Aligante & Waugh
[2009] FamCA 731
•12 August 2009
FAMILY COURT OF AUSTRALIA
| ALIGANTE & WAUGH | [2009] FamCA 731 |
| FAMILY LAW – CHILDREN – Application by the father for unsupervised time with the child – Opposition of the mother to any contact with the father – Allegations by the mother of sexual, physical, verbal and emotional abuse committed by the father during the marriage – Whether or not alleged abuse of the mother by the father creates an unacceptable risk that the child will be abused in the father’s care – Potential alienation of the child from the father in the maternal household |
| Family Law Act 1975 (Cth) |
| U v U [2002] 211 CLR 238 KPR & MRS [2007] FamCA 1334 |
| APPLICANT: | Mr Aligante |
| RESPONDENT: | Ms Waugh |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Fiona Reid |
| FILE NUMBER: | SYF | 3075 | of | 2004 |
| DATE DELIVERED: | 12 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 13 March 2008; 1 - 3 April 2009; 11 - 12 June 2009; 26 June 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Barry |
| SOLICITOR FOR THE APPLICANT: | Legal Aid NSW |
| COUNSEL FOR THE RESPONDENT: | Ms Reynolds |
| SOLICITOR FOR THE RESPONDENT: | Susan Parker, Lawyer |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Reid Family Lawyers |
Orders
Until further order:
All previous orders are discharged.
The mother shall have sole parental responsibility for the child …, born … May 2002 (“the child”) but the mother is to advise the father in writing with not less than 21 days’ notice of any decision, including the mother’s views about that decision, to be made about a long term issue about the child’s care and the father may respond in writing to the mother expressing any views about the mother’s proposed decision.
The child shall live with the mother except when he is spending time with the father pursuant to these orders.
The child shall spend time with the father:
4.1.for a period of 3 weeks each weekend on Saturday from 11am until 5pm;
4.2.following the conclusion of the period in Order 4.1 above, commencing on the next weekend for a period until the start of the fourth school term in 2009, every alternate weekend from 12pm Saturday until 12pm Sunday.
4.3.during school terms commencing with the fourth school term in 2009, on alternate weekends from after school on Friday until the commencement of school on Monday.
4.4.for half of the short term school holidays as agreed and failing agreement for the first half of the school holidays;
4.5.for two periods of one week each during the December/January 2009/2010 school holidays as agreed, but failing agreement noon on the first Sunday in January to 5pm on the second Sunday and from noon on the third Sunday in January until 5pm on the fourth Sunday in January;
4.6.for two weeks during the December/January school holidays each year as agreed, but failing agreement, commencing at noon on the second Sunday in January and concluding at 5pm on the fourth Sunday in January, unless the parents otherwise agreed as to the commencing and concluding date for that two-week period;
4.7.in odd numbered years commencing 2009, from noon Christmas Eve until noon on Christmas Day; and
4.8.in even numbered years commencing 2010, from noon on Christmas Day until noon on Boxing Day;
4.9.in the event that the child’s weekend with his father pursuant to Order 4.3 falls on a long weekend including a Monday, then time shall be extended to 5pm on Monday; and in the event that the child’s weekend pursuant to Order 4.3 falls on a long weekend including a Friday, then time shall commence at the conclusion of school on Thursday;
4.10.such further or other time as may be agreed between the parties in writing;
4.11.for the purpose of these orders, school holiday periods are deemed to commence at close of school on the day on which the public school term ceases, and conclude at 5pm on the evening before school term recommences;
In addition to the time that the child spends with the father pursuant to Order 4 herein, on the following occasions of special significance the child shall spend time with the parties as follows:
5.1.the mother and the father will each be entitled to spend four hours with the child on his birthday at times by agreement between the parties;
5.2.the father shall not have the child on the weekend which includes Mother’s Day but in substitution the father will have the child with him on the following weekend at the same times as set out in Order 4.3;
5.3.The mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother will have the child with her on the following weekend;
5.4.the child will spend time with the father each year on the weekend on which Thanksgiving falls, from the conclusion of school on Friday until 5pm Sunday.
The parents will be entitled to attend all events involving the child including:
6.1.sporting fixtures;
6.2.extracurricular activities that allow for parental attendance;
6.3.school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event;
On days when changeovers pursuant to these orders occur on school days, they shall take place at the child’s school, and on days when changeovers occur on non-school days, they shall take place at the Interrelate Contact Centre at E with changeovers occurring at E McDonalds as a fallback position.
Each parent shall forthwith enrol in a post-separation parenting course approved or nominated by the Manager of the Court’s Child Dispute Service at the Sydney Registry, and each parent shall:
8.1.attend such course to completion; and
8.2.on completion of the course, obtain a letter from the course provider certifying his/her attendance at and completion of the course; and
8.3.promptly provide the other party with a copy of that letter.
Neither parent shall discipline the child by physical means, or permit any other person to do so.
Neither parent shall speak disrespectfully or critically about the other parent in the hearing or presence of the child or permit any other person to do so.
Each parent shall allow the child to make telephone calls to the other parent at any reasonable time, should he wish to do so.
While the child is living with the mother, she shall ensure that he is available to receive telephone calls from the father every Wednesday between 6pm and 7pm.
While the child is spending time with the father during school holidays, the father shall ensure that the child is available to receive telephone calls from the mother on Wednesdays between 6pm and 7pm.
Neither parent shall do anything to prevent communication between the child and the other parent by way of letters or cards.
Neither parent shall take or send the child from Australia or authorise any other person to do so, except with the Court’s leave or by written agreement between the parties.
The child’s name shall remain on the Airport Watch list at all points of international arrivals and departures in Australia for the purposes of preventing his removal from Australia unless the parents agree pursuant to Order 15, that the child may travel overseas, in which case the parents shall do all things necessary to remove the child’s name from the Airport Watchlist for the duration of the proposed overseas travel and then do all things necessary to reinstate the child’s name on the Airport Watchlist, following his return from overseas travel.
The mother shall ensure that the father is kept informed of:
17.1.any medical problems or illnesses suffered by the child while in the mother’s care;
17.2.any medication that has been prescribed for the child;
17.3.any social, school or religious functions which the child is to attend;
17.4.the residential address of the mother and particulars of the others who may reside with the child, including notification within 7 days of any change to such address or particulars;
17.5.the mother’s contact telephone number and email address, and shall notify the father within 7 days of any change to such number or email address;
17.6.any other matter relevant to the child’s welfare.
The father shall ensure that the mother is kept informed of:
18.1.any medical problems or illnesses suffered by the child while in the father’s care;
18.2.any medication that has been prescribed for the child;
18.3.the father’s contact telephone number and email address, and shall notify the mother within 7 days of any change to such number or email address; and
18.4.any other matter relevant to the child’s welfare.
For the purposes of communicating information between the parties, the mother and the father shall:
19.1.communicate by telephone matters of an urgent nature, and otherwise
19.2.communicate by email about day to day matters including arrangements for each party to spend time with the child, and
19.3.communicate by writing in a communication book that will remain with the child wherever he may be from time to time,
19.4.or as otherwise agreed between the parties.
The Independent Children’s Lawyer shall do all things necessary to arrange for the parties and the child to attend further interviews with Dr W within 9 months of the date of these Orders for the purposes of an updated report by him as single expert, about the impact on the child of these orders. Pending any waiver by the Legal Aid Commission, the parties shall bear the costs of the updated report in equal shares. The Independent Children’s Lawyer is to provide Dr W with a copy of these reasons for judgment.
Liberty is granted to the parties and the Independent Children's Lawyer to restore this matter on 7 days’ notice.
It is noted that it is intended that this matter will be relisted before the Honourable Justice Watts within two weeks of the release of Dr W’s updating report for a directions hearing.
IT IS NOTED that publication of this judgment under the pseudonym Aligante & Waugh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 3075 of 2004
| MR ALIGANTE |
Applicant
And
| MS WAUGH |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case is about what parenting arrangements should be put in place in respect of the parties’ child, a son born in May 2002 (currently 7 years of age). The applicant father is seeking orders that he be allowed extensive unsupervised time with the child including overnight contact. The respondent mother is seeking orders that the child no longer see his father either on a supervised or unsupervised basis.
The father, supported by Mrs K Aligante, seeks to build on their meaningful relationship with the child. The mother and her family oppose this, asserting the father has been, and remains, “abusive” in every conceivable way and would visit forms of abuse upon the child.
The arrangements currently in place provide for the father to see the child once a fortnight at a Contact Centre. The child has been seeing his father fortnightly at this centre since orders to that effect were made by Judicial Registrar Johnston on 21 September 2006. The child is brought to the centre by the maternal grandfather, as the mother states that she cannot bring herself to attend the changeover. The father’s new partner, Mrs K Aligante, attends the contact visits with the father and has been doing so since December 2007.
The mother alleges that she was subjected to systematic physical, sexual, verbal and emotional abuse by the father over the course of the marriage. This alleged abuse included the father forcing her to have sexual intercourse with him in circumstances where she either withheld consent altogether or initially consented and subsequently withdrew consent. The mother complained to police about the father’s alleged conduct in this respect and criminal charges were laid against him. At a committal hearing at the Local Court in April 2007 a Magistrate dismissed the criminal charges against the father. The mother maintains that her allegations against the father are genuine, and the bases upon which she justifies her application that the child no longer sees his father are:
4.1.The father’s past behaviour means that there is an unacceptable risk that the father will abuse the child in the future.
4.2.The mother’s fear and apprehension arising out of the history of violence is so profound that continuing contact between the child and his father will dramatically affect the mother’s ability to function as the primary parent.
It is therefore necessary to examine the precise nature and extent of the abuse allegedly committed by the father over the course of the relationship before any determination can be made about what arrangements should be put in place for the child.
APPLICATIONS
The father
The orders sought by the father are set out in his case outline document dated 31 March 2009. Prior to final submissions, counsel for the father indicated that there were several aspects of those orders that he wished to amend, and I gave him leave to do so. The orders set out below incorporate those amendments.
1.The mother and the father shall have equal shared parental responsibility for the child […] (born […] May 2002) (“the child”).
2.The child shall live with the mother.
3.For a period of three weeks from the date of these orders, the child shall spend time with the father as follows every Saturday from 11am to 5pm.
4.Following the conclusion of the period in order 3 above, for a period of six weeks commencing on the next weekend, and thereafter every alternate weekend (being ‘week 1’ in every two week cycle), from 12pm Saturday until 12pm Sunday.
5.Following the conclusion of the periods in orders 3 and 4 above, the child shall spend time with his father as follows:
a.During school terms:
i.every alternate weekend (being ‘week 1’ in every two week cycle) from the conclusion of school on Friday afternoon until 5pm Sunday; and
ii.every alternate Monday in ‘week 2’ of every two week cycle, from the conclusion of school on Monday afternoon until the commencement of school on Tuesday morning;
b.During published NSW public school holiday periods:
i.For the second half of each of the holidays at the conclusion of each of Terms 1, 2 and 3; and
ii.For two consecutive weeks in the summer holiday, on dates to be agreed between the parents; and in the event of disagreement to take place in the first two weeks of the summer holiday with changeover to occur at 12noon on Saturday;
c.In the event that the child’s weekend with his father pursuant to order 5(a)(i) falls on a long weekend including a Monday, then time shall be extended to 5 pm on Monday; and in the event that the child’s weekend pursuant to order 5(a)(i) falls on a long weekend including a Friday, then time shall commence at the conclusion of school on Thursday; and
d.Such further or other time as may be agreed between the parties in writing.
e.For the purpose of these Orders, school holiday periods are deemed to commence at close of school on the last day of the public school term, and conclude at 5pm on the evening before school term recommences.
6.During the child’s time with his father pursuant to Orders 3-5 above, the father shall facilitate the child having telephone communication with his mother each evening between 6-7pm, and the father shall be at liberty to supervise such telephone calls.
7.That for the purpose of these orders arrangements for the child’s transportation and changeover location shall be as follows:
a.In respect of orders 3 and 4, the mother shall be responsible for delivering the child to the Interrelate Children’s Contact Service [at E] at the commencement of the child’s time with his father, and the father shall be responsible for delivering the child back to the Children’s Contact Service [E] at the conclusion of such time;
b.In respect of orders 5(a)(i) and 5(b)(ii), the father shall collect the child from his school at the commencement of such time, and shall return the child to the Interrelate Children’s Contact Service [E] at the conclusion of such time;
c.In respect of order 5(a)(ii), the father shall collect the child from his school at the commencement of such time, and return the child to his school at the conclusion of such time;
d.In respect of order 5(b)(i) and 9(d), the mother shall be responsible for delivering the child to the Interrelate Children’s Contact Service [E] at the commencement of the child’s time with his father, and the father shall be responsible for returning the child to the Interrelate Children’s Contact Service [E] at the conclusion of such time;
e.If at any time the Centre advises that it is unable to facilitate changeover on a particular date, such changeover shall take place at [E] McDonalds Restaurant.
8.The name of the child […] born […] May 2002 shall hereby be removed from the Airport Watchlist, and the Australian Federal Police are hereby directed and requested to give immediate effect to this order and remove the child’s name from the Watchlist.
9.In addition to the time that the child spends time [sic] with the father pursuant to Orders 3-5 herein, on the following occasions of special significance the child shall spend time with the parties as follows:
a.The mother and the father will each be entitled to spend four hours with the child on his birthday at times by agreement between the parties;
b.The father shall not have the child on the weekend which includes Mother’s Day but in substitution the father will have the child with him on the following weekend at the same times as set out in order 5(a);
c.The mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother will have the child with her on the following weekend at the same time as set out in order 5(a);
d.In respect of the Christmas period, the child shall spend time with the mother in even numbered years commencing 2010 from 3pm on Christmas Eve until 3pm on Boxing Day.
e.The parents will be entitled to attend all events involving the child including:
i.Sporting fixtures
ii.Extra curricula [sic] activities that allow for parental attendance
iii.School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions
and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child’s transportation to and from that event.
f.The child will spend time with the father each year on the weekend on which Thanksgiving falls, from the conclusion of school on Friday until 5pm Sunday.
10.Each parent may remove the child from the Commonwealth of Australia for periods of no more than three (3) weeks at a time, conditional upon:
a.The travelling parent providing the non-travelling parent with:
i.evidence of a purchased return airline ticket for the child,
ii.a written itinerary of all intended destinations during the trip including addresses and contact telephone numbers at each destination;
b.The travelling parent facilitating telephone communication between the child and the non-travelling parent at least once every three days, at the expense of the travelling parent;
c.Such trip falling with [sic] NSW gazetted school holidays;
d.Such trip not falling on the periods set out in Orders 9(a)-9(d) unless with the written consent of the non-travelling parent;
e.Such trip falling within the time which the child would spend with the travelling parent pursuant to Orders 2-5 herein, unless with the consent of the non-travelling parent, and if such consent is given then the travelling parent shall facilitate make-up time in respect of any time missed between the child and the non-travelling parent, to take place before and/or after the trip; and
f.The father not making any such trip with the child until he attains the age of at least 8 years.
11.The Australian Federal Police are directed to remove the name of the child from the Airport Watch List.
12.The mother shall ensure that the father is kept informed of:
a.any medical problems or illnesses suffered by the child while in the mother’s care;
b.any medication that has been prescribed for the child;
c.any social, school or religious functions which the child is to attend;
d.the residential address of the mother and particulars of the others who may reside with the child, including notification within 7 days of any change to such address or particulars;
e.the mother’s contact telephone number and email address, and shall notify the father within 7 days of any change to such number or email address; and
f.any other matter relevant to the child’s welfare.
13.The father shall ensure that the mother is kept informed of:
a.any medical problems or illnesses suffered by the child while in the father’s care;
b.any medication that has been prescribed for the child;
c.the father’s contact telephone number and email address, and shall notify the mother within 7 days of any change to such number or email address; and
d.any other matter relevant to the child’s welfare.
14.For the purposes of communicating information between the parties, the mother and the father shall:
a.communicate by telephone matters of an urgent nature, and otherwise
b.communicate by email about day to day matters including arrangements for each party to spend time with the child, and
c.communicate by writing in a communication book that will remain with the child wherever he may be from time to time,
d.or as otherwise agreed between the parties.
15. Each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child, and that each party do all things necessary to ensure that no third party makes critical or derogatory comments about the other party in the presence or hearing of the child.
The mother
The mother’s position is that she does not want the child to have any contact with the father, either supervised or unsupervised. She stated to me on 13 March 2008, the first day of the final hearing, that she wished me to make an order for no contact, and her stance has not altered since that date.
The Independent Children’s Lawyer
During the hearing the Independent Children’s Lawyer handed up a minute of orders in the following terms:
Until further order:
1.All previous orders are discharged.
2.The mother shall have sole parental responsibility for the child […], born […] May 2002 (“[the child]”) but the mother is to advise the Father in writing with not less than 21 days’ notice of any decision, including the Mother’s views about that decision, to be made about a long term issue about [the child’s] care and the Father may respond in writing to the Mother expressing any views about the mother’s proposed decision.
3.[The child] shall live with the mother except when he is spending time with the father pursuant to these orders.
4.[The child] shall spend time with the father:
a)For a period of 4 months or until the commencement of the December/January school holidays 2009/2010, whichever is the earlier, each weekend on Saturday from noon until 5pm, or Sunday from noon until 5pm;
b)then for the duration of the December/January school holidays 2009/2010 each weekend from noon on Saturday until 5.00 pm on Sunday;
c)Thereafter:
a.during school terms commencing with the first school term in 2010, on alternate weekends from after school on Friday until the commencement of school on Monday.
b.For half of the short term school holidays;
c.for two weeks during the December/January school holidays each year as agreed, but failing agreement, commencing at noon on the second Sunday in January and concluding at 5pm on the fourth Sunday in January, unless the parents otherwise agreed as to the commencing and concluding date for that two-week period;
d)in odd numbered years commencing 2009, from noon Christmas Eve until noon on Christmas Day; and
e)in even numbered years commencing 2010, from noon on Christmas Day until noon on Boxing Day;
[& further for special days, sporting and school events – see orders sought by father]
5.On days when changeovers pursuant to these orders occur on school days, they shall take place at [the child’s] school, and on days when changeovers occur on non-school days, they shall take place at the Interrelate Contact Centre at [E] or as otherwise agreed between the parents.
6.Each parent shall forthwith enrol in a post-separation parenting course approved or nominated by the Manager of the Court’s Child Dispute Service at the Sydney Registry, and each parent shall:
a)attend such course to completion; and
b)on completion of the course, obtain a letter from the course provider certifying his/her attendance at and completion of the course; and
c)promptly provide the other party with a copy of that letter.
7.Neither parent shall discipline [the child] by physical means, or permit any other person to do so.
8.Neither parent shall speak disrespectfully or critically about the other parent in the hearing or presence of [the child] or permit any other person to do so.
9.Each parent shall allow [the child] to make telephone calls to the other parent at any reasonable time, should he wish to do so.
10.While [the child] is living with the mother, she shall ensure that he is available to receive telephone calls from the father every Wednesday between 6pm and 7pm.
11.While [the child] is spending time with the father during school holidays, the father shall ensure that [the child] is available to receive telephone call from the mother on Wednesdays between 6pm and 7pm.
12.Neither parent shall do anything to prevent communication between [the child] and the other parent by way of letters or cards.
13.Neither parent shall take or send [the child] from Australia or authorise any other person to do so, except with the Court’s leave or by written agreement between the parties.
14.[The child’s] name shall remain on the Airport Watch list at all points of international arrivals and departures in Australia for the purposes of preventing his removal from Australia unless the parents agree pursuant to order 13, that [the child] may travel overseas, in which case the parents shall do all things to remove [the child’s] name from the Airport Watchlist for the duration of the proposed overseas travel and then do all things to reinstate [the child’s] name on the Airport Watchlist, following his return from overseas travel.
15.Each parent shall keep the other advised of his/her residential address and his/her landline telephone number and/or his/her mobile telephone number.
16.That within 12 months of the date of these Orders, the Independent Children’s Lawyer shall do all things necessary to arrange for the parties and the child to attend on Dr [W] for the purposes of an updated report by him as single expert, about the impact on [the child] of these orders. That pending any waiver by the Legal Aid Commission, the parties shall bear the costs of the updated report in equal shares.
17.Liberty to the ICL to restore on 7 days’ notice.
DOCUMENTS READ
The following documents were before me in this matter.
The father
Parenting questionnaire filed 5 March 2008.
Father’s affidavit filed 5 March 2009.
Affidavit of Mrs K Aligante filed 5 March 2009.
Affidavit of the paternal aunt filed 5 March 2009.
Affidavit of the paternal grandmother filed 5 March 2009.
Mother
Parenting questionnaire dated 1 February 2008.
Mother’s affidavit filed 3 February 2009.
Affidavit of MS Waugh filed 16 September 2005.
Affidavit of GM Waugh filed 3 February 2009.
Affidavit of EE Waugh filed 15 September 2005.
Affidavit of Pastor K filed 16 February 2009.
Affidavit of Ms S filed 23 February 2009.
Affidavit of Ms RN filed 3 February 2009.
Other documents relied upon
Judgment of Judicial Registrar Johnston dated 21 September 2006.
Single expert report of Dr W dated 5 September 2008.
Supplementary report of Dr W dated 24 July 2005.
Single expert report of Dr W dated 31 August 2005.
Family report of Ms D dated 17 June 2005.
SHORT HISTORY
The father was born in the US in 1970 and is now 38 years of age.
The mother was born in 1975 and is now 33 years of age.
In October 1998 the parties became engaged in Japan.
In September 1999 the parties married in Australia.
The child was born in May 2002 and is now 7 years of age.
The parties separated on 3 December 2003.
On 10 May 2004 the father filed an application for final orders at the Family Court of Australia.
The parties divorced in July 2005.
In January 2008 the father married his new partner, Mrs K Aligante.
CHRONOLOGY
A list of agreed facts was tendered during the hearing and became exhibit D. The contents of that document are reproduced below.
In 1970 the father was born in the US.
In 1975 the mother was born.
In 1992 the father became a born again Christian and joined a Christian organisation.
In August 1997 the father took up an appointment with N Church in Japan.
On 7 September 1998 the parties met in Japan.
In October 1998 the parties became engaged to marry.
In late November 1998 the mother left Japan for Australia.
On 11 December 1998 the father visited Australia for a two week holiday.
In January 1999 the mother left Australia and took up work in Europe.
In March 1999 the mother visited Australia for one to two weeks, and then worked in Japan on a three month contract.
In June 1999 the mother returned to Australia.
On 1 August 1999 the father arrived in Australia.
In September 1999 the parties married in Australia.
In October 1999 the parties returned to Japan.
In May 2000 the paternal grandmother, the paternal aunt and her son visited the parties in Japan.
In 2000 the parties had marriage counselling with Pastor K.
In June 2001 the parties travelled to the US on a four week trip.
On 11 September 2001 the parties discovered that the mother was pregnant.
In September 2001 the mother discovered that she was suffering from deep vein thrombosis and was admitted to the local hospital for one month.
In November 2001 the mother was transferred to Tokyo hospital for a number of weeks.
In late November 2001 the mother returned to Australia accompanied by her mother.
On 1 December 2001 the father arrived in Australia. The parties resided at the home of the maternal family.
In May 2002 the parties’ child was born.
In March 2003 the family moved to the United States to live with the paternal grandmother.
In September 2003 the parties had counselling.
On 3 December 2003 the parties separated. The mother left the United States with the child and came to Australia.
On 9 April 2004 the father arrived in Australia.
In April 2004 the father had his first contact with the child in Australia with the assistance of Pastor G. The parties attended an appointment with a Lifecare counsellor to discuss the child. The appointment was suggested after a legal aid conference.
On 10 May 2004 the father filed an application at the Family Court of Australia. The mother refused to allow any further contact.
In July 2004 the mother made her first report to Police.
On 12 July 2004 interim orders were made by consent, providing for the child to live with the mother until 13 August 2004, for the father to have contact on Saturdays from 10am until 12 noon supervised by the maternal grandfather with changeover at a Park, and for the father to refrain from either abusing or discussing the proceedings with the maternal grandfather.
In September 2004 the mother refused further contact due to the child’s distress.
On 14 October 2004 the father filed an Amended Application for Final Orders, seeking contact every second weekend from 5:00pm Friday until 5:00pm Sunday, plus half of all school holidays, as well permission for each party to remove the child for an overseas holiday of up to 30 days upon provision to the other party of three months’ written notice.
On 15 October 2004 interim orders were made providing for the father to have supervised contact for two hours for a period of four weeks at Centacare Contact Centre G, and for the child’s name to be placed on the airport watch list.
On 24 November 2004 the parties attended intake interviews for supervised contact.
On 12 February 2005 supervised contact commenced at G Centre following three cancellations by the mother from December 2004 to January 2005.
On 14 February 2005 (15 months after separation) the mother attended an interview at H Police Station.
In February 2005 the father’s employment at a community organisation ended following an approach to the employer by the mother. The mother believes that the father’s employment ended earlier than February 2005.
In February 2005 the father was bailed to attend the police station daily.
On 22 February 2005 supervised contact occurred.
On 12 March 2005 supervised contact occurred.
On 9 March 2005 an order was made for the preparation of a Family Report by Ms D.
On 9 April 2005 supervised contact occurred.
On 23 April 2005 the mother cancelled contact.
On 21 May 2005 the last supervised contact occurred at the G Centre.
On 15 June 2005 the mother informed the G Centre that she refused to facilitate any further contact. The father did not see the child for 16 months (from when the child was 3 years until when he was 4 years and 4 months).
On 17 June 2005 the Family Report of Ms D was produced.
On 13 July 2005 the father filed an amended application seeking that the child reside with him and have contact with his mother every second weekend and for half of all school holidays.
On 11 August 2005 interim orders were made appointing Dr W as Court Expert. A Pre-Trial Conference was listed for 4 October 2005.
In September 2005 the report of Dr W was prepared.
On 20 October 2005 the report of Dr W was released.
In December 2005 the mother telephoned the police to follow up her complaint.
On 13 February 2006 the interim hearing was not reached. The matter was listed for hearing on 19 June 2006.
On 6 April 2006 the mother made a follow up statement to police.
On 12 April 2006 the father was charged with six counts of sexual assault upon the mother.
In mid 2006 the father met K, his current wife.
In June 2006 some members of the paternal family visited Australia from the US. The mother refused to allow them unsupervised contact visits with the child.
On 6 June 2006 the mother made an application to vacate the final hearing listed to commence on 19 June 2006 due to pending criminal charges.
On 19 June 2006 the matter was listed for hearing. The matter did not proceed on the mother’s application.
On 7 July 2006 the father filed an Application in a Case for supervised contact at E Centre every Saturday.
On 10 July 2006 the father’s interim application was adjourned to 31 August 2006.
On 24 July 2006 the supplementary report of Dr W was produced.
On 31 August 2006 a hearing took place before Judicial Registrar Johnston including oral evidence and cross-examination of Dr W. Judgment was reserved.
On 21 September 2006 the judgment of Judicial Registrar Johnston was delivered. Interim orders were made providing for the child to see his father for the first six weeks on a weekly basis at E Centre under supervision and thereafter on a fortnightly basis for two hours under supervision, for the father to pay any fees associated with the provision of the contact service, and for the mother to facilitate by delivering the child and collecting him from the Centre.
On 5 April 2007 criminal proceedings against the father were dismissed following a committal hearing at the Local Court.
In late 2007 the current proceedings were revived by the father after a lengthy application for extension of legal aid.
In December 2007 Mrs K Aligante began attending contact visits.
In December 2007 the mother cancelled visits from 15 December 2007 to 30 January 2008 without seeking the father’s consent. The parties negotiated visits on 12, 13 and 14 January with the paternal grandparents to attend. The father cancelled a visit on 14 January.
In January 2008 the father married K Aligante
CREDIT AND COMMENTS UPON SPECIFIC EVIDENCE
The father
The mother says that the father’s credit was impugned on a number of occasions during cross-examination.
The father was asked by counsel for the mother about a contact centre appointment on 31 January 2009 that he says the child did not attend due to his participation in a swimming carnival. At paragraph 46 of his affidavit filed 5 March 2009, the father states that he had taken that Saturday off, as he does every alternate Saturday, to see the child; the implication being that he was inconvenienced by the mother’s failure to make the child available. The father’s assertion that he works on Saturdays was inconsistent with his assertion in that same affidavit that he works five days a week, Monday to Friday. The father acknowledged this inconsistency when it was put to him. He stated that he does not work every Saturday but sometimes the Saturdays he does work fall on days he is to see the child. I do not find that any inconsistency in this evidence adversely affects the father’s credit.
The father was taken by counsel for the mother to the statement in his affidavit filed 5 March 2009 that “I was involved a lot in [the child’s] day to day care” when he and the mother were living together. It was put to the father that this was inconsistent with what he told the Family Consultant, Ms D, in 2006, which was that when the parties were living together in America with the child, the father “worked two jobs and was frequently away from the home from 6 am until 10 pm”, and that he did not get to see the child much but would try to spend time with him on Saturdays. The father nevertheless maintained that he was involved a lot in the child’s day to day care, because he would have a break in his work from approximately 2:30pm to 4:30pm, during which he would come home and spend time with the child. In respect of the period when the parties were living with the maternal grandparents in Australia, the father acknowledged that he was working a full-time laborious job from 8:00am to 4:30pm and would therefore not get up during the night to see to the child. He acknowledged that it would have been difficult for him to be involved a lot in the child’s day to day care given that he was at work. Again, the father did not accept that his assertion that he was involved a lot in the child’s day to day care was untrue. Not a great deal of weight can be put on the words “a lot”. The words highlighted by the mother are immediately followed in the father’s affidavit by the words “I read him books and sang songs before putting him to sleep, changing diapers, bathing him, took him for long walks in the pram, and as he was weaned, I spoon fed him. I looked after him whilst the respondent was out, and so on”. The father was not challenged on any of these specific details.
The father was criticised for the evidence he gave about his attitude to the mother working in Japan. Although the father stated that he believed women should work, he seemed to have difficulty explaining why it was that he did not want the mother to work while the parties were living in Japan prior to the birth of the child. He first stated that it was something the parties agreed, and then stated “well there really wasn’t any work for her to do in Japan, apart from singing. So, she wasn’t going to be working anyway”. The father also stated “Well, it was the pastor’s idea” (the father subsequently acknowledged that the mother did end up doing some work, so in fact there was work for her to do in Japan). It was my impression that the father was attempting to minimise the view that he held at that time that he did not want the mother to work, and this is something that weighs against his credit.
It was put to the father during cross-examination that he did not want alcohol to be served at the parties’ wedding in order to put up a pretence to the world that he was a non-drinker and thought that alcohol was a bad thing, despite the fact that he was himself a drinker at that time. The father disagreed with that proposition, stating that he had been to an alcohol-free wedding and liked it, although he did acknowledge that he later had the practise, whilst the parties were living in Japan, of drinking a six-pack of beer while the mother was out and then hiding some of the bottles or cans around the house. I do not think that this impinges on the father’s credit; rather it provides some small support to the mother’s case that the father is duplicitous in the sense of doing one thing in public and another in private. This view of the mother’s has led to her making certain comments to the child suggesting, by implication, that the father is dishonest and un-Christian.
In cross-examination the father was taken to paragraph 113 of his affidavit filed 5 March 2009 in which he states “I recall one occasion when I punched the wall during an argument. It was a response as the respondent had just punched me on my chin pretty hard”. It was put to the father that this was inconsistent with what he says at paragraph 18 of his affidavit filed 22 April 2004: “Throughout our marriage [the mother] and I had various disagreements and arguments. There was no domestic violence however we often had arguments over finances”. The father acknowledged the inconsistency, however stated that he had not included this episode in his first affidavit because he was trying to protect the mother’s reputation. He disagreed with the suggestion that he fabricated this incident and included it in paragraph 39 of his affidavit filed 14 September 2005 as a reaction to reading the mother’s affidavit where she states that the father punched a wall during an argument.
Apart from the multiple rapes alleged by the mother, a push and sleep deprivation, she alleges no other physical violence by the father against her. The incident referred to in paragraph 113 is the only act of physical violence alleged by the father against the mother. When viewed in its overall context, the general statement made in the April 2004 affidavit is almost entirely accurate from the father’s point of view. The acknowledged inconsistency, so far as it exists, is not a matter of significant weight.
A statement made by the father in paragraph 115 of his affidavit about the number of occasions he prevented the wife from leaving the house after an argument is inaccurate.
Whilst counsel for the mother can point to some inconsistencies in things that the father has said, overall I found him to be a straightforward witness.
I do not accept the mother’s suggestion that the father has been a consummate actor, able to maintain for a long period in disparate circumstances the façade that the mother asserts.
The mother
The mother has made serious allegations against the father. As I will discuss in detail below, there are considerable inconsistencies in some of the allegations that she has made. Her most serious allegation was that the father repeatedly raped her after the child’s birth. Because of the inconsistencies in the various versions given by the mother, I will find on the balance of probabilities and having regard to the provisions of s 140 of the Evidence Act, that the version given by the mother cannot be cogently supported. Part of what she has said is in my view inherently unlikely, for example multiple rapes in her parents’ household over a period of seven months in circumstances where three adult members of that household observed and heard nothing.
There are serious inconsistencies in the mother’s statements. For example, during cross-examination the mother was taken by counsel for the father to paragraphs 130-133 of her affidavit filed 3 February 2009, where she recounts an incident of sexual assault that allegedly occurred on a weekend in August 2002. The mother was asked whether that was the first time after the child’s birth on 14 May 2002 that sexual intercourse took place without her consent. The mother initially replied “I don’t remember”, however she subsequently changed this answer and stated that there were instances during the period between the child’s birth and the weekend in August 2002 when non-consensual intercourse occurred, and that there was a “pattern that was frequent” in which the father “would force himself, without my consent, with me crying”. When asked why these further incidents were not included in her affidavit, the mother replied that when she had gone to the police in relation to the criminal charges laid against the father, the police had informed her that they could not lay charges in respect of a pattern, and that she would have to provide them with information in relation to a specific event. When asked why she would seize upon the weekend in August 2002, the mother replied “I don’t remember”.
Further on in the cross-examination, after having been taken to the transcript of her oral evidence on the first day of the father’s committal hearing on 3 April 2007, the mother reversed her answer and stated that the incident recounted at paragraphs 130-134 was the first attempt at sexual intercourse between she and the father following the birth of the child. Inconsistencies like this in the mother’s evidence and the way she appears uncomfortable when dealing with specific instances and dates rather than broad allegations of abusive behaviour suggests to me that the general allegations arise from what is now a firmly entrenched view of the father’s character and the way he behaved during the relationship that has more to do with her own perceptions than what actually took place.
Maternal grandmother
The wife’s mother said that she has been actively involved in assisting other women who have been the victims of domestic violence. She has helped them with their court cases. Given that level of involvement in other people’s court cases and given the very close relationship the maternal grandmother has with the mother, I found the maternal grandmother’s evidence that she had not read any of Dr W’s reports in this case (not even that part which is referrable to her interview with Dr W), difficult to accept as credible, particularly given the very strong views she held about Dr W.
The maternal grandmother gave evidence that the ordeal she was referring to in her affidavit was the ordeal her daughter went through, as observed by her, when she returned with the child from America. She was crying, shaking, not able to make decisions and she was frightened. She had been abused during the marriage, insulted and had suffered humiliation and that abuse had been continued by the existence of these legal proceedings. The maternal grandmother’s view was that her daughter had not been “validated”. She is unhappy with the Family Court and the lack of validation provided by the Family Court. She said that she knew of cases where Dr W’s recommendations had led to children being placed with violent fathers who had subsequently perpetrated abuse.
The maternal grandmother held very rigid views. She believed that it was abusive of the child if an order was made for him to see his father. She said that in those circumstances, the child’s voice is not being heard. He needs to feel safe and the child would like to feel safe. She said she knew of cases where Dr W took the view that the final outcome should be shared parenting, regardless. She had seen the result of physical abuse of children and Dr W had assured the mother that they would be fine.
The maternal grandmother frankly and I thought defiantly, indicated that she would not be able to assist the child in seeing his father. The maternal grandmother made it clear that she would not do anything to help or assist the child if an order was made that the child see his father (although she added that she would not actively discourage the child from seeing his father). She would say to him something like ‘be very careful, you know what is right and wrong, you know what truth is, always speak the truth’. The maternal grandmother said that there had been conversations in her household about the possibility of the child seeing his father when he was an adult.
When asked whether or not there was any way the father could redeem himself, the maternal grandmother said that she would have to be reassured from many others outside, from people who knew and observed the father in different situations that he had changed his character. The maternal grandmother was not prepared to accept that it was unlikely that such a test could ever be passed by the father to her satisfaction.
The maternal grandmother was not aware of any unnatural sexual activity between the mother and father whilst they were living under her roof.
The maternal grandmother did not offer any explanation as to why she did not terminate what she says was a highly abusive telephone call but allowed that telephone call to continue for a five hour period. The maternal grandmother’s evidence was that the telephone call was for a five hour period. I find it difficult then to accept that the maternal grandmother would have allowed a telephone call which was highly abusive to go on for so long.
The maternal grandmother was referred to contact centre notes of 7 December 2007. There was a conversation between the contact worker and the maternal grandmother in the presence of the child. It is clear that the child at that time heard the maternal grandmother saying things about the father and she spelt out to the contact worker that the father was “v.i.o.l.e.n.t and c.h.a.r.m.i.n.g”. The maternal grandmother, however, denied other things that the contact centre had recorded that she said on that occasion. I am not prepared to accept that the maternal grandmother’s memory is better than contemporaneous notes made by an objective observer, notwithstanding that objective observer has not been tested on the notes.
Maternal grandfather
The maternal grandfather, GM Waugh, impressed as a man with a deep commitment to his grandson but also as a man with rigid and fixed views and a fairly steely attitude that the child should not see his father again. The maternal grandfather obviously, at the age of 77, sees himself as the main male figure in the child’s life (and had been fulfilling that role for a period of time). The maternal grandfather is a member of a Christian church in southern Sydney.
The maternal grandfather was of the view that these court proceedings were diabolical and said that the father was not a sacrificial dad. He said he was not a proper dad because, amongst other things, he did not cherish, respect and love the mother of his son. At the end of his evidence I checked whether or not that was a view that he really held and he confirmed that it was. I indicated to him that it was not often that I heard cases where one parent cherished, respected and loved the other and in fact I often had cases where parties had not been together at all. I asked him if in all those cases it was his view that the father should not see the child and I got the clear impression that that was his view.
An example of unreliable evidence given by the maternal grandfather was his oral evidence that he saw the father stroking the “inner thigh” of his sister (discussed later in these reasons).
Conclusions as to credit
The mother and her family have an immutable conviction as to the character of the father and every aspect of the married life between the mother and the father is viewed in the mother’s household through a prism of righteousness and indignation. This, in my view, must colour the evidence of the mother, the maternal grandmother and the maternal grandfather to the extent that it becomes unreliable when it is in conflict with the evidence of the father.
I accept counsel for the father’s suggestion that there is a “crusading righteousness” in relation to the behaviour of the mother and her family which loses sight of the child’s interests because of the fixation on:-
130.1.Abuses perpetrated by the civil and judicial process.
130.2.The lack of “justice” and “validation” in the Family Court.
130.3.The perceived partiality of Dr W.
Mrs K Aligante
Mr Barry announced at the beginning of the last day of the trial that K Aligante is now in full time employment as an administrative officer Monday to Friday 40 hours a week.
K married the father in January 2008. The evidence that she gave me impressed me. I accept that she was accurately reporting that the father had never been abusive towards her in any way, either physically, emotionally, sexually or verbally. I also accepted her evidence that she does not feel controlled by the father. Her evidence is of some importance given that it is a mainstay of the mother’s case that the duplicitous nature of the father’s character has enabled him to present one face in public but to have another face in private.
Pastor K
Senior Pastor K gave evidence on behalf of the mother. Counsel for the mother submits that the evidence of Pastor K corroborates the mother’s allegations of abuse.
Pastor K is from N Church in N, Japan. The father was employed by Pastor K from 15 August 1997 until 2001. He first met the mother in September 1998 and says he saw both the mother and father regularly until they returned to Australia in 2001. The pastor gives evidence that the father confessed to him, …, that he had been “bad” to a girl he lived with before coming to Japan. The confession about the father being “bad” was a confession he made to the pastor about his behaviour before he became a Christian. I am unable to place any weight on that evidence because I am unaware of what “bad” means. The pastor says he was aware that the father drank alcohol and “saw him hung over”. It is not clear as to whether or not that was on one or more than one occasion. The father readily agrees that he drank more than moderate amounts of alcohol on occasions whilst in Japan.
The pastor said he witnessed the father verbally abuse the mother on several occasions. The one example given however is difficult to categorise as “verbal abuse”. The pastor said that during counselling, the father said to the mother that he loved another woman, but to put it in context that was said during a counselling session.
The evidence that the pastor gave that he had seen the father hung over was slightly inconsistent with his assertion in oral evidence that he would have dismissed the father had he drunk to excess.
The pastor agreed that whilst the father was in Japan he on occasions worked long hours and worked five days a week normally. The pastor also agreed that he was unhappy with the father for leaving him suddenly to return to his wife in Australia and that that departure affected a major source of income for his parish. The pastor did not deny that the reason he had flown out from Japan to give evidence against the father in this court case was because of the circumstances in which the father left his parish in Japan.
The pastor also gave evidence that the father’s behaviour had a pattern of sin and deception.
Notwithstanding that in paragraph 9 of his affidavit the pastor said he saw the father verbally abuse the mother on several occasions, it became clear in his oral evidence that that was untrue.
The pastor was unable to satisfactorily explain why, if the father’s behaviour was as bad as he indicated, he had not sacked him. I do not accept the pastor’s evidence that the father admitted to him to taking drugs during the period of time that he was working in his parish. The pastor’s protestations that he did not know what kind of drugs the father was referring to in my view was disingenuous. Although the pastor thought the father was using “bad” drugs, he did not sack him. The pastor made no inquiry as to what type of bad drug the father might have been using.
Notwithstanding the pastor understood that the father was physically hurting the mother, drank regularly to excess, sinned and deceived and took drugs, the pastor did not sack the father. The pastor’s evidence is that he gave the father about 20 to 30 chances (the pastor referred to bible text to justify the number of chances given).
In oral evidence, the pastor thought that the mother had told him that the father had tried to hit her or something. I got the impression he did not actually remember what she said. He did not see the mother with any physical injury at any time. There was one occasion where the mother is said to have slept in the church one night after an argument with the father.
Overall, I was not particularly helped by Pastor K’s evidence.
There is no doubt that there were difficulties in the parties’ marriage during the period of time they were in Japan. I accept that the pastor counselled the parties. I am unconvinced that the father’s behaviour is at the level that was represented by the pastor in his written affidavit and it has been demonstrated that the pastor has not accurately remembered a number of the things to which he originally deposed.
Ms S
Ms S is a counsellor who has been seeing the mother for some time. Her role is to be empathetic and supporting for the mother and to work with the mother without challenging in any way the history the mother has given. Ms S had been instructed by the mother’s lawyer to provide the reports which are annexed to her affidavit. The final paragraph of her report dated 26 November 2008 (her first report is dated 4 July 2008) is responsive to the letter of instructions. The letter of instructions was not tendered in evidence, although Ms Falloon called for it and received a copy of it on the last day of the hearing.
Ms S has been helping the mother with her anxiety and depression. She said that some of the mother’s problems have been with eating, sleeping, loss of interest, sad mood. She has been seeing the mother on a monthly basis but the consultations were now rare. She had not been shown any of Dr W’s reports. Ms S confirmed that the mother was seeking validation from the court. Ms S agreed that she would defer to the opinion of a child psychiatrist.
The paternal grandmother
The paternal grandmother struck me as an impressive witness who, while obviously loyal to her son, seemed to be making an effort to give truthful answers to the questions she was asked.
It is submitted by counsel for the mother that a letter written by the paternal grandmother to the maternal grandparents on 18 March 2000 corroborates the mother’s allegations of abuse. The letter contains the phrase, “Again I want to ask for forgiveness on behalf of [the father], I acknowledge that he has sinned against the Lord and against you because of how he had treated [the mother]. I pray that the Lord will enable you to forgive him”.
In oral evidence the paternal grandmother stated that her letter had been a reference to the father’s behaviour in having sex with the mother before marriage. There is actually a reference in the letter to the parties having “been together sexually” before marriage. Viewed in the context of the mother’s allegations, the letter might seem to suggest that the paternal grandmother was aware of abusive behaviour on her son’s part, but in itself it does not corroborate or substantiate any physical or other kind of violence. I accept the paternal grandmother’s explanation in respect of her motivation for writing the letter and what it refers to.
In her affidavit filed 5 March 2009, the paternal grandmother stated that she did not mean for her letter to suggest that her son had been physically violent, but rather that the father should have stepped down from his job and focused his energies on his marital problems.
THE MOTHER’S ALLEGATIONS OF ABUSE BY THE FATHER
One of the main areas of factual dispute in this matter relates to alleged abuse of the mother by the father during the relationship. The mother asserts that the father abused her sexually, physically, verbally and emotionally over the course of the marriage. It is this abuse that the mother asserts is the fundamental reason why it is not in the child’s best interests to spend time with his father. The various forms that that abuse is alleged to have taken and the evidence before me in respect of each type is examined below.
Sexual abuse
Forced intercourse during menstruation
At paragraphs 77-78 of her affidavit filed 3 February 2009 the mother’s allegations in this respect are encapsulated: “Following the marriage, I suffered severe premenstrual cramps on a regular basis. The applicant expressed little sexual interest in me except on those occasions that I was suffering extreme cramps and I was lying in bed with a hot pack. The applicant then insisted on sexual intercourse at that time. The applicant had a Bible verse on the wall, being First Corinthians chapter 7 verse 4 and implied that I should submit to his sexual desires. During these times I was crying and asking ‘Stop. Please don’t do this’. This was a normal pattern for the applicant and he forced sexual intercourse each time I had a heavy period. I felt that at those times I was at my most vulnerable and that was when the applicant exerted power over me. He was mostly disinterested in intimacy for the rest of the month”.
At paragraph 105 of his affidavit filed 5 March 2009 the father denies that he ever had sexual intercourse with the mother against her will, while at paragraph 108 he specifically denies that he forced the mother to have sexual intercourse with him while she was suffering menstrual cramps. In cross-examination the father agreed that he had wanted to have intercourse with the mother on the days she was menstruating, however he denied that those were the only times when he wanted to have intercourse with her. He also denied that he ever approached the mother wanting intercourse while she was bedridden with menstrual cramps.
During cross-examination the mother was taken to paragraph 77 of her affidavit filed 3 February 2009. The mother conceded that the father did not force intercourse each time she had a period, but that this was more in the nature of a general pattern. She agreed with the proposition put to her by counsel for the father that her wording in paragraph 77 was an exaggeration.
I accept the father’s denial that he wanted sexual intercourse with the mother primarily when she was experiencing menstrual cramps.
The Bible verse on the wall
The issue of the bible verse on the wall of the bedroom was put to the father by counsel for the mother during cross-examination. His evidence on this topic was that either he or the mother had put the verse on the wall, but he could not remember precisely who. The father stated that his memory of the text was that “it said that a man’s not to – that a man’s body doesn’t belong to himself but to his wife and that a wife’s body doesn’t belong to herself but to the husband, and they’re not to deprive each other from intimacy lest they fall into temptation”. When asked whether that was an idea he agreed with, he replied that it was. When asked whether he was happy for that verse to be on the wall in the parties’ bedroom, the father stated “Well, I didn’t take it off”.
The bottle shop incident
At paragraph 115 of her affidavit filed 3 February 2009 the mother recounts an incident in which the father asked her to drive him to the liquor shop to purchase alcohol. He drank alcohol in the car on the way home and continued to drink after arriving home. The mother alleges that the father then sexually assaulted her: “The applicant then forced himself on me and forced sexual intercourse. I felt extremely intimidated by the applicant and felt that there was nothing I could do to prevent him from continuing this. I was crying. He licked my tears from my face. The applicant then fell asleep”.
The father deals with this allegation at paragraph 107 of his affidavit filed 5 March 2009, where he states: “I do recall an incident when the Respondent drove us to the bottle shop, and I bought some alcohol. I did drink some while she drove home, which was about a 5-10 minute drive. We both drank the alcohol together. I strongly deny the allegation that I forced myself on her or raped her at this or any other time”. I accept the father’s evidence.
At paragraph 128 the mother states that on one occasion when the father’s family was visiting them in Japan, the father forced the mother to go into the bedroom and have sex with him. The mother states that she told the father “Your family is just out there, I don’t want to”, however “the applicant persisted, even though I was teary and emotional”. The father denies that these things happened and I accept his evidence about that.
The August 2002 incident
The mother recounts a further incident at paragraphs 130-134, which due to its serious nature is worth setting out in full:
130.On a weekend in August 2002, I was resting on the bed in our room in the afternoon while [the child] was asleep in a nearby room. The applicant was in the room with me and said words to the effect of:-
“I really want to be with you”.
131.I reluctantly agreed because I was in the habit of submitting to him. We started having sexual intercourse which was painful for me and I said words to the effect of:-
“Stop, it really hurts. Don’t do it. Please”.
132.I started crying. The applicant continued for some minutes before stopping. He then tried again and I said “stop it hurts” and he stopped but then tried again. He tried about eight times and eventually stopped and rolled off me. I had tears running down my face and the applicant said “Well you have to kiss it”.
133.I knew that he meant that I had to give him oral sex, because he had done this before. The applicant grabbed the back of my head with force, pushing it down towards his penis. When I tried to pull away, he put pressure on the back of my head and forced it back down. The applicant ejaculated into my mouth and then let go of my head. He said nothing and went to sleep.
134.Incidents like the above occurred almost every weekend. Several times I said words to the effect of:
“Do we really have to?”
Every time that I said words to the effect of: “Stop it hurts” the applicant never stopped immediately. On most of these occasions I cried.
At paragraph 137, the mother states “The applicant forced me to perform oral sex, many many times. He would push me [sic] head down and command ‘Kiss it’”.
During the hearing the father was asked by counsel for the mother about the incident described at paragraphs 130-133 of the mother’s affidavit. His evidence was as follows:
MS REYNOLDS: You say there that there had been an incident when you started having consensual intercourse, and during that incident she had told you it hurts. So you had stopped, you had both stopped, and she performed oral sex instead. Was that correct?---Yes, ma'am.
You write there that she cried afterwards but not during sex?---Yes, that's right.
Do you know why she was crying?---No, I don't.
Did you ask her?---I did.
What did you say?---I can't remember.
Well, was it norm [sic] from her to cry after sex?---No.
zo you asked her why she was crying, and you don't remember what she said?---No, ma'am, I don't.
Did she say that you'd hurt her?---No.
No, she didn't say that?---No, ma'am, she didn't.
But you don't know what she did say about why she was crying?---I don't know that she said anything.
Were you concerned to find out why your wife may be crying after having intercourse with you?---Yes, yes, I was.
Did you ever find out the answer to that?---No, no, I didn't, other than - yes, no, I didn't.
Do you think might have been - do you think she might have been crying because she'd been in pain?---No.
Do you think there were any times - you said that you'd said during the incident that it hurts?---Yes.
So, didn't you think, "Well, maybe that's why she's crying, because it's hurt so much it's made her cry"?---No.
Isn't that the obvious conclusion?---No.
…
Was she crying when you were having oral sex?---No.
Whose idea was it for her to perform oral sex on you?---It was my idea.
Even though you'd just hurt her in the process of trying to have intercourse, did you think that was an appropriate thing to then ask of her?---No.
You agree it was an inappropriate thing for you to ask her to do?---No.
You think that was a perfectly appropriate thing of you to ask of her after you'd just hurt her during having intercourse?---She wasn't hurt, ma'am.
Well, your own evidence is that she said, "During that evidence, she had told me it hurts."
HIS HONOUR: Well, during the act of intercourse, it was hurting.
MS REYNOLDS: Yes, yes, your Honour. I'm not suggesting she was saying that it hurt while she was performing oral sex. I'm saying that his evidence is that he'd attempted to - they'd been having sexual intercourse, and during that incident - - -
HIS HONOUR: So your suggestion to him that once she'd indicated that vaginal intercourse was hurting and that activity stopped, you're suggesting it was inappropriate for him to suggest to her that she should have oral sex with him?
MS REYNOLDS: I am, your Honour.
HIS HONOUR: All right. Do you want to respond to that suggestion?---Yes, no.
The father was uncomfortable, I think understandably, when being tested about this evidence. The father conceded that on occasions he may have been an inconsiderate lover but that in my view is very different from the systematic sexually abusive behaviour alleged by the mother.
The incident in which the mother’s head struck the wall
At paragraph 135 of her affidavit filed 3 February 2009 the mother recounts the following incident:
135.In or about late September or early October 2002 I was again resting on the bed in our room one afternoon when the applicant came in and indicated he wanted to have sex. I said:
“No I don’t want to”.
and started crying. The applicant got on top of me and started to lick my tears and I kept saying: “No. Please don’t”. The applicant inserted his penis and forcing intercourse saying: “Come on, come on, just let me, come on”. I was still crying and saying “stop, it hurts” because I was in pain. The back of my head was hitting the brick wall at the end of the bed. My head hit the wall at least 5 or 6 times. I was crying hysterically and asking the applicant to stop. The applicant did not reply and kept going until he was finished and said afterwards:-
“I’m still a man and I still have needs”.
I felt like my breath was taken away, that I was in shock because his manner was so deliberate and he would not stop.
The mother alleges at paragraph 136 of her affidavit that the father “forced himself on me in a similar manner on more than one occasion while we were living with my parents. I was too afraid to let my parents know what was happening”.
The father’s version of this issue differs markedly from that of the mother. He states at paragraph 15 of his affidavit filed 5 March 2009 that he arranged to travel to Australia for two weeks in December 1998. He states “I stayed with the Respondent’s family, in a granny flat next door with their neighbour. I did at times get sexually involved with the Respondent during my stay, the Respondent was sexually aggressive and persistent in her advances”. I accept the father’s evidence about that.
The frequency of the alleged assaults
In cross-examination the mother was taken to paragraph 134 of her affidavit and asked to specify the period over which the incidents allegedly took place. She replied that they occurred almost every weekend “until we left for [the United States]”. That occurred in March 2003 (so the period to which the mother refers is August 2002 to March 2003). The mother gave evidence that the sexual assaults took place in her parents’ house, possibly at times when her parents and her brother were home. She stated that the sexual assaults occurred on either Saturday or Sunday afternoons, normally after the child had been put down for a nap. In this context, the mother was asked about the incident recounted in paragraph 135 of her affidavit. When asked if she remembered that incident clearly, she replied that she did, however she did not know whether her parents were home that day. When asked whether they might have heard her as she cried hysterically, the mother replied “Yes, they might have”.
I find that the picture sought to be painted by the mother of the sexual assaults that allegedly occurred at her parents’ house prior to the parties’ departure to the US is inherently unlikely. Neither the maternal grandparents nor the mother’s brother give any indication in their affidavit material (and in the case of the maternal grandparents, their oral evidence) that they were aware of any sexual abuse occurring in the house during that period. The mother gave evidence acknowledging the possibility that they were home at times when the abuse took place. I do not accept that they would have been unaware, in a single storey, three bedroom house, of what the mother alleges was frequent, systematic rape over a period of seven months, particularly in circumstances where the mother was at times “crying hysterically”.
Contained in Exhibit C is the transcript of the father’s committal hearing which took place at the Local Court in March 2007 and April 2007. During cross-examination the mother was taken to those portions of the transcript relevant to the frequency of the sexual assaults that allegedly took place between the child’s birth in May 2002 and the parties’ departure for the United States in March 2003. The relevant segment of the transcript of 9 March 2007 is as follows:
Q. After the birth of [the child] you then had some contact with a medical practitioner, Dr [B]?
A. Dr [B], yes.
Q. You saw her at the clinic called […], is that right?
A. That’s correct.
Q. You first saw Dr [B] on 17 July 2002?
A. That’s correct.
Q. And that’s because of vulval pain associated with the vulval scar?
A. At that point and I think it was also the six week check of [the child] as well.
Q. So on 17 July 2002 you were still suffering from pain in your vulva area?
A. That’s right.
Q. You next saw Dr [B] on 27 September 2002?
A. That’s right, yes.
Q. And there was still pain in that area?
A. Absolutely.
Q. As of 17 July 2002, would it be correct to say that you had not yet commenced to try sexual intercourse with [the father] again after [the child’s] birth?
A. You mean from the period of [the child’s] birth up until 17 July, yes, there was no attempt.
Q. No attempt. In fact am I right the first time that you and [the father] tried to have sexual intercourse was some three to four months after [the child’s] birth?
A. That is correct.
Q. And there’d been no attempt at sexual intercourse before that time?
A. That’s correct.
Q. So given that [the child] was born [in] May 2002, we’re looking at somewhere around August to September 2002 before you tried to have intercourse again?
A. That’s correct.
Q. In the period in which you first attempted to have intercourse with [the father] after the birth of [the child] until you saw Dr [B] on 27 September, on how many of [sic] occasions would you have attempted intercourse with [the father]?
A. I don’t remember exactly how many occasions.
Q. Are you able to give an approximate figure?
A. Maybe two or three.
Q. Maybe two or three?
A. Maybe.
Q. And on each of those occasions would that involve penile penetration of your vagina?
A. Yes.
Q. When you say maybe two or three occasions, is that because you know it was more than one time or could it have just been the one occasion?
A. My memory isn’t clear on exactly because the scenarios were so similar throughout.
Q. Is it possible that there was only one occasion when you and [the father] attempted sexual intercourse before you saw Dr [B] on 27 September 2002?
A. It is possible, but I don’t believe it was only once. I believe it was more than once, but it is possible as I’m not entirely clear.
Q. Are you able to give an approximation as to how long it was before you saw Dr [B] when that first attempt at sexual intercourse took place?
A. The first one was in the middle of August.
Q. Middle of August?
A. Yes.
Q. Six weeks before you saw Dr [B] approximately?
A. Yes.
In response to questions asked by counsel for the father, the mother confirmed that she still agreed with her evidence excerpted above. She also conceded that she did not complain to Dr B about the attempted sexual intercourse. The mother agreed with the proposition put to her by counsel for the father that between the child’s birth and her appointment with Dr B on 27 September 2002, she and the father attempted intercourse on between one and three occasions.
The oral evidence of the mother with respect to the frequency of intercourse between her and the father in the period between the child’s birth and the mother’s appointment with Dr B on 27 September 2002 is inconsistent. The mother initially stated that she did not remember whether the incident on a weekend in August 2002 was the first time that non-consensual intercourse took place following the child’s birth, however she subsequently reversed her answer and alluded to a frequent pattern of non-consensual intercourse of which she was unable to provide further examples. She changed her position again when counsel for the father took her to the transcript of her evidence at the committal hearing, at which she gave clear evidence that the first attempted intercourse following the child’s birth occurred in the middle of August; that is, the incident recounted at paragraphs 130-133 of her affidavit. The mother also stated at the committal hearing that there were “maybe two or three” attempts at intercourse prior to 27 September 2002, although she conceded the possibility that there may have only been one.
The mother’s evidence at the committal hearing, to which she adhered under cross-examination by counsel for the father, does not suggest a pattern of frequent sexual assault. In fact, the mother acknowledged that the incident described in paragraphs 130-133 of her affidavit may have been the only instance of attempted intercourse during the period between 14 May 2002 and 27 September 2002. The mother struck me as having a very resolute opinion of the father and his conduct during the relationship, which she was intent on conveying to the Court; however, it became apparent to me during her cross-examination that that opinion does not necessarily accord with the reality.
A further inconsistency in the mother’s evidence with respect to the frequency of the father’s alleged sexual abuse relates to the period between the mother’s appointment with Dr B on 27 September 2002 and the parties’ departure for the United States in March 2003. At the committal hearing the mother stated that intercourse was attempted five to ten times during this period. When asked by counsel for the father whether that was correct, she replied “I think so”. However, this answer does not sit well with paragraph 134 of her affidavit filed 3 February 2009, in which the mother asserts that “Incidents like the above occurred almost every weekend”. When asked by counsel for the father in cross-examination whether she still adhered to the latter statement, the mother replied “I’m really not sure of the frequency”. When questioned as to why she included that sentence in paragraph 134 in circumstances where she was unsure of the frequency, the mother replied, “The motivation was, throughout this whole process, I’ve been asked to nail down very specific dates and times and places and who was home and what day and – and, because there were many events, I’ve just done my best to say these answers”.
This is a further example of the mother’s apparent eagerness to adhere to and perpetuate a particular view of the father as abusive and controlling. When pressed for details such as times and dates, the mother appears to run into difficulty, and during the hearing was unable to describe further instances of abuse despite the fact that on her evidence she was subjected to a systematic pattern of controlling violence, including regular non-consensual sexual intercourse. She deals for the most part in generalities rather than specifics. The inconsistency in the mother’s committal evidence and affidavit evidence as to the frequency of attempted intercourse in the period between September 2002 and March 2003 is a clear example of the problems that arise when she is asked to particularise her allegations.
The mother’s previous affidavits
During cross-examination the mother was taken to paragraphs 68-72 of her affidavit filed 6 June 2008. Those paragraphs, which were tendered and became Exhibit L, are in the following terms:
68.[The child] was born on […] May 2002.
69.I had a prolonged labour and suffered tears, requiring stitches. Through the trauma of childbirth, I suffered bladder damage which took about 6 months to get to a reasonable state, but has never fully healed.
70.About 3 or 4 months after [the child] was born, I was resting on the bed in our room one afternoon when the applicant came in and said words to the effect of:-
“I really want to be with you”.
71.I reluctantly agreed because I was in the habit of submitting to him. We started having sexual intercourse which was painful for me and I said:-
“It really hurts. Don’t do it. Please”.
72.I started crying. The applicant continued for some minutes before stopping and rolling off me. The applicant said nothing and went to sleep.
It was put to the mother by counsel for the father that the incident described in paragraphs 70-72 represents the first occasion on which intercourse was attempted following the birth of the child, to which the mother replied “you could possibly be correct”. She also agreed that there is no mention of oral sex having taken place on that occasion. There is a clear inconsistency between the description of this incident in Exhibit L and the description of what is clearly the same incident in paragraphs 130-133 of the mother’s affidavit filed 3 February 2009. The mother acknowledged this inconsistency and stated “I agree that I have clearly got confused about what happened at which event and what day and did he force oral sex that day, or not”.
I accept the father’s evidence that he has gained positive benefits from the long period of having contact with the child at the contact centre. I accept his evidence that he has gained insights and learned parenting strategies as a result of that process. Many fathers would have become incredibly frustrated by now with the length of time the litigation process has taken. I have no doubt the father has felt that frustration. The father has handled that frustration in a manner which is a credit to him.
The maternal grandfather’s view was that it would have no effect on the child at all if the child did not see his father again. This attitude underscores my general impression of the attitudes held by the maternal grandfather as being very rigid and entrenched against the father. The maternal grandfather accepted that most of the negative information that he has about the father comes to him from his daughter.
During cross-examination the mother was asked by counsel for the Independent Children’s Lawyer about her enrolment of the child in U Public School in December 2003, and specifically whether she had specified on the enrolment form that the child had not been immunised. The mother replied that she had, and that the child had not been immunised because of her views on that subject. She had carried out her own research and spoken to her general practitioner about the possible effects of immunisation. She acknowledged that she wrote on the enrolment form that she was a conscientious objector. The father seems to have had little involvement in the decision not to immunise the child.
Physical discipline
The Independent Children's Lawyer has referred to Mrs K Aligante’s evidence that she believed in the philosophy “spare the rod and spoil the child”. Dr W gave evidence that corporal punishment administered by parents within community accepted boundaries was not illegitimate, however he thought it would be helpful in this case for an order to be made that the parties not use corporal punishment to discipline the child as that would remove one future predictable source of high conflict between the two families. That is, if the child came back from his father’s household reporting or having signs of having been disciplined in a corporal way, it would cause significant conflict between the two households.
Any family violence involving the child or a member of the child’s family
I have found that the father has not been violent or abusive to the mother during their relationship either physically, sexually, emotionally or financially in a way which would significantly support the mother’s application.
Whilst Dr W conceded that it is typical of abusers that they carry out abuse in private and can be charming and respectable to the outside world, that of course does not mean that if somebody is charming and respectable to the outside world they are necessarily an abuser. I have had the advantage of viewing all of the evidence in this case and seeing the parties cross-examined on their evidence. I do not accept that the father is an “abuser”.
Any family violence order
There is no family violence order in place.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Counsel for the mother plainly asserts “an order for [the child] to live with his father would be a guarantee for further proceedings. An order for [the child] to spend unsupervised time with his father would also be likely to lead to further proceedings”. By implication, the submission made by the mother is that if I make an order that the child not see his father again, then his father would give up on the child and there will not be any further proceedings. I am not confident that that is the case. Given the issues in this case, it is almost inevitable that there will be further litigation between the parties about the child in the future. It is partly for that reason that I do not have any great qualm in considering, as the Independent Children's Lawyer has invited me to do, not making a final parenting order in this case at this time.
Section 60CC(4) - past fulfilment of parental responsibilities
Because of the mother’s trenchant opposition to the father participating in the child’s life, the father has had virtually no opportunities to participate in decision making about the child or to spend time with the child other than under supervision, or to communicate with the child.
The mother says that the father has not provided financial support for the child. At paragraph 45 of her affidavit filed 3 February 2009 the mother states “since December 2003, I have been the primary financial supporter of [the child]. The applicant has paid child support at varying levels. The rate was often $21.67 per month for the first two years after separation”. In oral evidence the mother agreed that she had told the E contact centre on 15 November 2007 that the father had never provided any financial support for the child. She stated that financial support is not “the be all and end all, but it is certainly one component that you can show support and care and love from a parent towards a child”. There is a clear contradiction in this respect between the mother’s acknowledgment of the payment of some child support on one hand and her assertion that the father has never provided financial support on the other.
There is no evidence that the father is failing to fulfil his current child support obligations.
The proposals for the child’s future parenting
There are a number of proposals I could consider:
Proposal 1: If the child stays in the maternal household with no further contact with his father
The first option is to make the orders the mother wishes, which would mean that the child would no longer have his father in his life and will probably mean that the child will reject his mother in early to late adolescence (although I am sure the mother and her family do not believe for a moment that that might happen).
On the mother’s proposals, the child would cease to be at the centre of a struggle between two families. He would not be asked to grow up in two different worlds. Although he might have an untroubled time growing up in his maternal family, he would be brought up believing that his father is so vile that, to use Dr W’s words, the child would believe that he was virtually the product of an immaculate conception.
Proposal 2: If the child remains in his mother’s household but is ordered to have unsupervised time with his father
This is the father’s primary application. Counsel for the mother submits that, firstly there is a risk of abuse (which submission I reject). Secondly she submits that there will be an indirect but serious impact on the child in that his mother’s parenting capacity would be seriously diminished. She submits on behalf of the mother that the mother’s anxiety will increase and the symptoms she currently experiences will escalate. It is submitted that the child will find himself living in two completely separate worlds, as he moves between households which do not communicate. It is submitted that that will have consequences for him into adulthood.
Whilst it is true that the houses do not communicate, and probably will not in the future communicate, and that will have consequences for the child into his adulthood, I do not accept, on the basis of the evidence I currently have, that the mother’s parenting capacity will be so seriously diminished if the child has unsupervised time with his father that her ability to parent the child will be radically compromised. I accept the submission by counsel for the father that orders of this court cannot reasonably be expected to adversely affect the mother’s mental health and well being, other than to confirm her prejudices regarding the court and the judicial process.
The difficulty with this proposal is Dr W’s current view is that it is probable that any orders for unsupervised time would break down after a 6 to 12 month period.
Proposal 3: the child to primarily live with his father
I asked counsel for the father what the father’s attitude would be to an alternate proposal that was raised by me for a change of residence and counsel for the father’s response was his instructions were that his client would “accept that in a heart beat”.
In relation to any residence order in favour of the father, Dr W was of the view that the transition would not be easy for the child and certainly would be stressful at the outset. The level of stress that the child felt would depend upon how the receiving parent (the child’s father) managed the situation. Dr W’s assessment was that the child’s anger could then go on for a couple of months. The father, in Dr W’s assessment, had good basic parenting skills but their breadth and depth had not been tested. There was no evidence (such as there might be in other cases) of the father having a track record of successfully raising other children and the father had not spent substantial time with the child whilst the parties had been together, demonstrating independent parenting skills.
I have already said that Dr W’s view was that if a move was to be made at this time, an immediate move was better and less traumatic than one that was gradated. There would be no need for the child to have any counselling.
The mother correctly makes the point that the child has never been to his father’s unit and “dad’s place” is an unknown to him, but that is part of the short term difficulty in the transition.
Therefore, this proposal is to move the child now and to create a regime where there is a period of a couple of months where there is no contact with his mother and then there is a period at least for a while where contact happen at a contact centre with his mother, so that verbal messages given by the mother and her parents to the child can be monitored. That option takes the child away from ordinarily living with the persons with whom he is currently primarily and significantly attached. There will certainly be short term stress for the child in that process but he will grow up living in a household that is not hostile to the other parent and the effect of the negative and hostile attitudes towards the father in the mother’s household will be minimised.
In Dr W’s first report, he was of the view that the child had an insecure attachment with his mother and his mother’s family and a change of residence at that time might have been less painful than it is now. The child has matured and his level of attachments with his mother and his maternal grandparents are stronger. On the other side, a change of residence would have been difficult in 2005 because the child at that time did not have a significant relationship with his father.
As I have said, whilst the father’s position is that the child have increasing amounts of time with him on an unsupervised basis, the father has made it clear that he stands ready to abide by the court order that would place the child in his full time care if the court otherwise thought that that was in the child’s best interests.
Counsel for the mother submits that it is not open to the court to consider an order that the child reside with his father. This is because the mother claims that if that order was made she would have been denied procedural fairness and subjected to a trial by ambush.
This option was not an option that was foreshadowed until Dr W gave his evidence and the court raised that possibility with Dr W because of the evidence Dr W gave.
The father had originally proposed that the child reside with him but that has not been his position since at least March 2008.
After Dr W’s evidence, the mother was on clear notice that this order could be made in these proceedings. Her counsel at no time made an application to recall witnesses for cross examination or lead further evidence in relation to a proposal that would see the child living with his father on a full time basis. Counsel for the mother submitted that the court in some way pressured her into thinking that that was not an application that she could have made. I do not accept that submission.
Counsel for the mother submits that the High Court’s decision in U v U does not provide a precedent for proceeding in a way that would allow proposal 3 to be considered.
However, Gummow and Callinan JJ stated in U v U [2002] 211 CLR 238:
70.“There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed”.
80.…The Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.
Also, Hayne J stated:
171.In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172.That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)
Coleman J in KPR & MRS [2007] FamCA 1334 has conveniently set out some relevant judicial considerations about the principles of natural justice:
60.In National Companies and Securities Commission Ltd v News Corporation Ltd (1984) 156 CLR 296 at 312 Gibbs CJ said:-
The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
61.In Kioa v West (1985) 159 CLR 550 at 612 Brennan J said that:-
The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.
62.In Allesch v Maunz (2000) 203 CLR 172 at 184 – 185 Kirby J said:-
[35] It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statue law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[36] The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties. (footnotes omitted)
63.In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 the High Court (Mason, Wilson, Brennan, Deane & Dawson JJ) said:-
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
As it turns out, I will not have to decide whether the mother has been given a proper opportunity to be heard about proposal 3. I have decided it is in the child’s best interest at this time not to adopt proposal 3 but I have also decided not to finally determine these proceedings.
I intend to make pending further orders based on the findings I have made about the evidence that I have heard to date.
CONCLUSION AS TO WHAT IS IN THE CHILD’S BEST INTERESTS
I form the view that the members of the mother’s household currently have unrelenting and unchanging views which are partly formed by the narrow focus with respect to spirituality that the members of the mother’s household have. Whilst speaking generally, Dr W said that he thought a child’s views will have crystallised by the end of primary school, the crystallisation for the subject child was likely to be a lot quicker.
I have formed the view that the father is not a duplicitous person and given that that is so, I do take into consideration the father’s behaviour at the contact centre as a predictor of his future behaviour on occasions when the child is with him without supervision.
I find that the mother’s experience of the father, whilst probably real to her, is not objectively what happened during their marriage. I find that this false view of the father’s behaviour and character is one in which the mother and her family are so heavily invested that it is highly unlikely that it could ever be changed.
That creates an enormous problem for the child. He is living in a family where in all probability his relationship with his father will not be supported.
Signs of early alienation have already commenced. The child has a significant secondary attachment with his maternal grandmother. She has openly indicated that she could not support the child’s relationship with his father on an unsupervised basis in any way. Whilst the maternal grandmother says that she would not do anything actively to discourage the child’s relationship with his father, I do not accept her evidence in that regard. In any event, the child is old enough and intelligent enough to pick up on non verbal cues and the “atmospherics” even if no specific language is used.
There is no doubt that the mother will feel invalidated (again) by the justice system as a result of the findings that have been made in this case.
Counsel for the Independent Children's Lawyer, when asking Dr W questions, asked whether or not, if the court made interim orders for six months to see how it went, irretrievable damage could be done in the mother’s household to the child’s relationship with his father in that period. Dr W was of the view that irretrievable damage would not be done within a period of six months.
Counsel for the Independent Children's Lawyer submitted that there be unsupervised time and that there be a period of time to test whether or not these arrangements will break down in that time. The orders proposed by the Independent Children's Lawyer suggest a twelve month period. I will make an order which aims at bringing the matter back in nine months.
I accept that the father’s parenting skills have matured during the periods of seeing the child in the contact centre to a degree that allows me to confidentially order unsupervised time.
Dr W was asked about the progression to unsupervised time. He said that unsupervised time should start immediately and initially be one day a week from 9 to 4 or 9 to 5 on one alternate weekend and several hours after school during the other week. That could then extend to overnight alternate weekends, maintaining the mid week contact in the off week. It would be best if the parent did not come into contact with one another and a contact centre or school should be used. The main problem will be at delivery time rather than hand back time. Dr W could see reasonably rapid transition to overnight time.
I have concluded that it is in the child’s best interests not to make any final order in this case at this time. In the interim, the child should live with his mother and spend time with his father on an unsupervised basis commencing immediately upon the making of these orders. That time will be day time only to begin with until the long school holidays. The child’s time with his father should be gradually increased to include one overnight and then alternate weekends and for part of the school holidays. I will request that Dr W interview the parties and the child again after the child has been seeing his father in this way for a period of approximately nine months.
Although on balance, it is unlikely that an order restraining the members of the mother’s household from saying negative things about the child’s father will be effective, I will make such an order to emphasise to the maternal family the need to be careful about what is said to the child about his father.
At this time handovers should not be face to face if possible. The intense negative feelings in the mother’s household towards the father would almost inevitably create a distressing environment for the child at changeover if it was to be face to face. The mother would certainly have some level of anticipatory anxiety and that should be avoided if possible, at least in the short term.
In summary:
376.1.I accept the father’s version over the mother’s version in relation to the history of family violence.
376.2.I accept the best possible option for the child at this time would be to live with his mother and her family and have unsupervised time with his father in an atmosphere where the child is free to enjoy both households.
376.3.I hold significant fears that the mother’s household will not be able to facilitate proposal 2 but it might be that proposal 2 could work in circumstances where the mother and her parents were motivated to make it work.
The matter will come back to the court after nine months to consider whether proposal 2 should be confirmed as a final order or whether final orders in the terms of proposal 1 or proposal 3 should be made.
Any further change, if any, that is made by the court when making final orders will depend on evidence of things that will have taken place between this date and when final orders are made, including the input of further evidence from Dr W having conducted further interviews with the relevant adults and the child. The mother will be able to lead further evidence and test witnesses about any final proposal for the child to primarily live with his father if that application is pursued by the father in the future or if it is the court’s view, at that time, it is appropriate to explore proposal 3.
It is worthwhile recording at this time that if residence is ultimately changed when final orders are made, it is likely that the mother will feel a sense of significant loss and anger. Dr W was asked about the assistance that might be given to the mother if there was a change of residence. Dr W agreed the mother would be assisted by professional support in those circumstances. He suggested that the counsellor be somebody who was well acquainted with these types of matters, perhaps a former family consultant who is now working outside the system. That person should be provided with a copy of Dr W’s earlier reports, a copy of the orders and the reasons for judgment.
WATCH LIST ORDER
Given that there has been a watch list order, and notwithstanding my findings about the settled nature of the father’s residence in Australia, I find that it is appropriate, pending further order, for a watch list order to be made.
THE INDEPENDENT CHILDREN'S LAWYER’S COSTS
The Independent Children's Lawyer has applied for costs. A schedule attached to the Independent Children's Lawyer’s submission indicates that the costs sought from each party are in the sum of $12,814.60. The matter, however, is part heard, and I do not intend to deal with that costs application until the matter is finally resolved.
I certify that the preceding three hundred and eighty-one (381) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 12 August 2009
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