FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dunham & Beeharry [2023] FedCFamC1F 545
File number(s): SYC 2604 of 2021 Judgment of: BERMAN J Date of judgment: 6 July 2023 Catchwords: FAMILY LAW – CHILDREN – With who a child lives with and spends time with – Where the mother accepts the children adore the father – Consideration of risk – Where the single expert opines that the risk is emotional or psychological – Where the Court makes a finding that father was in the grip of a psychotic episode which resulted in an extreme act of family violence – Consideration of time spending – Where the father has not spent unsupervised time with the children since the psychotic episode in 2021– Consideration of whether the father is able to remain drug free and avoid mental health or psychotic episodes – Where following judgment being reserved, the mother filed an Application seeking to adduce further evidence – Where the Application was allowed – Where the father’s conduct and communication has been threatening and likely intended to cause fear – Where there is insufficient evidence to make a finding that the father’s mental health functioning has declined – Where the communication from the father and his sister constitutes significant family violence – Consideration of whether the father is now a direct threat to the mother – Where the father’s communication caused the ICL to now promote no time with the father – Where the mother resists such an outcome – Orders. Legislation: Evidence Act 1995 (Cth) s 135.
Family Law Act 1975 (Cth) Div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 69ZT, 69ZT(3), 69ZN, 102NA.
Cases cited: AMS v AIF (1999) FLC 92-852
Buljubasic v Buljubasic (1999) FLC 92-865
L & T (1999) FLC 92-875
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Division: Division 1 First Instance Number of paragraphs: 244 Date of hearing: 27, 28 & 29 March 2023 and 15 & 21 June 2023 Place: Sydney Counsel for the Applicant: Ms Barnett SC Solicitor for the Applicant: Gayle Meredith & Associates Counsel for the Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Mr MacDiarmid Solicitor for the Independent Children’s Lawyer: Mark MacDiarmid Family Law Specialist ORDERS
SYC 2604 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUNHAM
Applicant
AND: MR BEEHARRY
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
BERMAN J
DATE OF ORDER:
6 july 2023
THE COURT ORDERS THAT:
1.Ms Dunham (“the mother”) have the sole parental responsibility for X born 2010 and Y born 2017 (collectively “the children”) provided that the mother will advise the father in respect of any long term issues and provide her view and intention to make decisions in that regard.
2.The children live with the mother.
3.Until the commencement of the 2027 academic year, the children spend supervised time with the father as may be agreed in writing between the parties and failing agreement, as follows:
3.1Subject to order 7 and 8 herein, during school term:
3.1.1each Sunday from 1.30 pm to 4.30 pm, supervised in accordance with order 4 herein;
3.2Subject to order 8 herein, during the New South Wales (“NSW”) school holidays as published the NSW Department of Education;
3.2.1in the NSW school holiday period at the end of Terms 1 to 3, in the last week on Monday, Wednesday and Friday from 9.30 am to 2.30 pm, supervised in accordance with order 4 herein;
3.2.2in the NSW school holiday period at the end of Term 4, in the last three weeks of the holiday period in 2023/2024 and each alternate year thereafter and in the first three weeks of the holiday period in 2024/2025 and each alternate years thereafter, on Monday, Wednesday and Friday from 9.30 am to 2.30 pm, supervised in accordance with order 4 herein;
3.3on Father’s Day from 1.30 pm to 4.30 pm, supervised in accordance with order 4 herein;
3.4on the father’s birthday from 4.00 pm until 6.00 pm if the father’s birthday falls on a school day, otherwise from 9.30 am to 12.30 pm on a non-school day, supervised in accordance with order 4 herein;
3.5on Christmas Day from 9.30 am to 12.30 pm, supervised in accordance with order 4 herein; and
3.6at other times as may be agreed between the parties.
4.Supervision be conducted by a person as agreed in writing between the parties and failing agreement, then supervision shall occur by a supervisor employed by B Contact Centre or another accredited professional child contact supervision service/contact centre.
5.The mother and the father do each pay one half of the costs of all supervision.
6.The father do all things and acts necessary to facilitate the children attending all of their normal routines and regular activities.
7.The mother be permitted to go away with the children for the weekend on up to two occasions in each NSW gazetted school term subject to the mother providing no less than five days written notice to the father, and the children’s time with the father during that weekend in accordance with order 3.1.1 herein be suspended.
8.In the event the children are unavailable to spend time with the father in accordance with orders 3.1 or 3.2 herein due to activities the children are enrolled or committed to attend, that the mother provide the father with no less than five days written notice and the parties organise make up time on another day and time as agreed in writing between the parties, failing agreement the make-up time shall occur during the one week period immediately after the cancelled visit.
9.The father be restrained from:
9.1consuming illicit drugs in the period from 12 hours before and during the period the children are spending time with him pursuant to these orders, and the mother may suspend the children’s time with the father in the event she believes the father is under the influence of drugs at the time of change over at the commencement of the children’s time with him.
9.2attempting to communicate with the mother in the course of the FaceTime calls between the children and the father.
9.3questioning the children about the mother and her family members.
9.4discussing with the children or with any other person in the presence or hearing of the children:
9.4.1the arrangements for the children to spend time with him regarding the need for supervision;
9.4.2any alternative, speculative and/or conspiracy theories, beliefs and/or belief systems.
10.On the date two weeks prior to the commencement of the 2027 academic year, the father attend upon a pathology collection centre and undertake the following drug and alcohol tests, pay the fees associated with the tests and authorise the pathology collection centre to provide the test results to the mother:
10.1a supervised urine and drug screening test for illicit drug use;
10.2a blood test screening for drugs including liver function specifically measuring EtG levels, CDT levels and for illicit drugs;
10.3a supervised hair follicle test for drug use covering a period of six months prior to the date of collection, with the collection to be conducted by a qualified and certified collector of either an Australian Workplace Drug Testing Services (“AWDTS”) Clinic or nominee, and the testing conducted at an approved laboratory accredited to conduct hair drug and alcohol testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory.
11.Subject to order 13, in the event that the test results for the tests referred to in order 10 herein are negative for illicit drugs, that thereafter Y and X, subject to their wishes, spend time with the father as follows:
11.1From the conclusion of school on Friday to the commencement of school on Monday and each alternate weekend commencing 5 February 2027, with such time to be suspended during all school holiday periods;
11.2For one half of the NSW school holiday periods at the end of Terms 1 to 3 with the first half to be taken in even years and the second half to be taken in odd years;
11.3For one half of the NSW school holiday period at the end of Term 4 with the first half to be taken in even years and the second half to be taken in odd years; and
11.4Other times as may be agreed between the parties.
12.Changeover for supervised face-to-face time between the children and the father shall be facilitated by the nominated supervisor, and changeover for unsupervised face-to-face time shall take place to and from the children’s school or in the alternative, at such place as may be agreed between the parties.
13.In the event that the tests results for the tests referred to in order 10 herein are positive for illicit drugs then orders 3, 4 and 5 herein shall continue in force until such time as the father shall test negative for illicit drugs with such test to be taken not before 1 June 2027.
14.The father is restrained and an injunction is granted necessary to ensure Ms C is not present and does not communicate with the children at any time, whether in person, by telephone, FaceTime or any other electronic means.
15.The parties advise each other at all times of their residential address, contact number and email address and notify each of them of any change within 24 hours of such change occurring.
16.Both parties be restrained from:
16.1denigrating, insulting, belittling or being derogatory of the other parent and their family members in any form of communication whether written or verbal exchange between the parties and/or other persons, including to or in the presence or hearing of the children or on any form of social media, and from permitting any other person to do so; and
16.2discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings or matters relating to them, with or in the presence or hearing of the children and from permitting any other person to do so.
17.The mother is permitted to apply for an Australian Travel Document (“Australian Passport”) for the children and review the children’s Australian Passports as and when such renewal is required, and the requirement for the father to sign the passport application for the children and associated documents is dispensed with.
18.Leave be granted to provide a copy of these Orders to the nominated supervisor, before and after school care and the school to which the children attend.
19.The parties do each pay their own separate costs and disbursements of the proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Dunham (“the mother”) and Mr Beeharry (“the father”) are the parents of X born 2010 and Y born 2017 (collectively “the children”).
The parties have not been able to reach agreement in respect of the future parenting arrangements for the children other than the father’s acceptance that the mother should have sole parental responsibility and that the children should live with her.
The mother concedes that the children’s best interests are served by maintaining and supporting them having a meaningful relationship with the father. The issue of contention is the extent of the time that the children should spend with the father and whether supervision is required and if so, for what duration.
After a significant period of supervised FaceTime communication with the father, as and from 30 October 2022, the children commence spending three hours of time with the father supervised by B Contact Centre, an organisation that specialises in providing supervision. The current arrangements are uncertain. The father is not currently spending time with the children.
Following an incident in early 2021, the mother sought and obtained a provisional Apprehended Domestic Violence Order (“ADVO”) which was made final in early 2022, expiring in early 2024.
The mother contends that the children are at risk of physical, emotional and psychological abuse arising from their observations of the father perpetrating family violence but in particular, the assault on the mother in early 2021.
In addition, the mother alleges that the father has had an extensive history of drug and alcohol abuse and points to the father’s increasing propensity to align himself with various conspiracy theories resulting in inappropriate, confusing and at times threatening, communication. As a result, a Senior Judicial Registrar made Orders by consent on 14 October 2022 that Professor D be appointed as a Single Court Expert to undertake a Family Assessment of the parties and the children and to undertake a psychiatric assessment of each of the parties. It is uncertain as to why there was considered a need for the mother to undergo a psychiatric assessment in circumstances where the father accepted that at least some of his overt and at times bizarre behaviour and beliefs were in part explicable by his own mental health issues noting the therapeutic assistance provided by the father’s treating Psychiatrist, Dr E.
THE PROCEEDINGS
The incident between the parties in early 2021, resulted in a provisional ADVO being issued naming the children and the mother as protected parties. The mother commenced proceedings by Initiating Application on 13 April 2021.
It is a feature of the proceedings that the mother has maintained consistent representation whereas the father has chosen to represent himself.
By Order dated 14 April 2021, being one day after the mother filed her Initiating Application, a Senior Judicial Registrar made an ex-parte order that the mother have sole parental responsibility for the children, that they live with her and spend no time with the father.
For reasons that are not readily understood and likely beyond power, a Senior Judicial Registrar ordered the father to attend upon a High Dependency Unit at F Hospital for treatment including by a Psychiatrist and that he advise the mother’s legal representatives of the details of the Psychiatrist, his scheduled appointments and that he give his consent to the Psychiatrist preparing a report as to his diagnosis, prognosis, medical history and proposed treatment.
However well intentioned, I do not consider that there is power for the Order made by the Senior Judicial Registrar.
The power to make such an Order was considered in the decision of L v T (1999) FLC 92-875 where Kay, Brown and Coleman JJ said:-
51.Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court's power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
In AMS v AIF (1999) FLC 92-852, Gaudron J said:
85.…It has been said that the parens patriae jurisdiction is “an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]” and that “[i]ts limits…have not, and cannot, be defined". However, the jurisdiction is not in principle supervisory. Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child’s welfare.
And then at [87]:
87.Notwithstanding that the welfare jurisdiction is similar to the parens patriae jurisdiction and that that jurisdiction will support a wide variety of orders and orders of great width, it would be reading too much into a statute simply conferring jurisdiction with respect to the welfare of a child to read it as authorising any order that would promote the child’s welfare. That would be to convert a jurisdiction designed to protect against risk into a jurisdiction to supervise parents and guardians in the exercise of their rights and responsibilities.
It is considerable overreach that the order obliged the father to advise the mother’s legal representatives of his mental health diagnosis and prognosis. It is a matter for the father to provide evidence that supports the orders he seeks. It is readily apparent that the mother raises a concern, properly so, that the status of the father’s mental health will be a live issue. It is for the father to call evidence that he considers will best promote the orders he seeks and to assist the Court in making a determination that would be in the best interests of the children.
A further order was made for the appointment of an Independent Children’s Lawyer (“ICL”).
On 28 May 2021, the father informed the Court that he had temporarily relocated to Western Australia and that his criminal proceedings (arising from the incident in early 2021) were listed in mid-2021.
On 23 September 2021, a Registrar ordered that the parties engage with Ms G as a single expert to report upon issues relevant to the welfare of the children.
It is uncontroversial that whilst Ms G supervised the father’s time with the children, because of her alleged concerns as to the behaviour of the father towards her, she declined to be further involved.
Following Orders made on 12 August 2022 which noted that the Independent Children’s Lawyer (“ICL”) had secured a grant of legal aid for the preparation of assessment and a single expert report by Professor D and whilst the father had not applied for legal aid if he were to do so, his application would likely be successful, trial direction Orders were made by me on 29 August 2022 and amended on 31 August 2022.
Of particular note, is that an Order was made pursuant to s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) such that the father would be prohibited from personally cross examining the mother.
On 9 December 2022, the father was reminded that a s 102NA Order had been made on 29 August 2022 and that by implication, his ability to assist the Court by the presentation of evidence in support of the orders that he sought, would be enhanced by him obtaining legal representation.
On the first day of the hearing, the father advised that he intended to represent himself and in making that decision, he understood he would not be able to cross examine the mother. It is a fair assessment of the father’s presentation that he did not wish to inflame the conflict between the parties and wanted to be seen as being respectful of the mother by not having her subjected to cross-examination.
Out of an abundance of caution, I advised the father as to what he could reasonably expect from the Court in terms of assistance with practice and procedure but not the provision of legal advice. In addition, the father was provided with a printed copy of the Full Court decision of Re F: Litigants in Person Guidelines (2001) FLC 93-072.
At the conclusion of the hearing on 29 March 2023, judgment was reserved. It was intended that judgment would be delivered by the end of June 2023 however, by Application in a Proceeding filed 6 June 2023, the mother sought leave to reopen the proceedings for the purpose of admitting further evidence as contained in her affidavit filed 6 June 2023.
In addition, the mother also sought leave to amend the orders sought in her Amended Initiating Application of 14 March 2023 to include orders as set out in paragraph 4 of the Application in a Proceeding. By way of summary, the mother sought to amend the orders providing the father with FaceTime or phone communication with the children such that the mother would not now supervise the communication but rather that it would need to be undertaken by a person as may be agreed between the parties but failing agreement, by an accredited professional child contact supervision service.
The mother also sought that prior to the first occasion that the children would spend supervised time with the father, he would need to undertake extensive drug and alcohol testing that would provide an assessment as to the extent that the father test positive for illicit drugs, marijuana and alcohol not considered within the normal range for CDT levels and EtG levels for a period of six months prior to the resumption of supervised time.
The Application in a Proceeding was listed for hearing on 15 June 2023. The mother was represented by Senior Counsel, counsel appeared for the ICL however there was no appearance by or on behalf of the father. On 15 June 2023, the following orders were made:-
UPON NOTING THAT at the next court event it is the intention of the Court to hear and determine the Application in a Proceeding filed 7 June 2023 and if successful to consider evidence to be read into the proceedings and to hear submissions as to the effect of any new evidence introduced and what orders should properly be made.
THE COURT ORDERS:
1.That the Application in a Proceeding filed 7 June 2023 is listed for hearing at 2.00pm (CST) (2.30pm EST) on 21 June 2023.
2.That any further affidavit material sought to be relied upon by either of the parties be filed and served by 12 noon (CST) on 19 June 2023.
On the adjourned date, there was no attendance by the father however, there appears to have been email communication forwarded by the father to the solicitor for the mother, the ICL and to my associate which explained the father’s absence as follows:-
My cousin is being held hostage and must adjourn.
The father did file his own affidavit and an affidavit of his sister, Ms C, both filed 15 June 2023. The father’s explanation for his non-attendance was wholly inadequate. (See Buljubasic v Buljubasic (1999) FLC 92-865).
Whilst the content of the affidavits filed by the father were not responsive to the matters raised by the mother or the proceedings generally, senior counsel sought to rely upon those affidavits if leave to adduce further evidence was granted.
The mother also filed a further affidavit on 19 June 2023 which annexed a large number of text messages and other communication from the father and his sister, Ms C.
As foreshadowed, and in the absence of the father, on 21 June 2023, the following Orders were made:-
1.Leave is granted for the applicant mother to reopen the proceedings for the purposes of admitting further evidence contained in affidavits of the mother filed 6 and 19 June 2023 and of the father filed 14 June 2023 and of [Ms C] filed 15 June 2023.
2.Leave is given to the Independent Children’s Lawyer to amend the orders sought on behalf of the ICL such that the orders now sought promote that there be no order for time spent between the children and the father.
Notwithstanding the extreme nature of the offensive and threatening communication forwarded to the mother, she did not seek to adopt the orders now sought by the ICL namely, that the children spend no time with the father but she considered that subject to a more rigorous drug testing regime prior to the commencement of the first supervised time, there was still an advantage to the children in resuming a relationship with the father.
BACKGROUND
The father is 49 years of age and is an entertainer. The mother is 41 years of age and is a part‑time student undertaking studies with an expected completion date in late 2023. She also works as an administrator in a family based company.
The parties entered into a relationship in early 2000 and commenced cohabitation in 2006 when they moved to City H.
The parties separated in late 2008 when the mother returned to Australia and advised the father that she considered the relationship to be at an end.
The parties reconciled in late 2009 which resulted in the birth of X in 2010.
The parties married in 2012 and lived together in Sydney until their separation in early 2021 in circumstances where the father displayed bizarre behaviour leading up to him pushing the mother out of a motor vehicle and then driving off with the children. The children and the father were subsequently located by the police who took the father for a mental health assessment resulting in his admission to a high dependency unit at a metropolitan hospital.
The father’s conduct was the basis for the mother obtaining a Provisional Apprehended Domestic Violence Order (“ADVO”) naming the mother and the children as protected persons.
The father was released from hospital into police custody about one week later and was charged with a number of offences.
The father entered a plea of not guilty however, the charges were dismissed in early 2022 providing he complied with the terms and conditions of a mental health treatment plan. The mother did not oppose the charges being dismissed.
Following the parties separation, the mother commenced proceedings and on 14 April 2021 interim orders were made that the mother have sole parental responsibility for the children and that they live with her and spend no time with the father.
In early 2021, the mother was advised by Officer J that the father’s bail conditions were amended. She was subsequently advised that the father had moved to Perth the next day.
In mid-2021, the mother was the recipient of abusive and threatening text message communication from the father’s sister, Ms C. The tenor of the messages alleged that the mother had sexually assaulted the children. As a result of the content of the messages a Provisional ADVO was made in mid-2021 with a final ADVO made in late 2021 listing the mother and children as protected parties until late 2023. The nature of the communication from the father’s sister was such that at trial, the father conceded that the children should not come into her presence. An issue for the mother is the extent to which the father condoned and possibly influenced by the egregious conduct of his sister.
The parties were able to agree that the children have FaceTime contact with the father conditional upon it being subject of supervision. Initially, Ms G supervised the father’s FaceTime communication however in early 2022, she declined to further supervise FaceTime communication on the basis that she considered the father’s engagement with her to be hostile, disrespectful and threatening.
It is the gravamen of the father’s presentation that whilst he accepts that his conduct justified the mother’s fear and concern and underpinned the final ADVO made early 2022, he does not currently present as a risk to the children and as such, supervision is unnecessary.
Much of the interaction between the parties and their communication has been focused on the arrangements for the father to communicate with the children and then from 28 May 2022 for the children to spend time with the father in person supervised by “B Contact Centre”, an organisation that specialises in the facilitation of supervised time.
The father returned to Sydney in August 2022 and settled into an arrangement whereby the children spend three hours of time with the father each week, supervised by B Contact Centre, as well as two occasions each week of FaceTime communication. The mother continues to assert that when given the opportunity, the father seeks to involve the children to support his application that supervision is no longer required.
For his part, the father denies that he presents as a risk to the children and considers that he has undertaken consistent and beneficial therapeutic engagement without there having been any reoccurrence of significant mental health events which would speak against the father spending time with the children absent the need for supervision.
PROPOSALS OF THE PARTIES
The mother seeks that she have sole parental responsibility for the children, that they live with her and, until the commencement of term 2 of the 2027 school year, the children spend supervised time with the father as may be agreed but failing agreement and subject to the mother having a limited right to suspend the father’s time, the children will spend time with the father as follows:
1.During school term:
1.1each Sunday from 1.30 pm to 4.00 pm, supervised by a person agreed between the parties;
1.2each Monday and Wednesday from 6.00 pm to 6.30 pm by FaceTime or phone as supervised by the mother;
2.During the NSW gazetted school holidays as published by the NSW Department of Education:
2.1in the NSW school holiday period at the end of terms 1 to 3, in the last week on Monday, Wednesday and Friday from 9.30 am to 2.30 pm, supervised by a person agreed between the parties;
2.2in the NSW school holiday period at the end of term 4, in the last three weeks of the holiday period in 2023/2024 and each alternate year thereafter and in the first three weeks of the holiday period in 2024/2025 and each alternate year thereafter on Monday, Wednesday and Friday from 9.30 am to 2.30 pm, supervised by a person agreed between the parties;
2.3on Father’s Day from 1.30 pm to 4.30 pm, supervised by a person agreed between the parties;
2.4on the father’s birthday from 4.00 pm to 6.00 pm if the father’s birthday falls on a school day, otherwise from 9.30 am to 12.30 pm on a non-school day, supervised by a person agreed between the parties;
2.5on Christmas Day from 9.30 am to 12.30 pm, supervised by a person as agreed between the parties; and
2.6at other times as may be agreed between the parties.
3.Subject to the father obtaining negative tests for illicit drugs and alcohol the father’s time with the children shall be unsupervised.
For his part, the father seeks equal shared parental responsibility, that the children live with the mother and spend time with the father each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday and one half of the mid-term and end of school term holiday periods.
As discussed, as at the conclusion of the final hearing, the ICL broadly supported the orders sought by the mother but only up to the commencement of term 2 in 2025. Thereafter, and subject to a negative test for alcohol and illicit drugs, the ICL supported the father spending unsupervised time with the children with an increase to 10.00 am to 6.00 pm each alternate Sunday.
The position of the ICL is now to promote orders that would see the children spending no time with the father. It is a reasonable assessment of the ICL’s position that he considers the father’s conduct after the conclusion of the final hearing to be unacceptable, threatening and overtly offensive such that his behaviour should be considered as evidence of serious family violence. Even so, with some hesitation, the ICL did not speak against the orders now sought by the mother in the Further Amended Initiation Application filed 19 June 2023.
DOCUMENTS RELIED UPON BY THE PARTIES
The mother relies upon the following documents:-
(1)Further Amended Initiating Application filed 19 June 2023;
(2)Affidavit of the mother filed 25 November 2022 (“the mother’s trial affidavit”);
(3)Affidavit of the mother filed 14 March 2023 (“the mother’s reply affidavit”);
(4)Affidavit of Ms K filed 20 January 2023;
(5)Affidavit of Mr L filed 20 January 2023;
(6)Affidavit of mother filed 6 June 2023;
(7)Affidavit of mother filed 19 June 2023;
(8)Affidavit of father filed 15 June 2023;
(9)Affidavit of Ms C filed 15 June 2023; and
(10)Outline of Case.
The father relies upon the following documents:-
(1)Response to Initiating Application filed 2 July 2021;
(2)Affidavit of father filed 24 March 2023 (“the father’s trial affidavit”).
(3)Affidavit of Mr M filed 12 February 2023;
(4)Affidavit of Ms N filed 27 January 2023; and
(5)Outline of Case.
The ICL relies upon the following documents:-
(1)Original Proposed Minute of Order dated 29 March 2023;
(2)Outline of Case filed 27 March 2023;
(3)Affidavit of Ms G filed 13 April 2022; and
(4)Family Report of Professor D dated 26 February 2023.
SUMMARY OF ARGUMENT
The mother contends that the father has a long history of consuming alcohol and illicit substances to excess which resulted in the father displaying worrying symptoms of psychosis, delusional theories and a heightened interest in, and adherence to, conspiracy theories.
The mother acknowledges that the children have an emotional attachment to the father that they adore him and want to spend time with him. For her part, the mother seeks to facilitate the children’s relationship with the father but to do so in a manner that ensures the children are safe. The mother remains fearful of the father based upon evidence of his deteriorating mental health during the relationship and the resultant conduct which at first was worrying but then resulted in increasingly bizarre behaviour culminating in the separation of the parties in early 2021 when the mother was pushed out of a moving vehicle.
The father refers to the incident in early 2021 in his Case Outline document in the following terms:
4.[In early] 2021 and [sic] event occurred between [the mother] and I that has significantly impacted our children’s lives. The repercussions of this incident have drastically altered the family dynamics and created emotional and psychological challenges for [the children].
5.I have full awareness of the impact that the events of [early] 2021 have had on the lives of my children, [X and Y]. Our family dynamic, which was once characterized by the presence of both parents and their paternal grandparent and loving and responsible father in the children’s lives, [Country P] culture and cuisine, music, laughter, and their paternal grandparent, was disrupted by that unfortunate incident [in early] 2021.
And then further in the Case Outline document:
13.It is alleged I have extreme conspiratorial views, abused alcohol, abused substances, used cannabis, […] and forcibly ejecting [the mother] from a moving vehicle and authorities were informed attempt to take the children to Melbourne and potentially harm the children, and an accusation that lead to […] my arrest.
14.While I may not entirely agree with [the mother’s] portrayal of my character or the accuracy of the testimonies of [the mother] of [early] 2021, I have taken responsibility and accountability for my actions, acknowledging that I experienced a mental health issue at the time, I recognise profound effect that the incident and subsequent separation have had on my children’s wellbeing and [the mother].
The father contends that he appropriately acknowledges his mistakes and behaviour, has been child focused for a period of more than two years and contends that he does not present as a risk either to the children or the mother. He does agree that there should be a gradual transition to unsupervised time albeit over the much shorter period of six months than as sought by the mother or the ICL.
THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party, nor the ICL, spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles enunciated in s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which will be given to evidence particularly if it is contentious.
Consideration was given to objections to affidavits of evidence by application of the rules and by reference to s 135 of the Evidence Act.
As discussed, the father appeared as a self-represented litigant. Whilst the father’s affidavit material did not have the advantage of having been prepared by a legal practitioner, nonetheless, when read in conjunction with his Outline of Case document I was satisfied that the father presented an appropriate grasp of the issues and presented his evidence accordingly.
The mother
The mother relied upon her trial affidavit and her reply affidavit. The father was not able to cross examine the mother although I consider that his presentation was somewhat more nuanced in that he knew that he could have had representation given Orders made pursuant to s 102NA of the Act but rather declined that representation because he did not want the mother subjected to cross examination.
The mother was cross examined by counsel for the ICL.
The mother relies upon the history of the relationship as set out in her trial affidavit and reply affidavit to emphasise that early in her relationship with the father, he regularly consumed alcohol to excess and used illicit drugs recreationally.
On occasion, the level of observed intoxication would result in the father engaging in physical altercations with other people and he had engaged in self-harm activities.
The mother observed that following the death of the father’s brother, Mr Q, in 2005, the father was grief stricken and for a time stopped drinking alcohol and consuming illicit drugs. It seems from the mother’s evidence that the father’s sobriety was temporary and following the reconciliation of the parties in 2009, the father’s consumption of alcohol appeared to escalate which resulted in the father losing his licence for a period of five years.
A further concern of the mother was that the father developed an interest in conspiracy theories which consumed many hours of his time in research.
The father demonstrated an interest in “Extra Terrestrial Spirituality” and videos posted online.
In 2020, the father sought that the children become vegetarians because of a belief that the Government or other agencies were feeding poison to animals.
At times, the father’s communication both with the mother and her solicitors was nonsensical and regularly contained the phrase “from: [Mr Beeharry], sui juris, hereby claiming all rights” and also included a quote from the bible being the book of Daniel Chapter 4 verse 17. It is difficult to understand the relevance of the father’s quotes which were repeated in his evidence.
The significant event occurred in early 2021 culminating with the father’s detention and referral for psychiatric assessment the next day. On that day, the mother became concerned as to the father’s increasingly bizarre behaviour. He had advised her that he had not slept for a number of days and would not allow the mother or the children to eat or drink, claiming that the food had been poisoned. He also made the children watch videos of animals being slaughtered. It is likely the children experienced considerable distress.
The father asserted that the mother was suffering from radiation poisoning but that he was going to remedy the problem by insisting that the mother endure an enema. Her observations were of the father from time to time bursting into tears and speaking words that were incoherent.
The father was convinced that the house was subject to unusual levels of radiation. He had purchased an electromagnetic radiation meter or reader and following numerous readings taken around the house, the father believed that the electromagnetic radiation readings were particularly high in the children’s bedrooms. So fixated was the father on his belief of the danger of the radiation, that he turned off the electricity supply to the house. He also lit candles around the house to channel communication with his late brother Mr Q.
In the early hours of the day in early 2021, the father woke the children and the mother and insisted that they were not safe remaining in the house and that they should come with him. The children were placed in the car and the mother sat in the front passenger seat. The father drove around the neighbourhood for about an hour before advising that he was taking the children to Melbourne.
At 3.30 am the father stopped the car and demanded that the mother get out of the car, leaving the children. Both the children and the mother were apparently hysterical. The mother tried to remove the children from the vehicle however the father pushed her out of the car. She then tried to re-enter the car via the passenger side window. The father then started to drive away and whilst the vehicle was moving, pushed the mother out of the car.
The father drove away with the children leaving the mother with significant injuries requiring her to be taken by ambulance to hospital. The police managed to retrieve the children and detained the husband at about 9.00 am.
The children later advised the mother that they were terrified that she had been injured and that the father had frightened them.
Following the separation of the parties, the mother received a seven page text message in May 2021 from the father’s sister, Ms C. The mother exhibits the text message communication at pages 69 to 72 of her bundle of exhibits but it is necessary to include the following extract as the basis for the mother’s concern that the father’s sister should not come into contact with the children but also because of her perception that the father pays lip service only to the mother’s heightened anxiety and concern as to the potential risk posed by his sister:[1]
[1] Affidavit of the mother filed 25 November 2022, page 24 - 25
“…BOTH YOU AND I KNOW THE TRUTH AND IT’S THE HEIGHT OF YOUR STUPIDITY AND IGNORANCE HENCE THE FACE YOU ARE A PATHOLOGICAL LIAR TO PERSECUTE AN INNOCENT MAN, MY BROTHER!”
“HOW DARE YOU MOLEST MY NEPHEW YOU PAEDOPHILE PIG, WHAT KIND OF MONSTER DOEZ THAT KIND OF THING TO THEIR CHILDREN!”
“YOU ARE A LEECH WHO TRIED TO SUCK THE LIFE OUTTA MY BROTHER…”
“YOUR REPTILIAN LOOKS AND YOUR PEDO REPUTATION WILL BE THE SAME AND HUMILIATION YOU WILL FACE. THAT IS YOUR FATE LEECH…”
“…YOUR AFFIDAVIT IS A LEGAL DOCUMENT TO BE USED IN COURT THAT IS RIDDLED WITH LIES AND I NOW HAVE A COPY! GEEZ LEECH, I KNEW HOW FAKE N PRETENTIOUS YOU WERE ALL ALONG AND YOUR GIFT OF BEING NATURALLY BEYOND STUPID…”
“…YOU FORGOT TO MENTION THAT YOU WERE BEING ACCUSED OF PEDOPHILIA (emoticon) OF BEING A DIRTY SODOMITE…”
“…THE ACCUSATIONS OF MY LATE BROTHER [MR Q] PASSED TO ME IS ABOVE N BEYOND YOUR COMPREHENSION AND YOUR IQ AND YOUR DIRTY SECRETS ARE NOW EXPOSED. YOU TRIED TO DESTROY MY BROTHER AND HAVE HIM TAKE THE BLAME FOR YOUR DIRTY DEEDS BUT YOU WILL NOT SUCCEED…”
“MY NAME IS [MS C]. I AM A CLAIRVOYANT, A MEDIUM AND I HAVE THE GIFT OF SEEING PREVENTING DECODING DECIPHERING AND CHANNELLING ONE OF THE BEST”
“AND NOT ONLY HAVE I SAVED MY BROTHER FROM YOUR EVIL WAYS OF TRYING TO GET RID OF HIM AND FAILING. IM GOING TO SAVE [X] N [Y] FROM A DISGUSTING PREDATOR WHO PRAYS ON THE INNOCENT SOLES OF HER OWN CHILDREN. YOU ARE A POOR EXCUSE OF A MOTHER, A PSYCHOPATH, A ROCK SPIDER, A PEDOPHILE, A SODOMITE, A PREDATOR WHO IS INCAPABLE OF NURTURING HER CHILDREN, TAKING CARE OF THEM, SHOWING THEM LOVE, SO MUCH SO YOU DON’T EVEN KNOW HOW TO HAVE FUN WITH THEM WITHOUT ABUSING THEM…”
“…LEECH NOW SEES LITTLE [MR Q] (ghost emoticon) INFRONT OF THEE AND WHEN YOU DO DON’T DARE POO (faeces emoticon) FOR LITTLE [MR Q] WILL BE ANGRY FOR WHAT YOU’VE DONE TO HIS BROTHERS SON WITH A TOOL, YOU BROKE A RULE, LITTLE [MR Q] SAID…”
(As per original)
As a result of the communication from the father’s sister, the mother was granted a Provisional ADVO against her which was made final in late 2021.
The mother candidly conceded that the children, but in particular X, adore their father and want to spend more time with him.
The mother wants to see evidence that the father is seeking treatment and that he has gained insight to his behaviour and the potential detriment that could be caused to the children should they be in his unsupervised presence if he has another alcohol or drug induced psychotic episode or subject them to various conspiracy theories.
The mother had previously conceded that at some time in the future, it may be possible to reach agreement with the father however, such a consideration was premature. It is now likely that the parties will be able to reach agreement on the parenting arrangements.
In her affidavit filed 6 June 2023, the mother sets out a message she received on 3 June 2023 from a person known to her as “Mr R” who had been a boyfriend or partner of the father’s sister, Ms C. The conversation is included at paragraph 4 of the mother’s affidavit but the relevance to the current proceedings is such that the detail of the conversation is included as follows:-
[Mother] “Is [Mr Beeharry] on the drugs now too is he?”
[Mr R] “Yes”
“Puffing and choofing”
[Mother] “Are you sure? How do you know?”
[Mr R]“The other day I was there and [Mr Beeharry] said to [Ms C] do you want some of my cock in you”
[Mother]“So [Mr Beeharry] is living with [Ms C]? Where are they living?”
[Mr R]“At [Ms C]’s house”
[Mother]“Can I ask… what is puffing and choofing?”
[Mr R]“… [illicit substances] and marijuana”
[Mother]“You’re 100% sure [Mr Beeharry] is doing [an illicit substance]…”
[Mr R]“I was with them”
[Mother]“So you saw [Mr Beeharry] doing it?”
[Mr R]“Yes”
“I was with them at least three weeks and he was smoking [illicit substances] for three days straight”
On 4 June 2023, the mother was contacted by Mr S who she knew to be a close friend of the father. He reported that a video sent by the father, to him, was highly indicative of the father appearing wide eyed, dishevelled and agitated consistent with him being in a state of intoxication.
Whilst the mother seeks to draw the inference that the father resorting to drugs was likely to exacerbate or promote a significant mental health issue, it is reasonable for the mother to be concerned that the father may not be able to control his conduct.
The father was advised by the mother’s solicitor on 23 February 2023, that order 6 of the ADVO restrained the father from contacting the mother. The evidence supports a finding that the father ignored the order of restraint and has embarked upon a course of conduct involving threatening email communication likely to cause the mother fear.
The email communication, from the father to the mother and/or her solicitor, asserts that the mother has engaged in the potential grooming of the children corroborated by the reference to anal stretching cream in the drawing that X attached to the fridge.
For reasons that are not explained, the father either caused or promoted his sister to file an affidavit on 15 June 2023.
Paragraph 14 of Ms C’s affidavit says as follows:-
Over the last two and half years [the mother]’s been in contact with many members of my family including my 22-year-old son [Mr T] both my ex partners. I’m little confused here, I know I’ve diagnosed a “PHYSCOTIC” and my brother has been diagnosed to have mental illness by [the mother] but the little sanity I have left in my brain has worked out that this is the beginning of the downfall of my brother meaning the we were set up and framed to conceal the fact that [X] has and continues to be abused by [the mother].
Ms C contends that the mother is a “paedophile” and that the children should be removed from her care.
Paragraph 40 of Ms C’s affidavit states:-
Since […] the day my brother relocated to Melbourne to reside with me after [Ms Dunham] had him arrested for trying to file a report to the NSW police about children being sexually abused again, [Mr R] has managed to now stalk the safety of my home at 2:30am and was arrested […], since [the mother] and [Mr R] have been in contact, he has contacted my brother and is now trying to contact my mother in WA. This is a very serious breach on [the mother]’s part she is fully aware and claims to be a victim of DV.
Ms C annexes various Facebook messages, one of which is in the following terms:
YOU WOULD ALL BE DEAD..
IM TELLING IM SPECIAL, I HAVE A GIFT THAT NO ONE IN THE WORLD HAS I CAN SEE SENSE HEAL AND PREVENT THINGS, DECIPHER THE 2 OLDEST LANGUAGES IN THE WORLD SUMARIAN AKA ALIEN AND LATIN THAT WAS THAT LONG TEXT I SENT TO YOU I HAVE SAVED MANY LIVES, WARNED YOU ALL OF THINGS, DEATHS MURDERS OF FAMILY [MR R] THE VIOLATIONS AND EVERYTHING ELSE BUT NOONE BELIEVED ME
(As in original)
The tenor of the text messages and Facebook messages are difficult to understand in terms of their relevance to the proceedings. What is consistent is that the content of Ms C’s affidavit promotes a continuation of the troubling communication previously forwarded to the mother.
In the affidavit of the father filed 14 June 2023, he restates his belief that the mother is a paedophile and is sexually abusing the children.
In the mother’s affidavit filed 19 June 2023, she sets out recent communication by way of text messages from Ms C again alleging that the mother is “psychotic”, a “paedophile”, has falsified evidence and is perpetrating sexual abuse. The language used in the text messages can only be described as highly offensive, threatening and intended to intimidate the mother.
The text messages reached a zenith in mid-2023 which prompted the mother to contact the police and to investigate whether the nature of the communication may have breached the mother’s ADVO.
Paragraph 4.3 of the mother’s affidavit filed 19 June 2023 sets out a summary of text communication from the father to her in mid-2023. The twelve text messages are marked as annexure “C” to her affidavit however the mother summarises the tenor of the messages as follows:
4.3.1“You fucking framed me. [X]…my only son. Go on ring the police. I dare you. As from this moment I do what I please and you can consider this advo binned, just like yourself. Feeling in control? Old world just lost Power”.
4.3.2“I don’t know where you got those bruises from but they look like your Masun Klan punished you for exposing your dirty Masun Klans Pedo secrets and failing the hit on my sister and I”.
4.3.3“you’re really a pedo and tried to…conceal the fact you exposed your Masonic Pedo klan and you sexually abused our son”.
4.3.4“you will request to have every advo, IVO mental health rubbish lifted and the [Beeharry] reputation be restored and tarnish your own”.
4.3.5 “you will never see, touch or speak, or see your own children again”
4.3.6“In 4 hours time you will be facing a life sentence in prison. And you deserve it.”
4.3.7“…I’m glad my sister opened my eyes to the reality of my life with you…[Ms C] brought me back to life and taught me how to feel and be free again…”
4.3.8“Bring this to the court proceedings tomorrow. You are now under my command.”
(As in original)
And then at 11.04am on the same day, the mother received the following messages from Ms C:
4.5.1“Enjoy court…[Mr Beeharry] and I are pissing ourselves laughing at you……”
4.5.2 “….I’m a Boss”
4.5.3“DOwl declare war on […] Pedo and old cow Pedo no more power now under DOW1 Command…”
(As in original)
Two days later, the mother received further text messages from Ms C containing the following extracts:-
4.7.1 I was “facing death sentence”
4.7.2 “I’m going to rip you apart you wait”;
4.7.3“You tried to premeditate my brother’s murder on the 13th coz you know date I was and its my favourite number”
(As in original)
The mother presented as a reliable witness and whilst not challenged by the father or the counsel for the ICL as to the veracity of her relationship history, her evidence was measured and the acceptance by the father of his conduct provides adequate corroboration for the mother’s evidence.
The father
The father relied upon his trial affidavit that referenced his repeated use of the legal phrase “res judicata” which was interpreted by the father to mean that the father’s conduct was now in the past and it was important to move forward or look to the future.
The father sought to challenge the weight given by Professor D to the extent to which the father had committed to various conspiracy theories. The father’s evidence is that he does not believe the conspiracy theories.
The father denied that he continued to use an illicit substance and whilst he admitted to his historical use, he denied that at any stage had he taken the illicit substance in the presence of the children.
He had considered what may have been the catalyst for his conduct in early 2021 and had sought psychiatric assistance to better understand whether there was an underlying mental health issue or whether the psychotic episode was brought about by lack of sleep.
He was candid in his acceptance that the mother may well have been hurt, angry and now distrustful of him.
Whilst the father accepted that his conduct could be seen as frightening, his affidavit highlighted that he had a large quantity of material which showed a close emotional attachment with the children and many happy enjoyed experiences.
The father highlighted that subject to objection by the mother, he had sought to tender an 80 gigabyte USB drive which contained 5,000 pieces of evidence including videos, photos, recordings and screenshots of his beneficial interaction with the children.
Whilst the Court did not see the material, the mother accepts that there is a relationship between the children and the father that is worth promoting. The mother concedes that the children adore their father. The benefit to the children of them having a meaningful relationship with the father is not in issue but rather how that is to occur without the children being placed at risk.
Both the father and the mother rely upon the contact reports as prepared by B Contact Centre consequent upon their supervision of the father’s time with the children. There are a number of reports however, the three reports relating to the father’s supervised time in March 2023 have a constant thread that highlight the children being happy to see their father and to note the level of affection that is reciprocated.
The father confirmed that he had made a personal as opposed to a financial decision not to instruct a solicitor specifically so that the mother would not be subjected to cross examination.
The father was asked to consider the content of Exhibit “4” which is a letter that he sent to the mother’s solicitors on 11 July 2022 which contained the father’s references to “sui juris” and referred to the following:
The book of Daniel. CHAP.III.17
this matter is by the decree of the watchers, and the demand by the word of the Holy ones : to the intent that the liuing may know, that the most High ruleth in the kingdom of men, and giueth it to whomsoeuer hee will, and setteth up ouer it the basest of men.
(As per original)
The father signed off on the letter using the words:-
SILENCE IS ACQUIESCENCE, AGREEMENT AND DISHONOUR
(Emphasis in original).
Exhibit “5” is a letter sent by the father to me dated 18 January 2023.
Under the heading of “Life’s Challenges”, the following appeared:-
I have accepted full responsibility for the struggle I experienced with my mental health in 2021 and the impact and life-changing experience on my family and acknowledged that they were not in the children’s best interest. Through therapy and continuous daily practices, I identified the unresolved childhood traumas of abuse and family violence and the impact of the covid 19 pandemic and lockdown upon me. [In early] 2022, the charges were legally addressed by [the magistrate].
…
The father supports the children’s relationship with the mother and seeks to work cooperatively with her to support the children in their advancement.
The father admitted that he had made an allegation that the mother had sexually abused the children but admits that the allegation is without foundation and was made at a time when he suffered from poor mental health.
The father conceded that there should be an injunction restraining him from bringing the children into contact with his sister consequent upon the vitriolic and abusive text messages which comprise exhibit “8”.
The father gave evidence that he has engaged in ongoing psychiatric therapy. The mother’s solicitor has sought details concerning the treatment the father received for mental health issues however, no information was provided.
It is an unfortunate aspect of the father’s evidence that whilst I accept he has received therapeutic assistance which underpins his assertion that he is now stable in terms of presentation, no longer consumes alcohol to excess, nor does he use illicit substances recreationally, the husband did not present any evidence as to his psychiatric diagnosis and prognosis which if provided, may have been of some importance.
The mother sought information from the father concerning his ongoing therapy as recently as February 2023. The request was met by the father forwarding a copy of a hospital discharge summary.
The father and mother each contribute equally to the cost of supervision. Over and above the father’s contribution, he makes no other financial provision for the children other than to give them gifts that the mother considers are expensive such as sport shoes, a bike and on one occasion, a lump sum cash payment of about $500.
Exhibit “12” is a report of supervised Zoom calls by Ms G dated March 2022. The mother contacted Ms G in June 2021 seeking therapeutic assistance as to how the children could recommence spending time with the father initially remotely by FaceTime or video but then transitioning to physical time.
The tenor of Ms G’s report is directed to her interaction with the father and her interpretation that the father was uncooperative, overly demanding and adopted a tone and manner which was aggressive.
The father denied Ms G’s assertion and refers to his email to Ms G of 24 February 2022 which he contends is benign and non-threatening.
I consider that the father’s communication with Ms G was not unreasonable, was polite and civil.
The father denied that he had pushed the mother from a moving motor vehicle but does accept that he was mentally unwell at the time and it was reasonable for the mother and the children to be frightened by his conduct.
Whilst the father denied that he considered the children had the potential to be harmed by excessive electromagnetic radiation energy, it is likely from his overarching interest in the topic and his effort to establish a basis for his belief, his concerns were born out of a conspiracy theory rather than a belief that there was an electrical malfunction in the home.
The father accepted that the communication between the parties was poor and that if the mother considered that the use of a parenting app would open up the lines of communication, then he would be prepared to participate.
Whilst he does not accept supervision was necessary. As discussed, the father considered that supervision should continue for a period of six months to allow the mother to feel more comfortable in her assessment that the father does not present as a risk to the children.
In terms of the father’s personal circumstances, he works freelance for various organisations which produce an income of approximately $1,500 to $1,600 per week. The father pays rent of $450 to Mr M who together with Ms N are proposed as potential supervisors. The father did not arrange for Mr M nor Ms N to give evidence. I find that the father’s evidence as to his current employment status is reliable.
The father attempted to distance himself from the mother’s evidence of his adherence to various conspiracy theories. The father’s presentation would suggest that whilst he is now more measured in his views, the evidence would not support a finding that he has completed disavowed his previous belief structure.
The father was however prepared to make reasonable concessions both as to his psychiatric health and the likely impact that his behaviour would have had on the mother and potentially the children.
Without the father calling evidence as to his psychiatric prognosis, there is uncertainty as to his current functioning.
The father did not seek to answer or respond to the evidence relied upon by the mother arising from the Application in a Proceeding seeking to adduce further evidence. The communication between the father and in particular, his sister, with the mother is such that I find that he was aware of the content of the communication forwarded by Ms C to the mother and was complicit in her ongoing involvement. It is reasonable to find that the father now resiles from his purported acceptance that his sister’s attitude towards the mother was unacceptable and was not likely to be in the children’s interest should they come into contact with her.
A further area of uncertainty is whether the father resides in Sydney or has moved to Melbourne to be in close proximity with his sister. If so, it is not known whether he intends to remain in Melbourne and if so, for how long.
Professor D
Professor D is a Registered Medical Practitioner and Consultant Psychiatrist. She holds further qualifications in infant child and adolescent mental health with a focus on trauma related mental health disorders. She has undertaken significant research into disturbances of parenting in parents with history of trauma related disorder. She has significant experience in forensic assessment, the preparation of medico-legal reports and has given evidence in family law matters.
There was no challenge to Professor D’s qualifications and she presents with specialised knowledge and skill.
Professor D was provided with material including, the substantive applications and affidavits of the parties. In addition, she was provided with material that had been produced under subpoena.
She conducted the interviews with the parties via teleconferencing in January and February 2023.
Professor D recorded that the father now takes responsibility for the incident in early 2021 and whilst he denies that he threw the mother out of the motor vehicle, he understands that she feels “disgusted” by his behaviour.[2] The father did not consider that supervision was necessary and in particular, he felt that there had been insufficient weight placed on his current circumstances involving his work with a charity organisation and that he continues to see a psychologist to deal with his history of trauma.
[2] Report of Professor D dated 26 February 2023, page 6.
The father was asked by Professor D to consider his interest in conspiracy theories. The father is recorded as having developed an interest in conspiratorial material since around 2017 but did not have sufficient insight to understand that his interest had become excessive. The father stated to Professor D that the conspiracy theories can now be placed into perspective and whilst he continues to maintain an interest, they are not intrusive and do not now preoccupy his thoughts and determine his conduct.
The issue is not the belief or interest in conspiracy theories that is problematic but rather if the father’s preoccupation with these ideas dominate his thinking there will be a negative impact on his ability to organise his life and think clearly.
Professor D did not observe evidence of current mental illness and recorded that the father had received help for his underlying trauma. Some insight has been gained but more work is required.
Professor D opined that her differential diagnosis of the father would include the following issues:[3]
•A past drug-induced Schizophreniform Psychosis – resolved
•Poly-Substance abuse
•Narcissistic Personality traits
[3] Report of Professor D dated 26 February 2023, page 10.
Professor D interviewed the children on 27 January 2023 and made the following observations:[4]
[X] presented as fully understanding of the nature of the current proceedings. I explained to him, as previously, that this was a conversation to discuss and evaluate his views about the contact with his father and any issues he wishes to raise about arrangements between his parents and his previous experience.
[X] presented as a highly intelligent and mature young person with a sophisticated understanding of the difficulty of the position he finds himself in. He is also very clear that he has been very much impacted by seeing his father in an unusual mental state and was deeply distressed by the events that his mother experienced when the children were taken by their father.
Overall, [X] presented as pseudo mature given that he has been exposed to extremes of adult behaviour and conflict.
[4] Report of Professor D dated 26 February 2023, page 11.
Whilst Professor D did not consider that the father met the Diagnostic Criteria using the DSM 5 for mental illness, he is at further risk of a reoccurrence of a psychotic episode if he does not abstain from illicit drugs. The following quote from Professor D’s report summarises these concerns:
[the father] is also at risk of further developing symptoms if he is not abstinent from substances […]. Clearly, on the basis of the available evidence, [Mr Beeharry] had a frank psychosis related to these drugs. This is likely to have left him sensitive to further episodes if he were to revert to using those drugs again.
Professor D was satisfied that the father’s major symptoms had resolved and that any risk to the children is now lower. An important consideration is that whilst the children may have residual anxieties and confusion, they both have a level of insight and were able to understand that their father was behaving unusually indicating there is a developing ability on the part of the children to self-protect in particular, X and to a lesser extent, Y.
As would be expected in a high conflict case where the children have been exposed to dramatic and frightening conduct, Professor D considered that the ongoing conflict between the parties may well be the most damaging component for the children.
Professor D considered that both parents have significantly underestimated the impact of their conduct, the ongoing conflict and the proceedings have had on the children. She considered the possible changes in arrangements for the children summarised as follows:[5]
[5] Report of Professor D 26 February 2023, page 16.
Separation from the father:
This would be distressing for both children who were able to express the desire to have safe ongoing contact with their father who they view as with some mistrust and anxiety. Their needs for ongoing contact are significant in that there is a risk that the children would blame themselves for the breakdown of that relationship and be even more anxious. They would also grieve the loss of their father and as children, might feel angered about these decisions. However, it was clear to me in my evaluation that they had certain needs for increased safety and ongoing supervision, suggesting very clearly that they are not yet able to navigate the relationship within a truly independent way given what they have been exposed to. In my opinion, this is a very important issue to consider in future arrangements.
Separation from the mother:
In my opinion, this would be particularly traumatizing for both children who have very much identified as close to their mother who has remained very protective of them. However, I do note that the children are also wanting to care and protect their mother given their awareness of what she may have been exposed to. This is a situation of children who engage in parentified behaviours. [X], specifically, presents as a pseudo‑mature child who has been exposed to very adult themes in relational breakdown and trauma and whilst he expresses his desire for individuation and moving away from the family trauma, he is also wanting to be there for his mother. Neither child wanted to increase time with the father and were aware that this would reduce the time they have with their mother.
Separation from other family members:
The children were very clear that they enjoy time with the maternal family members and paternal grandmother and did not want disruption to that. [The mother] disclosed that [the father], on her recollection, had made allegations on the basis of some of his unusual beliefs about her parents which were very distressing.
Professor D did not consider that at this time, the parties would be able to resume a workable parenting arrangement however, there is some potential for that to change in the future.
Professor D was not given an opportunity to comment as to the relevance of the communication forwarded by the father and with his knowledge, Ms C, in terms of whether it might be seen as an indicator of deteriorating mental health.
The concern of the mother arises from the evidence of Professor D that should the father resort to the use of illicit drugs, then there is a risk of the father experiencing a psychotic episode similar to that which occurred in early 2021.
I am not able to form any view as to whether a conclusion can be drawn as to the father’s current mental health functioning arising from his communication. To a considerable degree however, the nature of the communication is a strong indicator that the father’s language is possibly a portent of the father overtly threatening the mother in an attempt to intimidate her. Whilst there may be a potential question that arises in respect of the father’s current mental health status, the more obvious concern is whether the father now poses as a direct threat to the mother.
There did not appear to be any evidence that the father presented as a physical risk to the children other than in circumstances of drug induced psychosis.
The conundrum is that the children seek a relationship with the father and at this stage, despite the father’s reluctance in that regard, the children want some form of supervision.
The risk to the children, as opined by Professor D, is of emotional or psychological risk.
The other potential advantage of supervision is that it provides the mother with some comfort and the early removal of a condition of supervision may well heighten the mother’s anxiety.
Professor D was frank in her assessment that whilst there was a need for a continuation of supervision there is considerable uncertainty as to the duration given the age of the children and their desire to engage with the father in the hope of returning to some level of normalcy.
PARENTING CONSIDERATIONS
I will focus on the practical reality of each of the party’s proposals and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances in each case.
The children reside with the mother and spend limited time with the father comprising one period each week of supervised time and two periods of supervised FaceTime communication.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I am cognisant of the primary and additional considerations in respect of the matters as set out in ss 60CC(2) and (3) of the Act.
I propose to adopt the following approach:-
(1)Give consideration to the proposals put forward by the parties;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child's best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child's parents and the need to protect the child from physical or psychological harm;
(5)Have regard to the additional considerations under s 60CC(3) of the Act; and
(6)The evidence adduced in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised, then this should be the subject of delineation and comment.
Meaningful relationship
The mother promotes orders that whilst she retains the primary care of the children, they will spend time with the father on a relatively limited basis with a strict condition of supervision both in terms of physical contact and FaceTime communication until the 2027 school year. It is noted that by that time, X will be 17 years of age.
The mother concedes that the children adore the father and she recognises that it is in their best interests that they maintain a relationship with him.
Professor D confirms that it would be detrimental to the children and adverse to their best interests if they were denied a relationship with the father. For his part, the father concedes that the children’s best interests are served by them remaining in the mother’s primary care but that after a further period of six months of supervised time, the children should then spend time with him each alternate weekend and half of the school holidays.
Whilst the parties do not agree on the extent of time the children should spend with the father and whether it be subject to supervision, they are agreed that the mother should retain the primary care.
The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
Prior to the renewed correspondence directed by the father and his sister to the mother, the evidence supported a finding that in the father’s care, the children were not likely to be at risk of physical harm other than in circumstances where the father may have a drug induced psychotic episode. I do not consider that such a finding remains open. Whilst I am not able to find a direct correlation between the nature of the communication and whether it can be seen as an indicator of the father’s deteriorating mental health, it is capable of supporting a finding that the father has adopted an overtly threatening attitude to the mother, is prepared to refer to her in language that is outrageous in its content but of greater concern posing a direct threat to the mother.
The father could not be trusted to comply with the agreed order of restraint in the children coming into contact with Ms C.
The evidence does not support a finding that the father would now be able to compartmentalise his intense dislike for the mother should he come in to contact with the children without strict supervision.
It is regrettable that the father has demonstrated a lack of insight into his behaviour and in particular that of Ms C. The purpose of the ADVO was to ensure that the father did not communicate with the mother in order to put an end to threatening and intentionally demeaning communication. The father has not heeded the clear warning.
If the father were to come into contact with the children on an unsupervised basis there is high uncertainty that he would be able to properly compartmentalise his intense dislike and loathing of the mother, his view that she has sexually assaulted the children and that they remain at risk in the mother’s home and in respect of any contact with the mother’s extended family.
There is little doubt that the father’s conduct leading up to and including early 2021 was highly distressing for the mother and the children. Whilst there is some differing position of the parties as to whether the mother was or was not pushed from the moving motor vehicle in the presence of the children, the evidence enables a finding that on that occasion, the father was in the grip of a psychotic episode which resulted in an extreme act of family violence not just in terms of the mother being ejected from the car but of the distress to her and the children of the father driving away.
There is a lacuna in the evidence in terms of the efforts undertaken by the father to obtain therapeutic intervention and gain perspective and insight into his conduct.
Whilst the father spoke of assistance that he had received from a psychiatrist and a psychologist, no evidence was presented to establish diagnosis and prognosis.
Something can be gained from the father’s evidence of his current functioning and employment. Moreover, Professor D did undertake a psychiatric assessment and considered that each of the parties but in particular the father, did not suffer from a current psychiatric diagnosis but that the history of a drug induced psychosis heightened the risk of a further mental health episode should the father resort to drugs. That current level of functioning may be adversely informed by the father’s recent behaviour.
It is the lack of evidence as to the extent to which the Court can have confidence that the father is likely to remain drug free and the concerning nature of his recent communication to the mother that creates the uncertainty that requires the father’s time with the children to be supervised.
An important consideration, is the quality of the relationship between the father and the children. The observed interaction is benign and to the children’s significant advantage. As frankly expressed by the mother, the children adore the father. It is clear on the evidence that he has much to offer and presents as a person of high skill and talent.
The nature of the father’s communication with the mother was the catalyst for the ICL to alter his position that the father’s time with the children should be the subject of supervision but only up until December 2025 to a position where the ICL considers there now may be an unacceptable risk to the children and as such there should be no order for the children to spend time with him.
There is significant support for the position adopted by the ICL however, the mother resists such an outcome on the basis that she can see there is an opportunity for the children to gain benefit from spending time with the father providing supervision is in place. The mother also holds a hope albeit rapidly vanishing, that the father can present as a responsible parent and satisfy her that the children would be safe in his care. That outcome was an open possibility but for the father’s recent conduct.
A further aspect is that the father may not be living in New South Wales and as such, the orders even as promoted by the mother, may not be workable.
The mother however resists an order that the children spend no time with the father.
Any views expressed by the children
As discussed, the children want to spend time with the father but at least when speaking to Professor D in early 2023, they received some level of comfort by the ongoing supervision. That is not to suggest that the supervision is the preferred outcome for the children but rather it is at this stage a salve to their underlying anxieties and their recollection of the father’s bizarre and unpredictable behaviour.
The mother recognises that supervision can only be in place for a finite period and on her case, she considers that subject to the father returning negative drug and alcohol tests, 2027 would be an appropriate time for supervision to cease. X would be 17 years of age. The ICL considers that 2025 would be sufficient to establish that the father is able to remain drug free, does not have any further mental health or psychotic episodes. The mother by then would be more comforted that the children would not be at risk.
The focus therefore is the extent to which supervision should continue. The father concedes that whilst it is unnecessary, there should be a transition period of a further six months.
The evidence from Professor D is equivocal. I accept from her evidence that she considers 2027 to be an unnecessarily long period. The father’s concession of six months would be insufficient. The conundrum is to weigh up the risks to the children against the evidence that the father has made some significant progress tempered by the children’s current anxieties and bringing to account that they are fast reaching an age when they are able to self-protect. Professor D has noted that even Y understood when her father was becoming “bad”.
The nature of the relationship of the children with each of the parties
Little is required to establish the strength of the relationship between the children and the mother. Since the date of separation, the mother has been solely responsible for the children’s care, welfare and development. The father has contributed little towards the children’s needs and the mother has undertaken an appropriate role in their education and other personal requirements.
There is a close personal attachment between the children and their mother. Professor D considered that the children also had a close relationship with the father. By reference to Contact Reports, the following summary from the Contact Report dated March 2023 (Exhibit “14”) is an appropriate summary of the children’s relationship with the father:-
The children were happy to see their father and they ran over and [the father] and the children hugged. […]. [The father] played the games [Y] chose and the children enjoyed climbing in the tree. [The father] took [Y] to the toilet and she washed her hands. [The father] was affectionate with the children throughout the visit, which they reciprocated. When [X] said he was tired [the father] gave him a massage. [The father] provided food which the children enjoyed. The children had fun playing with their father. When [X] played with the lighter and attempted to light twigs [Y] said to not do that and [X] briefly continued to play with the lighter. Overall the children had a nice time and the visit was positive.
The summary is consistent with observations of other supervised time.
The extent to which the parents have taken or failed to take the opportunity to make long term decisions to spend time with or communicate with the child. Whilst it is argued that there had been occasions when the father did not speak to the children and cancelled scheduled calls, there is no suggestion that such conduct on part of the father is indicative that he is not genuine in his desire to continue a relationship with the children.
It is a risk in all cases of ongoing supervision that the very nature of the process involving the mechanics and the inherent expense, particularly where professional supervision is required may make the ability for compliance problematic. The situation is exacerbated by the uncertainty as to the father’s intentions in terms of his possible residence in Melbourne and no information as to whether he intends to return to Sydney.
The mother also seeks that the FaceTime communication be undertaken by a professional supervisor.
I do not consider that such an order would be viable. The father struggled to financially meet the cost of supervision and I find that to impose a further obligation of professional supervision on the FaceTime communication would not be financially sustainable by either party.
It is however untenable that given the violent tone of the father’s communication directed to the mother that she supervise the communication. In the absence of any other alternative, it is not reasonable that the children should have the unmet expectation of the father not being able to regularly communicate with them in circumstances where a supervisor would not be available. It may be a matter for the parties and possibly X given his age that he may independently contact the father. I do not consider that there is sufficient certainty that FaceTime communication would be undertaken on a regular basis and as such there is a risk to the children of their expectation in speaking with their father not being fulfilled. I do not propose to order that the father should be able to communicate with the children by FaceTime or telephone.
As discussed, the orders sought by the mother would see the father’s time being supervised through to 2027. X will be 17 years of age. Y nearly 10 years of age. There comes a point when the orders will lose their utility and in 2027 I find that the children are likely to be able to self-protect and once appropriate drug testing is undertaken, the need for supervision should be considered as unnecessary. I do not ignore that a further four years of supervision is contemplated and that it may well not be capable of being undertaken either because the father is no longer in close proximity to the children or that the parties do not have the financial wherewithal to continue with professional supervision.
Again, it is the mother’s primary position that the door should be left open for the children to maintain a relationship with the father that orders are not made that would see the father spending no time with them.
The recent conduct of the father subsumes the advantage to the children of maintaining a relationship with him and the clear disadvantage to the children should they not see their father. Simply put, it now promotes a finding on the balance of probabilities that without supervision there is a significant physical and emotional risk to the mother and the children.
The extent to which each of the parents has fulfilled or failed to fulfil their obligations to maintain the child
The evidence is stark. The mother has had the effective sole care of the children since separation and has borne the financial cost of their upbringing. The father does contribute to one half of the costs of supervision and has provided gifts of varying value from time to time.
The evidence is that the father is now employed and earning an income of about $1,500 to $1,600 per week. There is little evidence as to the regularity and reliability of the income stream however, there appears to be no good reason why the father should not be the subject of an assessment of child support. It may be that the mother chooses not to make such an application and there is certainly no evidence that of his own volition, the father is keen to make a financial contribution.
In the circumstances of the case, it is likely that the father will continue from time to time to provide gifts to the children and to the extent that the mother requires supervision over a longer period, the father’s contribution to the cost of ongoing supervision is a relevant factor that needs to be considered.
The likely effect of any change in the children’s circumstances
As considered, the focus of the proceedings has been the extent to which supervision is required and if so for what period.
The evidence of Professor D is that at present, supervision is required not only to alleviate the mother’s anxiety that the father may present as a risk to the children should he relapse into illicit drug use with the possibility of a psychotic episode but also, the children feel a level of security because of the supervision that is currently in place.
The mother and the ICL each recognise that supervision should come to an end at some point. As considered, the ICL prior to the father’s recent conduct and communication, considered that by 2025 the children would be able to self-protect. The mother took a more pessimistic view and considered that by December 2027 the need for supervision would be unnecessary.
The evidence also supports a finding that the parties are not able to reconcile their differences at present and that a functioning parental relationship between them is out of their reach. The father may have made significant progress as considered by Professor D both in terms of her assessment of the father but also by reference to some information as provided by Dr E in his Psychiatric Report and evaluation of 21 July 2021 being document “M10” in the mother’s tender bundle as a the time of trial but that has now been thrown into uncertainty.
Professor D did not consider that the father was suffering from any diagnostic condition and whilst there was some uncertainty as to the extent to which he was able to compartmentalise what had been a preoccupation with conspiracy theories, the significant risk would arise should the father descend into drug use.
There is little doubt that the father had a close emotional attachment and strong relationship with the children leading up to his descent into psychosis and that thereafter, there has been a gradual improvement in his outlook and presentation until the present.
A cautious approach is required but this must be balanced with the ability of the children to self-protect, the evidence of Professor D that the father, absent drug use, is not likely to present as a risk to the children and the frank concession of the mother of their strong relationship with the father.
Family violence
The father is the subject of a final ADVO which will expire in 2024.
The father does not dispute the broad basis for the ADVO namely, that he perpetrated family violence culminating in an incident in early 2021 when the mother was forced out of a moving motor vehicle in which the children were passengers.
The incident was frightening and added to the children’s emotional and psychological distress arising from the increasingly bizarre and irrational behaviour of the father over a significant period of time.
The evidence supports a finding as to the reliability of the mother’s history of the father’s conduct over a number of years. I am satisfied that the father’s behaviour during the course of the relationship was adversely affected by alcohol and drug use and that this created distress, anxiety and dysfunction within the family.
The father has presented with significant qualities recognised by the mother in respect of her concession that the children would be disadvantaged were they not to see and spend time with the father.
It is likely that the father has much to offer the children and while in the ordinary course the father’s conduct would be seen as highly damaging to the mother and the emotional fragility of the children, the unusual aspects of this case are such that providing the children are not at risk they crave a relationship with the father which has the mother’s tentative support.
PARENTAL RESPONSIBILITY
The mother seeks sole parental responsibility whereas the father seeks equal shared parental responsibility.
Whilst there is a presumption in favour of equal shared parental responsibility in this case neither party seeks orders either for equal time or significant and substantial time.
The father concedes the children should remain in the primary care of the mother. The mother accepts that the children should spend time with the father but that there is a need for ongoing supervision to protect the children.
The ICL adopts what might be considered as a less extreme proposal namely, that supervision to continue until 2027 would be a bridge too far given that the father has not spent unsupervised time with the children since 2021.
Again, the father accepts that some modest period of supervision would benefit the children.
The focus then must be as to whether the evidence supports an order for equal shared parental responsibility. It is a significant step to remove parental responsibility from a party. It should be undertaken only in the most egregious circumstances.
The mother has undertaken the sole responsibility for the children and has made all of the necessary decisions that serve their best interests.
It is also a relevant consideration that for an extended period following separation, the father moved to Perth.
At present, the parties are not able to communicate with each other although whilst face to face interaction would be difficult into the foreseeable future, the parties are able to communicate by email or text messaging.
The unfortunate aspect of the father’s presentation is that to date, his communication has had an exaggerated quality about it and the various biblical and other theosophical references are curious at best and likely to create uncertainty mistrust and fear at worst.
The unresolved nature of the father’s adoption of conspiracy theories may well speak against effective communication between the parties.
Whilst the issue of the father’s family violence is compartmentalised by the recognition and acceptance by the mother that the children need to have a meaningful relationship with their father, the issue of parental responsibility must be considered against the background of the father’s conduct.
In the circumstances of this case and applying the best interests of the children test to the determination of parental responsibility, I consider that an order should be made for sole parental responsibility but with the mother to keep the father advised and informed of anticipated decisions in the hope that the parties can reach consensus but if not, then the default position will be the mother’s ability to make appropriate decisions. The mother impressed as recognising the importance of trying to reach a consensus.
CONCLUSION
I have given careful consideration to the evidence and in particular, the opinion expressed by Professor D that in all probability, a further two years of supervision would be adequate and provide a reasonable indicator of whether the father is able to remain drug free and mentally well.
Whilst I am also of the view that there is a risk to the children that they will tire of the artificial nature of professional supervision in that it does not provide an appropriate depth and breadth of opportunity for the relationship with the father to develop, that consideration is now a risk arising from the father’s recent threatening conduct.
I consider that an appropriate period for supervision to continue is to coincide with the commencement of the 2027 academic year.
The children impressed Professor D as responsible and mature and it is significant that they are at an age when they will be able to self-protect.
The mother’s presentation in evidence was not as proscriptive as the orders that she seeks. The impression created by the mother’s evidence that if she was satisfied that the children were not at risk by the father having a psychotic relapse, she would consider progressing to unsupervised time at an earlier stage. I accept that continued supervision for what will be another 3 and a half years is onerous for the father given his time has been supervised for two years to date.
It is reasonable that the progression to unsupervised time be the subject of the drug testing as required by the mother.
Given that the father is to see the children each Sunday, the orders sought by the mother that there be two occasions in each school term when the father’s time will be suspended is not unreasonable. The frequency of the supervision and that it be facilitated by a professional supervisor comes with a significant cost. That also assumes the father is living in Sydney.
The parties seek orders not for their own benefit but rather to assist in the development of the children. As such they are both invested, albeit for different reasons, in the father maintaining a continued involvement. It is reasonable that the parties share equally the costs of supervision rather than it be borne by the father in circumstances where the financial impost may make compliance difficult.
I have given careful consideration to the broad sweep of orders sought by the mother and the ICL in terms of the ability of the mother to obtain passports for the children and consider that they are reasonable and should be made.
As considered, the father consented to an order that his sister Ms C not communicate or come into the presence of the children. That outcome is reinforced by the father’s evidence of the mother.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 6 July 2023
- AGLC
- Dunham & Beeharry [2023] FedCFamC1F 545
- Case
- [2023] FedCFamC1F 545
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the father posed a risk to the children's safety and wellbeing and if so, what measures, if any, could mitigate that risk. This involved assessing the father's past behaviour, his mental health history, and the impact of his actions on the children. The court also had to consider the children's wishes and the expert opinion provided by Professor D, who highlighted the children's need for safety and ongoing supervision due to their exposure to familial conflict and trauma.
The court concluded that while the father's past behaviour and mental health issues were concerning, there was potential for him to have a supervised role in the children's lives, provided strict conditions were met. The court ordered that the mother have sole parental responsibility but required her to keep the father informed of decisions affecting the children. The court also mandated supervised visits for the father, to be shared equally in cost by both parents, and ordered that these visits continue until the start of the 2027 academic year. The court's decision balanced the children's need for safety with their need for a relationship with their father, recognising the importance of both parents in their lives.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Professor D considered that both parents have significantly underestimated the impact of their conduct, the ongoing conflict and the proceedings have had on the children. She considered the possible changes in arrangements for the children summarised as follows:[5][5] Report of Professor D 26 February 2023, page 16.Separation from the father:This would be distressing for both children who were able to express the desire to have safe ongoing contact with their father who they view as with some mistrust and anxiety. Their needs for ongoing contact are significant in that there is a risk that the children would blame themselves for the breakdown of that relationship and be even more anxious. They would also grieve the loss of their father and as children, might feel angered about these decisions. However, it was clear to me in my evaluation that they had certain needs for increased safety and ongoing supervision, suggesting very clearly that they are not yet able to navigate the relationship within a truly independent way given what they have been exposed to. In my opinion, this is a very important issue to consider in future arrangements. Separation from the mother:In my opinion, this would be particularly traumatizing for both children who have very much identified as close to their mother who has remained very protective of them. However, I do note that the children are also wanting to care and protect their mother given their awareness of what she may have been exposed to. This is a situation of children who engage in parentified behaviours. [X], specifically, presents as a pseudo‑mature child who has been exposed to very adult themes in relational breakdown and trauma and whilst he expresses his desire for individuation and moving away from the family trauma, he is also wanting to be there for his mother. Neither child wanted to increase time with the father and were aware that this would reduce the time they have with their mother. Separation from other family members:The children were very clear that they enjoy time with the maternal family members and paternal grandmother and did not want disruption to that. [The mother] disclosed that [the father], on her recollection, had made allegations on the basis of some of his unusual beliefs about her parents which were very distressing. Professor D did not consider that at this time, the parties would be able to resume a workable parenting arrangement however, there is some potential for that to change in the future. Professor D was not given an opportunity to comment as to the relevance of the communication forwarded by the father and with his knowledge, Ms C, in terms of whether it might be seen as an indicator of deteriorating mental health. The concern of the mother arises from the evidence of Professor D that should the father resort to the use of illicit drugs, then there is a risk of the father experiencing a psychotic episode similar to that which occurred in early 2021. I am not able to form any view as to whether a conclusion can be drawn as to the father’s current mental health functioning arising from his communication. To a considerable degree however, the nature of the communication is a strong indicator that the father’s language is possibly a portent of the father overtly threatening the mother in an attempt to intimidate her. Whilst there may be a potential question that arises in respect of the father’s current mental health status, the more obvious concern is whether the father now poses as a direct threat to the mother.