Risks to children result in no relationship with father

Risks to children result in no relationship with father

Best interests – Where there are three children aged 16, 11 and nine – Where the children live with the mother and spend no time with the father – Where the parents agree that the mother should have sole parental responsibility for the children except in relation to their names – Where there has been family violence perpetrated by the father – Where two of the children have intellectual disabilities and are home schooled by the mother – Where there would be some benefit for the children in developing a meaningful relationship with the father but where that would involve risk – Where the mother has a genuine fear of the father – Where the mother’s anxiety about the father is properly based – Where there is a need to protect the mother from paternal intrusion – Where the risks involved with the children having any contact with the father are too great and do not align with their best interests – Orders made for the mother to have sole parental responsibility for the children except in relation to their names – Orders made for the children to live with the mother and spend no time, have no contact, nor communicate with the father

Hilder & Jessup

67. To the father’s credit, he concedes that the parties’ relationship was characterised by domestic violence. But there is issue between the parties about the nature and extent of the violence.
68. The mother alleged that there was considerable violence. Her allegations included the following.
69. That the father physically assaulted her on three or four occasions before he left the home. The father denied ever physically assaulting the mother.
70. The mother said that the first occasion that the father physically assaulted her was when D was a baby, in approximately February 2008. She said that D was in what I understand must have been the parents’ bed and he had been crying in the middle of the night. The mother said that D was screaming so she put her hand out to get D and that the father grabbed her hand, squeezed it and bruised it.
71. The mother’s mother said that she saw this bruise on the mother’s hand when D was a baby. She said that she asked the mother what happened (to her hand) and that the mother replied “[D] was crying and [Mr Jessup] wouldn’t give him to me, he squeezed my hand as I reached for [D]”.
72. The mother said that the second occasion was in approximately 2010. The mother said that if she refused to have sex with the father he would often become very angry with her. She said that on this occasion, after she refused to have sex with him, she went to the bathroom to get away from him. She said that he followed her into the bathroom and said “You’ll do what I want” and he put his hands around her neck and tried to choke her. The mother said that after he let her go he went downstairs and punched a hole in B’s bedroom wall. Then he left the house. The father denied this. The mother said that she did not report this to the police.
73. The mother’s mother said that she saw the hole in the wall and asked her husband to repair it. The mother’s father said that he saw the hole and that in his experience of professional building concluded that the gyprock had been punched in.
74. The mother said that on a subsequent occasion in 2010, at the time B was going through puberty, the father tried to choke her. The mother said that the father just walked into B’s room at a time when B had just come out of the shower. The mother said that she said to the father that he needed to give B privacy and that he could not just go into her room. The mother said that he put his hand around her throat and said “You think I’m a pervert”. The mother said that she was scared and did not say anything.
75. It is the case that the mother made a statement to the police in January 2015 in support of an application for an AVO. In this statement the mother referred to the incident when she said the father punched a hole in the wall. In this statement the mother also referred to what I shall describe as the “petrol incident”. I shall refer to this again below.
76. The mother was cross-examined about this statement. Counsel for the father suggested that this was her opportunity to inform the police about all relevant complaints she had about the father’s alleged mistreatment of her. Yet she made no mention of two of the alleged physical assaults about which she was now complaining in these proceedings. The mother said that she found it very difficult to raise these matters with the police.
77. The mother also made numerous other allegations about the father’s violence and controlling behaviour.
78. She said that the father video taped the parties having sex. The mother said that the father has threatened to reveal such video tapes to other persons which the mother said causes her great shame and embarrassment.
79. The mother said that in approximately 2010 the parties had an argument and the father was very angry. She said that he went to the shed and returned to the house carrying an axe. She said that he threatened to destroy her wooden hallstand, which her mother had made for her, with the axe. The mother left the room and went outside with the boys.
80. After separation but whilst still living under the same roof, the mother received letters and text messages from the father saying things like “how will you cope when the kids are with me sailing” or “how are you going to cope when the kids are flying with me” or “how will you cope when the kids are with my parents alone …”.
81. In 2011 the father disappeared from home one morning taking C with him. When they had not returned by 5.00 pm the mother rang him. She said that he said “We are just boarding the plane to Queensland”. She said they returned at 7.00 pm.
82. The mother interpreted all these statements by the father as threats. In my view, this was the meaning intended by the father.
83. The mother said that between 2011 and 2014 the father said to her many times that he was going to take the boys out of the country and that in 2014 she overheard him say to all three children that he was going to take the boys out of the country on a boat.
84. On 18 May 2011 the mother received an email from the father attaching an article from the Sydney Morning Herald headed “Obsessive Love Lost: Why Some Fathers Kill”. The article was about estranged fathers killing their children to punish their partners. The mother interpreted this as a threat to her that the father would harm the children if she was to separate from him.
85. In an email to the mother dated 26 July 2011 the father described himself as an aggressive and selfish person. Included in the email was “pls do not challenge my aggressive part … coz I myself don’t know what that part is capable of … may be everything … it always good to tame the devil u know … than the devil u don’t know”.
86. On an occasion in 2012 the mother refused to have sex with the father. She informed him that she was exhausted and just wanted to go to sleep. The mother said at 10.00 pm the father played a recording of them having sex at full volume in the lounge room.
87. The mother said that on many occasions during the daytime the father would endeavour to touch her in a sexual way and she would resist. She said that she was scared of him and often had to scream to bring an end to such conduct.
88. Counsel also raised with the mother the fact that she makes numerous complaints in these proceedings against the father to the effect that he forced himself on her sexually and otherwise engaged in unwanted sexual conduct towards her. Counsel suggested to the mother that because she made no complaint about these matters to the police at the time of preparing her statement, this tended to suggest that there was no truth to such allegations. The mother said that she did not want to talk about the sexual matters. She said that it was a male police officer who was taking her statement. She said that she was finding it difficult to talk with counsel about these sexual matters. She said that she did not want to talk to anyone about these sexual matters.
89. I accept the mother’s evidence about this. At the time she was being asked by counsel about these matters the mother became noticeably distressed. I considered it to be genuine distress. There was no undue hesitation by her in giving her answers. The father said when he was being cross-examined about sexual matters that the mother never mentioned sex outside the bedroom.
90. The mother said that in February 2014 when she informed the father that their relationship was over, he poured petrol over himself. She said that she did not see him actually pouring the petrol but when she came into the kitchen he was standing in the middle of the kitchen dripping wet with petrol with a petrol tin on the floor next to him. She said that he was holding a burning piece of paper and said “I’m protesting as a father for my family”. She said the children were upstairs and she called them and left and went to her mother’s house where they stayed for a couple of nights before returning home.
91. The father said that the mother has exaggerated this incident. He gave a different version as follows. In late 2012 or early 2013 he was in the backyard filling the lawnmower with petrol. The mother was getting ready to visit her mother. The children were sitting in the car waiting to depart. He went into the kitchen. He lifted the petrol container he had been using to fill the lawnmower. He said “Hey [Ms Hilder] maybe I should have a silent protest like the monk on the video”. He said this was referring to a video they had watched that morning of a monk on fire protesting about Chinese occupation of Tibet. Some of the petrol splashed onto his T- shirt and the floor as he lifted it up. The mother said “You’re being an idiot”. He mopped up the spilt petrol and the mother and children left in the car to visit the maternal grandmother. The father denied that there was any burning piece of paper involved.
92. When this account was put to the mother during cross-examination she maintained her account. The mother denied that this incident occurred in late 2012 or early 2013, adhering to her view that it was in 2014. She denied that the father had been filling up the lawnmower. The mother also denied that she was about to go to her mother’s and that the children were sitting in the car.
93. The mother’s mother said that she went with the mother to the house the next day to clean up. She said that when they arrived she could smell petrol in the kitchen. She and the mother cleaned the floor and the bench. She said she found the father’s shirt and pants in the laundry. She said they smelt of petrol and she threw them into the bin.
94. I must say that I prefer the account of the mother, confirmed as it is, at least in part, by her mother. But I find it difficult to accept that the father had a burning piece of paper. Given the amount of petrol vapour which would have been present, on the mother’s account, if there had been a naked flame, one would expect there to have been a fire or an explosion and there is no evidence of such.
95. The mother alleges that the father has made various threats to her. She said that he has put cameras in the yard to watch the children. She said that she has found listening devices which he placed in the lounge room and other parts of the house. She also said that he put a device on the computer in order to see what she was doing with the computer.
96. She said that around Christmas 2014 he made a comment about a father who killed his children in Darwin saying “Well that’s what happens at this time of year”. The mother informed the police that she was very concerned about this and that she would not take the children to see him after this.
97. The mother also said that in approximately December 2013 he held a knife to his chest in front of the boys. She said this was in response to her informing him that she did not want their relationship to continue. The father said that he was in the kitchen chopping vegetables. He said that there was a news story on television about a man keeping police at bay with a knife. He said that he said to the mother that all he had to do was to hold the knife and walk out in front of the police, and they would shoot him. He denied that the children were present. He said he never intended to harm himself.
98. The mother’s mother supported the mother’s allegations that the father was often very angry and screaming. She said that on many occasions when the mother telephoned her she could hear the father screaming in the background. She also described his behaviour as being in a state of “chaos”.
99. I shall refer to this violence again below.

FATHER’S ENDEAVOURS TO ADDRESS THE VIOLENCE

100. Dr G strongly recommended that the father attend a therapist skilled in assisting adults with personality dysfunction and adults who have perpetrated family violence to discuss the concerns about the father raised in his report.
101. In August 2016 the father enrolled in the Relationships Australia “Taking Responsibility” program, a men’s behavioural change program. The father attended numerous sessions.
102. The father said that the course is for men who want to take responsibility for their pattern of abusive behaviour in intimate relationships. He said that the course has been a very powerful change program for him and an eye opener. He said that he now understands how conflict between him and the mother has potential to affect the children psychologically. He said that through the program he has been able to identify the core reason and the root cause of his personality dysfunction during conflict in his relationship with the mother.
103. The father has continued attending his psychologist Mr I whom he most recently saw on 19 September 2016. Mr I has diagnosed the father as having generalised anxiety disorder/major depressive episode. Mr I has continued to assist the father for this condition utilising cognitive behavioural therapy and other measures. He said that the father has responded well to this. He said that the father has continued to experience anxiety symptoms and that these had become slightly more elevated as the court hearing dates drew closer and they were heightened after the release of the reports by Dr G and Dr J. He expressed some optimism that with a further perhaps six months of treatment the father’s condition “should” reach full remission. But he also said that this was dependent on the underlying triggers of the father’s inability to see his children and these proceedings.
104. Mr I said that the father informed him that he posed no threat of physical harm to the children and that he would not take the children away from the mother.
105. Since June 2016 the father has also been seeing clinical psychologist, Dr J.
106. These matters were drawn to the attention of Dr G and I shall refer to this further below.
107. In his affidavit the father referred in some detail to the incidents about which the mother complains. He said that since undertaking the therapy and enrolling in his psychology course he has come to understand that his behaviour has been manipulative, threatening, intimidating and abusive. He said that these behaviours mainly occurred during arguments after his affair in approximately mid 2011, although he concedes that there were some incidents prior to this time. He said that he deeply regrets such behaviour and understands that such behaviour can cause long term psychological effects on the victim. He said that he has developed skills which should enable him to better manage situations of stress and not “explode in an emotionally abusive manner” during situations of conflict.

Risk for the children of emotional or physical abuse or of neglect in father’s care

187. Dr G said that in his view there are four categories of risk to the children.
188. Firstly, he said that there is a risk that if the father had the opportunity he would take the children into his sole care either in Australia or overseas. As indicated above, the father said that he would not do such a thing.
189. Dr G noted that the father has significant family connections overseas. He said that the father takes what Dr G described as a foundational stance of superiority on a backdrop of maternal inferiority and, in his view, the father would not find it difficult to justify to himself and others such a course of action. I have referred above to observations by the mother in this regard. And the father admits to having made reference to such a course of action in communication with the mother on a number of occasions. Dr G thought that within Australia the father might take action on the basis of the proffered wishes of a child, expressed concern about maternal neglect or a child’s pressing need for what the father was offering at the time. He said that the mother might struggle to reverse such a unilateral paternal action. He considered this risk as being substantial.
190. The second area of risk Dr G referred to is of the father harming or killing the children as an act of revenge against the mother, possibly at the same time as harming or killing the mother and/or himself. He said that at a minimum the father intimated such a course through sending the Sydney Morning Herald article, which I have referred to above, “Obsessive Love Lost: Why Some Fathers Kill”, sent in 2011. Dr G thought that it was likely the father had made reference to such an act from time to time over some years as alleged by the mother. Dr G thought the risk of the father actually carrying out such an act is low and thinks the father is protected by what Dr G described as such an act being dissonant with the father’s altruistic self-image, and the father being inhibited from such behaviour by the fear of the societal judgment that would result from the same.
191. Dr G considered that the greatest risk to the children from resumption of time with the father would be that of paternal undermining of the child-mother relationships with significant risk of progression to quite a profound disruption of such relationships. Dr G thought that if the children were to spend significant time with the father, they would be at significant risk of emotional abuse by him, in terms of them having to take what he described as a parentified stance of vigilant attention to paternal need for affirmation and admiration.
192. The other area of risk would be what Dr G regarded as the marked impact upon the maternal wellbeing of any resumption of time between the children and the father considering the severity of past family violence and, in particular, paternal emotional abuse of the mother and paternal intrusiveness.
193. It was submitted on behalf of the father that he has taken significant measures, including recommendations by Dr G, to endeavour to address those behaviours about which Dr G is so critical and which, if not addressed, would cause concern. I have referred above to the father’s endeavours in this regard.
194. Notwithstanding these measures taken by the father, Dr G said that his fundamental concern is that the father’s personality structure, his relational patterns and his potential impact on the mother remain present. Dr G thinks that these still flow through the father’s recent affidavit.
195. Dr G considered that the priority for these children needed to be protecting the children’s most reliable resource which is their mother. He said that if orders did not provide adequate protection for the mother from paternal intrusion and did not adequately address her fears then she was at risk of decompensating into more severe anxiety and panic. He said that this would disrupt her wellbeing, her sense of self and functioning, including her functioning as a parent. He said that if orders provided the mother with greater security then she would be thus freed from ongoing protective vigilance, such that she would be more able then to “process” the abuse that she has experienced over the past 15 years. He said that she would be at some risk at that time of developing post traumatic stress disorder like that which can occur when troops return home from the battle field. But Dr G thought overall that the mother’s mental health prognosis was good, in the context of adequate protection from paternal intrusion and in the context of addressing maternal fears. He thought that if she did develop some post traumatic stress disorder, she would take responsibility for this, seek treatment and would be a good candidate for treatment.

DISCUSSION AND CONCLUSION

196. Although it is now a couple of years since the children had contact with the father, they appear to have a good relationship with him.
197. Dr G said that because the children have had a good relationship with their father and because the father is skilled at engaging the children in things that he is interested in, such as taking them to cricket or soccer, it is important for the Court to consider what Dr G described as the proportionality of the mother’s anxiety. That is, if the Court was satisfied that the mother’s fear and anxiety about the father were genuine and based on her actual experience of violence at the hands of the father, then such anxiety would be likely to continue if any orders were made for there to be any connection between the children and the father. On the other hand, he said that if the Court considered that the mother’s anxiety was not properly based, that in fact she had been embellishing, possibly fabricating, her complaints about the father’s conduct towards her, then because the father had skills to offer the children, it would be in their best interests for orders to be made which provided for time spent and communication between the children and the father and for the mother’s anxiety to be treated.
198. Accordingly, the question arises, is the mother’s anxiety about the father properly based?
199. As indicated above, there is no doubt that the father has perpetrated regular, ongoing acts of violence against the mother including physical assaults, intimidation, coercion and, verbal, sexual, emotional and psychological abuse.
200. Dr G had formed the opinion that:

There has been a pattern of family violence perpetrated by the father against the mother, with significant aspects of this pattern present from early in the parental relationship, but then with escalation from 2006 in the context of the needs of the two boys and of maternal expressed desire to separate, and the persistence of this pattern in the context of these triggers, over the subsequent years into 2015.

201. Dr G also said that:

This family violence has been at the severe end of the spectrum, in terms of emotional abuse of the mother, and coercive, threatening, intrusive, and disrespectful paternal behaviour, including sexually intrusive and demeaning behaviour and threats to make public the couple’s private sexual encounters, threats to his own life, and direct or indirect threats to the mother’s life, and direct or indirect threats to take away or to harm the children.
…
The most full expression of this pattern of family violence and its impacts was articulated in the maternal narrative, as presented in her court documents, and to the family consultant in 2015, and to myself at interview. My impression of the mother was that she presented this narrative in an earnest, considered, measured and truthful way.

202. I have referred above to much of the alleged violence. As I have indicated, there is some evidence by way of corroboration. Having heard the parties’ evidence about family violence tested, I have the same view as that of Dr G namely, that the mother’s account is in large part accurate. In any event, as also indicated above, the father conceded that he has engaged in family violence although in my view, he tended to minimise this.
203. The mother said that on many occasions she was terrified of the father because of his behaviour and most fearful that he would harm her and/or the children, or that he would remove them from her care. The father conceded that this was the outcome his behaviour was directed to achieve.
204. The mother described to Dr G her feelings at the time when she was at his professional rooms after the father had also been in attendance for the purpose of interview for Dr G’s report. The mother told Dr G that she felt her heart beating, that she was shaking and experiencing a tightening of the chest, an increase in her anxiety and general feelings of stress. He said that she said she had experienced a difficult week knowing that she would have to see the father.
205. The father was asked during cross-examination whether he would acknowledge that the mother is fearful of him, that she is fearful that he might harm her and/or the children and that she has an objective basis for this. The father agreed. He was also asked whether the mother has a fear that he would remove the children from Australia and he agreed that this was one of her main fears.
206. In all these circumstances, I have the clear view that the mother has a genuine fear of the father and for good reason. And despite the father’s assurances that since undertaking the therapy he is a changed man, the mother continues to be fearful of the father.
207. The mother does not believe that there has been a change in the father. She said that his claims to be a changed person would be more credible if he had not lied in things he deposed to in his affidavit. She said that she thinks he has undertaken the therapy for the purposes of this litigation and that little has changed with him. The mother said that she continues to be terrified by, and fearful of, the father.
208. Dr G described the mother as being the children’s most important asset, and that their best interests require that she is able to function to her best ability. Dr G’s clear opinion was that the mother would not be able to do this if there were orders which permitted time between the children and their father, even at say two or three monthly intervals. He said “[t]he best interests of these children require strong orders which would protect the mother and the children from the father, i.e. orders under which there would be no time or communication between the children and the father”.
209. There was a very strong submission on behalf of the father that taking into account all of the complexities, it would be in the children’s best interests for them to spend time with the father for three or four hours on a regular basis so that they could retain their identity with the father and not lose their relationship with him. It was submitted that it would be important for the children to grow up with a positive view of the father and they would not gain such a view from the mother or their maternal grandparents. It was further submitted that such orders would strike an appropriate balance between the benefit to the children of having opportunity for a meaningful relationship with the father but the limited time involved and the fact that it would occur under supervision would be adequate protection against those matters about which the mother is anxious.
210. Dr G said that in the event that orders provided for time between the children and the father, even if the time was supervised by an appropriate adult, this would likely provide opportunity for the father to find a way to undermine the mother’s relationship with the children. He said that even if the time was supervised, the mother’s fear of the father would continue, particularly her fear that there would be an inevitability that one day he would find a way not to return the children to her care, or worse that he would do harm to the children. In any event, Dr G thought that any orders for time between the children and their father would ultimately be met with further litigation because the father would not be able to contain his sense of superiority as a parent which would cause him to have the view that the children would be better in his superior care than with their inferior mother, which would be likely to propel him to file some further application in court.
211. I accept these views and agree that it would be highly unproductive and almost certainly damaging for the children for there to be further litigation between their parents. I accept that given the challenges for the boys brought about by their disabilities, their parenting needs go significantly beyond what would be required for children who do not have such disabilities. I accept that the mother has been outstanding in her commitment and energy as their parent. She has been patient, persevering and undistracted in her devotion and focus on providing for the boys’ needs.
212. It is to the father’s credit that he has taken up much of what Dr G recommended for him in endeavouring to address his serious shortcomings. He says that he now understands since having consulted several behavioural science professionals, that his behaviours towards the mother have been emotional, abusive, manipulative and frightening. But he says that he is working hard to address these matters and is a changed person.
213. Dr G was made aware of the father’s efforts in this regard and he described such efforts as “incremental gain”. But he remained cautious about the extent to which the serious shortcomings in the father might have been addressed in reality. Dr G did not think that the father’s underlying personality characteristics had changed. He said that his fundamental concern is that the father’s personality structure, his relational patterns and his potential impact on the mother remain present. Dr G thinks these things (deficits) still flow through the father’s recent affidavit. He expressed the view that he did not consider that there was a substantial basis for changing his opinion and recommendations which were that the best interests of these children required no time with, or communication with, the father. In fact, Dr G said that in the event that the Court was to order time or communication between the children and the father he would regard this as “high risk”.
214. He said that this was because the mother would be likely to become so anxious and fearful that the father would harm or steal the children that this would jeopardise her ability to function well as the children’s primary parent. Dr G said that this would be very damaging because the mother is the children’s “main asset”. He said that it was also risky because he thought that the father would be unable to resist the opportunity to undermine the mother’s relationship with the children, to the point where he would have the children thinking that they would be better off with him, and he would endeavour to bring further court proceedings to obtain court orders to keep them. Dr G said he thought that such an outcome would be very damaging for the children.
215. Dr G said that ultimately, what was required to form a view about the requirements of the best interests of these children, particularly the boys, was to do what he described as “a cost benefit analysis”. Such an analysis had to weigh on the one hand the importance of protecting the mother and children by strong orders which unfortunately would exclude a relationship between the children and their father and to weigh on the other hand all those matters which would be lost to the children in not having a relationship with their father, at least not until adulthood. He had the clear view that upon undertaking such a cost benefit analysis, the outcome was very clearly in favour of the former.
216. As indicated above, the two boys have special needs. Unfortunately C has an intellectual disability which is at the moderate level. D has an intellectual disability at the mild level. These boys require a huge input from the mother in terms of their care, particularly their education. As indicated above, the mother made the decision to home school the boys in circumstances where C experienced bullying at his mainstream school. On all the available evidence they have been doing well under the mother’s tutelage. But their needs demand a huge effort on the part of the mother.
217. I accept Dr G’s view that the mother is these boys’ main asset. I also accept his view that their best interests require that she is able to function to her best ability. As I have said, the father has skills which could assist the children and, in different circumstances it would be important for them to maintain their relationship with him. But I am satisfied that, for the reasons set out above, the risks which would be involved if the children were ordered even to spend supervised time with the father, and for him to receive reports about their health and education, are too great for such orders to align with their best interests.
218. I accept that, as learned counsel for the father submitted, for the children to be parented by only one of their parents and not even to have supervised identity contact with their father would be an extreme result. But in my view, this is an unusual case and the evidence directs this result in the best interests of these children.