Meaningful relationship for children not possible

Meaningful relationship for children not possible

Kelsey & York

REASONS FOR JUDGMENT

“…concerns for welfare of children, all parties at house aggressive and unfit role models/carers. DHS Notification to be made…”

Victoria Police Leap Report, dated 17 December, 2011.
Introduction

1. This is an unusual case where the parents had three children, but they never cohabited. They had a relationship from 2006 to 2013 with the children being born in 2007, 2009 and 2011. The Respondent mother is the unchallenged primary carer of the children and the Applicant father seeks an order for them to spend time with him, on any reasonable conditions. There are a significant number of difficulties with his case:
   1. The children, (2 of whom two suffer from ADHD), have not spent any time with him for three years;
   2. He has an anger management problem, acknowledging that he quickly loses his temper;
   100. He has a recent past history of use of Ice and earlier Marijuana use and may relapse;
   4. He has an extensive criminal record, including crimes of violence;
   5. The mother is very fearful of him and alleges very serious family violence;
   6. He has mood swings and has been medicated for this condition for 4 years but Dr P says this medication is of little value;
   7. It is common ground that on 2^nd December 2014 when the parents were at this court he assaulted Mr R, the Applicant mother’s partner in her presence, in the foyer of the court building. The father says at paragraph 25 page 11 of the Family Report “…I did assault him. I lost it. I seriously injured him. Then at the Magistrate’s Court, the Judge (sic) thought I was a risk to the community…”;
   8. He is illiterate, poorly educated and poorly socialised; and
   9. He has had three admissions to a psychiatric hospitals and is on a waiting list at the (omitted) Hospital to see a psychiatrist following his outburst in April, 2016 at a Melbourne hospital when he was upset and punched a wall.
2. The Applicant father underwent a psychiatric assessment. The author, Dr P says the following at page 9 of his report:

“88. The father has however, very significant problems in his personality and his psychological makeup. They present themselves in the father’s difficulties in interpersonal relationships and in his relationship with society. The father is poorly socialised, and he has significant difficulties and impairments in judgement, planning, and thinking through the consequences of his actions. His strategies in dealing with anger, stress, conflict and problem solving are poorly developed. There are matters to do with his intellectual functioning and his social competencies. In my opinion, there is a disorder of personality, which is evident by the history of criminality, violence, interpersonal difficulties and a pattern of interpersonal behaviour that is enduring and not amended from learning through experience.”

Psychiatric Report

24. This was undertaken by Dr P, a consultant psychiatrist who interviewed the father in his consulting suites on 27^th July 2016, and produced a written report dated 10^th September, 2016.
25. At page nine of the report under the heading “Parental Capacity and Mental Health Assessment” he said the following:

“85. I did not comprehensively assess the father’s parental capacity. Such an assessment requires more than a one, one-hour session with the father. A parent’s parental ability is contextual and is subject to change. In my view, parenting capacity reflects a long-term view of the parent’s ability to sustain appropriate parenting. My assessment focused on the father’s psychiatric and emotional functioning. In doing so it reflects more on the father’s parenting ability in the here and now.
86. There is no evidence on the history obtained, findings on mental state examination, and review of the supplied documents, to suggest that the father has evidence of the presence of a major psychiatric condition. That is, the father does not have schizophrenia, although he stated that he had been diagnosed with that in an Affidavit. The father as well, does not have a bipolar affective disorder and has never been manic.
87. The father has previously been diagnosed with ADD or ADHD during his childhood. There is a history of concentration, comprehension, conduct and behavioural problems during his childhood and during his schooling. He took a psycho-stimulant medication for some years. That medication ceased during his secondary schooling. In my opinion, there is no current diagnosis for a psychiatric condition titled adult ADHD or adult ADD.
88. The father has however, very significant problems in his personality and his psychological makeup. They present themselves in the father’s difficulties in interpersonal relationships and in his relationships with society. The father is poorly socialised, and he has significant difficulties and impairments in judgement, planning and thinking through the consequences of his actions. His strategies in dealing with anger, stress, conflict and problem solving are poorly developed. There are matters to do with his intellectual functioning and his social competencies. In my opinion, there is a disorder of personality, which is evident by the history of criminality, violence, interpersonal difficulties and a pattern of interpersonal behaviour that is enduring and not amended from learning through experience. (My emphasis)
89. The father has a history of substance use, and the use of such substances would cause him to become aggressive, more impulsive and less concerned about the consequences of his actions. He denies any current illicit substance use. In my opinion, urine drug screens undertaken on a random basis will assist in monitoring any return to illegal drug use.
90. The father has a history of mood instability, with moments of suicidal thinking, and possibly suicidal behaviour. The father has been placed on a medication, with the hope that it would reduce impulsivity and stabilise mood, however in my opinion, it is highly unlikely to do that. The father’s difficulties in such matters will fade over time and should the father improve his techniques to manage stress, problem solving and conflict through behavioural change programs, the maturity of his personality will progress quicker.
91. In my opinion, there is no medication that is necessary, appropriate and reasonable that may assist the father in the management of his psychological and personality issues.
92. In my opinion, psychological treatment will not have a positive outcome should it be imposed on the father.
93. In my opinion, after giving consideration to all the matters identified on the history obtained, the findings on mental state examination, and review of the supplied documents, there are significant personality difficulties or vulnerabilities in the father that have the potential to significantly disrupt the father’s parental ability. (My emphasis)
94. In my opinion, based on the history obtained, the findings at mental state examination and a review of the supplied documents, there is a condition of a personality disorder that interferes with the father’s parental ability and long-term parental capacity. (My emphasis)
95. Based on the history obtained, the findings on mental state examination of the father and review of the supplied documents, although there is no imminent or foreseeable risk of violence to the children or the mother in this Family Law matter, the history of violence, the breaching of the Intervention Order and criminality suggests that a strong framework and structure around parental communication and access issues will need to be put in place should the father gain supervised access to the children.”

Conclusion

82. In his report, dated the 10^th of September 2016, Dr P said in his final paragraph… “based on the history obtained, the findings on mental state examination of the father and review of the supplied documents, although there is no imminent or foreseeable risk of violence to the children or the mother in this family law matter, the history of violence, the breaching of the intervention order and criminality suggests that a strong framework and structure around parental communication and access issues would need to be put in place should the father gain supervised access to the children.”
83. The author was cross-examined on day 4 of the trial about his report and the evidence discloses that the father did not provide a complete and accurate history for Dr P, for example he did not tell him that in his anger he punched the hospital wall in April, 2016. Moreover the report’s recommendations detailed in paragraph 82 above have to be read in the light of the expert not interviewing the mother and not seeing the children. In an answer to one of my questions he acknowledged that when he referred to the expression “children” he was not talking specifically about the two children in this case who suffer from ADHD. Further, at paragraph 85 the author says he… “did not comprehensively assess the father’s parenting capacity”.
84. A major issue in this trial, which was not contained in the Associate Professor’s report, was the clear fear and anxiety of the mother and the children’s negative attitude to their father. In my view, time with the children is not an option in this case given the well-detailed fear and anxiety that the mother suffers, amongst other matters. I accept that any time with the children would probably make her anxiety and emotional state worse and have an adverse effect on her role as the primary parent and carer. I am further concerned about the probable effect on the children and in particular the eldest child, X, who said… “I used to feel unsafe with Dad…I felt upset and scared.”
85. Further, I do not believe that even supervised time with the children is an option because of the father’s anger, and his lack of self-control. I am not satisfied he would always act in a caring and loving way in the presence or hearing of these children and I seriously doubt his potential supervisors could even contain him.
86. On the 9^th of November 2016 the father swore an affidavit where he said at paragraph 13:… “I have more recently been to see a specialist in (omitted) to help me with my anger issues, following my partner’s loss of her unborn son in April 2016.” When he was cross-examined about that he in fact said that he was still on the waiting list and has yet to see this specialist to help him with his anger issues.
87. He gave evidence that he has been prescribed medication to control his anger but that on two occasions he did not take his medication being in December 2014 when he assaulted the mother’s boyfriend and in April, 2016 when he punched the wall in the hospital.
88. At one stage during the trial he was cross-examined by Counsel for the Independent Children’s Lawyer about the punching-the-wall incident, when I asked the following questions:

“HIS HONOUR: Why did you turn angry? Why wouldn’t you be sad, upset, distressed, melancholy, all of those other emotions? Why have you got to turn to anger?Don’t know.
Because that’s you?Yes. Just got
And it’s likely ? a problem.
to happen again, isn’t it? It’s likely to happen again?No.
If you’re frustrated or angry you become violent. That’s your history, isn’t it?I’ve got a history, yes.
Well, the best predicator for the future, sir, is your history. What do you say about that?Yes. I’ve got a anger history.
And on two occasions your best argument you’ve got is, “I forgot to take the medication.” You lapsed twice. On two occasions. According to your evidence, you lapsed twice; on two occasions you lashed out. So if you see these little kiddies will you forget to take your medication?No.
Well, how do I know that?You don’t.
Exactly. Counsel.
MS O: You know that what his Honour is saying is that your own evidence is that if you do forget to take medication you behave in a violent and aggressive manner. That’s your evidence, isn’t it?When I don’t have me medication, yes.”

89. Dr P said that the medication the father has been prescribed, Epilim, the chemical name of which is sodium valproate, is an anti-epileptic medication which is used to treat mania. The father does not have mania and in his view this medication would do him very little good as his psychiatric condition is not amenable to treatment with that medication. It was put to the expert that the father blames the assault on the mother’s partner and hitting the hospital wall because he had not taken his medication on those days, and was asked whether the father may be shifting blame. On this point, he said that while sodium valproate might mildly sedate him, it would not treat any psychiatric condition, and that the father may in fact be shifting the blame.
90. There are further problems with the father’s proposal:
    1. he swore an affidavit on the 23^rd of July 2014, (over two years before this trial started), indicating that he was on a waiting list to undertake a Men’s Behaviour Change Program. He produced a letter from the (omitted) Community Health Centre detailing he was a participant in a 12 session program but he has only attended 5 of these sessions, the last one being in April 2016. He explained he has not completed it because he “was working…” His improvement in this area is incomplete;
    2. he also said he had completed a Drug and Alcohol Program with a Mr D but produced no documentary evidence nor did he call anyone from that program to satisfy to me that he is unlikely to relapse into drug re-use;
    100. it appears that the Independent Children’s Lawyer made 8 separate requests for the father to undertake drug screens. He said he did not get all the requests but provided 4 screen results. He was requested to do these tests within 24 hours but three were late by 5 days, 12 days and 20 days respectively which gives rise to a real doubt whether these tests are an accurate reflection of his alleged non-use of drugs;
    4. I note that he gave evidence that he used marijuana from the ages of 14 to 18 and that he started using Ice when he was aged 17 years and had become addicted. He also admitted that he has only recently ceased using drugs and he has been drug free since he moved to (omitted) some 18 months ago;
    5. when he was cross-examined by Counsel for the Independent Children’s Lawyer he said that he had undertaken a drug counselling course when he was in gaol but he could not remember what he learned from it. He also said he did a 6-hour parenting program on the 27^th October 2016 (about 3 weeks before the trial), and he was asked what he learned from this and he again said he could not remember; and
    6. Overall, I am not satisfied that we had before the Court a totally rehabilitated former drug user. I am not convinced that he will never return to the use of illegal drugs again. There is a serious lingering risk.
91. The Associate Professor giving evidence said… “his basic problems are his socialisation and his upbringing, and his models of appropriate behaviour. That is the core issue for him and leads to him having a personality disorder, which is a psychiatric condition.” He said that his judgment is impaired but over the passage of time, some 5 to 10 years, life experience and socialisation will cause his problems to remit and fade.
92. I previously referred to the Family Report prepared by Mr G dated the 14^th of October, 2016 and it is my view that his comments in paragraph 90 at page 32 are very accurate and I adopt them. He said as follows:

“90. One is mindful of the need for children to have a relationship with both parents following the end of a relationship. In cases where there is an element of risk, it is not uncommon for parents to be required to participate in psychiatric assessments, education courses and to undergo random drug screens as is the case here, to reduce such risk. However, if viewed as a whole, there are numerous concerning factors present. If anything, there just seem to be too many contra indicators to Mr Kelsey’s relationship with the children being restored. Furthermore, the measures implemented to safeguard the wellbeing of the children and reduce the level of risk seem of questionable efficacy. In view of the above considerations, this Counsellor favours no orders being made for Mr Kelsey to spend time with the children. However, and once again, this is a matter for the Court.”

93. Overall, in considering all the facts peculiar to this case and the law, it is my judgment that the potential risk to the physical and emotional well-being and happiness of these children outweighs the potential benefit of the children knowing or undertaking a relationship with their father at this stage. If over time, like the 5 to 10 years as advised by Dr P, his many personal handicaps have faded then perhaps the matter could be revisited, but currently it is in the best interests of the children that they do not have a relationship with their father.