Asche and Martin

FAMILY COURT OF AUSTRALIA

ASCHE & MARTIN

[2007] FamCA 1148

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of child – Violence / abuse – Attitudes to responsibilities of parenting

Family Law Act 1975 (Cth)

APPLICANT:

MR ASCHE

RESPONDENT:

MS MARTIN

FILE NUMBER:

NCF

288

2006

DATE DELIVERED:

27 September 2007

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

JUSTICE MULLANE

HEARING DATES:

15, 16 & 19 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Sundstrom

SOLICITOR FOR THE APPLICANT:

Thomas Mitchell

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Davies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MESSRS BOYD OLSEN

Solicitors

Orders

The parties’ child … born … June 1996 is to live with the father.
The mother is to have parental responsibility for decisions about the child’s day to day care during the time the child spends with her.
Otherwise the father has sole parental responsibility for the child.
The child is to spend time with the mother for one occasion per week of up to 4 hours.
The time the child spends with the mother is to be supervised by R Contact Centre at B conducted by Relationships Australia.
6         Each party must:
6.1)contact R Contact Centre at … (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the child spends with the mother;
6.2)     attend the assessment;
6.3)comply with any appointments made by the Contact Centre for supervised time;
6.4)     comply with all reasonable rules of the Contact Centre;
6.5)comply with all reasonable requests or directions of the staff of the Contact Centre; and
6.6)     pay any reasonable fees charged by the contact centre.
If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.
The Contact Centre may recommend the parties or either of them to participate in a program or programs, and in that event either party or the Independent Children’s Lawyer may re-list the matter for mention on 3 days notice.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time the child is to spend time with the mother each weekend at times nominated by the Contact Centre and such time is to occur at the contact Centre.
The father must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in order 4 or for less than 4 hours, then the time shall occur at the times that are offered by the Contact Centre.
The mother must not attend the Contact Centre or its vicinity before the time with the child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the children is to end.
If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party or the Independent Children’s Lawyer may on 7 days written notice to the other party and the Court restore the matter to the list.
The period of time spent by the child provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, the time spent shall occur at times when the services can be provided by the Contact Centre.
Within 7 days the father must attend on his General Practitioner and obtain a referral to the Psychiatrist Dr L for the purposes of Dr L:
15.1assessing the father’s use of prescription drugs since Dr L’s report of 27 May 2003 including the use of Tofranil, Antenex, Luvox, Neulactil, and Valium; and
15.2)making recommendations for the husband regarding future drug use, detox and rehabilitation.
If Dr L is not available the father must obtain a referral to another psychiatrist for the same purposes.
17       Upon obtaining the referred the father must:
17.1    arrange an appointment with the psychiatrist;
17.2immediately notify the Independent Lawyer for the child promptly of the appointment and the name and address of the psychiatrist;
17.3    attend the appointment;
17.4    pay the psychiatrist’s reasonable fees;
17.5ensure a copy of the psychiatrist’s report is sent to the Independent Lawyer for the child; and
17.6    comply with the recommendations of the psychiatrist.
Upon the father notifying the Independent Lawyer for the child of the appointment and details of the psychiatrist, the Independent Lawyer must forward to the psychiatrist to reach him before the appointment:
18.1    a copy of these orders
18.2    a copy of pages 36 to 38 of the Judgment; and
18.3    a copy of pages 72 to 76 of Ms T’s Report.
For the personal protection of the child and the father for 4 years from today the mother is restrained from:
19.1assaulting, molesting, harassing, stalking, abusing, telephoning or otherwise interfering with the father;
19.2entering or loitering at or with 50 metres of any school the child attends or any premises where the father and the child reside;
19.3 communicating with the child outside the times she spends with him;
19.4causing or threatening to cause bodily harm to the father or the child or conspiring with anyone else to do so.
It is noted that a breach of the preceding order attracts the power of arrest without warrant pursuant to Section 68C of the Family Law Act.
The father must authorise any school the child attends to provide the mother at her expense with copies of school circulars, newsletters, photographs and reports, and any information she requests regarding the child’s schooling and progress.
The father must authorise any medical practitioner the child consults or who examines or treats the child to provide the mother (at her expense) with any information she requests regarding the child’s health.
The father must promptly notify the mother by telephone, text message or written communication of the details if the child:
23.1    is admitted to hospital;
23.2    is diagnosed with a serious illness; or
23.3.   suffers an injury requiring medical treatment.
The Department of Community Services is requested to provide support to the father in his parenting of the child.
The Independent Lawyer for the child is to serve on the Office of the Department of community Services that covers the area where the child resides with a copy of:
25.1    these orders
25.2    the report of Ms T; and
25.3    these reasons.
The Independent Lawyer for the child is to provide the child’s primary school with a copy of:
26.1these orders
26.2 Ms T’s report; and
26.3 these reasons.
These Orders incorporate and have attached to them a document setting out:
27.1 the obligations that these Orders create;
27.2 the consequences that may follow if a person contravenes an Order;
27.3the availability of programs to help people understand the responsibilities under parenting orders; and
27.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.
Pursuant to Section 65L of The Family Law Act 1975 compliance with these parenting orders is to be supervised by a family consultant nominated by the Manager of Child Dispute Services of the Newcastle Registry of the Court.
The supervisor must give any party to the parenting orders such assistance as is reasonably requested by that party in relation compliance with, and the carrying out of, the parenting orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Mullane delivered this day will for all publication and reporting purposes be referred to as Asche & Martin

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF 288 of 2006

MR ASCHE

Applicant

And

MS MARTIN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This was a hearing of competing applications by the parents of a boy, who is now aged 11 years.
The applicant father wanted the child to live with him. The respondent mother wanted the child to continue living with her.
By orders made 17 October 2006 the Court invited the Department of Community Services (“DOCS”) to intervene in the proceedings. The Department by letter dated 14 March 2007 declined.
In closing submissions the Independent Lawyer for the Child proposed that the child should reside with his father and that the child should have a period of 4-6 weeks when he has no contact with his mother, the mother should for the protection of the father and the child be restrained from approaching either of them or the child’s school. The father should be restrained from permitting the mother to have any contact with the child and the mother from having any such contact other than is ordered by the Court.
The mother proposed that the child continue to reside with her, and that such residence be conditional upon:
a)the mother ensuring that the child spends time with the father;
b)the mother ensuring that the child attends school;
c)the mother not changing the child’s school;
d)the mother not permitting her daughter’s boyfriend K to attend her residence;
e)Apprehended Violence Orders restricting the mother’s behaviour for the protection of the father and the child;
f)the mother not using obscene or abusive language to the child or in his presence; and
g)the mother not demeaning the father in the presence or hearing of the child.
The father’s proposals are for the child to live with him, the father to attend an on-going course of parenting counselling, the father to be restrained from permitting the child to have contact with the mother for an interim period, and the mother to be restrained from interfering with the child at his school.

BACKGROUND

The parents commenced cohabitation when the father was residing in the mother’s home at her invitation some time in or prior to October 1995. When an Officer of DOCS visited the home on 16 October 1995, the mother described the father as her “live-in boyfriend”.
The mother had 3 children of a prior relationship. A son H who is now 23, a girl called J, who is now 19, and S, who is now 15.
The mother and those 3 children had previously resided in New Zealand, but the mother’s then husband had been a violent man and in one serious incident took the mother and the 3 children hostage for 3 days, over that period raped the mother several times, beat her severely and also cut her. The 3 children witnessed these assaults on her.
Upon his trial and conviction on criminal charges arising from that incident, her husband received a lengthy prison sentence. She alleges he was sentenced to 25 years imprisonment.
The mother and the 3 children then moved to Australia so as to avoid her former husband ever finding them.
The parties’ child (“the child”) was born in June 1996. He is the mother’s fourth child and the father’s only child.
The parents separated in about May 1997 for a short while. Their final separation occurred in 1998. But they then continued a romantic relationship for about 2 years, although living in separate houses. During that period the father was often present in the mother’s home and often spent time with each of the 4 children.
It appears the child continued to often spend time with the father but at the end of 2001 the mother formed a romantic relationship with a man called P. The father approved of P and respected him. On 2 occasions the mother went away with P for a holiday, and the father stayed at the mother’s home and cared for the children for about a week at a time.
There was a third occasion when they went away and the father had indicated that he was not prepared to mind the children in the mother’s home, but would be prepared to have them stay at his place. The mother rejected that proposition and said: “The holiday is off and it’s all your fault”. But the father visited the mother’s home later and discovered that she had gone on vacation and left the child and S in the care of J, who was then 15 years of age and about 8 months pregnant. The father then stayed at the mother’s home to care for S and the child for about a week until the mother returned. She was then abusive of him. She told him: “Fuck off. I did not ask for your help. Never come back here again.” The father found that his relationship with the mother deteriorated from then and has since been poor.
At about that time the child told him that the mother had told him that she would not permit him to refer to the father as “Daddy” any more and she required him to refer to P as “Daddy”. It appears from the evidence that the mother has permitted the child since then to refer to his father as “[John]”.
From early 2004 for about 18 months the father had the child and S stay with him every second weekend. In July 2005 the child stayed with the father for a period of 3 weeks, including a period of school vacation.
During that period the mother telephoned the child on only 4 occasions. The child told the father during that time that he did not want to return to his mother because there had been a lot of fighting, yelling, and physical violence in the mother’s home. He told his father the mother was physically abusive towards her other children, although not to the child. He also complained that the mother would “snap” when angry. The father returned the child to the mother after those 3 weeks. But he still remained concerned about her care of the child.
From about August 2005 the father experienced problems obtaining agreement from the mother to the child and S spending time with him. She allowed him to see the boys for about only 1 hour once per fortnight.
The father then commenced these proceedings on 9 September 2005 in the Federal Magistrates Court seeking among other orders, an order that the child live with him. When the mother became aware of these proceedings, she made complaints to the Police, who instigated Apprehended Violence proceedings against the father. But when the proceedings came before the Court on 5 October 2005, the prosecutor refused to continue them on the mother’s behalf. The mother’s response to this was to refuse the father contact with the child.
The Federal Magistrates Court made interim orders on 12 December 2005 for the child and S to have contact with the father for one weekend in December, 2 weeks in January and 2 weekends in February. The mother did not comply with the orders and the boys had no contact with the father from December 2005 to January 2006.
On 18 January 2006 the child and S arrived at the father’s home at about 11.30am. They arrived on foot. They were walking to his home from the direction of the bus stop in his street. They were not carrying bags, clothing or personal items. When the father attempted to hug them, S moved away and the child said, “No, Dad. I don’t want a hug either”. He talked with the boys and about half an hour after they arrived S asked if he could visit a friend who lives near by. The father agreed. The child said, “I have to go with [S], Dad. Mum has told me stay with [S] at all times when I’m with you.” The two boys left.
When they had not returned by 12.30pm the father visited the home of S’s friend and discovered they had not been there. He searched the neighbourhood for them and then borrowed a car and drove to H’s place. He saw the mother there. He told her that the boys had left his home to visit a friend and had not returned. She responded, “Well that is what you get for taking me to Court”. He told the mother, “I don’t know where the boys are”. She responded, “Well, I am off now. By the way, my ex-husband’s out of jail now and he’s coming over here to help me. You had better watch out.”
The father waited at H’s house for about an hour in case the boys arrived there, but they did not. When he returned home he contacted the Police. As a result the Police visited the home of the mother and later informed the father they had spoken to J and had been told that the mother, S and the child were not home. The father reported the boys missing. At about 5pm that day the Police came to the father’s home and informed him that they had located S and the child “alive and well” at the home of the mother.
The proceedings came before the Federal Magistrates Court again on 23 January 2006 and Federal Magistrate Lapthorn that day ordered that the child and S have contact with the father on 2 occasions supervised by a Family Consultant from the Child Dispute Services of the Court.   Those occasions occurred on 27 January and 3 February 2006. The contact was about an hour long. On both occasions the mother came with the boys and remained outside in the waiting room although it was suggested that she could leave the Court premises for the hour of contact. Ms W, a psychologist, was the Family Consultant who supervised the contact. She concluded her report on the contact as follows:
Counsellor Evaluation
21       Whilst [the child] was clearly talking from a script, it is a script which he believes and which he sincerely thinks is his own.
22       He did not present as a mature child and he does not appear to be a sophisticated nine year old.
23       He is very attached to his mother. Whether or not this is a secure or an insecure attachment (and this latter could be hypothesised by the suggestion in his comments about wanting to stay with his mother and kiss her and hug her, and the implicit notion that his mother’s love would be threatened by any visits he might make to his father) it is very strong attachment.
24       At the moment he is saying that he would run away if he were made to visit his father. His father appears to be distressed at the concept of having to force him to come. From seeing [the child’s] behaviour at the court the writer would expect that he probably would run away if his mother would then take him back without negative repercussions. This possibility appears quite unsafe for an unsophisticated and rather gullible nine year old.
Recommendation
25       Based purely on the observation sessions and with no interviews at all conducted with either parties or the boys, the following suggestions are made for the interim:
(a)      That the father be told of [the child’s] new school.
(b)That [the father] be permitted to send cards, gifts and other correspondence and that the mother must safely retain these for [the child] or [S] in the event either of them want to throw them away.
( c)That the mother arrange for [the child] to telephone his father, at least briefly, once a week to inform him of his progress at school and to listen to any invitations that the father might give to [the child].
26       It appears to the writer that this situation might be volatile and liable to change at any time, and that [the child] might easily change his mind and wish to visit his father if he thought that this would please his mother.
27       It is recommended that the parents attend a Parenting After Separation course.
Ms W’s report was released on 6 February 2006. On 10 February the parties consented to interim orders including orders for the child to have contact with the father every second Saturday from 11am to 2 pm, for such other periods as the parents agree and by telephone each Friday. The orders also provided for S to have contact with the father for such periods as the parents agree and for parents to each attend a parenting after separation course. The Federal Magistrates Court also transferred the proceedings to the Family Court of Australia. Notwithstanding the Orders for the boys to have contact with the father, the mother did not then implement any contact.

Ms T was subsequently appointed as a Single Expert. Ms T has a Bachelor of Arts degree with Honours from the University of Newcastle, a Master of Psychology (Clinical) from the same University awarded in 1980. She is a Member of the Clinical Board of the Australian Psychological Society. She is a registered psychologist. She has been for some time in private practice as a Psychologist. She has been employed as a Senior Clinical Psychologist by the Department of Health and has been a member of the Child Protection Team attached to the John Hunter Children’s Hospital in Newcastle since the hospital’s establishment in 1991.
Ms T has 30 years experience in child and family psychiatric setting specialising in the assessment and treatment of
·    Infant and Childhood Emotional disorders
·    Attachment and Attachment Disorders (infants, children, adults)
·    Child Abuse and Neglect, including emotional abuse and emotional neglect. Special interests in Environment Growth Failure; Fabricated and Induced Illness by Proxy; children of Personality Disordered Parents; and Fatal Child Abuse.
·    Parenting Capacity Assessments, particularly of parents who have Personality Disorder; Mental Illness, Developmental Delay, Substance Abuse.
·    Out-of-Home Care cases, including Abuse-in-Care assessments.
·    Custody / residency and Placement (Family and Children’s Courts), especially those involving allegations of child Abuse and parental Alienation.
·    Child Death Reviews, involving Child Abuse / Neglect.
She is a consultant to a variety of hospital and non-government agencies in the area of Child Protection and Substitute Care. She is a consultant to the Growth Clinic at the John Hunter Children’s Hospital. She lectures with the Department of Medicine in Under-Graduate Paediatrics and Post-Graduate Psychiatry. She is a Conjoint Senior Lecturer at the Department of Psychology at the University of Newcastle for the Masters Course in Clinical Psychology lecturing in infant and childhood emotional disorders, attachment and loss in infancy and childhood, child abuse, assessment and treatment of disturbed children and their families, and child psychotherapy.
She is a member of the Training Board of the Faculty of Child Psychiatry of the Australian and New Zealand College of Psychiatrists. She supervises Trainee child Psychiatrists in the area of child protection assessments. She is a Supervisor of trainee Child Psychiatrists in the area of Child Psychotherapy for the Institute of Psychiatry. She has a similar role in respect of trainee psychiatrists in child protection assessments for the Faculty of Medicine at the University of Newcastle. She is a supervisor for trainee clinical psychologists with the Department of Psychology at Newcastle. She also holds advisory appointments and has published numerous articles in professional journals. She has also been involved in various research project and was awarded the Award of Excellence 1991by the National Association for Prevention of Child Abuse and Neglect.
Ms T conducted interviews and observations for the report on 15 and 22 September 2006. They involved the child, S, and both parents. The report was submitted to the Registry Manager on 9 October 2006 and then was released on 17 October 2006, when orders were made inviting DOCS to intervene. A copy of the report was provided to DOCS.
Ms T concludes her report with the following conclusions and opinions:
OPINION
This is a case with a long child protection history. Decision making in this case will be difficult because it is really a choice between two poor alternatives - with each parent having major (though different) problems which significantly impact on parenting capacity.
PARENTING ISSUES RE THE MOTHER
The mother, […], is very much the powerbroker and enforcer in this family and this has obviously been a longstanding pattern. She presents as a woman with a powerful and intimidating persona, used to getting her own way and unfazed by authority. She has a long history of verbal and physical abuse of others; of telling major untruths; and with a strong streak of vindictiveness. She appears to have condoned her children's anti-social behaviours and defends them against authorities. She has a long involvement in anti social/criminal activity, as indicated by her COPS' record, despite the fact that she has only one conviction (under her current name).
The mother's parenting record is extremely poor. She has a history of rejection and physical abuse of her two oldest children. These two children have an appalling history of early-onset serious anti-social behaviour, both being before the Juvenile Courts for this, with [H] being recently incarcerated. Both children were placed in foster care at the mother’s request, when she threatened to harm them if they were not removed. These children’s presentations over many years were highly pathological. [H] has a known history of violence (including violence towards his mother and sister); anti-social activity; and a negative attitude towards women. [J] has a long history of serious anti-social behaviour predating adolescence; serious behavioural problems, to the extent that she was unable to be contained in a normal fostering situation; early pregnancy but incapacity to care for the baby; and involvement in inappropriate relationships. [J] had a diagnosis of: Conduct Disorder, the childhood/adolescent equivalent of Anti-Social Personality Disorder. The mother, […], appears to meet the criteria for this latter Disorder. All this is a very poor testament to [the mother’s] parenting capacity.
[The mother] appears to have a long history of untruthfulness, including lying about major issues. This was even apparent during our interviews, when she gave contradictory accounts of events, both during the interview and when compared with the affidavit and subpoenaed material. It was thus difficult to give credibility to much of what she reported. [The mother] was able to lie easily and without anxiety.
CHILD PROTECTION ISSUES RE [THE MOTHER]
This family is extremely well known to D.O.C.S. and there are 2 very thick D.O.C.S.' files. The family has been involved with D.O.C.S. since 1995, when the mother threatened to harm [H] if he was not removed from her care. Similarly, some years later, she reported the same threat with regard to [J] (then 12) because [J] was “abusing” [the mother’s] new man (10.3.99). She told the worker that, if the child was not removed, she would “give her a real good hiding”. [J] was removed and placed before the Children's Court on the grounds of “Irretrievable Breakdown.” [J] had many placements before being restored to [the mother’s] care.
There are numerous reports between 1995 and the end of 2005 (the time of subpoenaing of the documents) delineating:
* physical and emotional abuse of the children by [the mother] and by [H];
* severe family violence;
* anti-social behaviour of [the mother], [J] and [H];
*poor parental responsibility by [the mother].
While [J] has appeared to be the main target of D.O.C.S. interventions over the years, it is concerning that, in 2005, there were ELEVEN reports to D.O.C.S. (including one made by [the mother], perhaps 2 by [the father]). These include violence and verbal abuse in the home; physical abuse of the children; poor school attendance of [S]; lack of supervision; and neglect issues. Unfortunately, NONE of these reports was investigated, although many of the allegations were consistent with the previous history. A good number of these reports came from credible sources (school, Hospital, etc.). Thus, it appears that         there are RECENT serious child protection concerns in this family.
Of great concern is the ongoing violence of family members, especially [the mother], [H] and [J], both as alleged perpetrators and alleged "victims" of violence by others, especially being witnessed by the younger children. The volume of COPS' reports over the last few years is astonishing and clearly reflects the violent household in which [the child], [S] and [M] are being raised. [The mother] seems little concerned about the gunshots that were fired into her home in the presence of the children, even though her daughter, [J], is still in a relationship with the man for whom the bullets were obviously intended. [The mother’s] inurement to such violence and her lack of concern for the safety of her children, especially [J], is striking.
Of concern, too, are the school reports indicating SIGNIFICANT ABSENCES (mostly unexplained) for both boys from school.
[S] attended FOURTEEN different primary schools, including 12 in his first 4 years of schooling. In his first year of high school (Year 7) in 2005, he had EIGHTY absences. A D.O.C.S.' report of that year indicates that [S] was being kept at home to care for his nephew, [M], while the mother worked 3 days a week. As well, there is a Suspension Report during 2005 for verbal abuse by [S] (telling teacher "fuck off"; "bitch"; “suck my dick"). The subpoenaed school records for [S] end at November, 2005, so his progress in 2006 is unknown. However, it is apparent from my conversation with the mother that, this year, he has been truanting from school, although it seems that [the mother] was less than truthful with me about his school attendance. She seems completely unperturbed by [S’s] school non-attendances and maintains he is doing well.
On the other hand, [the child] appears to pose no behavioural problems at school, although this is understandable, given his passive, compliant personality. However, of concern are the 71 whole or part school absences he had in 2005, although it is gratifying that his attendance record this year seems much improved. However, the mother’s idealised presentation of [the child] being a "star" pupil in his class contrasts with school reports, which refer to him as "an average student who tries hard (and) needs encouragement".
Of concern, too, is the report from the […] Hospital in June 2005, where [the child] was being treated for asthma. The mother, […’s], behaviour was described by hospital staff as "irrational", in that she would not allow [the child] to stay in hospital when this was advised and had threatened to walk him (a sick child) 10 kilometres at 11.30 at night, if the hospital did not arrange a taxi. Concerns were expressed by D.O.C.S. at this time about:
* [The mother’s] mental/emotional state;
* 2 year old [M] being left in the care of [S] (then 12), while [the mother] was at the hospital;
* [The mother’s] claim "in conversation" to hospital staff that [the child] had been "raped" by his natural father (an issue which [the mother] has apparently not mentioned since, even during these proceedings).
Whether there have been any child protection reports on these boys in 2006 is unknown. It is suggested that a further subpoena be issued in relation to this and that information about the boys' current school progress is obtained.
THE PARENTS' RELATIONSHIP
For many years, [the mother] has presented herself as a victim of severe violence by a previous partner in New Zealand, claiming she was held hostage and raped for many days before finally escaping. She claims this man is serving a Life Sentence for this (though this claim changes) and is so intent on avenging her that she has been forced to change hers and her older 3 children's full names. She refused to divulge their former names. There are many aspects of these claims which are contradictory and implausible, although it is conceded there may be a "kernel of truth" in her accounts. There is no corroborative evidence whatever to support these claims and [the mother] should have ample amounts of this, if these claims are true. One would have to express significant suspicions about her claims in relation to this incident and therefore suspicions about the reasons for the name changes.
Similarly, [the mother’s] claims of being the "victim" of severe violence in her relationship with [the father] stretch credibility. [The mother] herself if an extremely assertive, intimidating woman with a long history of verbal and physical violence. [The father], on the other hand, presents as an extremely passive, submissive and laconic man, with little confidence and presenting with some of the stupefying effects of long term drug (benzodiazepam) use. manner and not easily angered. It is [the father’s] account of [the mother] perpetrating is the more credible account, although for this alleged violence.
He is very gentle in much more likely that physical abuse on him he still makes excuses It is significant that [the mother] made no claims of violence by [the father] in over 10 years of their acquaintance, despite her numerous reports to Police about alleged violence towards her by others. She told D.O.C.S. in 1995 that she liked [the father] because he was "stable and gentle". It was not until [the father] made an Application for Residency to the Family Court that [the mother] began to claim that [the father] was violent.
[The father] filed his first affidavit of 9.9.05. Less than 3 weeks later (4.10.05), [the mother] reported that she had been assaulted by [the father] (witnessed by [the child]) and that [the father] had unsuccessfully tried to remove [the child] from school (the school denied knowledge of this incident to the Police). [The mother] had then applied for an A.V.O. against [the father]. However, her behaviour towards him in the court precincts reportedly caused Police to withdraw the Application, as they did not consider [the father] to be a risk to [the mother] and did not consider that [the mother] was genuinely frightened of [the father]. However, in her recent affidavit (22.8.06), [the mother] claims she is "fearful of [the father] and his stalking behaviour".
THE FATHER'S RELATIONSHIP WITH THE CHILDREN. ESPECIALLY [THE CHILD]
It would appear from the history that [the father] HAS in the past been a "father" figure (of sorts) to all of [the mother’s] children. It is significant that all children have been known in the D.O.C.S. and Police files as "[Asche]" until quite recently. It appears that, after their separation, [the father] kept in close contact with the children, although this seemed dependent on [the mother’s] attitude towards him at the time and the state of her relationships with other boyfriends. It is apparent, however, that the boys, up until mid-2005, had a significant amount of contact with [the father] and that the older children did so as well.
It seems that contact was proceeding reasonably well (with a few "ups and downs") until July, 2005. [The child] had stayed with his father during the school holidays. He seemingly told his father at that time that he wanted in future to reside with [the father], because of the violence and fighting in the mother's home. The father felt he should comply with his son's wishes, as he was also aware of the violence in the home and the effects of it on [the mother’s] other children. However, [the father] appeared to act somewhat impulsively in making this Application. He did not see the consequences ahead and how provocative such a move would be to the mother's authority and control of family matters.
In response to the Application, [the mother] seems to have reacted in a forceful and vengeful manner by:
* making allegations of violence by [the father] (when there had been no such claims before);
* ceasing to make [the child] available for contact;
* seemingly enacting a programme of denigration of the father in order to ensure the child's alienation from him.
[The child’s] relationship with his father appears to have gone from a loving and gentle one, to one in which the child has suddenly become overtly rejecting and very (uncharacteristically) rude to his father, refusing any contact with him. This behaviour is typical of a child who has been "programmed" to alienate a previously loved parent.
In this case, programming a child like [the child] to reject a previously loved father would be relatively easy, due to a number of factors:
* the mother's very intimidating manner when angry. She has a long history of extreme verbal abuse, which would be extremely intimidating for a young child. As an adult used to dealing with angry clients, I myself found [the mother’s] verbal abuse to be more extraordinary intimidating. Therefore, it is not hard to imagine how easily it would be to intimidate a child, especially one as passive and submissive as [the child]. [The mother] gives very clear messages to the child that he should reject his father. These messages are quite direct and not at all subtle or ambiguous, as they are in many cases of children who become alienated.
* [The child] himself presents as a child who both loves and is FEARFUL of his mother. While he is attached to [the mother] as his "primary parent", he is abnormally HYPERVIGILANT of her and needs her to cue him and answer questions for him. This represents an extremely insecure attachment to his mother, which makes him much more vulnerable to the mother's control and programming and to his total submission to HER wishes rather than his own.
[The child] is usually very much like his father in nature - gentle, non-assertive and passive. This is quite different to [the mother’s] other children who are reportedly much more assertive, violent and outspoken. It says much about [the child’s] need to comply with his mother's wishes, that he not only has to reject his previously loved parent but also has to adopt behaviours towards his father (overt rejection, rudeness, lack of empathy) which are so uncharacteristic to his nature. His rejection of hip father is not at all convincing - it has a woodenness in presentation and "parroting" of many of his mother's views. Her cueing of him in the waiting room, when he refused to see his father, made the dynamics patently clear.
This, of course, is quite an intolerable position for any young child to have to adopt - to give up a relationship with one loved parent in order to comply with the needs of a more powerful and intimidating other parent. This represents significant EMOTIONAL ABUSE of [the child] by his mother.
PARENTING ISSUES RE THE FATHER
The father presents in personality almost at the opposite end of the spectrum from the mother - being passive, non-violent and overly submissive in relationships, with a history of social isolation. Some of this may be due to personality factors. However, it is also possible that some of [the father’s] passivity, amotivation and motoric slowness may be due to his long dependence on Benzodiazapines and/or to his long history of depression and/or to the effects of earlier marijuana use.
The drugs on which he has been dependent (though with decreasing doses) are SEDATIVES and therefore are likely to have sedating effects on diverse functioning, such as motivation, arousal, mood, judgment or occupational function.
While there is no evidence that [the father] has been abusive or violent to the children (as has [the mother]), his dependence on Benzos has likely affected his functioning in terms of:
* Poor social   functioning. At age 51, he still does not live independently;
* Poor amotivation to seek a job (for the last 12 years) or to engage in other meaningful activities;
* Excessive sleeping;
* Passivity and non-assertion in social relationships;
* Possible degree of cognitive and memory difficulties (these seemed apparent in minor ways but were not formally tested for).
All of these factors will obviously have an effect on a person's parenting capacity; motivation to undertake full term parenting and responsibilities; and a capacity to organise a mature and meaningful lifestyle.
The exact amount of [the father’s] current Benzo and anti-depressant use is unclear, as the medical records were subpoenaed over 8 months ago. It appears though that he was generally reducing his dosage (provided that Dr. […] is his only prescriber).
Currently, it would seem that [the father] would have significant problems in taking on the role of full time parent, due both to the above issues and those of his lifestyle, in which he does not currently have appropriate accommodation for a child.
THE MOTHER’S CAPACITY FOR COOPERATION WITH AUTHORITIES
This is a significant issue which needs to be canvassed, as any implementation of Orders made by the Family Court is contingent on this. This appears to be an issue for the mother only, as father appears to be compliant with the authority figures.
The mother, […], has a long history of:
* Anti-authoritarian attitudes;
* Encouraging her children to defy authority figures, e.g. telling the school that D.O.C.S. was not to interview the child and instructing [the child] to run away if D.O.C.S. came;
*Siding with anti-social behaviour in her children against authority (e.g. Police);
* Wilful non-adherence to previous Orders, with little anxiety about such non-compliance. She seems quite unfazed by court or D.O.C.S.' authority;
* Sabotaging [J’s] placements in Out-of-Home-Care on number of occasions, so that the placements broke down;
*Lying about major issues to authority figures.
All this will likely have a significant impact on [the mother’s] motivation to comply with any Court Orders which do not go her way. As well, she has a huge propensity to "sabotage" any changes in Residency or Contact arrangements. She has clearly shown how much power she has over [the child] and how easily she can get him to do her bidding, such as refusing to go on contact; running away from his father' residence; or making false allegations against his father.
FORMULATION
This is a very difficult case, both in terms of:
*        Parenting capacity issues;
*        The likelihood of compliance with Orders.
In my opinion, [the child] should not be residing in such a violent, dysfunctional and anti-social home as he is currently. There are poor role models there and he is very vulnerable as he grows older to come under the influence of his anti-social siblings. His mother also provides a very poor role model for social and moral behaviour. If he remains in this home, there is a significant risk that he could develop anti-social interactions and behaviours; be encouraged to leave school early; and continue to be exposed to significant violence.
If all things were equal, one would recommend that the child should be immediately placed with the other parent, with only supervised contact with [the mother].
However, the situation is complicated by the father's parenting capacity and lifestyle difficulties. At present, it does not seem that he would be in a position to take on the full time care of [the child], given
* His Benzo dependency, which has affected areas of functioning necessary for effective, enthusiastic and motivated parenting;
* His accommodation problems.
It may be that this situation could be reversed, if massive community supports were involved with the father in terms of:
*        Arranging appropriate accommodation;
*Providing Detox. and Rehabilitation for his Benzo Dependency. (However, this is not a "quick fix" by any means and withdrawing from Benzos takes much longer than withdrawal from most other drugs of dependence.) [The father] would need to be assessed by a Specialist Drug and Alcohol Service to investigate the feasibility of this; the time frame needed; and the likelihood of remission from all of the troubling effects of such dependence;
*The provision of intensive community support, e.g. Family Support Service; school liaison; Parenting Education; etc.
These would have to be achieved before any change of Residency could take place. I am somewhat pessimistic that this could be achieved, although it should not be ruled out altogether.
The other impediment to placement of [the child] with his father is the mother's capacity to sabotage this placement almost immediately. She is quite vindictive, is very forceful and manipulative and has a previous history of sabotaging her child’s placements (where these were in much more "secure" settings run by. professionals). Thus, one could predict that, early on, [the child] could be cued by his mother to run way from the placement with his father. An A.V.O. to prevent other than strictly supervised contact by professionals could be used but there is little guarantee that the mother would comply with these restrictions.
One option could be considering D.O.C.S. joining the case as a party and for [the child] to go into temporary foster care until the father's situation was stabilised. This may afford more close supervision of the mother (though it did not faze her when [J] was in foster or residential care) and allow a circuit breaker for [the child] in terms of lessening the pressure to reject his father. However, I feel that even this option has little hope of being effective, given the mother's history and her need to get her own way.
In any case, given the Child Protection issues, it is recommended that D.O.C.S. be given a copy of this report and a decision made as to whether they should become a party to these proceedings.
This is a very troubling case, because the likelihood of [the child] (without Children's Court action) being able to be removed from such a violent home or even to have contact with his father is remote at this stage. Unless, of course, the mother, for some reason, totally reversed her present attitude, which seems unlikely.
It seems a case where, at the present time, it would be almost impossible for this child to have a concurrent, meaningful relationship with BOTH parents.

When the mother received a copy of the report she resumed facilitation of contact by the child and S with the father. On 28 October 2006 she delivered them to his home at 2pm and collected them at about 5pm. She contacted the father by telephone that night at about 8pm, told him the boys had enjoyed being with him and wanted to be with him the following day. She delivered them to him the next day. She also arranged for him to collect the children for contact the following Saturday at the Railway Station at 10am and for him to return the children to her on the Sunday at the same location. But subsequently that arrangement was cancelled. When S telephoned the father, a fresh arrangement was made for the following weekend with change-overs to occur at the Railway Station.
S commenced the telephone conversation with the father saying, “Hi Dad, it’s me [S]”. The mother then said to S, “Don’t call him Dad. He’s not your Dad and he’ll never be.” When the father attended the Railway Station pursuant to the arrangement to collect the children as arranged, the mother was there and advised him that the boys were not coming because S was going to a skate board competition and [the child] had asthma. She requested money from him.
The proceedings were before the court again on 23 November 2006 and interim orders were made by consent of both parties for the child to have contact with his father every second weekend from Saturday at 10am to Sunday at 5pm commencing on 25 November. The father collected S and the father at the railway station pursuant to the order, but when he was arriving at the railway station the mother threw rocks at the father from an over-bridge. His evidence is that the rocks were the size of golf balls. The boys walked from the over-bridge to the father and one of the rocks fell close to where he and the boys were standing.
When the father returned the boys on the Sunday afternoon to the railway station S told him, “Don’t give us a hug goodbye. Mum has told us not to hug you or let you hug us”.
The next contact occasion pursuant to the orders was to commence on 9 December. But on 4 December the mother advised the father that she was not going to implement the contact because, “They are going to a Christmas party”. But she later telephoned him and told him, “You can go to the Christmas party if you want. It is to be held at Nobby’s Beach. You can take the boys home from there.” The father went to Nobby’s Beach on 9 December at 10am but could not find a Christmas Party of any kind. He did not see the mother, S or the child. He stayed there about 45 minutes and then went to the Railway Station. He remained there until 11.45am, but did not see the mother, or the boys.
Replacement contact was arranged for the weekend of 16 and 17 December 2006. The father again attended the Railway Station at 10am on the Saturday. He waited 1 ¾ hours but the mother did not facilitate contact.
The next occasion for contact pursuant to the orders was to commence on 22 December. The mother telephoned the father and told him he could collect the boys that afternoon at 5pm the Hamilton Railway Station. The father attended as arranged, but the mother did not facilitate the contact.
On 23 December the father attended to collect the boys for contact on 23 – 24 December. The mother was at the railway station, but the boys were not. She told him, “Will you go away and come back in an hour. I have to go and get [S] from his friend’s place?” He said he would wait for her. She left and about an hour later returned with S and the child.
With the mother’s agreement the boys stayed with the father from 23 December 2006 to 28 December 2006. They spent Christmas Day with the father. During the period they were with him, they were openly affection towards him and hugged him spontaneously quite often. He returned them on 28 December.
Pursuant to the orders the child was to spend a week with the father commencing 30 December 2006. When the father returned the boys on 28 December the mother told him, you can have the boys from 31 December until 6 January 2007. You can pick them up from Hamilton Train Station at 10am.” The father attended the railway station at 9.45am on 31 December 2006. He waited for 90 minutes but the mother did not facilitate the contact.
The mother failed to implement the contact under the orders which was to take place for a week from 13 January 2007. Another arrangement was made for the father to collect the boys on 18 January 2007 at 10am from the railway station. He attended and waited for 2 hours. The mother did not facilitate the contact.
The mother contacted the father later and offered him contact with the boys for the following weekend from 10am Saturday. The father attended the Railway Station as arranged. The boys and the mother arrived about 10.30am. She said to the father, “You have to drop the boys back at 2.30pm because they are going to a pool party”, and, “The boys don’t want to spend time with you. It’s up to them. Just ask them!” She also said to him, “I hate you more than you will ever know - you shit!” As the father walked off with the boys the child said to him, “We do want to come and see you Dad. Just don’t tell Mum.”
The father returned to the railway station with the boys at 2.30pm as the mother had requested, but she did not return until 3.30pm.
The next occasion for contact under the orders was 10-11 February 2007. The father attended the railway station at 9.45am on the Saturday. He waited for 105 minutes, but the mother did not implement the contact. He also attended on 17 February at 10am at the railway station and waited until 11.50am, but the mother did not facilitate contact on that weekend. When he was driving home on his way home he saw S at the skate board park. He said to S, “What’s going on?” and he replied, “Mum doesn’t want me or [the child] to spend time with you.”
On 14 March 2007 DOCS provided a letter to the Family Court notifying the Court that it would not intervene in the proceedings. The hearing proceeded on 15, 16 and 19 March 2007. The father was represented and the child was separately represented. The mother appeared without any legal representation.
Judgment was reserved and at the time of reserving Judgment the following orders were made by way of interim orders:
1Pending further order the child … born … June 1996 is to live with the father. The father is to collect [the child] from school today.
2A Recovery Order is to issue and to be provided to the father so that the Police may find [the child] and deliver him to the father if [the child] is not available at the school for the father to collect him.
3Pending further order [the child] is to spend no time with his mother and have no communication with his mother.
4The mother must ensure that by 4pm tomorrow, 20 March, 2007, [the child’s] belongings, including his clothing and toys, are delivered to [the father’s address].
5Pending further order for the personal protection of the father and [the child] the mother is restrained from:
5.1     Assaulting, molesting, harassing, stalking, abusing, telephoning or otherwise interfering with the father or [the child];
5.2     Entering upon or loitering at or within 50 metres of any premises where the father or [the child] reside or the school [the child] attends;
5.3Causing or threatening to cause bodily harm to the father or [the child]; and
5.4conspiring with anyone else for them to do any of the above.
6It is noted that the above order is for the personal protection of the father and [the child], a breach of which attracts the power of arrest without warrant pursuant to Section 68C of the Family Law Act,1975.
7Pending further order the mother is restrained from contacting [the child’s] school.
8The father must arrange with the Manager of Child Dispute Services of the Family Court of Australia at Newcastle today to bring [the child] to the Child Dispute Services on the 2^nd Floor at a time nominated by the Manager of Child Dispute Services on 20 or 21 March 2007 for [the child] to meet with the Judge and a Family Consultant to explain the interim orders to him.
9Pending further order the father is to arrange urgent counselling for [the child] and ongoing parenting counselling for the father with a counsellor approved or nominated by the Manager of Child Dispute Services of the Family Court of Australia at Newcastle and the father must attend on the Manager of Child Dispute Services today to make the necessary arrangements.
10These Orders incorporate and have attached to them a document setting out:
10.1the obligations that these Orders create;
10.2the consequences that may follow if a person contravenes an Order;
10.3     the availability of programs to help people understand the responsibilities under parenting orders; and
10.4     the availability and use of location and recovery orders to ensure that parenting orders are complied with.

CREDIT OF THE APPLICANT FATHER

In cross-examination it was put to the father that the children were with him on a couple of occasions at the end of 2006. His immediate reaction was to deny the proposition. Then he said he was reminded and they did.
When the father was asked by Ms T whether he is addicted to his medication, he was evasive before admitting “partially, yes.”
The father presented as honest and generally a reliable witness.

CREDIT OF THE RESPONDENT MOTHER

The mother was a very unimpressive witness. It is clear that she has not complied with previous orders for the child to spend time with his father. For many such occasions she has offered no excuse. For others she has offered excuses which are not reasonable. She has very little respect for the law or for court orders.
In cross-examination she was often evasive.
The evidence as to her life-style, the events that occur in her households particularly assaults and abusive behaviour, and the evidence of her dealings with the Police, all support a finding that she does not respect the law or the Police.
Ms T made general findings about the mother’s credit in her report as follows:
ISSUES OF CONTRADICTIONS IN THE MOTHER'S ACCOUNTS
There were a number of significant contradictions in various accounts which [the mother] has given to different people. These contradictions include:
1.Although [the mother] claimed she "never" had a relationship with [the father], who was only a boarder and whom she had only slept with a few times, the material available reveals the following:
* On 16.10.95, [the mother] informed D.O.C.S. that [the father] was her "live-in boyfriend".
* 1998, she signed school form as "Mrs. [Asche]";
* All 4 children were known as "[Asche]" on D.O.C.S., school and Police records until recently. It was not until 2003 that [the mother] told the school that [S] was to be henceforth known as "[Martin]".
* When [the mother] filled in a school form for [S], she nominated "Parent Residing in the Home" as [John Asche], nominated as [S’s] FATHER.
2On 1.10.05, [the mother] told the Police that on 22.9.05, the father had attempted to take [the child] from school without permission and this was refused by the School Principal. When the Police checked with the school, this was denied.
3In her affidavit of 22.8.06, [the mother] denied that she has ever told [the child] that [the father] is not his father. She also denied to me that she had made this claim to anyone and implied that [the father] was inventing this. However, her own A.V.O. Application states,
"We have no children together. However, the defendant ([the father]) originally helped me raise my youngest child, […], and my child, […], has his surname, as the father has returned to New Zealand".
In another part of this Application, [the mother] stated that her relationship with [the father] started when she was 7 months' pregnant with [the child] from another relationship.
4.[The mother] has claimed in her affidavits and in the interview with me that her ex-husband was in jail in New Zealand for violence against her. However, she told D.O.C.S. in 1995 that this man received a Life Sentence because of "similar offences against another woman". At the same time, she claimed that [H] had been sexually assaulted by this man (his father). She made no such claims to me, even when she was talking of this man’s alleged sexual desire for their daughter, [J].
5.D.O.C.S. reports that, in 1995, they were given the following history by [the mother]:
"[H] was somehow involved by his father in some of the offences against his mother … apparently [H] has no respect for women in the family and has been taught this attitude by his father and other relatives".
It is significant that, of recent times, [the mother] has always indicated the opposite - that [H] was a joint victim of his father's violence. However, in 1995, [the mother] was quite rejecting of [H] and wanted him removed from the family. This is why she may have invested him at that time with such negative attributes.
6.[The mother] told me of the changes in placement for [H] and [J] between herself and her ex-husband. I enquired in detail about this. However, in 1995, she additionally told D.O.C.S. that [H] had been in foster care in New Zealand following being kidnapped by his father. [The mother’s] account to me was that the father had "kidnapped" them, then immediately held them hostage.
7.[The mother] has adamantly denied that [the father] ever had care of her grandson, [M]. However, the D.O.C.S.' file (9.9.03) indicates that, when the Early Childhood Nurse (E.C.N.) visited [the mother’s] house to monitor the baby, he was not present. [J] told the E.C.N. that [M] was staying at [the father’s] place at […].
8.Both [S] and [the child] told me (separately) that they used to visit their brother, [H], when he was incarcerated at […]. However, in [the mother’s] affidavit of 22.8.06, she claims she did not take the boys there because it was "inappropriate" to do so.
There were other specific instances of the mother making false statements to Ms T. She told Ms T that her former husband, “Cut my fingers off”. This was untrue. She told Ms T that the father assaulted her, “About 12 times”, but the only evidence of assaults related to about 3 alleged incidents.
In June 2005 the mother falsely told hospital staff that the child had been raped by his father.
She alleged to Ms T that when she was in a relationship with P, the father had refused to have the boys for contact in order to thwart the mother and P spending time alone. She also alleged that the father had telephoned P’s parents and told them negative things about the mother, including that her ex-husband in New Zealand would come across and bash P. She alleged that her relationship with P had ended because of this. But there was no evidence to substantiate any of the allegations that she raised regarding these matters. Also, the mother swore in an affidavit on 4 October 2006 that the reason she stopped the relationship with P was that he smoked too much marijuana.
When interviewed on 15 September 2006 she alleged that she had discovered in about 2004/05 that the father was having J (then 14) sell marijuana for him. But she did not adduce evidence of this allegation in her case. She alleged the father was “always threatening me”, and, “asked for custody of all my kids”, but did not offer evidence capable of establishing such allegations. She falsely alleged to Ms T that there had been no interim orders regarding the child.
She told Ms T that there were no orders for handovers to occur at the Police Station, but the orders of 12 December 2005 provided for the handovers to be at the Police Station.
She told Ms T that there were no current orders in force for contact, but that was untrue and the orders of 10 February were still in force.
She told Ms T that she is terrified that the father will contact her ex-husband and “he’ll come and get me”. But she also said that her ex-husband had been given a 25 year sentence. She claimed to Ms T, “But he’ll be paroled soon”, and, “He might be out by now”. She also told Ms T that she did not know where her ex-husband is, and clearly on her version of his sentence, she knew that he was in prison.
The mother falsely denied that the DOCS has been involved with her or her children. The Department has had extensive involvement with H, J and the mother. She also falsely told Ms T that S had not been injured skate-boarding or motor-biking.
She sought to mislead Ms T by understating the problem about S’s absenteeism at school. She was interviewed in September 2006 and at that time would have been aware that S missed about 80 days of school in the 2005 school year, of which most were unexplained.
The mother falsely alleged to Ms T that she has had no contact with her sibling because her ex-husband would find them and this would be dangerous for them. She falsely alleged that she was fearful that he would harm her mother, contradicting other information she had given to Ms T that her mother was deceased. The mother falsely told Ms T that she has no criminal convictions. She was convicted of malicious damage to P’s car. She sought to mislead Ms T when she said that she had been charged with this but not convicted. She knowingly failed to disclose that the Court found the offence proved but released her on a bond to be of good behaviour for 12 months without proceedings to a conviction.
The mother did not make her son H and her grandson M available for interview by Ms T as requested. It appears that she decided to do this in order to avoid what she anticipated would be prejudice to her case if they had been interviewed.
In oral evidence responding to the father’s allegation of the mother going away for a week with P and leaving J in charge of the children, and J left the children unattended, the mother said, “I rang several times per day on [H’s] mobile. I spoke to [H], [the child] and [S] every call”. She did not mention having spoken to J. When she was asked about speaking to J on the phone, she said, “I only spoke to [J] when she was there. I don’t recall how many times I spoke to her.”
In his affidavit the father alleged that so far as he is aware there is no longer any relationship between her former boyfriend, P, and the child and/or the other children. The mother sought to mislead the Court when she swore in her affidavit, “[P] still sees the [other] children”. She was then asked when he sees the children and she avoided the question. When the question was repeated, she replied, “Mainly on weekends”. But when she was asked when the last such occasion occurred, she said it was in 2004.
The father alleged a “make-up weekend was arranged” to occur on the weekend of 16/17 December 2006 because the mother failed to facilitate contact on the previous weekend. In response to that the mother said that she did not agree to a make-up weekend. She said she did not speak to the father. But later she said she was not sure whether she agreed with her lawyer at the time for a replacement weekend.
In response to the father’s evidence that there was contact scheduled for the week from 13 January 2007 to 20 January 2007, the mother said, “It wasn’t arranged”. But when it was pointed out to her that the Orders provided that contact was to occur that week, she then claimed there was some other arrangements.
The father alleged that he was to return the boys to the mother at the Railway Station at 2.30pm on 3 February 2007. He said he was there at that time, but the mother did not arrived until 3.30pm. In response the mother said she arrived there at 1.30pm or 2pm. It appears that she was saying that she went to the station, then left and returned later at 3.30pm. When she was asked whether the father was at the station when she went there the first time, she avoided the question twice and did not answer the question.

In his affidavit the father alleged that on 3 February 2007 when the boys were spending time with him, he asked them, “How do you feel about spending more time with me? I can make it so you don’t have to come?”, and both boys told him, “Its cool. We want to, but you can’t tell Mum because she will go off at us.” In response to this the mother denied she “goes off” at them. She said, “I always tell them its their decision as to whether they go”. This contradicted later evidence when after being reminded of the Court Order she said, “I make them go if there is a Court Order”, and, “I tell them they have to go”.
The mother alleged that she completed a parenting after separation course in accordance with a previous Court Order. But she did not produce any certificate for the provider of the course. She said she had not collected the certificate from the provider and, “I didn’t believe it was necessary for me to have the certificate”. But she acknowledged the certificate had been raised the previous day in exchanges as to whether each of the parties had in fact completed the course.
The father alleged,
In about mid 2005 and on numerous occasions until 9 September 2005 when I commenced the proceedings the Respondent said to me, “In January 2006 (about 6 months thereafter) I selling everything and picking up the children and going on the road to who knows where.”
The mother denied any such statement. But in cross-examination, she conceded that there was a change in her attitude to the father having contact with the boys once he filed his application in September 2005 seeking that the child reside with him. She then volunteered, “I think he found out I was planning to leave [New South Wales]. I was planning to go to Queensland.”
When it was put to the mother then that if she moved to Queensland with the children, S and the child would see less of the father, she did not answer the question.
In cross-examination she denied that the father was a father to S. She said, “He was never there for him”, and, “That’s why there’s no bond”. But Ms T discovered that school records for S disclose the mother as describing the father as S’s father. There is also other evidence which establishes that S did have a positive relationship with the father and also used the father’s surname.
In cross-examination about an incident when her son H was bashed in her home, the mother said she was not there. She said she was at a friend’s place. She recalled the friend’s Christian name but not her surname. She said she returned to the house an hour later. She said that H told her he, “opened the front door and someone burst in and beat him”. She said, “[H] knows who it was”, and, “He dragged [H] out to the gate”. H was beaten. She testified she knew the reason that H was bashed and that H deserved to be beaten. H asked her, “not to get the law involved”. The Police were not called. She did not call them.
She said [H] was 21 at the time and his decision not to have the Police involved was a “sensible decision”. “A 21 year old knows what to … to make up his own mind. A sensible decision. He’s an adult.” She conceded that the assault was a serious crime, but said, “It wasn’t my place to call the Police”. She was very reluctant to disclose information that she knew about the incident.
In relation to the incident in 2000 when gunshots were fired into the front of her home from outside, in cross-examination it was pointed out that she had given different versions about what she and the children were doing at the time. It was put to her that in an affidavit in 2005 she had said the children were asleep, but in a 2006 affidavit, she had stated, “[the child] and [S] were in the same room as me and we were very scared”. She replied, “That was after the shooting”. It was then put to her that she had said in another affidavit that when the Police came the children were “still asleep”, and she replied, “They woke up next morning and were told about it. The Police were there doing finger printing. They weren’t asleep when they came over.” Her versions of the children’s involvement in the incident are inconsistent. It should be noted that she did not call the Police to the incident.
In cross-examination, the mother insisted that J’s boyfriend, K, went to the Police and made a statement about the incident. K was in the room into which the shots were fired and the mother’s evidence is that she believes K was the reason that the shots were fired. Police records disclose that 4 Police vehicles and 6 officers attended the scene after the shooting. Arrangements were made for Kand J to attend the Police Station and give statements. Both of them failed to do so. Police attended the mother’s home to speak to J about a statement and recorded, “He was having second thoughts about making a statement to Police, preferring to handle the matter himself.” The Police warned him about “taking matters into his own hands”, and Police concerns “for other members of the household … if this were to occur.” He then agreed to make a statement and arrangements were made for the Police to collect him at 3.20pm on 15 June and take him to the Police Station to give the statement.
The mother was cross-examined about S’s behaviour at school leading to him being suspended in July 2005. She was shown the letter from the school addressed to her at her home address advising of the suspension. He was suspended for verbal abuse. At the time S was just 13. The letter relates:
At recess [S] was throwing rubbish in the playground and was given a warning by Ms […]. He continued his behaviour and therefore he was asked to pick up papers. Under his breath, but loud enough for the teacher to hear he said \“suck my dick\”. He was asked to keep his comment to himself and he told the teacher to \“fuck off\” and then continued the verbal abuse with \“fuck you bitch\”.
In cross-examination about the suspension the mother said, “All the kids talk like that”. When asked what she meant by “all the kids”, she said that she was referring to all the children at S’s school.
Overall the mother impressed as a person who does not hesitate to be dishonest when she thinks it will assist her. She was an extremely unreliable witness.

THE CHILD

The child turned 11 in June. The mother told Ms T that the child is placid and gentle and not like her other children. She said, “[the child] is quiet, like me.” The father told Ms T that the child is a gentle child and is not easily angered, unlike S. He said that the child is artistic, likes fishing, and will draw for hours. He said the child is not keen on sports. He described him as well behaved and obedient.
The father’s evidence is that in the mother’s presence the child is a difficult child. But with the father, away from the mother, he is well behaved. In answer to questions from me the father said that in the mother’s household the child is exposed to unruly behaviour and criminal activities and conceded that it is likely that the child will become unruly and lacking in boundaries.
He said that when the child is with him he is “very quiet. He does as he’s told. And it’s his nature to do as he’s told.” He said also that since January 2006 he has had the child in his care on about 6 occasions and on those occasions there was no indication by the child that he wanted to run away.
The father’s opinion is that the child is not keen on sport. The mother says that he likes to play sport occasionally at school, but “he’s more of a cerebral child in that he likes to draw and read things.” It appears that the mother has not organised participation by the child in any sporting or other peer group activities outside school.
The mother’s evidence is:
I say that [the child] and [M] have vastly different personalities and sometimes [M] bothers [the child] as [the child] likes to sit and read and be quiet, whereas [M] very much likes to get around and play. I say that [the child] and [S] have their own circle of friends and that [the child] often likes to play with a friend named [D] who lives with his grandparents in our street. [The child] and his friend [D] sometimes go to the park after school to kick the football around together. I deny any allegation that [S] treats [the child] in a poor way. I say that it is true that the two brothers have different interests but they still have a very close bond.
The child attends H Public School. The father said he did not know how the child is doing at school because he has never been given the school reports the mother has promised. The mother lied when she told Ms T the child is doing well at school and that at a meeting with his teacher she was told that the child is good at Maths; is the best artist in the class; has the neatest bookwork in the class; and is “leadership material”. She alleged that she often takes the child to the Art Gallery. There is no evidence offered in the mother’s case as to his academic progress other than the mother’s hearsay evidence. However, Ms T reported: “The mother’s idealised presentation of [the child] being a “star” pupil in his class contrasts with school reports which refer to him as “an average student who tries hard (and) needs encouragement”
In her interview with Ms T, the mother said initially that the child had only missed 3 days in the third term of 2006. Subsequently, she conceded he had been absent for 9 days in that term. If he were absent from school on a similar number of days each term, then he would be absent for about 36 days in the year. It is noted, however, that S was absent from school for 80 days in the 2005 school year and the mother grossly understated his absenteeism. The Court accepts Ms T’s evidence that the school reports indicate significant absences by both the child and S and mostly unexplained.
Ms T concluded from her conversations with the mother that S has been truanting from school in 2006 and the mother was less than truthful about his school attendances in 2006. She reported, “She seems completely unperturbed by S’s school non- attendance and maintains he is doing well. She reported that the child was absent from school for a day or part or a day on 71 occasions in 2005. She said that his attendance record had improved in 2006.
In the mother’s care S has attended 14 different primary schools including 12 in his first 4 years of schooling. The 80 absences occurred in his first year of high school. The evidence does not disclose how many primary schools the child has attended.
On all the evidence it appears that the child enjoys good health. The child suffers from asthma and the mother took him in June 2005 to be treated at the Hospital for asthma. It is of concern that the mother offers no medical evidence in relation to these matters as the evidence does not suggest that the child has a very serious asthma problem, in which case it should be managed by preventative medication and hospital admissions avoided.
Ms W, in relation to the contact she supervised on 27 January 2006, reported that she spoke to the boys before the session. S was quite silent during this and the subsequent contact session, answering only when he was asked a question. The child, however, was “highly vocal in a very negative fashion. He continually repeated, as if a mantra, that he did not wish to see his father.” On at least 20 occasions he told Ms W that he did not want to see his father as it was too boring spending time with him.
He also said he wanted to remain with his mother as he liked staying with her. When he was directly asked by his father how this sudden change had come about, because the child had appeared to enjoy visits with him, the child responded it was because his father was “putting Mum through this court case”. He mentioned the court case numerous times. He said he ran away from his father because his father had put his mother through the court case and said, “That’s why Mum said, ‘That’s what you get for putting me through this court case’.”
At times S nudged the child when it appeared the child may be going too far, such as when he said that the father was a liar, but could not remember what it was his father had lied about.
Ms W said there was no doubt about the intensity of the child’s feelings, in particular his desire for his mother and him to be happy together. He trembled when he said, “We like staying with Mum”. Other than these types of interactions, she said there was no interaction between the child and his father during the entire hour of supervised contact. At the end of the hour both boys declined to hug the father, but shook his hand and the father took the opportunity to tell them both that he loved them. Both children told Ms W that they were going to change schools when school resumed.
Ms W reported of her observations of the contact session on 3 February. There had been no contact between the father and the boys in the intervening period. Ms W said that S is obviously very polite and sensitive and he found it difficult to be rude. He said he had decided to remain at his current school, A High School.
S told Ms W and the father that the father is not his natural father and he does not want to visit him. The father replied, that he had known S since he was a small boy and regarded him as his son and told him that he did not have to come if he did not want to but that he (like his elder brother and sister) would always be welcome. The father made it clear that S did not have to choose sides and the father expected that S would always continue to love his mother.
Ms W considered that S found the situation difficult and moved to a different section of the children’s room where he painted and used his mobile phone, possibly to play a game and perhaps to send text messages.
The child, however, became more directly rude and demanding and included Ms W in his comments. The child was told before the meeting that there was no point in continuing with his same chant about not wanting to see his father or not wanting to leave his mother because, “He took her to court”. Ms W told him that if he wished he could tell the writer that he did not wish to (which he did) and this would be reported to the court. She said he could also tell his father if he wished, but after that he could have a more pleasant time, play a game or have a polite discussion.
However, the child became more progressively rude saying he hated his father because “he is smelly, never has a shower and stinks of smoke”. He said he was going to leave the room. When he was told clearly that he could not because it was a Court Order for him to stay and he was prevented from leaving, he and S insisted that they had been told they could leave. They said they had been told that by the mother’s solicitor. The child said, “Mum’s solicitor, Bill, said that we could just walk out”. S disagreed and said, “He said something”. Ms W spoke to the mother’s solicitor briefly later and he advised that he had no direct conversations with the boys and had not advised the mother at any time that it would be a proper course for the boys to adopt to say that they wanted to leave.
The child later resumed talking about the boredom of his father’s house and dislike of the court case. He said to his father, “Don’t you get it [John]? We hate your guts.” He spoke most of the time in the first person plural.
When the father reminded the child of conversations they had together in July 2005 when they used to tell each other that they loved each other more than the other did the child said, “We would be happy if you just stopped following us and get on with your life and leave Mum alone and stop this court case”. He said that his father was “.. only doing this because you are jealous of Mum and [P]. Why are you trying to break them up”. The father denied he was doing that and said that P was a good man. He denied any wish to re-unite with the mother. He also denied to the child allegations by the child that the father was always “bashing my Mum up”.
When the children left a few minutes early they refused to shake hands with the father. As they were leaving, in earshot of his mother, S said rudely to the father that he has never been his father and never would be and he did not wish to visit him.
Ms W observed that at no time did either boy display any fear of the father.
Ms W concluded as set out earlier that the child (then 9 years of age) was not mature or sophisticated for his age and was “clearly talking from a script, but a script in which he believes”. She found he is very attached to his mother but she could not say whether it was a secure or insecure attachment. She mentioned that his comments about wanting to stay with his mother and kiss her and hug her, and the implicit notion that his mother’s love would be threatened by any visit he might make to his father suggested that his attachment to her is insecure.
Despite Ms W’s suggestions that the father be permitted to send cards, gifts and other correspondence to the child and S and the mother arrange for the child to telephone his father at least briefly once a week to inform him of his progress at school and listen to any invitations that the father might give to the child, it appears that neither recommendation has been implemented by the mother. It appears that all indications the mother has given to the child, whether by conversation or conduct, have been that it would be contrary to her wishes if the child spends time with or communicates with his father.
Ms W said in the recommendations to her report: “[The child] might easily change his mind and wish to visit his father if he thought that this would please his mother”. But the evidence establishes that the mother has not given any indication to the child to suggest otherwise than that she would be very disapproving if he did communicate with or spend time with his father.
From her interview of the mother, S and the child together, Ms T reported that both boys were “highly compliant, even obsequious, to their mother.” She said that the child in particular was hyper-vigilant of the mother, “constantly looking at her and relying on her for cues for how he should respond. He always looked to his mother before answering questions I asked and then repeated the question to his mother before she would answer for him.” This happened even when they were talking about where and when they had been on holidays and other benign topics.
With the father, Ms W noticed that he, “did most of the talking and the boys NEVER talked spontaneously but only when asked to do so”.
Ms T said the mother talked in a highly idealised way about what she could offer the children and about her parenting. She also spoke idealistically about both boys. In front of the children she made negative statements about the father.” She said the child had acquired his artistic bent from his mother. When Ms T asked him, “What do you get from your Dad?”, the child immediately and confidently replied in a non-stop manner:
Nothing! He’s always in bed, pretending to be sick. He tells us to go down the road and play with the kids. He tells me and [S] off. Mum never yells at us. Mum only disciplines us by not letting us play games.
When he stopped the mother said to him, “You don’t have to tell the lady about that, but its up to you.”
The mother told Ms T that the child is so insecure that he asks to sleep with her.
Ms T asked about the boys’ Maori background and how much they were involved with this. She replied:
It’s up to the children. We don’t have that cultural background. It’s not an important issue over here. There was no stigma placed on us. My mother is Maori and my father is an Islander. I grew up like any other child. My children never wanted to know about that side. They decide what they want to do.
The children did not involve themselves in that conversation.

When she was asked how the Court could make her change to demonstrate trust and respect for the father, she replied, “I’d do that to make sure I kept [the child]”. She submitted that the relationship problem between he and the father is “He wants me back. He is controlling of me.” She said it was not her fault that she has not promoted the child’s relationship with his father and their contact.
She said that she wants the child to continue living with her and she wants a second chance to prove herself.
The previous day in her evidence, I had asked her how the Court could have any confidence that she would do anything different if the child stayed with her and the Court ordered that he have contact with his father. She did not respond. When the question was repeated and she was asked whether there was any reason the Court should have any confidence in her, she replied, “Because I love my son”. I put to her, “But you’ve loved him all the time and you still weren’t able to do it?” But she did not answer the question and instead said, “It will kill [the child] if you take him away”.

RELEVANT LAW

The objects of the children’s provisions of the Act are set out in Subsection 60B(1) which provides:

(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Subsection 60B(2) provides:

(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Subsection 60B(3) provides:
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i)       to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)      to develop a positive appreciation of that culture.
Subsection 60CC provides:
Determining child’s best interests
(1)      Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)      The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)      Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)      the nature of the relationship of the child with:
(i)       each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)       each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i)       the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

SUBSECTION 60CC(3) FINDINGS

The findings under subsection 60CC(3) are as follows:

a) Expressed wishes of the child

The child has expressed wishes not to spend time with the father. But on all the evidence that view was expressed in order to demonstrate loyalty to the mother because of the child’s awareness of her strong hostility to his father and is not the child’s genuine wish. On the evidence the child enjoys spending time with his father when not under the scrutiny of the mother or a person likely to report that to her.
In any event, little weight could be placed on the child’s views as they are unlikely to reflect any real understanding of the complexities of his and his parents’ circumstances or any careful consideration of the short and long term implications of the options.

b) The child’s relationships

The child’s strongest relationship is with his mother. It is not a secure relationship. The child is anxious to please his mother and retain her affection and attention. It is also a perverse relationship because contrary to the child’s interests it exposes the child to her strong hostility to his father and also exposes him to lawlessness, violence and other abuse by the mother and others.
The child’s relationship with his father is a positive one but is frustrated by the child’s anxiety that he not demonstrate to his mother, or others who would report to her, disloyalty to her hostility to the father and to what her perceives is strong opposition to him seeing his father.
The child also has a close relationship with S and it appears to be mutually positive and supportive. However, S is not a good role model because of his anti-social behaviour, his truancy and his difficulties at school.
The child’s relationships with H and J are less significant to him, but damaging to him because of their use of abuse in their dealings with other and the bad role models they are.

c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent

Subsection 60CC(4) provides:

4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The father has the willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent. The mother has demonstrated that she does not, and that she is likely to undermine and frustrate the child’s relationship with his father. The father has taken the opportunities he has had to spend time with the child. The mother has failed to facilitate the father participating in decisions with the child, spending time with the child and communicating with the child.

d) Likely effect of any changes including any separation

If the child resides with his father he is likely to enjoy in the long term benefits of better parenting in numerous ways. In the short term he may miss his mother and S, but this is unlikely to be long term if he has reasonable time with them.
A complete separation from his mother and members of her household for an initial period is likely to cause the child some unhappiness or even distress. But this is far outweighed by the benefit to him. It will avoid the influence of the mother and members of her household, the mother’s undermining of the father, his care of the child and their relationship, and also provide the child with some normalcy and stability after the change.

e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis

If the child continues to live with his mother her hostility to the father and her inability to recognise the child’s needs to spend time with the father and have a close relationship with him will prevent those needs being met.
If the child lives with his father and his time spent with the mother is supervised, the nature of her problems dictate that the supervision should be by a contact centre. The limited availability of such services in the Newcastle area, the high demand, and the waiting lists mean that such a centre is unlikely to be willing to provide such supervised time for periods of more than about 4 hours at a time or more often than weekly. Even if such services were available for longer periods or more frequently, it would not be in the child’s interests to have greater frequency or longer periods.

f)Capacity of each parent and any other person to provide for the child’s needs

The father has an ongoing addiction to Antenex. Given the length of time he has been taking prescribed drugs for anxiety/depression it may be that he has also developed a physical dependency on one or more of the other medications he takes. There is no medical evidence as to any effect of his medications on his parenting capacity. The child’s interests will be best served if there are orders requiring the father to undergo an assessment by a drug and alcohol service and undertake any drug rehabilitation recommended.
The mother’s parenting capacity is severely limited by:

Her lack of insight into the child’s needs to spend time with his father and have a close relationship with him;
Her lack of insight into the adverse effects on children of exposure to violence and other abuse;
The use of violence and abuse by her, other members of her family and their associates;
The poor role model she provides because of that and also because of her lawlessness, her disrespect for the law, court orders and the Police, and her dishonesty;
Her lack of understanding of the importance of education for children and the damage to them occasioned by unnecessary absenteeism, and changes of school;
The level of chaos and instability she permits or causes in her household;
The inadequate capacity to recognise the child’s needs, particularly his emotional needs; and
Her inability to distinguish the child’s needs from hers and give priority to his needs over hers.

g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child

As a male child the child needs a close and positive relationship with a suitable adult male role model. There is no suitable male role model in the mother’s household. Indeed, as role models H and S provide negative examples to the child. The father has some problems, but will provide an adequate adult male role model for the child.
The lifestyle of the mother is chaotic. It involves instability, frequent aggression and conflict, lawlessness, and frequent violence and other abuse. Such a lifestyle is stressful and toxic to the development of a child.
The child is a Maori child of Maori appearance. The mother, her other children, and M, are all Maori, and it appears all of Maori appearance. The father is not Maori and not of Maori appearance. The mother associates with some of the local Maori community, including it appears, the man who came to her house at her request and bashed H. The evidence does not disclose that the mother and members of her household participate, in any significant way in the household or elsewhere, in Maori cultural activities or that the mother has involved herself or any of her children in any Maori history, art, music or other area of Maori culture. Nor does she propose to do so.

Attitude to the child and the responsibilities of parenthood

Subsection 60CC(4) provides:

4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child; and

(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and

(ii) spending time with the child; and

(iii) communicating with the child; and

(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

The father’s past attitude to the responsibilities of parenthood have been less than adequate. He has been aware of the appalling environment the mother’s care provided the child but it was not until about 7 years after he left the home that he commenced proceedings for the child to live with him. Obviously his problems of anxiety and depression and the mother’s forceful, aggressive, and abusive nature, contributed to this. Also, his ignorance of various events, the details of events, and matters concerning the child and the other children would mean he would not know the full extent of the negative impacts on the child in her care.
Clearly the father’s attitude to participating in the child’s life by participating in decisions, spending time with him and communicating with him was adequate.
The mother’s attitude to the child and to the responsibilities of parenthood are inadequate in the following ways:

She does not recognise her responsibility to address the child’s need for his father to participate in his life by being part of decisions about the child, spending time with the child, and communicating with him;
She cannot give priority to the child’s needs over her own, particularly her need to pursue her hostility to the father and conflict with him;
She does not recognise her responsibility to address her children’s needs for school education, regular school attendance and avoiding changes of school;
She has no insight into the adverse consequences for the child (particularly emotional) of her open hatred of his father and does not recognise any responsibility to the child to respect his father, and co-operate with him in parenting the child;
She proved impervious to the Parenting After Separation course designed to improve parents’ insight into their children’s needs, the adverse effects of ongoing parental conflict on children, and how to manage the relationship with the other parent and avoid or minimise conflict. She does not recognise any responsibility to the child in those areas;
She does not recognise the danger to the child of inappropriate role models who use violence and other abusive behaviour in their dealings with other people and does not recognise any responsibility to the child to protect him from exposure to such examples;
She does not recognise her responsibility to ensure her children have proper supervision and care;
She does not recognise any responsibility to provide the child with an example in terms of honesty, and respect for the law, the courts and the Police; and
She does not recognise her responsibility to make parenting decisions about the child such as the time he spends with his father and has instead abdicated that responsibility to the child despite the obvious conflict of loyalty, stress and anxiety that has involved for the child.

j) Any family violence

The violence and other abuse has been described.

k)Any family violence order that applies to a child or a member of the child’s family

It appears that there is still an Apprehended Violence Order against K for the protection of the mother and the restrictions under that Order include for him not to attend the mother’s home.

l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child

It is likely that if the child continues to reside with his mother there will be further proceedings in relation to him either by the father, by DOCS in its welfare role, or by the Police in relation to criminal charges against the child as a minor.

If the child lives with the father, given the mother’s nature, there is some prospect of further proceedings being initiated by the mother under the Family Law Act.
There is less prospect of further proceedings regarding the child if he lives with his father.

PRIMARY CONSIDERATIONS

The findings as to primary considerations under Subsection 60CC(2) are:

a)The benefit to the child of having a meaningful relationship with both of the child’s parents

If the child has a meaningful relationship with his father he will know his father better, he will have a better sense of his own identity and it will benefit his self esteem and self confidence from having the support of his father’s love.
He will not have such a relationship if he continues to live with his mother. But if he lives with his father, the father will provide the opportunity for the child to continue to have a meaningful relationship with the mother.

b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

The child needs to be protected from physical and psychological harm from being subjected to and exposed to neglect, family violence and physical, verbal and emotional abuse which will continue to occur if he continues to live with his mother.
If the child lives with the father, his time spent with the mother should be supervised by a contact centre and there should be an order restraining the mother from communicating with the child outside the times she spends with him, as she is likely to use such occasions to undermine the father, the child’s relationship with his father and the child’s parenting by his father.

PARENTAL RESPONSIBILITY

There is an issue as to parental responsibility.

Section 61DA of the Act provides:

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)      family violence.
(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

The present situation is that pursuant to Sec.61C of the Family Law Act, each of the parents has parental responsibility for the child.
Given the mother’s nature, if the child lives with her, there should be an order for the parental responsibility in relation to major or long term issues, to be joint. Otherwise the mother will not involve the father at all.
If the child lives with the father, the responsibility for such decisions should not be joint, as the mother’s aggressive and abusive nature and her hostility to the father would result in her using occasions when the father consulted her about such issues, to pursue conflict with him. If the child lives with the father, the father should have sole responsibility for those decisions.

OTHER CONCLUSIONS

The child’s interests are best served by orders providing for:
1)The child to live with the father.
2)The mother to have parental responsibility for decisions as to the child’s day to day care while he is spending time with her.
3)The father is to have sole parental responsibility for all other decisions about the child.
4)Subject to an initial period of the child spending no time with the mother and having no communication with her, the child to spend time with the mother for a period of about 4 hours one day per week supervised by a contact centre. It would be hoped that in the future the mother’s situation and attitudes might improve to the extent that supervision is no longer necessary.
5)For the personal protection of the father and the child, the mother to be restrained from
·assaulting, molesting, harassing, stalking, abusing, telephoning or otherwise interfering with the father;
·entering or loitering at or with 50 metres of any school the child attends or any premises where the father and the child reside;
·communicating with the child outside the times she spends with him;
·causing or threatening to cause bodily harm to the father or the child or conspiring with anyone else to do so.
6)The father to attend on Dr L for the purposes of Dr L:
a) assessing the father’s use of prescription drugs since Dr L’s report of 27 May 2003 including his use of Tofranil, Antenex, Luvox, Neulactil, and Valium; and
b) making recommendations regarding detox/rehabilitation;
7)The father to comply with those recommendations;
8)The Department of Community Services to be provided with a copy of this Judgment and the report of Ms T and requested to provide support to the father and the child.
9)The child’s school to be provided with a copy of the Judgment.
10)The father to authorise any school the child attends to provide the mother with any information she requests regarding the child’s schooling and progress.
11)The father to authorise any medical practitioner the child consults or who examines or treats the child to provide the mother (at her expense) with any information she requests regarding the child’s health.
12)An order under Sec 65L of the Family Law Act for appointment of a Family Consultant to supervise the parents’ compliance with these orders. It is desirable that the child and the father have the support such an order would provide.

_____________________
The Hon Justice Mullane
Date:27 September 2007

[2007] FamCA 1148

27 September 2007

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing

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