Slater & Light 2013 FamCAFC 4

A couple had three children aged 10, 9 and 8 years.  Interim orders had been made for the children to live with the father and to spend time with the mother.  When the case was reviewed the judge found that an incident of family violence had occurred, and that the children were at immediate risk of abuse, neglect and family violence. The orders were changed to provide for reduced access by the father with supervised access for an indefinite period, and the mother was granted sole parental responsibility.  The father appealed the order that supervision be indefinite or ongoing.

The mother gave evidence that she had seen the father with a noose around his neck while standing on a chair, that a noose had been left where children might see it, and that the father had cut his wrists (self harm).  Evidence was given that the father had predicted that a son might suicide upon being disciplined by the mother, and that the father had set out to alienate the son from his mother.

The father was a teacher and evidence was presented that he held a strong belief that only he could provide proper parenting for the children.  Evidence was presented that the father used rigid discipline including requiring his children to run on the spot to his satisfaction (personality rigid).

The father presented evidence that he had twice expressed his concerns about the mother’s parenting to the department without first raising the matters with the mother.  The judge found that this pattern resulted in continual disputation about parenting.

Therapist evidence

A clinical psychologist who treated the father considered that the father probably had Aspergers syndrome (autism spectrum disorder).  The treating psychologist stated that the father had a tendency to pass on too much detail leading to his losing listeners.  The psychologist stated that people with Aspergers can learn to change their behaviours that have a negative impact on relationships, including on parenting relationships.  The psychologist stated that the father had learned to be more accepting of views that differed from his own views.  The psychologist encouraged the father to use other methods of discipline including reinforcing appropriate behaviour, natural consequences, restitution, quiet time, and having appropriate expectations of children.

The psychologist stated that children benefit from education about how Asperger’s syndrome affects their parents.  The psychologist gave evidence that although people with Asperger’s tend to say things that come into their head, they can be taught to not express their thoughts or to inhibit their verbalising.

A psychiatrist gave evidence that the father could not shield the children from his negative views about their mother (impact on child, capacity to protect).

The judge found that the father held rigid views (strong belief) and had an incapacity with empathy that left him unable to perceive the effects of his remarks on his children.   The judge found that despite receiving assistance for his Asperger’s disorder, the father cannot prevent himself from acting on his negative views to the detriment of his children (capacity to change).  The judge expressed concern that the father would work against decisions made by the mother (parenting style undermining), and agreed to the request by the mother for sole parental responsibility.

The judge found that it was now up to the father to present evidence that he was able to exert self control over himself (burden of proof).

The appeal court ruled that an order for ongoing supervision of access was not justified in the circumstances, and ordered a rehearing that included updated evidence.

The Court ruled that a court may reach a conclusion of unacceptable risk from the accumulation of factors, none or only some of which reach the standard of probability (burden of proof).