comment from the father I have found in all the material he filed, in all the evidence he gave and all the interviews he has given is at paragraph 135 of Dr K’s report where he said:
…this fear might be of my physical presence. I never intended to actually threaten anyone but I would get angry, put my chest up in fight – in a fight you do. I probably have done.
It is not probable; it is a certainty which will continue into the future.
The mother told Dr K, he had said these threats for so long, threats to harm the children, take them away from her, that she would never see them again, kidnap them, kill himself if he didn’t get to see the child, that she believed she had to be careful. He knew where she was and lived. He could pick Y up from school anytime, just come and get her when he wanted to. Dr K accepted the mother’s position that she believed he may act upon these threats and said that as the genie was out of the bottle he could not say the father would not act upon these terrifying threats into the future.
The second limb of this violent behaviour is that the father acted cruelly towards Y, and at times X. The mother said he was cruel because he did not think about them, did not think about the consequences for them of his behaviour, what he was saying and what he was doing. He would try to intervene and separate Y from X and stop Y playing with X when it was his time. He would prefer X over Y. He would complain when the mother spent time with Y and X because the children were taking her away from him. On one occasion some paint was split which the father caused. He blamed Y and she was admonished by the mother.
The father confirmed with Dr K at paragraph 143 that he had challenged the mother to spend more time with him rather than just focusing on the children. This is a mother of a one year old and a three year old. This view beggars belief. These are statements from a man who now says he so wanted to be a father and was so excited to be a father. This is but another example of his idealisation of a situation.
This is also an example of what Dr K says is contradictory statements and behaviours. The father’s evidence is replete with contradiction. What he says is not what he does.
The father would demand a conversation immediately when he rang the mother no matter what she was doing. He would become angry and abusive if she did not comply. The mother said, “I just had to listen to him”.
The grandmother confirmed with Dr K she would tell her daughter, “Do not listen to him. Hang up”. On one occasion in 2012 the mother recounts that the father rang up and demanded to see X. The mother asked her mother to drop Y who was then three and at preschool. The mother drove to the father’s house with X and the father drove past her and X on a motorbike.
The father did not deny these actions. The mother says he would make an arrangement and then change it. He would insist the mother drop what she was doing and comply with his changed arrangements.
The father said in cross-examination he was intimidated by the mother in February 2011 when he alleged the mother threw X at him whilst he was sitting on the lounge. I asked how this was intimidating. He said:
She was intimidating. She would threaten to say that I would never see the child again. She would back me into a corner. She would chase me around the house.
That was flight of fancy or the father confusing his behaviours with the mother’s. There’s not one skerrick of evidence of such intimidating behaviour by the mother against him in his written material. He made it up as he went along.
The father’s externalising of responsibility is referred to at paragraph 153 of Dr K’s report where he opines:
He blamed the mother for not engaging positively in their couple relationship. Then he held her accountable for his aggressive response when her desire was to separate. And this was demonstrated by the father shouting so loudly in the mother’s eardrum as a strategy – because she hadn’t responded positively to what he had tried to do earlier – and hitting the mother’s telephone out of her hand because she was expressing to her own mother, a different perspective to his.
The mother showed Dr K the following texts which are in evidence before me:
If you want me to treat you respectfully then start treating me the same.
If you marry me, sweet husband; refuse, make your life hell.
No need to be scared of a cat as long as you treat the cat right.
Dr K said the father’s manipulative behaviour was demonstrated by expressing suicidal thoughts to the mother.
The father has had 4 failed relationships and has not accepted any responsibility for these failures.
The mother said the father had difficult relationships at work. The father denied this was the case however did not bring one shred of evidence to support his case such as a letter of praise or thanks or acknowledgement.
The father gave his occupation as a (omitted) at the commencement of the trial. He has been unemployed for 12 months and has not worked since May 2014. His explanation for this is this litigation and the toll it has taken on his functioning. I reject that evidence.
The father gave false evidence of where he lived. He could not even be honest about his living circumstances. I still do not know what the father’s living arrangements are. Living with Ms K, on his own at the property in (omitted) or maybe somewhere else.
It is apparent as Dr K opined that the father struggles socially with people. The mother said initially she felt sorry for him and believed his stories. However she has learned that he covers up the reality when it puts him in a bad light and shifts blame to others. His evidence was replete with such behaviour.
The father made a report to the Department of Community Services in 2012 that the mother was an incompetent parent due to her medical conditions. This was but a flight of fancy and bespeaks of vindictive threatening behaviour. At this time the mother was hiding from him would not engage with him and he was furious.
The father complained to the police that the mother’s behaviours were the cause of him knocking her mobile phone out of her hand when she was speaking to her mother.
The mother was justified in her belief that the father had a capacity to twist a factual situation to cover up his culpability and lay blame on those he has victimised. This behaviour was one of the father’s ways the father would control her, threaten and terrorise her. He employed his successful techniques on multiple occasions.
I observed the father behave this way in Court. For example he agreed he knocked the mobile phone out of her hand but said “that was because she was constructing a story about me to her mother and I felt threatened by her and her mother. Yes I had hold of Y’s hand but she bent back my finger when I would not let Y go to her”, and so on.
The father mouths words of acceptance of blame and then in the next breath absolves himself from any responsibility for his destructive behaviour.
The maternal grandmother spoke in her affidavit of the father trying to get her on his side about the mother’s behaviours. The grandmother said she has said to him, “Stop bullying. Why are you threatening your own child?” I can see why the father said he felt threatened by the maternal grandmother as she was a wake up to his manipulations and untruths. The father makes great complaint about the maternal grandmother, saying she is one of the causes of their relationship breakdown.
The ability of the father to successfully cover up and recreate the story and convince others he is right and the mother wrong has made the mother hyper-vigilant. The father has caused this consequence not the mother.
The father has not been successful in this hearing in convincing me he is some someway the victim and the mother the aggressor. I find the father exhibits a dangerous and treacherous personality and poses a real danger to the mother and her children if he has any capacity to be involved in his son’s life at any level. It is his actions that have caused this, not the mother’s.
I am satisfied the father told the mother repeatedly he could take Y, the police won’t stop him. When she repeated this to Dr K she became breathless and very emotional at this hearing when the topic was raised.
The father took audio recordings, video recordings which he has tendered and used in these proceedings without the mother’s knowledge or consent. His explanation for this behaviour was that he did this to protect himself from what he regarded as the mother’s unfair criticisms of him. The mother’s criticisms are not unfair they are correct and supported by the father own evidence and behaviours.
The recording the father took of the ice skating rink which is part of Mother’s Exhibit 2 is chilling and consistent with the mother’s genuine fears and the father’s coercive and threatening behaviours:
The father:
Y can you come here please. Come hold my hand Y. No you cannot let go, come hold my hand.
The mother:
Please let go of her. Y let go now, let go of her, let go of her please, don’t twist her arm, let go of her.
The father:
What in the hell are you doing you just hurt me
Then later, the father:
Ms Duff legally I can protect the rights of X. Legally I have the right but I’m not going to. I can if I want to because I am allowed to do so. I’m not going to do that.
I could leave and go in taxi and I have rights to do this legally. I’m not doing this. I bought him back into the car because obviously you know you are out of your mind at the moment. So I’d better let you go home.
The father’s own words in the recording he made unbeknown to the mother support her position and Dr K’s assessment of the father as controlling, threatening and coercive towards the mother and children.
Given I have accepted the mother’s evidence that he had previously threatened to take both children from her whenever he wanted to I accept the mother was terrified and traumatised by his actions and felt correctly that she had been set up.
This incident is also an example of the father’s idealisation as Dr K put it. The father has a view about the loving, committed, together family who are going ice skating. When someone does not act in accordance with this idealisation such as saying no, the father panics as he is losing control of his dream and then seeks to coerce and terrify the objecting party into submission.
The ice skating event was terrifying for the mother and a distressing event for the children. Y did want to go ice skating and she missed out and the father perpetrated a cruel punishment on her. Y and X saw their mother upset and terrified again. This event further confirms in the mother’s mind that all the father wants to do is control and manipulate her and harm and/or hurt her children.
The grandmother confirmed that when the mother moved back in with the father in January 2012 she said to her:
Look, mum, it’s temporary. If I’m there I’ve got more control. He can see X and maybe he won’t take X.
This father has convinced the mother that this is what he will do, and I make a positive finding that he is more than capable of doing what he has said and her position is justified by his behaviours and actions. His reason for saying such things to mother again and again, may not be that he would take the children, rather to bring the mother to heel and make her live with him. Not only has his ploy failed it has made the mother terrified of him.
Dr K says at paragraph 80:
I think most likely the father’s threats to harm the child, take the child or physically harm him were part of a coercive strategy to manipulate and control the mother, and the father did not have an ongoing intent to harm the child.
Dr K said in his report that he cannot however be sure. In circumstances where I accept the mother believes he is capable of such abhorrent behaviour I must act protectively and cautiously in making an order in the child best interest. As Dr K reported the father, having made the threats, is unable to put the genie back in the bottle.
The maternal grandmother confirmed the mother’s fears about the way the father behaved with the child X, jiggling him on his knee, throwing him in the air when he was a young baby - activities which were inappropriate. The women each say they were scared of remonstrating with him. The mother said she just complied. The grandmother said if he was questioned he would storm off and she knew if she remonstrated with him that her daughter would have to deal with him later.
At paragraph 172, Dr K says:
The mother’s compliance reinforced the father’s coercive behaviour but also allowed him to maintain the idealised illusion of a couple relationship.
The father’s case that they were in a committed couple relationship is based upon his own delusion and the following matters. He said the mother placed a deposit on a block of land in September 2011 to settle down on. That she accepted his help with the (hobby omitted). The father said “we were trying to sort things out for love or just for the children”.
Nothing could be further from the truth. This man imposed and interposed himself in this mother’s life.
Dr K opined that there is a significant risk of some elements of this pattern of family violence recurring in the father’s future intimate relationships, including with the child which would place X at risk of future exposure to poor behaviour which would increase in probability with more time being spent with his father. That is if X challenged his father as growing children do he may suffer the behaviours of coercion, threat and terror his mother suffered in his father’s efforts to have him comply with his idealised view of the father/son relationship and maintaining control.
At Paragraph 193 Dr K referred to the father’s exclusion and cruelty to Y.
The father dismissed these claims and said Y loved him.
However Y had her own voice in the interview and it was powerful. At paragraph 185 she said:
When he didn’t threatened me, I kind of liked him.
Consistent with the mother’s evidence he ran hot and cold. Sometimes nice and then suddenly not nice. This is also Y’s experience.
At paragraph 187:
The first time I was being nice to X, the father pushed me away. He started yelling at me, “Don’t get into X’s business. He’s having a good life without you in his way”.
I make no finding as to whether the father said those words however I accept he pushed Y out of the way excluding her and preferring X. Y said:
He said he didn’t like – he wanted X to have the best life, and I used to like playing games with mummy, but when that father was around, I was not allowed to play. I had to play by myself.
This is consistent with the mother’s evidence that he was jealous of the mother’s necessary attention to the children. The father’s behaviour is juvenile and he does not understand the needs of a child and his needs take priority.
The protestations of being so happy to be a father fall on deaf ears as his behaviour is to the contrary. Y recalled getting into trouble from the father. Y said:
There were two swings and two things you hang off. I was swinging next to X, was not allowed to. I had to go on the slide, and he got cranky. But I’ve never been naughty.
I was doing a picture of X. X was painting a picture for playing. X’s dad pushed over the paints. It was noisy. And he said I did it and mum believed him. I was sent to my room. He just didn’t want me to play with X.
Dr K found that Y’s description of the father kicking her in the legs was not necessarily true however and it may have been accidental. Y’s accounts of the time she liked being with the father, the father admonishing her and getting cranky with her when playing with X, blaming her for spilling paint and allowing her to be punished had the quality of episodic memory. Dr K said that ripping up her paintings was a theme consistent with her experience of the father being cruel to her.
Dr K went on to say he formed the view the father, at times, incorporated Y into his idealised, energetic engagement with himself as a good parent, but at other times he excluded her and was cruel to her in favour of his idealised and possessive engagement with the mother or his child.
As the father demonstrates no capacity to see matters from the child’s position he is incapable of making a decision based upon X’s best interests. The father’s needs will always overwhelm and dominate any other person needs including his sons.
At paragraph 242, Dr K opines that although the overtly anti-social behaviours of the father described by the mother, grandmother and Y were denied by the father and he formed the view that the father’s presentation was consistent with their description.
At paragraph 245 he opined that the father has been deceitful in denying significant elements of his negative behaviours such as threats to the mother and exclusionary behaviours to Y in favour of X. That he suffers from a significant personality dysfunction with prominent narcissistic and anti-social personality traits.
At paragraph 248 he said he believed the father told him what he thought Dr K wanted to hear. This I the same view I formed of the father’s stories.
This is in stark contrast to Dr K’s view of the mother and her parenting capacity with which I agree.
At paragraph 227 Dr K says the mother is richly capable of meeting the child’s more complex emotional, intellectual and developmental needs.
Paragraph 229. The mother showed a strong capacity to provide for the children’s needs despite her experience of family violence and her capacity would be enhanced by even more protection from the father than she has had.
At paragraph 216 and 217 the children presented as free of their mother’s experiences and concerns and she is a woman of sound personality functioning.
Dr K formed the view that the mother’s level of anxiety was proportionate to her perception of the risk to the children and that which was posed by the father. The mother is functioning and the children are doing well. The mother does not have post-traumatic stress disorder, but she is at risk of developing it, should she not be able to feel safe or that her children are safe.
Paragraph 203:
She does not have post-traumatic stress disorder. She is still on high alert. But that may occur when she feels safe, as happens to soldiers when they return from the battlefield.
I find, as Dr K opined at 204, that the mother has valid grounds for concern about the risk to the children posed by the father and that her anxiety is not an illness, but it is an adaptive response to risk, does not require treatment, but rather for the risk to be addressed. The mother has good, strong personal boundaries and good reflective thinking.
This is in stark contrast to the father who Dr K found at paragraph 211 was rigid and his idealism is a real concern.
The mother could accept difficulties in life; was realistic about them; has a good relationship with her own mother; has a flexible relationship with Y’s father, who has been supportive of the mother and Y.
Y presented as free to love and enjoy both her parents. She idolised and was excited about her dad, and her mother did not resent this. The mother is a woman of sound personality functioning, observed under stress of adapting to a pattern of family violence perpetrated by the father.
Paragraph 238:
In my view, the father has significant personality dysfunction with prominent narcissistic and antisocial personality traits.
The father was mortified in being diagnosed as a narcissist. Yet that is one of his personality traits.
Dr K said at paragraph 239 that reflecting on the narcissistic personality style, the father demonstrates a pattern of grandiosity, need for admiration and lack of empathy. This trait was demonstrated clearly by his questioning of the mother and Dr K and his stated position that the mother had told Dr K untruths.
The father told me that he would be able to demonstrate by cross-examining the mother that she was telling a fiction and that his version of events was correct. This he said would mean Dr K’s report was flawed as he had accepted the mother’s history and thus he based his assessment of the father on erroneous findings.
The evidence at the trial and in particular from the father’s questioning of the mother and Dr K had the opposite result. The mother is the witness of truth and not the father.
The untruths the father focused on were matters such as the time of a telephone call, that there was an inconsistency in the mother’s statement about whether he was inside or outside the gates when he snatched a not yet one month old from his mother’s arms.
The father cross-examined the mother on this incident as described at paragraph 31 of her affidavit:
In about September 2010, Mr Zeegas said to me, “Come to the movies.” I said, “No, I don’t want to go. I have to look after my children.”
Mr Zeegas was at the house with the mother.
Mr Zeegas grabbed X, yelling at me, “I told you I’d take him if you didn’t want to be with me,” he walked out of the house holding X, heading up to the driveway to the security gates, where his car was parked on the road. I raced after him, begging, “Please give X back.” Y followed us as well, screaming, “Mr Zeegas, don’t take him.” Y was screaming and crying and appeared distressed. Mr Zeegas stopped just outside the gates –
The father challenged the mother that he was still inside the gates.
“Please give X back. I’m too tired and sore to go to the movies. I can’t go because X will need to be fed.” The father shouted, “I’ll give him formula like other babies. He won’t starve.” I said, “You don’t have a car seat. Please just give him back to me. We’ll work something out.” Mr Zeegas threw X back and jumped the fence and walked to his car.
The father agreed he took the child, headed up the driveway with him and threw the child at the mother. What the father cross-examined the mother about was whether these were actually security gates; that he was inside and not outside the gates; that the gates were not shut but were open. Anything other than the real issue.
In an attempt to accord fairness to the father I pointed out to him on many occasions that he was missing the point in the focus of his questions. I stated:
You are missing the point of the paragraph. It’s your behaviour that is the concern here, not whether the mother accurately told me whether you were inside or outside the security gates, the date of a phone call, whether she rang you but that you snatched the child from the mother.
However his focus remained on trivial matters.
There was no answer or even an apology or recognition of the trauma and fear he caused the in the mother, Y and X.
The father’s cross-examination of the mother was revealing in what it told me about his case. The father asked the mother whether she asked him to come to the hospital when they suspected X may have had meningitis. I could not see the relevance of this point given how afraid the mother would have been at that time for her son’s health. Even if the mother failed to ask him to come to the hospital such an answer did not assist the father at all.
The father was obsessed with how many days the mother was in hospital with X. Her affidavit said it was a week. From the medical records the father said he had read it was apparently only a couple of days. However as it transpired this position of the father that the mother was telling an untruth could not be sustained as no hospital records for the mother had been subpoenaed. That was not the issue. The issue was the reaction of the parents and the mother and father.
The mother says when at the hospital X was diagnosed with meningitis or possible meningitis the father looked it up on his iPhone and said to her:
Babies get meningitis from their mother. He got it from you. Well done. Good mum.
This caused her distress and was cruel. The father agreed he looked up meningitis, but his explanation was he just said oh in a surprised tone, children get meningitis from their mother. I prefer the mother’s version of events to the father’s. The mother was very firm:
I remember what I said. What I wrote in the affidavit is what happened.
I accept that is what happened.
Dr K fleshed out the father’s narcissistic personality traits at paragraph 239:
The father demonstrates a grandiose self-importance, a preoccupation with fantasies of ideal love and of power, requires excessive admiration and attention, has a sense of entitlement, is interpersonally exploitative, lacks empathy, being unwilling to recognise or identify with a feeling and needs of others. He can be envious of others and believe others are envious of him.
These are exactly the personality traits the mother described in his behaviours towards her and Y and X and her own mother:
The father demonstrates a pattern of disregard for and violation of the rights of others. He can behave unlawfully, be deceitful, irritable, aggressive, irresponsible, and lack remorse.
Dr K drew his impression of the father’s personality style from the accounts of others who were specifically the mother, Y, the maternal grandmother, Y’s father, the father’s 2 friends who attended the interview Ms P and Ms K and the father’s own account of his experience and his presentation at the interview.
This is the same for the Court. At one level I did not need the mother to be examined or cross-examined or her evidence tested as the most cogent and compelling evidence of the father’s serious and significant dysfunction comes from him and it is consistent with the mother’s evidence.
What has weighed the most in my decision is Dr K’s report, the father’s cross-examination of the mother and Dr K, his answers under cross-examination and his submissions.
The father himself has provided me with all the necessary evidence to support Dr K’s opinion and the mother’s concerns. Dr K said the father acted in a deceitful manner in that he denied significant elements of his negative behaviour such as threats to the mother and exclusionary behaviours towards Y in favour of his child. His narrative was notable for its jarring and illogical juxtaposition of idealised and altruistic expressed affections or intentions with unempathic depersonalised, utilitarian or strategic descriptions of events. His narrative lacked substance and cohesion.
This is a description of his affidavit evidence and Father’s Exhibit 2. The father’s documents tell me nothing specific. It is a story that is concocted or to use the father’s words “constructed”.
Dr K noted sudden shifts in the father from idealising pathos to defensive irritability. That was observed in court. He would regroup. He asked for many times to regroup, which were given to him.
Dr K observed the father would reply with a mix of utilitarian responses, dismissing comments and idealised altruistic content. He often felt the father was telling him what he wanted to hear. His narrative appeared constructed and reactive. When he spoke he made reference to how he must be appearing or wished to appear. This is the same view I formed of the father in the witness box.
I asked Dr K, “Were you looking for Mr Zeegas in his narrative but you couldn’t find him?” Dr K said, “Yes. That’s not a bad description”. The father was projecting to Dr K what he thought people wanted to see, what he thought people wanted to hear, not the truth. That is the distinct and strong impression I obtained from his evidence in the witness box. The father may believe his story but it is not the truth.
At paragraph 252, Dr K asked the father who did he think was responsible for the obnoxious atmosphere between he and the mother. The father acknowledged with apparent earnest, gallant pathos the mother was just trying to protect them and that was the motive for her actions.
This vignette demonstrates that at one level the father can be reflective i.e. “she was just trying to protect them” and has an apparent understanding that the mother’s protective issues come about because of the obnoxious relationship, yet when pressed the father externalises the fault to others and never himself.
Dr K then asked the father whether the mother was genuinely fearful of him harming the child or was she exaggerating. At paragraph 254:
“Why? I’m puzzled. Probably both.” He then labelled the maternal grandmother the driving force behind everything, made reference to maternal mental illness, the words postnatal depression, clinical depression, or bipolar. “I’m not qualified to judge, but she has major anxiety issues.”
Dr K agreed this was an example of externalising and blaming others for a problem he had.
The father terrorised the mother from almost the first time they met and certainly from her pregnancy with X with his threats to remove Y and X from her whenever he wanted.
I did not get truth from the father. I got a story he wanted me to accept. When the truth was exposed such as yelling in the mother’s ear so loud as to cause her pain, stalking her home on a dark winter night he would then accept this was what he had done but never once did he confess his culpability from his own lips. He accepted propositions put to him when he realised he could not argue with the proposition but never once from his own lips did he admit his responsibility or fault for poor behaviours. His answer was that he was driven to behave in these ways by others.
The father said that the mother was controlling of him. I reject that statement. The father did not like the control the mother had of the child. He acted in a jealous and possessive manner at what he regarded as the child interfering with his relationship with the mother, a relationship based upon the mother’s fear and his coercion of her.
The father exercised control over the mother when he could. The father deleted 1,500 photographs from the mother’s iPhone when it was in his possession. The father said it was because he was downloading a software program. The mother said this occurred just before Christmas, 2011. The father said he would download her photographs onto Y’s computer which had been given to her by her dad so the mother could print the photos off as Christmas presents. The father said they were deleted by mistake and it was the mother’s fault because she did not have the photographs backed up.
I prefer the mother’s version of events. The father did this on purpose. The photographs have never been retrieved. This is an example of cruel, coercive and controlling behaviour.
Dr K commented at paragraph 260 that the father had a tear in his eye and left it sitting in the socket of his eye. Dr K commented:
People will usually only leave tears fallen on their face when they're in a state of extreme emotional decompensation, which was not the case. I formed the view that the father’s failure to wipe it away represented a deliberate strategic amplification of displayed emotion.
In layman’s terms he was putting it on.
The father put to Dr K he had this tear because he had been on his motorbike and some debris or detritus was in his eye and his eyes were irritated. Dr K replied that this could be an explanation, but was not the explanation at that time and said “You were putting a show on for me”.
The father showed Dr K a video of Y to demonstrate that for Y he was not a scary person. The video shows the father engaging Y in conversation, appealing to her to come to him and saying insistently and demonstrably, “Mummy is not letting you – give me a cuddle”. As the father speaks to Y she looks up and comes away from the mother towards him. The father said “Y’s walking. She’s not crying. She’s running back to me. I’m not a scary person.”
Dr K, in answer, said he was struck by the father’s lack of empathic connection with the mother’s apparent distress and need to escape his presence. His lack of insight of his coercive and manipulative attempt to challenge the mother’s adult decision to exit his presence by engaging with Y so to pull her back towards him rather than let her go away with her mother and then blaming the mother for depriving him, the father, of a cuddle was what he observed in the video. This echoes his actions at the ice skating rink.
Dr K was most concerned that the father’s current friend/partner was unable to articulate any negatives about her experience of the father and post-separation cordiality was maintained and as it was with Ms K, everything was wonderful, he was perfect. What Dr K said is that this cannot be correct but is an example of these women having to appease him in order to keep the peace because it’s either idealised or it’s nothing. There is no normal in this man’s life, and we all have normal in our life.
Dr K said the father’s commitment is more to himself in the role of a father rather than a commitment to the child himself. The father’s commitment to the child is less secure and will not be resilient over time in contrast to the mother’s. That this commitment is vulnerable to shifts in the father’s personal focus, his role as a parent, that he has parental rights and obligations he must exercise rather than wanting to be a father to the child.
The mother picked up on this behaviour before X’s birth and this is but one of her concerns.
As an example the father has paid $100 support towards the child since his birth. It is unlikely he will ever pay child support because he will not work. He has purchased little if anything for the child. The mother supports X financially.
The mother paid for Dr K’s fees, which were some $11,000. I ordered the father to pay her back his share of $5,500 by payments of $100 a week. He has paid nothing. However, he managed to pay Dr K’s fees for cross-examination at the trial of $2,700. This is but a further example of the father’s needs overwhelming the needs of the child.
The father has failed at every level to support his child financially to the best of his ability and yet seeks to convince me he is a devoted and caring father.
Dr K said the father’s idealistic positive energy would make him better than average at meeting the child’s emotional need for attention, engagement and intellectual development. However, he further opined whether the father could sustain such a commitment. Dr K says:
I am concerned about the father’s long-term ability to meet the child’s emotional needs, the child’s need for a stable and positive relational context, and the child’s need for physical safety.”
My concern is that if he achieved any relationship or time with X he would then devote his energies to his next goal which may not be a goal consistent with X’s needs.
I find the father could not sustain a long term commitment to his son.
The Law
In M & M[1] the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
Efforts to define with greater precision the magnitude of the risk justifying a Court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance the test is best expressed by saying a court will not grant custody or access to a parent if that custody or access would expose a child to an unacceptable risk of sexual abuse or as here “abuse”.
[1] (1988) 166 CLR.
In B & B[2] the High Court endorsed the Full Court’s statement that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
If a trial Judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur then a trial Judge may, in our view, suspend access.
[2] [1988] HCA 66.
The law is not that a child must have a relationship with each parent at any cost.
Going to the legislative pathway I am to follow.
The first task is whether I rebut the presumption of equal shared parental responsibility.
Section 60B of the Act sets out that the objects of Part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerned the care, welfare and development of their children.
Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D gives the Court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
Parenting orders are subject to the presumption under section 61DA(1). The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility.
When the presumption is not rebutted by virtue of section 65DAA I must consider whether the child spending equal time with each of the parents would be in their best interests and to answer this question I must consider both whether it is in a child’s best interests to spend equal time by reference to the section 60CC (2) & (3) factors and whether such an order is reasonably practicable.
If I do not find such an order is appropriate then I must consider whether a child spending significant and substantial time with a parent is in their best interest and to consider that question I follow the same pathway.
Significant and substantial time is defined in the Act to mean days that fall on weekends and holidays; days that do not fall on weekends or holidays; days that include part of the child’s daily routine; special occasions and events.
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in their decision of MRR & GR[3] where the Court said:
Each of subsections 1(b) and 2(d) of section 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.
[3] [2010] HCA 4.
The High Court went on to say that section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
The law is not that a child must have a relationship with each parent at any cost.
I will rebut the presumption of equal shared responsibility as it is neither practical nor realistic such a responsibility be shared in the light of my findings of the mother’s genuine fear of the father. Nor would it be an order in X’s best interest. If the father had any capacity to input into a decision concerning his son he would make the decision based upon his needs and attempt to reassert control over the mother.
Thus I need not consider an order for equal or significant and substantial time, only whether I make any order for time.
Going to factors relevant under section 60CC (2) & (3).
I see no benefit to X from a relationship with his father. I see only risks and disruption to his normal and carefree childhood if he has any time with, communicates with or has contact with his father as Dr K commented on.
This is a case of assessment of risk, and I have assessed the risks to this child from spending any time whatsoever with his father far outweigh any benefit he may receive.
There is a clear risk identified by Dr K’s to X in him spending time with his father being a diminution in his mother’s functioning and parenting capacity.
The first risk is that the mother’s emotional functioning would be so seriously compromised she could not possibly maintain her hitherto fairly impressive parenting of these children in extremely difficult circumstances.
In circumstances where the mother will be X’s only parent it is an imperative that the mother is supported in this role and her need for protection from the father into the future will enhance her parenting as Dr K opined.
The second risk is that I, like the mother, am concerned that the father is a physical risk to the child in that he would carry out his threats and remove X from the mother’s care and also kidnap Y if he knew where they were or he had any opportunity to find out where they were living, or extra-curricular or educational activities they engaged in.
The third risk is that I find the father has no capacity to put the needs of the child first and he has demonstrated little insight into the needs of his child. The father’s focus is his role as a parent rather than focusing on being a father to X.
The fourth risk is that I am concerned as was Dr K that the father has no capacity to sustain an ongoing commitment to his son.
The fifth risk is that he is a significant risk to the child’s psychological functioning both directly in regard to his warped view of the world and the impairment of the mother’s functioning if X had any time with him.
Sixthly, I am concerned he could be cruel to X as was to Y if X, too, does not listen to him or does not engage with his father as his father thinks he should.
He may yell in X’s ear. He may flick a mobile phone out of X’s hand. He may push X out of the way. He may stalk X in his home in winter when it is dark and terrify him as he has done with the mother. He may let X take the blame for his behaviours as he did with Y.
If the father has another relationship and a child he may prefer that child over X as he preferred X over Y. These are all risks to X’s wellbeing and they are highly likely to happen in the future if time is spent.
Seventhly, if there is an order for time or communication this will disturb X’s usual care arrangements, which is no time with or communication from his father. The risk to the child of effecting such a change is unacceptable to his wellbeing from direct physical harm in being removed from his mother’s care or being harmed by the father.
I accept that the father although making threats to remove the child and/or harm the child has not done so and Dr K agreed this is the case. However the genie is out of the bottle and Dr K and I cannot be sure he would not make good his threats of the past into the future.
Further X does not know his father and this situation must continue if I am to make an order in the child’s best interest. To know his father will be catastrophic at every level for X. If he commences a relationship with his father this will disturb his usual care regime, it will upset his mother, it may upset Y, and it would be deleterious to X’s long-term health and welfare and give the child little or no benefit other than knowing he has a father.
I do not see any communication at all is possible. This is a man who will use every means available to continue to harass, threaten, and control this mother if he can. An ongoing relationship with his son is how he can get to the mother as history has shown. A relationship with his son is a means to an end, not the end in itself.
X’s usual care arrangements will continue to be made by his mother with no input from his father or even any knowledge of those arrangements being conveyed to the father.
The mother demonstrates a high parenting capacity and has demonstrated capacity to protect the children from her own impaired functioning due to the behaviour and conduct of the father.
The mother is the only parent with any insight into the children’s educational, psychological and emotional needs. The father is unable to focus on needs other than his own and has no or little capacity to provide for the child’s needs.
There is no family member from the father’s family that the child has a connection to. The child derives much benefit and nurturing from his maternal grandmother.
In light of my findings, I will make the orders sought by the mother and supported by the ICL and Dr K.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Associate:
Date: 28 April 2015
Key Legal Topics
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Family Law
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Civil Procedure
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