B and S
[2006] FCWA 126
•8 DECEMBER 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | B and S [2006] FCWA 126 |
| CORAM: | PENNY J |
| HEARD: | 20, 21, 22 SEPTEMBER 2006 |
| DELIVERED: | 8 DECEMBER 2006 |
| FILE NO/S: | PT 548 of 1997 |
| BETWEEN: | B |
Applicant/Father
AND
S
Respondent/Mother
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Catchwords:
Children's issues - father's application for child to live with him - mother's conduct such that father could not have meaningful relationship with child - long standing status quo in favour of mother - child and mother have enmeshed relationship - child to live with father
Legislation:
Family Court Act 1997 - s 66, s 66A, s 66C(2), s 66C(3)
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Mr J Hedges |
| Respondent: | Mr M Berry |
Independent Children's Lawyer: Ms L Young
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Solicitors:
| Applicant: | A J Hosken & Co |
| Respondent: | Laird Klimek & Associates |
Independent Children's Lawyer: Legal Aid WA
Case(s) referred to in judgment(s):
Nil
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1 [A], now aged 11 years, has been the subject of continuous conflict between his parents since [B], the father, and, [J] the mother, separated in 1996. [A] has lived with [J] since separation. [B] has been determined to maintain a relationship with him, but this has come at a significant cost to [B], [A], [B]’s other children and his partners.
2 [J]’s negative attitude to [B] has not abated over the years. She is convinced that he has been violent and abusive towards [A] and that he does not properly supervise [A] when in his care. [A] has been exposed to highly conflictual situations between his parents at handovers. He has also been exposed to [J]’s conflictual style of dealing with the world, including the police, neighbours and [A]’s school.
3 In 2005 [B] determined the only way he could have a normal father/son relationship with [A] was if [A] resided with him. He made an application to this Court to obtain such an order. [J] opposed the application. After hearing the evidence in September 2006 I took the unusual step of ordering the immediate change of the residence of [A] so that he now lived with [B]. In the short term, [J] was only to spend short periods of time with [A], and that time was to be supervised. I did this despite being aware that to move [A] from [J]’s care would cause significant short-term trauma to him, and have devastating consequences for [J]. Obviously, such a decision was not taken lightly. These are my reasons for that decision.
Short history and background of the parties and the relationship
4 Before [B] met [J] he had been married to [L]. They had one child, [N], born on 1 January 1989. [L] died in January 1992, leaving [B] to care for [N], who was then three years of age. [B] and [J] met in 1993 and commenced living in a de facto relationship on [B]’s family [rural] property [in the country] in March 1994. Their son, [A], was born on 4 February 1995, when they were residing [in the country]. The relationship of [B] and [J] was not a happy one. [J] was suspicious of his activities and believed he was having relationships with other women. She says that [B] was violent to her. [B] says he found [J]’s suspicions and
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paranoid behaviour very difficult and she was aggressive towards
himself and others.5 In September 1996 he was told by his great aunt, [MS], that [J] had been hitting [N]. [B] and [N] left the residence [in the country] immediately and resided with friends in the [surrounding ] area. [J] was asked to vacate the [property] within two weeks.
6 The first contact order in favour of [B] was made on 26 February 1997 whereby it was ordered that [B] was to have contact with [A] from 1 March 1997 each weekend from 9.00 am to 5.00 pm on Saturday and Sunday, and from 1 August 1997 each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday.
7 In 2000 a further application was filed by [B] seeking orders in relation to school holiday contact. The matter was resolved by consent. A further application was filed by [J] on 27 September 2001, and [B] filed a response. Further court proceedings in relation to contact took place in 2002. In December 2002 orders were made in relation to [B]’s supervision of [A] for holiday contact.
8 In 2003 orders were made by consent that [B] have alternate weekend contact which was to commence on Friday afternoon and cease at school on Monday morning. He was also to have contact for half the school holidays. During 2005 there were a number of applications filed resulting in the trial which took place in September.
9 After the parties separated [B] had a relationship with [Ms C]. They have a child, [T], now aged 6 years. [B] and [Ms C] are now living separately. [T] resides with [Ms C]. [B] and [Ms C] still have a good relationship and [B] has contact with [T] each alternate weekend when [A] is present. Because of [J]’s conduct, [Ms C] was forced to obtain a restraining order against her on two occasions. In 2005 [B] obtained a Violence Restraining Order against [J]. This order related to abusive and threatening phone messages [J] had been leaving on [B]’s answering machine.
10 [J] has been in dispute with a number of people apart from [B] and people associated with him. She has made numerous complaints to police about noise from neighbours’ properties in the street. One neighbour obtained a restraining order against her. She was involved in a physical altercation with a neighbour in a restaurant. She has been in dispute with the school, who issued a prohibition order restraining her from attending at the school, except in certain circumstances, for 60 days.
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| 11 | The police have been involved on a number of occasions in disputes between [J] and [B], particularly relating to contact. |
Credibility
12 A number of witnesses were called to give evidence about the conduct of [J] from 1995 to the present. Some of the witnesses were [B]’s family members, or had been in a relationship with him. Others were police officers who had attended [J]’s home on a number of occasions and officials of the [local] City Council and the Department for Community Development, who had also been involved in complaints and allegations made by [J].
13 At the commencement of the police evidence and the evidence of the witnesses from the [local] City Council, Mr Berry, counsel for [J], made a concession that [J] acknowledged several incidents had occurred where the police had attended her home. She accepted her behaviour at these times was unacceptable and she regretted it. She also acknowledged that the incidents were not in the best interests of [A] and the parties.
14 In reality, [J] disputed much of the evidence given by the police and, in particular, any evidence given by them which was detrimental to her. Except where there was some independent evidence of it, for example, the telephone messages she left on [B]’s phone, she disputed most of the evidence given by [B] and his partners [Ms C] and [Ms S]. She also disputed evidence provided by the school by way of their notes when the prohibition order was placed upon her.
15 There was generally no acceptance by [J] of the seriousness of her behaviour or, in fact, that the behaviour occurred at all. In addition, she was quick to blame others for the incidents which occurred and took little responsibility herself.
16 Where there is a dispute between [J] and the husband, his witnesses and those independent of the parties, I prefer those witnesses’ evidence to that of [J].
The law
17 Part 5 of the Family Court Act 1997 sets out the matters I must take into account when making an order in relation to children. S 66 of the Act sets out the objects of the part relating to children and the principles underlying them. Two of the important objects of the children’s legislation, which are particularly relevant to this matter, are:
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| (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 | ||||
| 18 | In determining whether to make a particular parenting order, in this case an order as to the parent with whom [A] should live with and the time he should spend with the other parent, I must regard [A]’s best interests as my paramount consideration, s 66A of the Family Court Act 1997. How I determine what is in the child’s best interests is set out in s 66C(2) of that Act. The primary consideration when determining what is a child’s best interests are: | |||
| ||||
| 19 | Both these matters are relevant considerations in my determination of this matter. [B] says that [A] cannot have a meaningful relationship with him while he resides with [J]. He says that if [A] resides with him, he has no difficulty with [J] having a meaningful relationship with [A], provided that she does not undermine [A]’s relationship with him. | |||
| 20 | [B] submits that unless [A] is removed from the environment in which he resides with [J], which he says is categorised by [J]’s aggressive and antisocial behaviour, [A] will suffer psychological harm. There is support from the Single Expert, [Ms T], for this proposition. She described in her evidence an enmeshed and unhealthy relationship between [A] and his mother. I shall return to this later. | |||
| 21 | As stated previously, [J] says that she is now prepared to ensure that [A] does have a meaningful relationship with [B]. She says the effect on [A], should he be separated from her, will be that he will suffer from psychological harm and, therefore, he should continue to live with her. | |||
| 22 | The primary considerations are not the only matters I need to take into account. Other additional considerations are set out in s 66C(3). In my view, it is important to look at these considerations, not only to see how they impact upon the primary considerations, | |||
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| but to see whether any of these additional considerations impact upon my decision. | ||||
| (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; | |||
| 23 | [J] says [A] has said to her that his father is rough with him, he is lonely when he is on contact with his father and he has difficulty fitting into the family situation with both [N] and [T] being present when he has contact. | |||
| 24 | [A] was interviewed by [Ms T]. He told [Ms T] that he found his father’s parenting difficult to deal with as in his household he is one of three children and is required to do chores. He stated he felt lonely at his father’s home, as [N] was often with her friends and ignored him. [T] jumped around his bed and annoyed him. He felt better at his mother’s home where there was just he, a dog, a cat, a budgie and his mother. [A] stated that he wanted to continue his contact with his father each second weekend, but from Friday afternoon to Sunday afternoon, rather than extending to Monday, as it is at the moment, because he misses his mother so much. He also said he would prefer slightly shorter holidays with his father. | |||
| 25 | On 11 September 2006, Mark Proud, Clinical Services Coordinator at Legal Aid WA, interviewed [A]. In that interview [A] described a close relationship with his mother and stated the only thing he would change about living with her is that he would like to spend more time with her if he could. When [A] was asked to imagine living with his father and [N], he stated that he would feel a bit sad because he would miss his Mum a lot and it would not be as much fun with his father as with his mother. | |||
| 26 | In this interview, [A] stated that he would like to reduce the time that he spent with his father to every third weekend instead of every second weekend, and he wished to spend more than half the school holidays with his mother. If he were to change residence and live with his father, he would want to see his mother every weekend and for more than half of each holiday. |
27 [A] has consistently expressed a strong wish to live with his
mother.
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| (b) | the nature of the relationship of the child with: | |
|
28 When [A] was interviewed by Mr Proud, he stated he had a very good relationship with his mother. There was nothing he could nominate that he did not like doing with her. He thought that they had a very close relationship and had a lot of fun together. If he was asked to change one thing about her, he stated he would make her even more loving than she presently was.
29 At the same time he was asked to comment upon his relationship with [B]. Mr Proud observed that there was some ambivalence about it. He described a range of activities he enjoyed doing with his father, but said he did not like it when he got angry for no reason. The best thing about his father was that they could have fun together and he thought the worse thing was when he got angry and kicked him up the bum. He said the latter had occurred only a few times, and not recently, and had occurred in the context of him being tardy doing some chore. He described his relationship with his father as not as good as with his mother, and said that his Dad yelled at him and was a bit impatient.
30 [Ms T] describes [A]’s attachment to his mother as positive and intense. Again, when interviewed by [Ms T] he saw no difficulty or negatives in the relationship. He stated that he misses her when he goes to his father’s, and that she misses him, and that she is very lonely. [A] said it bothers him that she is lonely and he wants to care for her. He acknowledged that sometimes he was like a parent to his mother. [Ms T] confirmed that this is age inappropriate and that it is “pressuring” for a young child to feel responsible for his mother’s emotional wellbeing.
31 When discussing his father, he again described his father getting cross. He stated he found his father’s parenting difficult to deal with. The interaction between [A] and [B] was observed as somewhat distant and physical affection was not observed by [Ms T]. I do, however, accept the evidence of [B], [N] and [Ms C] that [B] does show physical affection towards [A].
(ii) other persons (including any grandparent or other
relative of the child);
32 When interviewed by [Ms T], [A] reported a positive connection to his maternal grandparents and uncles, who he rarely sees, as they live in Melbourne. He revealed his positive feelings towards these fairly distant persons prior to revealing his positive
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attachment to his mother, father and two half siblings. [A] also described a positive relationship with his mother’s friend, [N], and said that he sometimes sleeps over at [N]’s home.
33 While [A] enjoys the contact he has with his older sister, [N], and younger sister, [T], he has difficulty fitting into this family situation. At his mother’s home, he is the centre of attention and finds life to be a lot easier.
34 When interviewed by Mr Proud in September, he described his relationships with his sisters in a manner which was predominantly positive and age appropriate. He stated that they were of medium importance to his life, and were peripheral to his day-to-day life.
35 [N] describes a close relationship with [A] and says that [A] and [T] both spend time on her bed in the mornings when they are there on contact, and play with her. She says they also ride motorbikes together, cook, play chess and go the fruit market. While acknowledging that she and [A] have different interests, it appears they still have a close relationship.
| (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; |
36 [J] has been obstructive and interfered in [B]s’ contact with [A] since separation. In December 1998, [B] was in the car with [Ms C], [N] and [A], and was returning [A] at the end of contact. He parked at a delicatessen near [J]’s house. [J] approached the car and decided she would take [A] from the vehicle rather than have [A] delivered to her home. [Ms C] states that [J] was screaming to get [A] out of the car. [B] complied with that request. When [B] stepped to the back seat of the car to lift [A] out of the car, [J] came to the passenger side of the car and proceeded to yell at [Ms C], stating that she was “turning [A] and [N] against her and how [she] was a slut”. She lunged forward into the car, as if to cause a physical threat to her. [B] put [A] down and grabbed [J]’s arm. She continued to yell hysterically, and [B] held her arm against the door. [Ms C] stated that [J] then kicked the back of the car as she was leaving, causing damage to a car light of $180. She stated [N] was very distressed as a result of this incident. Both [N] and [B] gave similar evidence in relation to this incident.
37 [J] states that she went up to the vehicle to get [A]. She denied that she was screaming or that she lunged at the car. She stated that [B] slammed the door on her arm twice, and that she did
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not kick in the light. After this incident [Ms C] obtained a restraining order against [J] restricting her ability to come near her. [J] says that as far as she was concerned, there was nothing done by her which would have resulted in the issue of a restraining order.
38 I accept the evidence of [Ms C], [B] and [N] in relation to this incident, and accept that [J]’s behaviour was uncontrolled and aggressive and she was prepared to act in this manner in front of both [A] and [N] without any concern for their wellbeing.
39 [Ms C] gave further evidence about [J] leaving threatening messages on the answering machine at [B]’s home, when he was away, threatening to come to the house and “sort her out”. There were also times when [J] would call the house up to 40 times over a weekend leaving aggressive messages on the answering machine.
40 On 6 May 2001, [B] collected [A] for weekend contact and told [J] he was going to [the beach] the next day with the children for the weekend. Around this time a child had been abducted at the beach]. At 7.00 pm [J] rang [B] concerned that [A] was going to be abducted if he was taken to [the beach]. [B] assured her that this would not happen. [J] continued to call and insisted that [B] hand [A] back and cancel any contact. At 11.00 pm [J] rang and said she was coming over to pick up [A]. She was told by [B] not to come and that the police would be called if she came to the property. At 1.30 am [J] knocked on the front door. The car in which she was a passenger faced the house and the lights were shining into the living room. [J] was yelling, wanting to be let in and get [A]. [B] refused to let [J] in and she left approximately 10 minutes later.
41 [J]’s view of this was that she rang at 7.00 pm and expressed concern about [B] taking [A] to [the beach]. She said that she had concerns because [A] had left for contact looking ill and distressed. She confirmed that she was aware that [B] did not like her interfering in his contact time, but rang at 11.00 pm anyway, as she wanted to check if [A]’s condition had deteriorated. She confirmed she came to the house at 1.30 am. She accepted that her attendance was not in [A]’s best interests. [N] stated that he attended with [J] on that occasion. In retrospect, he acknowledged that it was not appropriate and it should not have happened. [Ms C] obtained a second restraining order against [J] as a result of this incident.
42 At the beginning of 2002 [B] was to take [A] [north] for a holiday. [J] drove [north] and looked at the accommodation [B] was to stay in. She brought an application that [B] had to personally supervise [A], as she said that [B] could not see [A]
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from his accommodation if he crossed to the beach. An order was made that [B] had to personally supervise [A] during the period of contact and if he was unable to do so, then [A] had to be supervised by an adult. [B] states that [J] illegally entered his premises and inspected the home. She denies that this occurred.
43 In January 2002 [B] went [south] with his family, including [A], to see family members. Before [B] arrived [J] had rung his parents on a number of occasions. She was eventually told not to ring again because of her abusive comments. [B] says that [J] phoned at least 10 times per day while he was [down south]. I accept that evidence.
44 In January 2003, [B] was holidaying at [a resort] with [Ms C] and his children [N], [A] and [T]. He informed [J] that he was going to [the resort]. On the day they were leaving for [the resort], [B] received a phone call from the [the local authority] advising that someone had rung wanting to know where they were staying. [B]’s address had been given to the person who rang. On arrival at their accommodation at [the resort], the police came to see him. They had been sent by [J] who had asked them to talk to [B] in relation to [B]’s care of [A]. [B] stated the children were confused as to why the police had come to their holiday home and he explained to the children, in order that they should not be fearful, that it was a routine procedure.
45 [J]’s view of this incident is that [A] had asked her to ring him when he got to [the resort]. She said she rang the [local authority] and was advised the only people who could give a message to [A] would be the police. She thought it was appropriate that the police go to see [B], [A] and the rest of the family.
46 I do not accept [J]’s evidence in relation to this incident and accept that she wanted to interfere with the contact time [B] was having with [A] by having the police attend and potentially embarrass him in front of others.
47 In 2004 [A] was attending a birthday party of a child by the name of [SM]. [SM] was a friend of [A]’s who lived near [B]’s home. The party was at [a fun fair] in [a regional centre] and was for six of [SM]’s friends, including [A]. [Mrs M], the mother of Stephen, gave evidence about the party. She stated she, her husband and the venue manager were in attendance. After she was there for approximately 20 minutes, [J] had phoned the venue and asked to speak to her. She stated that [J] was upset and said that she knew what these places were like and that anyone could take
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her son. She was concerned he was going to be abducted. Mrs [M] attempted to allay her fears, but [J] was persistent and Mrs [M] eventually hung up on her. Subsequently, [J] phoned the venue several times and spoke to the manager. The manager told Mrs [M] that [J] may come to the venue to get [A]. As a result, Mrs [M] phoned [B], who came to pick up [A] early from the party.
48 Also in 2004 there was an incident when [B] was having treatment for throat cancer. He took his father with him to collect [A] for weekend contact. He had been released from hospital on that day. He put [A] into the car and shut the door. [J] opened the door to get [A] out of the vehicle and [B] yelled at her to leave him alone. [B] got out of the car, grabbed her arm to remove her from the car and told her to get away. [J] then hit [B] with her left and right fists to the chest and shoulders. [B]’s father yelled out to [J] to leave [B] alone. [J] then stopped and [B] drove off. [J] subsequently made a report to the [local] Police Station that [B] had assaulted her. After speaking to [B] and [B]’s father, the police took no further action in relation to this complaint.
49 This incident occurred because [J] had refused to pack [A]’s mouthguard, which he needed to play football on the weekend. It was her intention to come to the football and give the mouthguard to [A] the next day. [B] had told her that he would not let [A] play football without the mouthguard. Because of this, she had attempted to remove [A] from the vehicle. She stated she decided that she would not let [A] go on that occasion and was attempting to get him out of the car. It is obvious to me that [J] was using the mouthguard and any other excuse she could think of to interfere with the contact [B] had with [A] on the weekends.
50 In January 2005 [J]’s obstruction of [B]’s contact became more serious. In January 2005, after [B]’s holiday contact, [J] made an allegation that [B] was assaulting [A] to the Department for Community Development (“DCD”). [B] attended at DCD and had discussions with an officer there.
51 On 9 March 2005, [J] rang [B] at 7.30 pm and said, “You fucking wanker, you’re going to cop it from me. Just you wait. You’re not having [A] and don’t bother picking him up.” The following day [B] went to pick [A] up at 5.30 pm as per the orders of the Family Court and no-one was home or picked up the phone. On 15 March 2005, [B] received two letters from [J] via his lawyer. One was dated 2 March 2005, and the other dated 20 October 2004. The letter of 2 March 2005 stated as follows:
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“In reference to the incidents which occurred during the weekend contact period 11 to 13 February 2005.
Your action of forcibly poking [A] in the neck as punishment was totally inappropriate. As you continue to persist with this violent manner of discipline, and following events in previous contact periods, I will have no hesitation in suspending future contact periods until I have received a written undertaking that [A] will no longer be subjected to this type of action.
I also point out that your’s and your current partner’s action of vilifying those people close to [A], is in breach of the court order. Again during the period of weekend contact on 11 to 13 February 2005, [A] was subjected to this abuse following his question of your current partner’s drinking problem. These actions are to stop forthwith or will be subject to further action.
These matters have been referred to the police, the Department for Community Services and the Family Court of Western Australia.”
At the foot of the page is a note:
“PS Assault charges have been laid with the police against
several members of your household.”
[J] stated that this had not been done and she wrote this because she
was angry.52 [B] denies assaulting [A] in the manner described in the letter and I accept that this conduct did not occur. because contact had not taken place on 11 March 2005.
53 On 21 March 2005, [B] filed a contravention application
54 On 22 March 2005, [J] left a number of abusive and threatening messages on [B]’s answering machine. Part of one of those messages was as follows:
“… I don’t know which part you were confused about, the bit about you never touching [A] or I’ll thump your fuckin head in, or, you know, if you’re still confused about that, please let me know and I’ll give you a demonstration. Touch him again and I’ll kick you fair in the balls.”
| 55 | The following day she left another message: “I’ll tell you what, you better fuckin have some protection. When you turn up here at 4.30 pm Friday you are dead mate.” |
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56 There were a number of other messages left on that date which were threatening and vicious. They were recorded by [B] and were exhibited on a CD.
57 On 24 March 2005, [B] attended at the [local] Police Station and obtained an interim violence restraining order against [J].
58 The following day, when [J] was served with the violence restraining order, her reaction was to take [A] to the police station and get him to make an allegation of assault against [B]. A police officer attempted to obtain a statement from [A], who burst into tears. Exhibit “A.7”, the incident report relating to [J]’s attendance at the [another] Police Station on that day, stated that [J] alleged that [B] assaulted [A] every time he had contact with him over the last year. The matter was left on the basis that [J] would get medical evidence in relation to an alleged complaint of assault where [A] had bruises when he returned from contact with [B] in 2004. [J] subsequently attended at the police station with a medical report documenting bruises on [A] in 2003. The medical note stated that the doctor was not entirely convinced of the allegations made by [J].
59 [J]’s conduct on this day, in my view, was absolutely appalling. Because she was angry at having been served with the violence restraining order, she was prepared to use [A] in an effort to get back at [B]. Even when [A] started to cry and did not make a complaint against [B], she did not go home, but stayed in the police station trying to convince the police to take some action. [A] was beside her when she was complaining to the police about [B]’s alleged conduct. In evidence, [J] said that she did not think of the damage such an incident could do to [A] at the time.
60 While [J] was at the police station, the [local] police rang [B] and told him that [J] had requested that the pick up for contact, which was due to start that day, be from the [local] Police Station.
61 When he arrived, [B] was advised that [J] was alleging that he had assaulted [A]. Instead of handing over [A], [J] left the police station with [A]. The police subsequently arranged for [J] to hand [A] over from her home. Not surprisingly, [A] was extremely distressed at what had happened on that day. He sat in a foetal position next to his sister all the way home.
62 On 1 July 2005, [B] went to [J]’s home to pick up [A] for school holiday contact at 4.30 pm. As he pulled up, [J] and [A] had just pulled into the driveway in [J]’s car. [A] was in his
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school uniform. [B] waited until 5.30 pm, but there was no sign of [A]. He rang the police at 6.30 pm. They contacted [J], who said that [A] did not want to go on contact, and he would not be made available.
63 On 8 July 2005, [B] was forced to go to the Family Court and obtain an order that he have contact from Friday 8 July through to 4.00 pm Saturday 9 July, and from 15 July to 20 July. There was a further order for one weekend makeup time to be allocated before the September school holidays. [J] never advised of a suitable weekend for that contact.
64 On 10 July 2005, [B] arrived at [J]’s residence to pick up [A]. [A] did not come out and he sent his four year old daughter, [T], to the door, but there was no answer. [B] then asked [J]’s neighbour to see if [A] was available for contact. At 11.00 am, [A] had not been made available for contact and [B] left. The following day he obtained the orders from the Family Court and took them to the [local] Police Station. Two police officers, Constables [C] and [B], went to [J]’s residence with the Family Court orders. [B] waited outside. The officers eventually called for a sergeant to come to the home. Sergeant [R] gave evidence that he received a call about 12.30 pm from the officers at the house. At 1.00 pm he parked his car in front of [J]’s house and heard a woman shouting. He stated he went to the house and spoke to [J] and told her that he wanted the Family Court order complied with. [J] made many complaints about [B]. She was screaming insults at the door and had [A] with her. Her boyfriend was there and said that he had rung a television station and they were on their way.
65 Sergeant [R] stated that he told [J] that the order was not a recovery order. He arranged with [J] that if [A] could ring her at 6.00 pm, then she would let him go with [B]. Sergeant [R] described [A] as being happy to go with his father. He got into the passenger’s side of the car and smiled as he drove away.
66 [J]’s boyfriend, [Mr H], subsequently made a complaint to police about the manner in which the police acted when attempting to get [J] to comply with the court orders. [J] made an allegation that the police had put [A] in danger by that conduct. [J] had a recording machine with her when this incident with the police occurred. The police subsequently asked for the tape. [J] did not provide it.
67 [J]’s evidence in relation to this incident was that [A] did not wish to go on contact with his father on 10 July 2005. She stated
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she tried to make him go on the Monday, but he would not. She acknowledged that she refused to hand over [A] when the police came. She accepted there was a heated scene, but says she was not yelling. She stated that she had obtained advice that if [B] did not have a recovery order then she did not need to hand [A] over. She stated that [A] was in the play room when this incident at the door with the police officers was occurring. She confirmed that she taped the first part of the conversation with the police in case she needed it, but when the tape was requested by police, she did not hand it over. She stated that Sergeant [R] told her that the officers had a recovery order and [A] had to go. This is very different from the evidence of Sergeant [R], who said that he was well aware that it was not a recovery order and advised [J] that that was the case. [J] confirmed that despite the police attending and the fact that there was a court order that [A] should go on contact, she did not wish to comply with the order. She and [Mr H] subsequently made a complaint about the police conduct on that day.
68 I do not accept the evidence of [J] when she says that [A] did not witness, or hear, any of the activity at the front door when the police arrived that day. I accept that [J] was determined that [A] would not go on contact, and even though the police were there, she did not intend to comply with the order until Sergeant [R] was able to convince her to do so. This was yet another instance of her being unable to set aside her own anger and frustration to save [A] from a nasty experience. [B] describes [A] as being visibly distressed, upset and he could see he had been crying as a result of this incident.
69 On 28 July 2005, [J] wrote a letter to [B]’s solicitors alleging that [B], [Ms C] and [Ms S], a person with whom [B] had a relationship, were all physically and mentally abusing [A]. She stated that she was suspending contact and was lodging documentation with the Family Court. This documentation was never lodged.
70 [B] was due to have contact with [A] on Friday 26 August 2005. Before the contact time [J] rang his lawyer’s secretary to inform her that [B] could not have contact with [A] as he had hurt his leg at football five days earlier and was incapacitated. [B] had not been informed by [J] that [A] had been injured. [B] arrived at 5.30 pm to pick up [A] and sent [N] to the door. [A] was not made available for contact. [J] made [A] available for contact on Sunday 4 September 2005, Father’s Day. [J] had requested that a third party walk up to the door and assist [A] to the car as he was on
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crutches. [B] took [N], then 16 years of age, with him to walk [A] down to the car. [J] refused to let [N] walk [A] to the car and said that [N] was breaching the violence restraining order obtained by [B] by coming onto her property.
71 [B] then asked a neighbouring resident, who was walking her dog, if she would go to the door and walk [A] down to the car. The neighbour proceeded to the house to get [A], but [J] refused to let her walk [A] to the car. Shortly thereafter, [A] rang [B]’s mobile and said that [J] had rung the police and they would be there in five minutes to walk him down the driveway. Subsequently, two police officers arrived from the [local] Police Station. They went to the house. [J] was yelling at them. Fifteen minutes later they came down the driveway with [A], who was walking on his crutches unaided. [B] was advised that [J] was insisting that when he returned with [A] an independent third party was to walk him up the driveway. When [B] suggested the neighbour, [J] stated that this person was not acceptable.
72 Constable Armstrong stated that he attended [J]’s house on 4 September 2005, at the request of [B]. He said that they attended the house and tried to negotiate with [J] to take [A] to the car. [J]’s reaction was that the police were not independent enough, and there should be another person to walk him from the house to the car. Again, the conduct of [J] was appalling. [N] was not breaching the violence restraining order by attending at the property and there was no reason why she could not help [A]. [J] gave no reason why the neighbour was an inappropriate person to walk [A] to the car. Instead, she waited for the police to come, and then would not let them walk [A] to the car, as they were not independent. Instead of attempting to protect [A] from conflict, or scenes involving the police, it appears that [J] positively thrives on it, and has no concern at all for the way in which her conduct impacts upon [A].
73 In December 2005 the police attended at [B]’s home at 9.35 pm to perform a welfare check on [A]. This check had been requested by [J] at around 6.30 pm. They insisted on waking [A] up so that they could determine that he was in good health and was not unhappy at his father’s home. This incident came about as a result of a telephone conversation between [J] and [A]. [J] had developed a code to be used by [A] when communicating with her. [J] developed a pet’s name for the different levels or degrees of “uncomfortableness” for [A] on contact. [J]’s solicitor’s letter of 12 December 2005 sets out the details of the code.
| (Page 19) |
“… If he was in a situation in which he was unable to openly communicate with his mother on the telephone, he would make reference to a previously owned pet.
Each pet’s name corresponded to a different level or degree of uncomfortableness, for example, “[M]” referred to there being no concerns, “[J]” indicated that [A] was experiencing some difficulties with the situation, but was willing to remain with his father, and “[L]” represented a high degree of discomfort to the point of wanting his mother to intervene.
On the day that [J] got the police to attend, apparently [A] asked his mother “how’s [L]?” [J] apparently asked [A] if he was okay, to which he replied “no”.”
74 Again, [J]’s conduct was absolutely extraordinary. Her development of the “code” encouraged [A] to believe there was something wrong, or likely to go wrong on contact with his father. To involve the police when [J] had no idea what it was that [A] was upset about, was shocking. Her conduct in developing the code and sending the police was, in my opinion, solely for the purpose of totally undermining [B]’s position with [A], and to create apprehension in [A]’s mind about the contact with his father.
75 A recitation of the above incidents confirms that [J] will do almost anything to either stop [B] having contact with [A], or impact upon or restrict the contact he can have with him. Not only do her actions indicate that [J] does not want [A] to have contact with [B], but she has told [A]’s teacher this is the case. She told [Mr T] that she was frustrated because [A] had to have contact with [B], and she believed this resulted in a disjointed lifestyle for him. She made comments to him that the contact with [B] did not provide any balance and fairness in her life. Because she was the primary care-giver it was her opinion that perhaps it was not in the best interests of [A] to spend time with his father.
76 Counsel for [J] says that as a result of counselling and because of these proceedings, she now realises that her conduct was inappropriate and she will change. [J] has had counselling this year. Her comment to [Mr T] was also made this year. I am not convinced that her attitude to [A]’s contact with [B] has changed, and for reasons stated by [Ms T], to which I will refer to later, I do not believe that this is possible in the short term, and unlikely in the long term.
77 I am satisfied that [B] will promote [A]’s relationship with [J], although he is concerned that the contact should be such that [J] is
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| not in a position to undermine or denigrate his relationship with [A]. | ||
| (d) | the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from — | |
|
78 [B]’s proposal is that [A] should reside with him and spend time with his mother on weekends and during school holidays. I have no doubt that a change of residence will have a devastating impact upon both [A] and [J]. When [J] was asked in cross- examination how she would deal with [A] going to live with his father, she stated that she “would know what hell looked like”.
79 [Ms T] described some difficulties she perceived [A] would suffer if he resided with [B]. His removal from his mother, who has been his primary carer all his life, would be difficult, especially because of the enmeshed relationship between [A] and [J]. [Ms T] described this relationship as one where the psychological boundaries of the two are not well-defined. Each is conscious of the other, and [A] is very aware of his mother’s needs. In some respects, [A] feels as if he is [J]’s carer. A move away from his mother in these circumstances would, at first, be very disturbing for him, however, as [Ms T] stated, there may be some relief for [A] if he was no longer in this role.
80 [Ms T] has stated that if [A] is to be separated from his mother and live with his father, this would need to be done in a therapeutic environment for him. Both [A] and [B] would need psychological assistance to deal with the change. [Ms T] suggested that if there had to be a change in living arrangements for [A], that it would be better for this to occur before he started to develop some autonomy. She stated that now, at the age of 11, it may be easier to make the separation from [J] to [B] than in his teenage years, when he may rebel against his father.
81 It will be very unlikely that [J], in the short term, would be able to support the change, given the severe emotional reaction she will suffer. As [Ms T] has stated, [A] has served a large element of her own emotional satisfaction. [J] will need psychological intervention to deal with this.
82 [B] stated, both to [Ms T] and in court, that if [A] did not live with him after these court proceedings, that he may well let go completely and have no contact with him. Normally, I would
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question the commitment of a parent who said that they would walk away and have no contact, but in these circumstances, I can understand [B]’s comments. I have already described some of the incidents which have happened over a number of years involving not only [B], but his partners, [N] and [T]. While the situation has been relatively peaceful since the Violence Restraining Order was taken out against [J], [B] is not convinced that this would continue if the proceedings were completed and [A] resided with [J].
83 [B] described how five years ago his legal advice was that to maintain contact with [A], given the level of obstruction and interference by [J], was “too hard”. He described this as being the second worst thing he was told, coming second to being advised that his wife, [L], was to die. He stated he has to balance the benefits to [A] and himself of contact and the detriment, as a result of [J]’s behaviour, to [A] and his children [N] and [T]. [A], [N] and [T] have all witnessed [J]’s antisocial behaviour towards [B] and have been negatively affected by it.
84 In my view, it would not be in [A]’s best interests if [B] walked away. I accept that this is a possibility given [J]’s conduct. [B] provides [A] with a grounded, sensible environment where he has to interact with other family members and develop some resilience and self reliance. This is not happening at his mother’s residence.
85 Although [A] does not rate his relationships with his half sisters as important, in my view, they very obviously are. The difficulties he described between himself and his half sisters are normal sibling problems. It will be beneficial to his long-term development if he learns strategies to deal with these issues.
| (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; |
86 There is no practical difficulty and expense of [A] having contact with either parent. If he resided with [B] and had contact with [J], in the short term, it is likely that that contact would have to be supervised to ensure that [J] did not undermine [A]’s relationship with [B]. [J] has had financial support from her parents in the past, who may be able to assist with the cost of such supervision. [B] may also be able to contribute to that cost.
| (Page 22) | |
| (f) | the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs; |
| 87 | [Ms T] has stated that [J] appears to be able to provide adequately for the physical and social needs of [A]. I have some reservations about [J]’s ability to provide for [A]’s social needs. I accept that he is a well adjusted child at school and is involved in sport, particularly football, out of school. There is, however, potential for [A] to be ostracised by school mates and team members as a result of [J]’s behaviours. [J] was aggressive towards some boys at the school who she believed had interfered with [A]. As a result of her conduct she was prohibited from attending the school, except in certain circumstances, for 60 days. She was offered an “amnesty” prior to the 60 days, but refused to accept it because she believed to do so would be an acknowledgement of her guilt. Obviously, it would have been better for both [A] and [J] had she taken advantage of the early return to normal attendances at the school. Again, [J] was not able to put [A]’s best interests before her own position. |
| 88 | There was also an incident at football where both [J] and her friend [Mr N] were close to [B] and [N] and caused an uncomfortable situation for them both. In [J]’s case, she was in breach of the restraining order by being as close as she was to [B]. I am satisfied that in the long term [A]’s ability to develop normal social contacts is at risk as a result of [J]’s aggressive and over protective behaviours. |
| 89 | In relation to [A]’s educational level of achievement, I am not satisfied that [J] has done all she can to ensure that this is optimal. [A]’s 2005 report was not particularly good. Academically, he was not working at an expected level at anything, except one aspect of reading. |
| 90 | When [B] became aware of the difficulty [A] was having with his school work, he went to the teacher and obtained some work books to do with [A] on the contact periods. He did this work with him in the last term of 2005 and was still doing some at the beginning of this year. It was not until he obtained [J]’s affidavit for trial that he knew that [A] was having some remedial lessons at Kumon. |
| 91 | [Ms BP] a teacher at the [local] Primary School where [A] attends, gave evidence. She confirmed that during 2005 [A] made some progress, but his spelling and reading were weak. He progressed through the year 5 level, but he had not covered the |
| (Page 23) | |
| course by the end of the year. She described him as having weakness in spelling and reading since year 2 when he arrived at the school. At times his homework was not completed and he was not motivated to pass on the homework or do it. She stated that [A] was away for 44 half days in year 5. She met [B] on two occasions and advised him that [A] was not achieving. She went through the portfolio with him. [B] asked for maths and work books to do at home and she gave them to him. | |
| 92 | [Ms BP] confirmed that a test done on [A] in August showed that he was above the bench mark, but below the state average for reading, and for numeracy, he was below the state average and close to the bench mark performance. She stated that these results were lower than she would have expected him to perform. It was her view he had the potential to achieve much more. |
| 93 | [Mr T] was [A]’s teacher this year. It was his opinion that academically [A] had come a long way this year. He stated he was doing as well as the rest of the class in all areas except maths. He stated that [A] falls in the normal range of the boys with homework. |
| 94 | [Mr T] was shown the report of [A]’s result for year 5. He confirmed that [A] was below the state level, along with 12 others, although he believed that it was possible he could achieve the bench marks by year 7. |
| 95 | I am satisfied that [B] has an interest in [A]’s academic performance and will put more pressure on him to achieve in this area than [J] has done. [J] described what, in my view, was an unhealthy situation where, over [A]’s entire life of 11 years, she indicated she only had to discipline or speak sternly to him on three occasions. Either [A] is so well-behaved, and perhaps fearful of his mother’s reaction and behaviour if he does not behave, that he complies with every wish, or she has set little in the way of boundaries for him. [A] seems to be generally well-behaved at school, which indicates that there may be some boundaries, but he is weak in his school work and I have concerns that she is not encouraging or getting [A] to do remedial work. |
| 96 | I should say something about the frequent intervention by the police in [A]’s life. I have no evidence of [B] or [J] having a criminal record. Both live in appropriate accommodation in pleasant suburbs and provide a comfortable and loving home base for [A]. In normal circumstances, I would expect [A]’s only contact with the police would be by way of education, for example, |
| (Page 24) | |
| lessons on riding his bike at school, or in relation to stranger danger. He should have been taught to look up to police as figures of authority who apprehend people involved in criminal conduct. Instead, [A] has been involved regularly with police not only resolving issues between his parents, but in relation to disturbances [J] has with neighbours. The level of exposure [A] has had to the police and to conflict, in my view, is very disturbing and has the potential to lead [A] to believe that the police should be involved in settling any dispute, no matter how minor, eg; who should walk him down the path at the cessation of contact. Continued exposure to this conduct is not in [A]’s best interests. | |
| 97 | There is no doubt that [J]’s conduct has abated in 2006. This has come about, in my view, as a result of the contents of [Ms T]’s report, which was published in December 2005, and to the fact that [J] has had some counselling in the meantime. |
| (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; |
| 98 | It is obvious that [J]’s aggressive and unusual behaviours are one of the significant issues in this matter. [Ms T] was asked to assess the psychological health wellbeing of the parties. She administered the MMPI-2 test, but the validity of the test was compromised by [J] claiming to be “unrealistically” virtuous. [Ms T] also had access to files from the police and from the [local] Council (she had complained about the conduct of five different neighbours) in relation to [J]’s contact with them. She interviewed [J] and saw her with [A]. Her conclusion in relation to [J]’s psychological health and wellbeing was as follows: |
“In short: While [J] shows a fairly positive coping ability (although she has some self esteem difficulties also noted in the personality test which was not strictly valid as she presented herself as unrealistically virtuous) she has difficulties concerning her over concern for the protection of [A], (who is largely the fulfilment of her emotional needs and her self esteem difficulties) which results in intrusiveness and combativeness with others. (The child is not protected from this behaviour.) She shows intense suspiciousness and lack of trust of others and in particular; father, her second unsuccessful intimate relationship. She shows little insight into her suspicious, intrusive and poorly emotionally regulated
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behaviours. When she feels supported she is able to behave in a less defensive fashion. However she spends much emotional energy on combative activities in an inappropriate behavioural, verbal and emotional manner. She appears to have personality difficulties, which complicates her interaction with others where she shows poor boundaries and emotional regulation.”
99 In evidence, [Ms T] stated that the mother suffered from a personality disorder. She stated that while there can be therapeutic counselling for personality disorders, changes could be a long time coming. She described the mother’s behaviours as being entrenched and extremely difficult to maintain a change of position. This was evident when [J] gave her evidence, and from the evidence of [Dr S], a psychologist with whom [J] has had a number of counselling sessions. In the counselling sessions she did not see herself as discouraging [A]’s relationship with his father. He stated that this was a constant during the counselling sessions. She stated that she was conscious about not giving [A] negative feelings about contact. Nothing could be further from the truth. It is obvious it is going to take [J] a very long time to confront these serious issues she needs to face, in particular, in relation to the parenting of [A] and the importance of his relationship with his father.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
100 There is no doubt that [J] has dedicated her life to [A]. She has been his primary care-giver all of his life. She has been available to be his carer. [A] has been described as a delightful boy, who socialises reasonably well and gets on with his peer group. There is no doubt that [J] should take a lot of credit for [A]’s development. On the other hand, she has been prepared to “use” [A] for her own benefit. On one occasion she made [A] ring [Ms C] to enquire about why she, [Ms C], was taking money off his mother in the form of Centrelink payments. [J] denied that this was the context of the telephone call [A] had with [Ms C], but I accept [Ms C]’s evidence in relation to this. [A]’s phone call followed shortly after a phone call made by [J] to [Ms C] asking the same question.
101 [B] has attempted to be a good father to [A] in difficult circumstances; however, in my view, his financial support of [A] has been inadequate. Shortly after separation he was assessed by
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the Child Support Agency to pay a sum in excess of $700 per month. He came to an arrangement with [J] that he would pay $200 per month and any extra expenses related to [A]. They entered into a Child Support Agreement in April 2000. [B] says that [J] agreed to receive a sum significantly less than that to which she was entitled because her pension would be reduced if he paid her a greater sum of child support, and [B] told her that if he had to pay the full amount he would not pay any extras.
102 There seems to be some support for this proposition in that [J] has never made an application to set aside the Child Support Agreement. She said she obtained some legal advice which was that setting it aside would be a 50/50 proposition. I do not accept that she received this advice. In my view, she did not want her pension disturbed by a change in the assessment, but she did want [B] to pay the extras, which he has not always done. This has meant that she has had to rely on family members for some support.
103 From March last year [B] commenced receiving part of [J]’s Family Payment. Understandably, this made her angry as [B]’s financial position was significantly better than her own. In my opinion, [B] should have refused to receive the Family Payment to allow it to go, in its entirety, to [J]. His actions in accepting these sums were not in [A]’s best interests.
| (j) | any family violence involving the child or a member of the child’s family; |
104 [J] says that during the course of the relationship [B] was violent towards her. [B] states that there was one incident where he was so frustrated with [J] he pushed her. I accept [B]’s evidence that he was violent on one occasion to [J].
105 [J] says that [B], at least during 2005, was violent towards [A] and that he disciplined him excessively. I am satisfied that that did not occur. [A] describes instances where his father has “kicked him in the bum”. I am satisfied, on [B]’s evidence, that this did not occur.
106 I am satisfied that [A] will not be subjected to any family violence in either [B] or [J]’s household.
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| (k) | any family violence order that applies to the child or a member of the child’s family, if — | |||
| ||||
| 107 | [B] has a Violence Restraining Order against [J] which has afforded the family some peace since he obtained it in March 2005. I am satisfied that such an order was necessary to modify [J]’s behaviour. I accept that without the order, [J]’s intrusion into [B]’s family life by way of telephone calls was significant. I accept [Ms C]’s evidence that on some occasions [J] would telephone up to 40 times per weekend. | |||
| (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; | |||
| 108 | In my view, it is preferable to make an order which is least likely to lead to the institution of further proceedings. If [A] lived with [J] and [B] did not have any further contact with [A], then there would be no further proceedings. | |||
| 109 | If, however, [B] decided that he could not walk away and that he wanted to continue to have a relationship with [A], it is unlikely because of [J]’s personality disorder that there would be any change in her attitude to his contact with [A]. In these circumstances there would continue to be proceedings between the parties on a regular basis and allegations of contravention in relation to contact. | |||
| 110 | If [A] resided with [B], I am satisfied that [B] would comply with any court orders in relation to contact, and that [J] would exercise the contact. The amount of contact and whether it should be supervised would be as recommended by [A]’s psychologist. It may be that contact will need to be supervised for a very significant period, at least until [J] realised that [A] was not going to live with her. It could only be unsupervised when [A]’s counsellor and her own counsellor were confident this could happen without emotional damage to [A]. |
Conclusions on residence
111 In my opinion, it is in [A]’s best interests that he resides with [B]. I am satisfied that in relation to the primary considerations:
• [B] will encourage [A] to have a meaningful relationship with [J]. (Page 28)
• [J]’s suffers from a personality disorder which affects the way she acts. This results in her conduct being aggressive, intrusive and combative with others. She shows little insight into her poorly regulated behaviours. • [A] is likely to suffer from psychological harm if he continues to be exposed to his mother’s behaviours. • [J] will not encourage [A] to have a meaningful relationship with [B]. In relation to the additional considerations:
• While [A]’s wish is to continue to reside with [J], this will not be in his best interests long term. • [A] will suffer significant trauma in the short term as a result of the change of residence, but long term he will benefit from the emotionally supportive and more normal environment [B] can provide. • [B] can provide for [A]’s physical, emotional and intellectual needs.
I certify that the preceding [111] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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