Family Court- dad to get supervised time only

Discrimination and homophobia are always concerns for LGBT people- how will the world see me? What affect will it have?

For those who have to front the Family Court, the concerns are even more serious. “Will the court take my children away from me just because I’m gay?” ” Will I not be able to see my kids just because I’m a lesbian?”

There is no definitive caselaw, but certainly there has been no caselaw in which gays and lesbians are being actively discriminated against, as compared to for example some US states.

A recent Family Court case Dean and Crawford probably illustrates as best as any case what impact the father’s bisexuality had on the outcome (none). Certainly some of the father’s behaviour involving his sexuality was relevant, because it demonstrated that he had great difficulties and was not child focussed, but his sexuality appears to have been irrelevant.

Both the mother and the father had a long history with drug taking. The father had also a long and serious criminal history, related to that drug taking, especially taking ice. He had also been violent to his former partner and abusive towards the mother. The case is a salutory lesson of why not to take ice, given some of the father’s behaviour.

It probably also is rather telling about Australian society at some level that the father was able to be open when giving evidence about his crimes and drug use, but not about his sexuality:

Whilst the father freely admitted in cross-examination using illegal drugs, selling illegal drugs, stealing, all sorts of fraudulent activities, and abusive behaviour, he was very evasive when asked questions about whether he had sex with men or asked about his cross-dressing habit. He appeared to regard his dressing behaviour and his bisexuality as somehow worse than his criminal history. He lied about and understated his interest and activity of having sex with men and he also understated the extent of his cross-dressing activities.

The father had been convicted of drug offences relating to T Park. This appears where he used to score ice, and was also his beat.

For example, these police entries:

18.2.01 father hires a male prostitute come at about 11.30pm for “threesome” with the parties. When leaving, man discovers his wallet is missing. Father has stolen it. Father became aggressive to him. Man leaves, but reports to police. Appears father not charged.
April 2001 – About 8 weeks after the Apprehended Violence Order an incident occurred. The father came home at about 8pm the mother asked why he had not been home in time for dinner. He responded aggressively. She had needed the car to get some formula for J. He called her, “a fucking bitch”. He came at her and pushed her very hard against her chest with such force that she fell backwards approximately 7 feet and landed on top of a Jim Beam liquor bottle which broke with the force. She screamed. She thought she had broken her back. She had hit her spine on the liquor bottle. She was frightened to move but eventually did move because J was crying and distressed
1.3.02 Father found by police in car in T Park 1.15 am. Testifies at about that time they were obtaining their illegal drugs from a supplier nearby and they used to go to the park to take drugs.
11.5.02 police found father naked in car at T Park at about 11pm. A number of empty plastic satchels were in car and Police found one containing cannabis. Father said he is regular user of amphetamines and last injected about 5pm.

That was not the end of T park. Amazingly, the father thought it was also OK to take the mother and the children to that beat:

May 2003 Father commenced taking Mother (and sometimes children) on visits
to homosexual beat at T Park at night while he seeks out men for sex. The Court
accepts her evidence:
69. In 2003 the Respondent and the children and I resided at the property [in regional New South Wales]. Approximately once a month, if we were driving in the car with the Respondent, the Respondent would detour to [T] Park. I observed that there were several young men in the park. On the first occasion we went I said to the Respondent:”Why are we coming here?”
He said:”I want to get someone to suck my cock.”
The Respondent parked the car, took the keys and would leave the children and I in the car. The Respondent walked into the park. Sometimes he would return to the car approximately thirty minutes later and on several occasions we waited in the car
at the park for periods of up to one hour. On most occasions he would return to
our car with his shirt undone and, in front of the children, would say, words to
the effect:
“I’ve just been with a mad young fellow and sucked his cock and it was mad. ”

4.6.03 the mother testified:
On the evening of 4th June, 2003 we were living at [regional New South Wales]. We had received notice from the sheriff that the sheriff was to attend the home the next day to lock it up and evict us and sell our furniture and effects.
Approximately two kilometres north of Raymond Terrace we were driving
home in the car when the Respondent insisted on giving a 19 year old male
hitchhiker a lift. The Respondent invited the hitchhiker home, but the
hitchhiker refused and got out of the car at Karuah. After the hitchhiker
got out, the Respondent said to me in a loud voice:
“I just wanted to fuck that bloke. I wanted to bash him and
hurt him, but I wanted to knock him off and put him in the ground.”
I said to the Respondent:
“Stop talking like that, the children can hear every word you’re saying.”
The children were sitting in the back seat of the car. The Respondent refused to
stop and kept repeating his threats about the hitchhiker.

When we got home I carried the children out of the car and put
them to bed. The Respondent never carried the children from the car to the house
and did not put them to bed. As soon as the Respondent came into the house he
took his clothes off in the dining room and started to masturbate. I was trying
to pack our belongings because the sheriff was coming the next day to lock up
the house and our contents if the contents were in the house at 10.00 am. I
walked into the dining room and saw the Respondent masturbating. I also
observed that he had stuck a cucumber in his anus. I said:
“Stop doing that. What if the children walked out and saw you? You know the kids can walk out of their room at any time.”
The Respondent walked out of the dining room saying:
“I want to flog that hitchhiker. I want to fuck him up the arse.”
I continued to pack up our belongings in the kitchen.
I continued to pack our belongings and approximately half an hour later I went
into the lounge room and observed the Respondent with a cucumber in his anus
and makeup on his face. The Respondent had a camera and was attempting to
take photographs of his backside.
The Respondent said to me:
“Take a photograph of me.”
I said:
“You’re obscene.”
The Respondent came up to me, put his face right against mine and
said:
“You take this photograph or else.”
I took several photographs of the Respondent to avoid drama. I threw the camera at him. I said to him:
“What if [J] and [B] wake up and see you?”
The Respondent said:
“I don’t care. All I want to do is fuck that hitchhiker up the arse and give him a
good flogging and watch him scream. ”
I said:
“Please stop this. Just think of the children. Just help me pack our belongings because this is all we own and it’s all the children have.”
The Respondent walked towards his bedroom and I continued to pack our things. Some minutes later I heard [J] get out of bed. I went to [J], but found him standing at the bedroom door watching the Respondent masturbate on the bed. I picked [J] up and carried him out into the kitchen where I gave him something to drink and put him back in his bed and waited for him to go to sleep.

The father conceded in his evidence that he was using ICE at time. He also said in cross-examination of this incident, “We were on acid mucking around. A few photos were taken of me mucking around and she took the photos.”

Then there was the occasion of 14 August 2004. The court accepted the
mother’s version:

The Respondent had been away from the home for approximately six hours
and arrived home at 2.30 am. The Respondent walked into the kitchen wearing
only a G-string and one of my bras. I said:
“What are you doing dressed like that? I hope no-one has seen you. Where have you been ?”
I observed that the Respondent appeared to be affected by drugs. The Respondent
said:
I’ve just fucked a 13 year old bitch and gave it to her hard.”
I said:
“You are sick. That’s against the law, as well as what about the poor girl? Look at you, you’ve got makeup on, nail polish on your fingernails and your toenails.”
The Respondent said:
“I don’t give a fuck, it was good.”
At that time [J] woke up and walked into the kitchen and saw his father standing there. I immediately picked [J] up and took him back to bed and comforted him. When I had attended to this, I went back to the kitchen and said to the Respondent:
“Get yourself properly dressed so the children don’t see you again.”
Within a few days father arrested and then gaoled.

The court also accepted that on another occasion the father said that he had picked up a woman, raped her and killed her, although thankfully there was no truth to what the father told the mother.

In cross-examination the father agreed that he has been aggressive to the mother and to his previous partner. When it was put to the father that he had a problem with aggression towards women he loves, he did not accept responsibility. He replied “I had a problem with drugs”.
He says that when on ice he “had an insatiable sexual appetite” and became aggressive and “out off control”. When asked if he became violent to the mother in sex, he replied, “there was push and shove in our relationship” and “the relationship was lively, yes”. He said the relationship “because of the drugs, destroyed us”.

Justice Mullane found that the father had used amphetamines shortly before the trial and that the father’s parenting in the previous four years had been “token”.

His Honour ordered that the father see the boys once every 3 months at a contact centre (what is significant about this statement is that there was no mention of the father’s sexuality- just about his behaviour):

The father has over a long period used abuse (including violence) in his
dealings with others.
Abusive behaviour is not an attribute of a particular
victim or a particular relationship. Abuse is an attribute of the perpetrator.
It is a fact that some people use abuse in dealing with others, but most do not.
It is not an attribute of alcohol. Most people who use alcohol do not use abuse.
Children who spend time with an adult who uses abuse in his or her dealings
with others are at an obvious risk of physical injury. Children, (some would say
especially at certain stages such as “the terrible two’s” and adolescence) can
test an adult carer’s patience as much as any argumentative or aggressive adult.
Spending time with an abusive adult involves other risks to children. One of
those is the risk of psychological harm. Children can as a result of
experiencing abuse or witnessing abuse of loved ones, suffer insecurity,
apprehension, unhappiness, anxiety, fear, hypervigilence and terror. Generally
experiencing or witnessing abuse inhibits a child’s emotional development.
Verbal abuse and put downs can also diminish a child’s self esteem and self
confidence, and that can cause long term damage.
The worst danger that an abusive parent or carer presents to a child, however, is as a role model. The child can learn to use abuse in dealings with others, including those they love.
It is a social disability that can destroy the most intimate relationships and
bring the child into conflict with relatives, friends, other people they
socialise with, the police and the law. The role model of an abusive parent or
carer puts a child at risk of adopting the role of an abuser when they partner.
Either way, it is a long term damaging legacy from the adult.
The boys need to be protected from the father by a competent supervisor for any time they spend with the father. It would be counter-productive and damaging to the boys to make orders for sufficient time with the father to establish a relationship.
That can only follow when a Court is satisfied that the father has established
he is drug free and has ceased his abusive behaviour and the change is likely to
be more than short term. He has not done that yet.
The purpose now of the time with their father would be to know him. That can be done by supervised time once every 3 months.

Stephen Page, Harrington Family Lawyers, Brisbane spage@harringtonfamilylawyers.com 61(7) 3221 9544