Lofts & Lofts  FamCA 95 (19 February 2016)
Supervision sought by ICL. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/95.html
- Neither parent was a particularly impressive witness. I consider the father to have been evasive on occasion, somewhat argumentative, glib and occasionally smug and self-satisfied in the manner in which he gave his evidence.
- The following aspects of the mother’s evidence persuaded me to approach an assessment of her evidence with significant caution:
- during her cross-examination, the mother said, for the very first time, that C had told her after his interview with the police on the day of the USB incident (in 13 September 2014) that the father told him he made the images on the USB; and
- despite initially saying that the children had always called their father “[Father’s Christian name]”, she later gave evidence to the effect that, at one stage, they used to call him dad; and
- during her cross-examination, the mother recounted that, on the day of the USB incident, B told her that they had to move “he is going to find us” – a recounting that is not supported by any comment made by the child to police when interviewed later that day and an assertion that appears to me to be completely inconsistent with the reality that the father has always known where the children live; and
- when the mother was interviewed by police on 27 December 2011 she was asked if the father had committed any physical violence toward her and said that, whilst she felt intimidated by him, there really had not been any in their relationship; she told the police he had never actually been physically violent toward her and that there was definitely not anything physical and no unwanted sexual advances – this is contrary to the assertions that seemingly first appeared in affidavit material sworn by her on 6 February 2012 (in support, I assume, of the application for a protection order); and
- whilst, when asked to explain why she had failed to give the children the letter written by the father to them apologising for the USB incident (the first correspondence he had ever written to the children apologising for any of his behaviours), the mother first said she had failed to provide this to them because there was a lot of stuff going on in the paperwork but, later, said it was probably her fault for assuming they would not want to read it: the latter comment suggests to me that it was not, in fact, a matter of inadvertence but, rather, a deliberate decision based upon her assessment that the children would not want to read that correspondence.
- Her action in failing to provide the children with the father’s apology for the USB events is, I think, a stark example of the manner in which she is likely to approach her support of their relationship with him in the future.
- In order to understand the reasons underpinning the Independent Children’s Lawyer’ identification of these issues as those which, in a sense, prevent support for unsupervised time being proffered now, it is necessary to have regard to a number of historical matters.
- In 2002 the father was involved in a fatality during the course of his employment He was subsequently diagnosed with delayed onset Post Traumatic Stress Disorder in 2006 – a subsequent diagnosis of Cushing’s Disease (which is said to result in high levels of cortisol, leading to mood and behavioural changes) apparently casts some doubt upon the accuracy of this diagnosis. It is unnecessary to resolve this issue because, whether as an (understandable) result of the 2002 event or the effects of Cushing’s Disease (or a combination of both), the father appears to have used alcohol over many years to self-medicate against his feelings of anxiety and depression.
- Additionally, whether as a consequence of the effects of the 2002 event or the existence of Cushing’s disease, the mother says that, after the 2002 event the father suffered from “incredible” mood swings – that is, whilst previously present, these worsened and resulted in behaviours like: ignoring her and the children; locking himself in his room; sleeping for the entire day, drinking heavily and staying out late and removing himself from interaction with other members of their household.
- Despite these behaviours and others she alleges the father engaged in during their relationship, the mother facilitated the children spending time with their father after separation in August 2011. From about this time until about early February 2012, all of the children spent time with their father: as D (then about 18 months of age) was cared for by the father’s grandmother (with whom the father was living) for about four hours a day, five days a week, the father spent daily time with him. He also spent unsupervised time, albeit on a less regular basis, with both B and C.
- The mother’s evidence is that, had the father sought additional time with both B and C in this period, she would have supported this: that is, her case is that the somewhat sporadic nature of the two older children’s interaction with their father between August 2011 and about February 2012 was a consequence of his withdrawal from them and not because of decisions she made.
- The parties participated in a counselling session at Relationships Australia on 2 February 2012. After this event, police applied for a Protection Order (in respect of which the mother was the aggrieved person) and the mother ceased the children’s time with the father for a period.
- Whilst I am unable to determine specifically when it occurred, it seems that the children ‘subsequently’ or ‘thereafter’ resumed spending unsupervised time with their father. This time occurred on an overnight basis. Whilst there is evidence that it was approximately every alternate weekend (with changeovers occurring via the police station), the account provided to Ms G suggests that it encompassed approximately two overnights per week, with some variation due to the father’s work roster.
- A temporary Protection Order was made in June 2012.
- On 13 December 2012, a final two year Protection Order was made after a hearing during which the mother claimed, amongst other things, that she had been sexually assaulted by the father and that previously, in the presence of the children and his sister, he had pointed his service revolver at her. Both of these matters are denied by the father.
- The father lodged an appeal in relation to the Protection Order. This was successful and resulted in the duration of the operation of the Order being reduced to 15 months. It ceased in about April 2014. No further order has been made.
- The mother ceased the children’s time with the father on 13 December 2012. She says she did so because the father made what she considered to be threatening posts directed toward her on his Facebook page. The father, however, asserts that she did so because, during the hearing of the domestic violence application, she became aware he had commenced an intimate relationship.
- On about 22-23 February 2013, the father decompensated: he became extremely intoxicated, verbally abusive and aggressive. On 23 February 2013, he was voluntarily admitted to I Hospital for 11 days. This admission appears to have been consequent upon him suffering depression – during it, he was also prescribed naltrexone to address alcoholism.
- In March 2013, the father saw Dr J, a psychiatrist appointed by his employers to assess his capacity to return to work. Dr J diagnosed alcohol dependence. The father later attended upon Dr K, a psychiatrist, who – in July 2013 – considered he could make a graduated return to work.
- On 13 September 2014, during a supervised visit, the father showed the children images stored on a USB he says was prepared by a family member (or members) for use at his 40th birthday celebration that evening.
- I am not persuaded it is likely that the father was responsible for the preparation of the images stored on the USB. I accept that he had not viewed it until he showed it to the children. His decision to show the children the images on the USB without first viewing its contents was very unfortunate because these included an adulteration of their parents’ wedding photo such that their mother’s head was replaced with a ‘bullet hole’ sticker.
- When the mother became aware of what had happened during this visit, she reported this to the police. The children were interviewed. Their time with the father ceased.
- The children did not spend face-to-face time with their father again until 8 May 2013 when they all participated in an interview conducted by a Family Consultant for the purpose of preparing a Memorandum to Court. Their next face to face time with him occurred under supervision in about April/May 2014. I accept that, from about 26 August 2013 onwards, the father attempted to communicate with the children twice per week by telephone. I also accept that this communication was attended by difficulties.
- The children and the mother were interviewed by Ms G on 17 October 2013. She interviewed the father on 29 October 2013. Her observations and conclusions arising from this interaction and the information provided to her at this time are contained within the first Family Report, dated 15 November 2013. Her first report outlines her conclusions, which I accept, that the material available at that time strongly suggested the father:
- had a lengthy history of mental health instability – with a past diagnosis of PTSD which was considered to be resolved and a current diagnosis of an adjustment disorder with depression and anxiety; and
- appeared to have engaged with appropriate psychiatric care.
- The father was asked to leave a local sports club on 21 February 2014. He denies this occurred because he was intoxicated and/or aggressive or inappropriate in his interactions with an off duty staff member. He asserts that after an interaction with the staff member (who was known to him), he was asked to leave because she was engaged in celebrations. He denies being intoxicated on that occasion.
- Each of the father’s account is not accepted, there is no evidence that there has been a repeat of the behaviours he is alleged to have engaged in on that occasion.
- On 27 March 2014, the acting Principal Registrar ordered that the children spend time with the father for two hours each fortnight at a Contact Centre located in their home city. At the time the Order was made, the father undertook that he would not consume any alcohol within 12 hours before any time he spent with the children at the Centre. There is no evidence to suggest he has breached this Undertaking.
- From about April/May 2014 until mid-September 2014, the children spent at least some time with their father at the local Contact Centre. His evidence that they (the children) interacted well with him during this time is corroborated (to some extent at least) by the succinct evidence given by ‘Ms L’: when asked to outline her observations of the children’s interaction with their father, she said “fine”.
- Whilst the content of the Centre records is limited and the position was not substantially improved by ‘Ms L’s’ evidence, I am comfortable in concluding that, considered within the limits imposed by supervision, the children’s time with the father was, in fact, ‘fine’.
- On 23 October 2014, the Principal Registrar varied the 27 March 2014 Order to provide that the boys spend time with their father at the Contact Centre for one hour each fortnight. Other than to say that, on at least some occasions the children did not attend this time – for one reason or another – it is very difficult on the evidence advanced by the parties to determine precisely the time the children spent with the father after this date. However, as noted earlier, at the date of hearing this time was occurring and, according to ‘Ms L’, D plays happily and interacts with the father whilst C interacts with him in a teasing kind of way.
- Ms G interviewed the parties and children again on 11 September 2014. She also spoke with the parents by telephone later that month. Details of her observations, conclusions and opinions arising from these interactions are contained in the second Family Report, dated 1 October 2014.
- In September 2014, the father told Ms G he had last seen his psychiatrist in July that year and was not continuing to do so because he had been told this was no longer necessary. He reported a reduction in his antidepressant medication and said he could not recall the last occasion on which he had experienced a depressive episode.
- The father’s evidence during cross-examination was that he continued to attend upon his general practitioner (who continued to prescribe his antidepressant medication) and had arranged to attend upon his psychiatrist shortly after the hearing concluded.
- Whatever the conclusion about the manner in which it is in the children’s best interests to interact with their father, I am persuaded he should be required to continue to engage with his supporting medical practitioners in the manner they determine to be appropriate for his ongoing therapeutic support and, similarly, that he should be required to comply with his treating medical practitioners’ reasonable treatment directions.
The benefit to the children of having a meaningful relationship with both parents
- The evidence given by Ms G about the boys’ relationship with the father supports my conclusion that there is a benefit to the children of being afforded the opportunity to have a meaningful relationship with their father. So much is – in one sense at least – conceded by the mother’s proposal that they spend time with him (albeit on a supervised basis) and communicate with him via Skype.
- I accept Ms G’s evidence to the effect that, whilst C had previously expressed a willingness to spend time with the father during the first Family Report interviews in 2013, his interaction during the September 2014 interviews suggested that he was then experiencing what she described as ‘a loyalty conflict.’ I accept that D will benefit from having a positive relationship with his father and the opportunity to develop this. I note the mother told Ms G she saw some benefits for him in having a relationship with his father.
- I consider that the likelihood of the children being able to develop a meaningful relationship with their father during ongoing supervised time is significantly diminished as a result of the limitations inherent in such time. The limitations are, it seems to me, amplified given C’s age and the about seven year age difference between the two boys. Given these two factors, I consider it highly likely the father has experienced some difficulties in ‘entertaining’ and interacting with the children within the confines of the Contact Centre. I also consider it highly likely that it will be extremely difficult for the father to be able to engage in activities suitable for both children within the confines of supervision on a long-term basis and for the children (particularly C given his age) to be engaged in time at the Contact Centre on a long term basis.
- The deleterious impact of the limitations inherent in supervision on the children’s opportunity to continue to develop a meaningful relationship with their father is, I think, highly likely to be further amplified because of C’s attitude to attending at the Contact Centre. He has clearly started to manifest reluctance to spend time with his father because of his increasing reluctance to continue to attend at the Contact Centre. I arrive at this conclusion in the context of evidence that, in October 2013 – before supervised time had commenced – B thought supervision “weird” and “awkward” (because someone else was always present) and, that, in September 2014 – by which time the children had had the experience of spending supervised time with the father at the Contact Centre – matters had reached a point where both B and C hated it.
- The combination of these factors compels my conclusion that it is more likely than not that a continuation of supervision of the children’s time with the father on a long-term basis will be more likely to result in stultification and/or, potentially, erosion, of their existing relationships with him rather than an improvement and/or solidification of the same.
- Given these conclusions, I consider that the ongoing imposition of supervision over the children’s time with the father can only be justified as being in their best interests if the evidence persuades that this is necessary to protect them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: that is, if it is necessary because without it they will be at an unacceptable risk of harm.