Bain and Stewart (No. 5)

FAMILY COURT OF AUSTRALIA

BAIN & STEWART (NO. 5)

[2008] FamCA 641

FAMILY LAW – CHILDREN – Suspension of all time between mother and child on interim basis – Urgent oral application by Independent Children’s Lawyer given precedence over application by mother that father be dealt with for contravention of orders – Best interests principle.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Mr Bain

RESPONDENT:

Ms Stewart

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGF

766

2005

DATE DELIVERED:

9 July 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Cronin

HEARING DATE:

26 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR WERNER

SOLICITOR FOR THE APPLICANT:

RIGOLI & ASSOCIATES

THE RESPONDENT:

IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MR WILLIAMS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

ROBERT HALLIDAY & ASSOCIATES

Orders

That until further order, paragraphs 3 and 4 of the orders of Senior Registrar FitzGibbon made on 27 November 2007 are suspended.
That until further order, paragraphs 6, 7 and 8 of the orders made on 18 March 2008 are suspended.
That until further order, the mother be restrained from contacting the child … born … September 1997 by any means of communication.
That the Independent Children’s Lawyer provide a copy of this order to:
(a) Dr T; and
(b) The Principal of the P Primary School.
That all extant applications be otherwise adjourned for final hearing on 20 October 2008 at 10.00am.
That the orders otherwise made on 26 June 2008 continue in respect of the parties’ obligations about preparing the case for final hearing.
That the application in a case, filed by the father on 26 July 2007 and the application in a case filed by the mother on 19 November 2007 be otherwise dismissed.
Reserve the parties’ costs of the said two applications to the final hearing.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Bain & Stewart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 766 of 2005

MR BAIN

Applicant

And

MS STEWART

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 26 June 2008, psychologist Dr T who is counselling the parties’ 10 year old son told me that he did not have the wisdom of Solomon to know what was best for the child’s future. Whether one has the wisdom or the assistance of Solomon, my task is to make a decision that I find is in the child’s best interests.
The child was born in September 1997. He is very much embroiled in the dispute between his mother and father.
On 25 January 2007, Guest J made parenting orders after a seven day hearing. Up until that time, in other words for about nine years, the child had lived with his mother. Guest J determined that it was in the child’s best interest that he live with his father and have limited time with his mother.
The orders of Guest J were intended to give some certainty into the lives of the child and his mother and father. As will be evident from these reasons, that has clearly not happened.
On 27 November 2007, Senior Registrar FitzGibbon varied the orders of Guest J reducing the time of the child with his mother to two hours each alternate weekend under supervision at a contact centre and by telephone three days per week. For reasons that are not relevant to my determination, the contact centre orders have not occurred. The mother moved to Tasmania. The telephone arrangement has just not worked.
Senior Registrar FitzGibbon had powers to make interim orders. Having regard to the fact that the orders of Guest J were less than one year old, the Senior Registrar referred the matter back to Guest J. His Honour disqualified himself and transferred the proceedings to me.
On 14 March 2008, the mother proceeded with an application for contravention containing something like 47 allegations. The mother had filed the application on 29 February 2008.
Since the judgment of Guest J, the mother has represented herself. That was the position before me on 14 March 2008. Her paperwork was convoluted. The respondent father was represented by counsel. There was opposition to the contravention application documentation but having clarified exactly what the allegations were, I proceeded to hear them.
A variety of the allegations were withdrawn, one was struck out and a number were dismissed. Two allegations were proved. The orders that I made included variation of the orders of Senior Registrar FitzGibbon to endeavour to make the telephone arrangement work as between mother and son. Even those arrangements have not been successful.
I made orders that an application in a case filed by the father on 26 July 2007 and the response to that application by the mother filed on 19 November 2007 be fixed for hearing for a half day interim matter on 30 May 2008. That needs some explanation.
During 2007, the mother overheld the child. As I understand it, she did so on the basis of advice from the Department of Human Services. That matter was resolved by orders.
In March 2008, the mother made her position abundantly clear. She wanted the orders of Guest J reversed or at least an opportunity to have face to face time with the child. The father’s position was that he intended to pursue a summary dismissal of the mother’s substantive application on the basis that she would not be able to show a change of circumstances.
On 14 March 2008, I said I intended to hear evidence on the next hearing about what should happen to the child on an interim basis until the mother’s substantive application could be heard. That pre-supposed that the father did not succeed on a summary dismissal argument. I made procedural orders.
The matter could not proceed on 30 May 2008 because of obligations of the mother. By agreement between the parties, the new interim hearing date was fixed for 26 June 2008.
Contrary to orders that I made in March, a number of affidavits were filed by both parties.
On the morning of 26 June 2008, Mr Werner of counsel appeared on behalf of the father, the mother was not represented by a legal practitioner and Mr Williams of counsel represented the Independent Children’s Lawyer.
Having regard to the voluminous material that had been filed, just exactly what each party was relying upon was difficult to discern. The mother had filed a number of affidavits attached to which were photographs, reports, and letters. Were it not for the fact that the matter was being determined under Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), much of the material probably would have been inadmissible.
What was most important however was that the mother had filed a contravention application and then amended it twice. The final amended application seeking that the father be dealt with for breach of orders was filed on 25 June 2008, the day before the hearing. I queried with the mother whether that was the application she wanted heard with or whether it was, as I had understood, about interim orders. The mother was insistent that she wanted me to deal with the contravention application. It will be noted at a glance at the contravention application that it is questionable whether there are sufficient particulars to enable a court to ask the father to admit or deny the allegation. However, having regard to the outcome of the contravention application in March and bearing in mind the allegations seem to be similar, I found it puzzling that the focus of attention of the mother was on that rather than the determination of the interim arrangements concerning the child. As I said, she was insistent upon the matter being so determined.
Mr Werner on behalf of the father had attended for the purposes of the interim hearing and was planning to argue the Rice v Asplund argument on a summary dismissal basis. He conceded however that the contravention application had to be dealt with. On that basis, I queried what involvement the Independent Children’s Lawyer could have. Mr Williams however said that the Independent Children’s Lawyer was extremely concerned about what had been happening to the child and intended to make an urgent application for the suspension of the mother’s time with the child or communication of any nature. Mr Williams said he intended to call some evidence from Dr T. Mr Williams said that the urgency was such that it had to take priority over the contravention.
The mother opposed that course of action wanting to proceed with the allegations of breaches of the order. I then made a ruling that I proposed to hear the urgent application having regard to the way in which the Independent Children’s Lawyer was pressing to have a determination. In his view, the best interests of the child required that to be determined before any dispute between the parents over whether or not the orders had been complied with. Accordingly, I made a ruling and gave reasons, placing the contravention application behind all other matters and gave permission for the Independent Children’s Lawyer to make an oral application for orders relating to the suspension of the mother’s time with the child.
Having focussed the parties’ attention on what I intended to do, I gave each an opportunity to refer me to material relevant to the question of what interim orders should be made in relation to the child. It must be kept in mind that the original intention at least in my mind and that of the father, was that the question of the mother’s time with the child was to be the issue and as such, all parties had filed material directed to that point.
Mr Williams requested that I read, and said he would rely upon, parts of a judgment of Guest J, the judgment of Senior Registrar FitzGibbon, an affidavit of a psychiatrist Dr J and the evidence proposed to be called from Dr T.
The mother told me that she would rely upon an affidavit she filed on 25 June 2008, an affidavit she filed on 23 May 2008, an affidavit of Mr C who was the child’s former school principal which was filed on 29 February 2008 and an affidavit by a psychologist that the mother had been seeing, a Ms B which was filed on 13 March 2008.
The mother also requested that I view two DVDs relating to evidence of how she said, the father treated the child arising out of an incident in November 2007. Upon embarking upon the hearing, I did not have an opportunity to watch those DVDs but subsequent to the hearing and for the purposes of determining this matter, I have viewed them. I am not at all sure what to make of them notwithstanding there is clearly an unpleasant scene between the child and his father. Equally disturbing however, are the circumstances under which the filming occurred and I shall refer back to that.
Mr Werner on behalf of the father said that he relied on parts of the final judgment of Guest J and two affidavits of the father filed 27 November 2007 and 20 June 2008 respectively.
Mr Werner also sought that I admit into evidence, an affidavit by the father’s partner Ms S which had not been filed or served. It related to a discrete issue and I indicated that I would not permit it to be filed at this late stage but I would allow Mr Werner to put questions to Dr T about it if he so chose.
In the conduct of the proceedings later in the day, the mother referred me to the views of a psychologist Dr K. She said that his material was amongst the materials produced under subpoena but that there was no report. The best she could say was that Dr K had a particular view about what was needed as between mother and son. She said Dr K’s views were somehow expressed to the Department of Human Services. No copy of any report was tendered. It seems from what Mr Werner told me that Dr K had provided counselling to the child shortly after the orders were made by Guest J for the purposes of assisting the child to adjust to his new way of life. I have not been able to use that material.
I shall turn to the evidence of the parties in a moment. Before doing so, I set out the principles upon which a court should determine such a matter.
Proceedings in relation to parenting orders fall under Part VII of the Act.
Section 60B(1) sets out the objects of Part VII. These 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.
There can be no argument about the fact that the principles underlying the objects are that, except where 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).
The application I have been asked to determine gives rise to some very difficult contrasts. I am obliged by the objects of Part VII to ensure the child’s best interests are met by enabling him to have the benefit of both parents having a meaningful involvement in his life to the maximum extent that is consistent with his best interests. Contrasted with that is my obligation to protect him from both physical and psychological harm as described.
In respect of the principles underlying the objects, for reasons that I shall endeavour to set out, there can be little doubt in this case that the child cannot be involved in a shared parenting arrangement.
Section 60CA sets out that in deciding whether to make a particular parenting order, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) requires that a court in determining what is in the best interests of a child, must consider the matters set out in sub-ss (2) and (3).
Section 60CC(2) sets out the primary considerations. Those two primary considerations are repeated from the objects to which I have already referred. I shall return to them.
Section 60CC(3) provides a number of additional considerations all of which are directing the court’s attention, as part of the balancing process, to work out what is in the best interests of the child.
Division 12A of Part VII sets out the principles for conducting child-related proceedings.
Section 69ZN(1) requires a court to give effect to five principles when making decisions in child-related proceedings. Those principles are:
(a)the requirement to consider the needs of the child and the impact of the conduct of the proceedings on him;
(b)the requirement that the court is to actively direct, control and manage the conduct of the proceedings;
(c)to conduct the proceedings in such a way that will safeguard the child against family violence, child abuse and child neglect as well as the parties;
(d)as far as possible, to conduct the proceedings in a way that will promote co-operative and child-focussed parenting; and
(e)to conduct the proceedings without undue delay and with as little formality and legal technicality and form as possible.
It is trite to say at this stage that no matter what proceedings were conducted between the parents in this case, it is unlikely to promote co-operative and child-focussed parenting.
Having regard to the urgency put by the Independent Children’s Lawyer, I have applied the second and fifth principles.
Section 69ZQ requires the court to decide which issues require full investigation, the order in which issues are to be decided and a variety of other matters. I have taken the view in this case that a number of matters do require investigation and the provision of evidence but the fundamental question is the immediacy of the pressure being applied to the child for reasons which I shall set out.
Section 69ZR empowers the court to make findings of fact, determine matters arising out of the proceeding as well as make interim orders if it will assist in the ultimate determination of the dispute. In this case, on the evidence available to me, the damage that has been done to the child by not only the behaviour of his mother but more importantly by being embroiled in the proceedings is clearly not in his best interests. Those matters need investigation and the evidence asserted by all parties needs to be tested. For reasons which I hope will be made clear, these orders are a substantial infringement on the happiness and desires of the mother and will very much mean that for some time, there is no meaningful relationship between the child and his mother occurring. However as I have pointed out in the objects, all of these hopes and aspirations for the involvement in the lives of children by their parents must be governed by the best interests of the child and the avoidance of physical and psychological trauma.
Exercising the powers under Division 12A, I am satisfied that there is urgency about hearing the matter as I have.
Section 69ZX defines the powers of the court in relation to giving evidence. The rules of evidence as they are well known in the Evidence Act 1995 (Cth) have been largely removed. The provisions of s 140 of the Evidence Act however still provide the standard of proof. In determining this matter and assessing the evidence to which I shall refer below, I say that I have considered the matters on an interim basis pursuant to s 140(2) of the Evidence Act. That standard is still the balance of probabilities but with a consciousness of the seriousness of the evidence required to make a determination. I am satisfied that the Independent Children’s Lawyer has provided sufficient evidence to warrant making the orders according to that standard.
It is also important to point out that I have also applied the provisions of s 69ZX(3). That permits a court to adopt any recommendation, finding, decision or judgment or any court. That has had a significant bearing on the outcome of this case.
I have already referred to the substantial trial and its outcome delivered by judgment and orders on 25 January 2007. The judgment of Guest J runs to 282 paragraphs.
His Honour found that the mother’s antipathy and detestation of the father was such that she did not shield the child from it. His Honour found that because of the mother’s emotional and bitter disposition towards the father, she had acted to make his relationship unworkable. Even on the untested evidence, it would appear nothing has changed.

The family consultant in the proceedings told his Honour that the mother was strong-willed and determined. She said that it was not surprising that the child had chosen to align himself with her. The family consultant said that the mother appeared to be unable to see that her actions had placed the child in an impossible loyalty conflict which meant that he rejected his father. This was a child less than 10 years of age.
In the proceedings before me, pursuant to orders made by Senior Registrar FitzGibbon, the parties were required to attend upon Dr J. Dr J is a forensic psychiatrist. He was appointed as a single expert witness. Whilst there had been problems about the father attending Dr J which was a matter that I determined in the contravention application in March, it is clear from his affidavit and report that Dr J sees no dysfunctional behaviour in the father at all. He has a very different view of the mother.
Matching the evidence of the family consultant before Guest J and his Honour’s judgment, there is a remarkable resemblance to some of the views of Dr J to which I shall turn in a moment.
Guest J said that he had little confidence in the mother as a witness of truth but found the evidence of the family consultant compelling and persuasive. Sadly, his Honour said that he did not trust the mother at all. He said that she attempted to mislead him and that her attitude and conduct sat “seamlessly with her clear desire to obstruct the relationship between [the child] and his father”. The language of Guest J is very strong.
Guest J found that the mother could not separate her own feelings of anger, pique and general resentment from the child’s best interests. That is an important finding. It is the building block which forms the base of the application by the Independent Children’s Lawyer before me. When I turn in a moment to the findings and judgment of the Senior Registrar, the same sort of comments appear.
Guest J said:
I have little doubt that the mother unburdened her view of the father to [the child] at will.
That is what was asserted before the Senior Registrar and that is what I find on the evidence has occurred.
I make clear again that I am determining the matter on the papers and on the evidence of Dr T to which I shall turn. However in my view, the evidence was so compelling at least at this point in the proceedings to warrant the orders that I am about to make.
Guest J said that there were numerous examples of the mother’s “shameful influence” on the child. Again in an almost prophetic way, his Honour said:
So bleak is the situation, that Ms [N] (the family consultant) expressed the opinion that there did not seem to “be a glimmer of hope” that the mother would embrace change.
That certainly is an observation with which I concur on the evidence before me.
In the proceedings before me both in March and June, the mother pointed the finger at the father as the root cause of all of the problems. It is hard for me to get away from the finding of Guest J that he was satisfied that it was the mother alone who had caused the child to hold the attitude expressed towards his father. The child was and still is a troubled little boy.
Guest J urged the mother to control her feelings of anguish and be positive in her encouragement of the child. I can see no evidence that that has occurred. The mother urged me to accept that she does not talk to the child about the issues associated with these proceedings. In fact, she lied to the child to avoid discussing the issue. The mother points the blame entirely at the feet of the father and his new partner. As to how the child became aware of all of these matters, I am not able to find on the evidence that is untested. However, I have great difficulty in accepting that the position is as simple as the mother paints it having regard to the evidence of Dr T.
Suffice to say, Guest J was so troubled about what was happening to the child that he gave the responsibility of the primary care of the child to his father and restricted the mother’s time to the child to just weekends.
Within a year of the orders being made, the parties were back before the Court. The Senior Registrar had available to him subpoenaed documents. He pointed out that there had been active involvement by the Department of Human Services and Victoria Police. Both of those organisations had concluded their inquiries and come to the conclusions that the allegations that the mother was making, based upon the notifications made to them, had no foundation.
The one significant incident of some concern which highlights how troubled the child is was that which occurred at the contact centre in November 2007. As I have previously mentioned, the mother provided film footage of the child and his father entangled in what could only described as a violent episode in which the father was endeavouring to take the child home and the child was resisting. In isolation, the ugly incident looks remarkably like that of a violent parent behaving badly towards his child. The mother in her submissions however, added to the material, to make the whole situation more concerning. She told me that as no-one had believed her without corroborating evidence, she took a camera to film scenes after the cessation of the contact session at the contact centre. She told me that on two occasions in a row nothing happened. I have concluded from her assertions that not only did nothing happen (as she has otherwise made no complaint that I could find) but that the child went willing with his father. On the third occasion however a violent incident occurred and the mother filmed it. She said that the child had not been given an opportunity to settle down and had been dragged away from the contact centre by his father.
Having regard to the very strong words of Guest J and his findings as to credibility, I would not draw any adverse inference against the father on the untested evidence. It troubles me that on two occasions, the child left voluntarily and apparently happily after the cessation of contact and yet on the third, he reacted the way he did after being with his mother. The mother involved the police. The police as I understand it, took an adverse view of the mother’s position.
For the purposes of the determination I am currently making, I place little weight on any of the evidence associated with that particular incident.
It seems that everyone was injured including the father who was bitten twice on the arm by the mother. All of this occurred in the presence of the child.
The Senior Registrar examined the Department of Human Services file. He said that the Department concluded that there was no risk to the child warranting intervention.
The Senior Registrar referred to proceedings in the Children’s Court where they had taken out an intervention order on behalf of the child. It seems that the father agreed to an order and yet the Children’s Court and the Department of Human Services were not interested in removing the child.
The Senior Registrar noted that the material from the child’s primary school showed that staff regarded themselves as being harassed and subjected inappropriately to a form of scrutiny that went well beyond any reasonable involvement of parents. The school is clearly aware of the problem.
The Senior Registrar noted that the child had been suspended twice in 2007 having refused to do homework and refused to obey his father and step-mother. The Senior Registrar described the language of the child as chilling.
One of the issues that were of concern to the Senior Registrar was to make an order for a psychiatric evaluation of the parties and in particular the mother. I now have the benefit of that assessment.
Dr J is a psychiatrist with national and international qualifications. The fact that he was a single expert witness indicates that his expertise was accepted.
In the discussions with the mother, Dr J learned that there was an intervention order very early in the relationship. That did not auger well for co-operative parenting. Dr J noted that the Department had been involved on about four occasions involving allegations of physical abuse. He read a lot of information.
Dr J said that the “patchy” relationship history, unstable moods and tendency to externalise blame were strongly suggestive of Borderline Personality Disorder.
It is to be noted that Dr J used the word “suggestive”. Although he does not give a definition, there are sufficient descriptors to indicate the sort of person that Dr J thought fitted into that category. Reading the judgment of Guest J, I have to say there are some remarkable similarities of observation.
Dr J said that if the mother was suffering from Borderline Personality Disorder, that was not amenable to treatment but that emotions and behaviour could sometimes be contained within a therapeutic relationship with a skilled counsellor.
In addition to the Borderline Personality Disorder, Dr J said that the mother suffered from a major depressive disorder. That referred to depressed mood, loss of enjoyment and impaired sleep and concentration. That is also consistent with the mother’s own observations.
The mother described a number of matters that arose from what she felt was an assault and Dr J said that if those allegations were accurate, then the mother also had post-traumatic stress disorder. That certainly seems to be consistent with the view held by the mother.
Important for my purposes are the observations of Dr J that the specific risk to the child surrounded exposure to emotional distress. Dr J said that apart from the mother’s need for specialist psychiatric treatment, the other pressing issue for her was how to cope with their son having contact with his father. I would add to that the problems she now faces of her own lack of contact with the child. Dr J said that he felt it was important for her to participate and complete a post-separation parenting course.
Dr J recommended that after completing a post-separation parenting course and engaging in psychiatric treatment, the mother would be “fit” to have day to day care of her son including overnight, over weekends and school holiday periods. The obvious inference is that at this stage and without those courses of action being taken, she is not so fit.
I place much emphasis on what Dr J says.
The mother’s evidence was difficult to follow because although she gave me the details of the affidavits that she wanted me to read, she did not point to any specific paths or paragraphs.
The problem was compounded by the fact that the father did not rely upon any specific affidavits to which the mother had in fact been responding. Accordingly, in trying to decipher just what evidence was relevant and upon which she would want me to rely, I had to trawl through and determine as best I could, what was relevant.
In her affidavit filed 23 May 2008, the mother “noted” that psychologist Mr K had told the Department of Human Services that the child should spend more time with his mother than what Guest J had provided. This statement she said (although not clearly set out in her affidavit) came from the subpoenaed documents.
The mother then referred to the DVD evidence and said that her “issues” related to the long-term psychological damage that the father’s appalling treatment would cause to the child. I digress here to reiterate that I am not able to make any finding in respect of that “treatment”.
Significantly, and in my view to the detriment of her argument, the mother pointed to material produced under subpoena by P Primary School and P Childcare. These documents although they were not produced, noted that the child had ongoing behavioural issues and was showing significant academic decline. The mother’s argument to which I shall return is that she has had nothing to do with that because she has not been seeing her son. Having regard to the evidence of psychologist Mr T, on an interim basis, I accept that the child has significant behavioural problems. The cause of those problems is a vexed issue and one that needs to be canvassed in some detail but the evidence of Mr T is telling. He points to the fact that there is a significant settling period when there is no contact between mother and child.
The mother also opines that the child is afraid to express his true feelings because his father and step-mother do not approve of his close bond with her. She asserts that the father has no insight into the child’s needs such as would enable him to provide adequate care for the child. Apart from the fact that I cannot make any finding in respect of that issue on the evidence before me, the mother is very much faced with the findings of Guest J that the father has a parenting capacity enabling him to provide for the child’s needs.
In paragraph 12(b) of her affidavit, the mother referred to the fact that the child was waiting until after 10.00pm when his father and step-mother went to bed so that he could call her to express his distress and fear. She points to the telephone call accounts to establish that. The child is clearly embroiled in this dispute on the mother’s own case. She says nothing about encouraging him to desist from that activity. There is a strong suspicion that she is encouraging that activity. The orders that I made in March were designed to make the telephone communication between mother and child work. Whilst the calls may or may not be taking place, the content of the calls if as described by the mother are accurate, is disturbing.
However, the mother asserts that the father and his extended family are obstructive to her telephone contact. She relies on previous affidavits filed in the proceedings. I dealt with all of the contravention issues when I heard the matter in March. That assertion is unhelpful in this proceeding. In paragraph 17 of her affidavit, the mother relies upon the DVD evidence, medical reports and photographs of her injuries and those of the child. She refers to dates such as 2 September 2007, 14 October 2007, 13 November 2007 and 25 November 2007. She says she had no access to the child on those occasions and the child was not examined by a doctor. She said there was therefore no evidence of his injuries. The evidence is confusing and in any event, untested. I place no weight on that evidence.
The mother then points to a contact centre employee and accuses her of creating a situation with the father in contravention of the organisation’s policy about handover. This is the incident in relation to the videoing of what occurred. She sets out in her affidavit her perception of what occurred. That is the detail which I found disconcerting but it needs to be tested by cross-examination. Similarly, evidence needs to be obtained from the employee, Ms Z, about what she saw. The mother relies upon subpoenaed documents accusing Ms Z of omitting this information in her recorded notes. That is a matter that needs to be subjected to testing and the mother will have that opportunity later in the year.
The mother refers also to the incident in which she intervened between the child and his father culminating in not only a confrontation in the presence of the child but, I suspect, exacerbating the problem. She accuses the father of assaulting her. She then bit him on the left forearm in the hope that he would release the grip around her neck. If this incident is relevant to the parenting dispute and I am not at all confident that it will assist me one way or the other, one thing it does show is that the parties cannot be in the same environment together and certainly not in the presence of the child. That is the very basis upon which the contact centre was set up. The fact that the mother was waiting and in a position to film what had occurred and then intervened particularly when nothing had occurred on the previous occasions, is something that I find very disturbing.
The mother also reports the outcome of the involvement of the police. Her evidence draws from statements in the subpoenaed material. Having regard to the fact that the police chose not to intervene, it would be inappropriate for me to endeavour to draw any conclusion from the asserted facts. Again in so far as that matter may be relevant to the parenting issue, it is a matter that can be dealt with when the evidence is tested. It is disconcerting that not only does the mother complain that the police did not charge the father but that whenever he “assaults” the child, there is always an alibi available for him. The conspiracy theory does little to assist her cause in this case.
The mother also refers to the fact that amongst other people, the psychologist Mr T told her that children do not make up stories about physical and psychological abuse. I am not entirely sure that the mother means that whatever the child says is truthful. If that is what she means, then it gives credence to the evidence of Mr T and that makes the action that I have been urged to take more compelling.
The mother then accuses the father of being a “no contact parent” and that he is lying to this Court. She says that this is part of a concerted effort to block her out of the child’s life. Again, the difficulty the mother faces is that she has the very strong findings of Guest J which do little to support the accusation that the father is a “no contact parent”.
Turning to her own position, the mother denies any endeavour to undermine the orders of Guest J or that she uses her influence over the child to cause him to be disruptive. She says that the child is the most important person in her life. She makes the assertion that the child was on the road to achieving full potential to develop into a well-adjusted young man up until the orders of Guest J. Again, the finding of Guest J would strongly suggest that that is not so.
In what descends into argument, the mother says that the child is physically abused by his step-brother who also provides him with pornographic material, pictures of transvestite/female genitalia because these were found under the child’s mattress by police in July 2007. Just what all of that means and how it is relevant to the father’s care of the child is not something that I understand. It is a matter that needs to be tested if it is relevant.
In what could only have come from statements made by the child, the mother says that he is not permitted to invite any of his friends over to his father’s home and “therefore” spends most of his weekends alone and unsupervised making “Molotov cocktails”. In addition, she asserts that the father is teaching the child to become a bully. These are assertions not canvassed by the father but clearly have come from things either witnessed by the mother or told to her by the child. The mother says that the experts tell her that the child does not lie. I am not in a position to make any finding of fact about that. However, as with the Senior Registrar, the very fact that those assertions are made would indicate that the child is a very disturbed boy. The continued level of abhorrent behaviour that he shows around the time of court cases or association with his mother is, as Dr T points out, very disturbing. Dr T said that his inquiries of the Department of Human Services indicated that serious allegations had no foundation as far as the Department was concerned. He went on to say that the child gave a much less serious impression of what had otherwise been reported about a recent incident. All of that would tend to suggest that the assertions made by the mother are either blown out of all proportion, deliberate lies by the child or a figment of the mother’s imagination. There may be other possible explanations but currently they elude me.
If there is any foundation in these allegations, the evidence will need to be comprehensive.
To add to the conspiracy theory, the mother asserts that the Department of Human Services omitted important evidence from the material provided to this Court. That is an extremely serious allegation. Nothing in the affidavit in which the allegation is made supports that contention.

The conspiracy theory is further asserted by the mother in paragraph 41 of her affidavit in that she believes that Dr T will be “largely influenced” by the father and his partner. Again, that is an issue that the mother can test in cross-examination. She had that opportunity and quite effectively put to Dr T that that was what was happening. Dr T bluntly responded that he was simply reporting what he had observed. I see no reason to find, even on the limited evidence that I saw of Dr T, that he had any reason to lie.
Much of the assertions in paragraphs 56 and 62 of the mother’s affidavit in so far as they relate to the parenting issue are emotive and opinion unsupported by facts. That sort of assertion is unhelpful. I very much appreciate that the mother is not a lawyer, has no legal training and is endeavouring to represent herself in very difficult conditions. She lives a long way from the Court, has no face to face contact with her son and is the recipient of a very blunt assessment of her personality and credibility by Guest J. However, I have to determine the matter on the evidence notwithstanding the rules of evidence do not apply as a result of the provisions of Division 12A of Part VII of the Act. Even without those specific provisions, s 69ZT says that whatever the evidence is, the Court may give such weight to it as it thinks fit. The interim hearing is severely restricted because the evidence cannot be tested but ultimately, I am relying upon those matters which are either uncontroversial or relatively objective in assisting me in determining what is in the best interests of the child. The mother’s assertions therefore add little weight to the outcome of these proceedings.
The mother ends her affidavit by noting that the child was happy and thriving whilst in her care because he was nurtured, loved and respected. Unfortunately for her, that is not a finding supported by the judgment of Guest J.
The mother relied upon a second affidavit which was filed on 25 June 2008. Many of the things in this affidavit are of similar nature to those matters to which I have just referred. Again I have read carefully what she has set out endeavouring to find some evidence which would assist me to make what is a very serious determination to reduce her role in the child’s life on an interim basis.
In paragraph 12 of this affidavit, the mother says that the child frequently makes reference to the conversations between his father and step-mother about the Family Court proceedings. She quotes the child verbatim about the court proceedings. I am not in a position to make any finding about whether it is the mother that is raising the subject with the child or that he is overhearing conversations best kept between adults. What is disconcerting is the very fact that the mother and the child are discussing that issue. Guest J gave a prophetic warning that she had to get on with her life. That is clearly not happening.
The mother reported that she had read the psychiatric assessment by Dr J. She claimed that there were numerous errors. However, she has now made inquiries about a post-separation course in Launceston which will commence in July/August 2008. Whether she obtains any insight as a result of that course as to what is happening to the child remains to be seen. In addition, she refers to the fact that she is pursuing an appointment with consultant psychiatrist Dr R. According to her affidavit, the mother would be required to undergo a minimum of six 1.5 hour sessions to enable Dr R to make an assessment. The fact that she was seeing Dr R in the foreseeable future was a subject of some discussion during the court proceedings. I have made very clear to the mother that she could call Dr R as a treating psychiatrist but if she intends to rely upon any specific opinion, she will need leave to allow him to be called in that capacity. It seems to me however, that regardless of what course the Family Law Rules require, there needs to be a discussion between Dr R and Dr J as to what, if any, psychiatric problem the mother has.
Again, I have carefully read the comments that the mother has made about potential errors by Dr J. No doubt, those are matters that can be cleared up by Dr R.
Much of the affidavit otherwise repeats historical matters most of which relate to the period prior to the decision of Guest J. The mother said that she provided Dr J with copies of the diary entries of the father. Dr J clearly was not troubled by those matters because he said little if anything about them.
In paragraph 41 of her affidavit, the mother sets out much of the detail about what happened on 28 May 2008 when the child got angry and punched a care co-ordinator and then began to hit him with some thick cardboard. The child then ran away when his father was called. The child fell face down onto some rocks. The mother said that she was told by the Department of Human Services that the father punched the child twice and dragged him on the ground all of the way to the car. Just how much of this detail is true remains to be seen. If in fact that is what the Department accurately recorded and told the mother, it is very disturbing. No doubt, the mother will call the Department as a witness. It is disconcerting that Dr T told me that the Department was taking a different view.
Finally in her affidavit, the mother referred to the fact that she had given the child the after hours child protection unit number. This had occurred whilst the child was, according to the mother, distressed after the incident on 28 May 2008. The child was clearly being embroiled in the dispute. His reaction was as Dr T described. Dr T was very concerned about the fact that these incidents of misbehaviour occurred around the time of court proceedings. With the mother involving the child in the way she described in paragraph 41(g) of her affidavit, there is much in what Dr T says about the court proceedings creating difficulties.
The mother relied upon an affidavit of Ms B who is a psychologist in Tasmania. The mother was referred to Ms B by her general practitioner. The report of Ms B attached to the affidavit is long. It is an unhelpful commentary on the views and outcome of the proceedings before Guest J. There is little doubt that she has accepted the evidence of the mother. That history obviously needs to be tested.
Ms B assessed the mother as suffering from post-traumatic stress disorder so to that extent, she and Dr J agree.
Ms B observed that the mother’s fear that the child may be exposed to or enduring the same sort of physical and emotional trauma that she has now experienced from the father was probably causing her more problems than anything else particularly as she had not seen the child for so long. The difficulty that I have with that opinion is that it is based on a history that may not necessarily be correct.
Ms B went on to say that in her professional opinion, the decision to make the father the residential parent has not been beneficial. She gave some general view as to why that was so. She had had the benefit of the judgment of Guest J. She did not have the benefit of discussing the matter with the father nor seeing the child. She was entirely reliant upon what the mother told her. If the history was wrong, the opinion is of little value. That opinion in this case cannot be of probative value until such time as the mother’s evidence is tested.
Ms B went on to say that in her view the child needed psychological help “when one realises that he witnessed his father physically assaulting his mother”. The same difficulty arises.
In her conclusion, Ms B said:
From my perspective, while it was not ideal that [the child] was not able to develop a positive relationship with his father when he was living with his mother, since he has been living with his father, his situation has deteriorated, not improved.
That quote from Ms B is probably right but its underlying factual assumption in my view, at best is untested and on the evidence that I have seen and that of Senior Registrar FitzGibbon, was wrong.
The mother also relied upon an affidavit of Mr C who was the child’s former school principal. His evidence was strictly limited to the pre-Guest J orders period and the limited period of time that he saw the child during the overholding in 2007. He makes complimentary observations about the mother but having regard to the problems that I currently face in respect of this matter, his evidence was of little value.
The father only required that I rely on one main affidavit. He reported a number of disturbing things including misbehaviour at school, fighting and mood problems.
The father referred to the fact that he spoke to the Department of Human Services. They told him that the child had said that he spends all of his time in his room at home with nothing to do and that the father recorded all of his telephone conversations. The Department said that the child told them that the father and his partner were constantly fighting and yelling at each other and drinking alcohol all of the time. Such was the vivid description by the child of the problems as he saw them in the home. According to the father, all of that was far from the truth. The question is why would the child behave like that and tell those sorts of lies. The answer in my view lies in an observation of the father that the difficulties surround court hearings.
To that end, the evidence of Dr T was of much value.
Dr T is a Regulation 8 counsellor. He holds a doctorate in child and adolescent psychology. He has been involved in this expert area for over five years and involved in working in this discipline for many years.
Dr T said that he had seen the child on about six occasions since September or October 2007. He had seen father and son conjointly and the child alone. Importantly, he had seen the mother once prior to Christmas.
His description of the child was that he was initially quite angry and confused. He told Dr T that he did not want to be with his father and that he was in fact abused by his father. Dr T checked these allegations with the Department of Human Services who told him that they were not true and that the allegations were linked with the mother. When he discussed the issues with the child, the child acted angrily and was hostile and abusive.
However, when Dr T saw the child after some time when the child had not been seeing his mother, he found a totally different boy. The child told him that he enjoyed living with his father and the father’s partner. Everything seemed according to Dr T, to be fine.
After the involvement with the mother again the pattern repeated itself.
Dr T thought it was “eminently reasonable” to give the child a rest effectively from his mother by cutting her out of his life for some time. Dr T thought it was appropriate for a minimum of six to 12 months. I asked whether that would make any difference and Dr T was unsure. What concerned Dr T was that the child would be entering into emotional dislocation if something was not done.
Dr T thought that there was certainly an emotional process going on when the child had contact of some description with his mother and he was not able to get to the bottom of it because the child would not discuss it. He had some insight however when he met the mother. According to Dr T, the mother presented as overly protective indicating that the child was never going to leave her. When she was challenged, she became hostile.
The mother cross-examined Dr T. She invited Dr T to expand on what he had said. Dr T said that the child made it clear to him that he got what he wanted with his mother and that he was able to manipulate her.
The mother put to Dr T in a vague way that he was being influenced by the father and was spending time with them rather than with the father but I reject that. Dr T made clear that his focus of attention was on the child. Dr T had made the appropriate inquiries to ascertain an independent view of what was being investigated.
Dr T obviously took the view that the mother had no objective reality and when he put that to her, she just became hostile. He was very strong in reiterating that he was basing his entire opinion on his observations. He was candid in saying that his opinion was not definitive and that it was as a result of the observations of the child, speaking to the father, the Department of Human Services and gleaning the mother’s characteristics.
Of some assistance was the fact that the mother asked Dr T whether he had been aware of a recent incident in which the child had run away from the father. Surprisingly, Dr T was aware and said that what the child told him was a much less significant version than the one he learned from the Department of Human Services. According to Dr T, the child played down the incident in terms of seriousness. He did not indicate that his father had manhandled him.
Accordingly, Dr T was very strong in saying that the child needed a break and that is what I propose to do.
I heard submissions from all parties. The Independent Children’s Lawyer was very strong in his criticism of the mother pointing to all of the evidence to which I have referred. It was important to factor in that there had been no appeal against the orders of Justice Guest nor had a review process taken place of the Senior Registrar’s decision. Mr Williams said that the Independent Children’s Lawyer was sceptical of the accusations by the mother of the father being involved in inappropriate conduct and particularly so in relation to the incident that I referred to earlier in which the mother filmed the father and the child. In respect of the evidence of Ms B, Mr Williams said and I agree, that the evidence does not assist the mother at all. He highlighted a comment made by Ms B that “[the mother] became rather desperate”. That is not only apt but it is consistent with the observations of Dr T and Dr J.
Mr Werner on behalf of the father adopted a similar position to the Independent Children’s Lawyer. He also pointed to the findings of the Senior Registrar and Guest J.
The mother made the final submissions. She said that there was no direct evidence to substantiate anything and that Dr T was biased. She asserted that the child misbehaved at school and that that had nothing to do with her. She said that his behaviour did not change whether she saw the child or not. She had little doubt that the cause of the problem was the father. She urged me not only to not suspend the contact that she was currently entitled to under the orders but rather to reinstate what was previously suspended by the Senior Registrar. She pointed to incidents in the evidence of inconsistency given by the father in August 2007. I find there is little of assistance in respect of those issues. Her position was very confusing at times. The mother said that she had no issue with the child living with his father so long as her contact with the child was not obstructed. She said she felt that the child was angry already and that a deprivation of time with her would simply exacerbate that. She pointed to evidence to show that the child was well aware of what was happening in the proceedings even to the extent that he knew the court file number. She said that he could only get that from the father. There are other possible conclusions but I am not sure what to make of any of them in the circumstances. The very fact that she was discussing the issue with the child even though she denied to the child that there were any proceedings to the child suggests that the child was well and truly embroiled in this dispute. She said she felt humiliated and embarrassed by his father’s care having regard to the clothing and shoes that the child wore.
The mother was very strong in submitting that there was no substantiated evidence that the child is at risk. I have to reject that on the basis of the evidence of Dr T and if I accept as I do, the evidence of Dr J, there is much to be investigated about how to solve the problem of the relationship between mother and child if it can be resolved at all.
I have already set out the legal principles that guide the decision making process. It is important to acknowledge the primary consideration in s 60CC(2) of the child having the benefit of a meaningful relationship with both parents. The emphasis must be on the word “benefit” as much as on him having a meaningful relationship. At the moment, the only conclusion I can draw is that he is a disturbed little boy who finds the interaction with his mother confusing. I accept the evidence of Dr T. It is clear that the child needs a settling period which he was not given immediately after the orders of Guest J. The question of his future relationship with his mother as much as his father is something that can be re-examined in the final hearing of the matter if I can be satisfied that there has been a significant change of circumstances.
Section 60CC(2)(b) is of significant importance in this application. The Act sets out that it is a primary consideration that a court have in mind the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Just exactly what is happening in this case is hard to know. Each party points the finger at the other in respect of the damage that is being done to the child. The mother says that it is entirely the fault of the father and his new partner. She says that it is not only psychological damage but physical harm that is being caused to the child. The evidence of all of the statutory agencies militates against that. However, that evidence is untested. I have the evidence of Dr T who is very concerned about the psychological health of the child. He says that he has some concerns about the mother. He points to the fact that the disturbing behaviour is heightened around the time of the court proceedings which have been instigated by the mother. Dr J adds to the complexity of the point by raising the question of whether the mother suffers from a Borderline Personality Disorder. All of those matters indicate that the child needs to be protected in the short term from the ongoing dispute between his parents much of which seems to me to have been brought about by the actions of the mother.
The additional considerations set out in s 60CC include taking into account any views expressed by the child. The child articulates that he wishes to be with his mother. Just what he means and how mature he is I am not able to say. I do not know what weight to give to the statements of his views. That is clearly a matter that should be comprehensively examined at trial if there is a justification for reopening this case.
An additional consideration is the examination of the nature of the relationship between the child and each of his parents. Leaving aside the husband’s partner, the father has been found by Guest J to be the primary future carer of the child. He has been found to have the necessary parenting skills and capacity to provide for the child. Much of what is occurring seems to be undermining that relationship between the father and the child. It is not appropriate in my view that many of those sorts of issues be reopened particularly in an interim hearing. Over several days, these issues were canvassed before Guest J and I see no reason to revisit them here.
One of the considerations of great consequence however is the likely effect of any change in the child’s circumstances particularly in relation to his separation from his mother. The mother pointed to the fact that she has done nothing to contribute to the current dilemma. I have serious reservations about that. Dr T said that given some time, the behavioural problems subside. The mother points to some sort of report from Dr K that the child needs his mother. The mother points to the evidence of psychologist Ms B as an indication that the child needs her. All of those matters fly in the face of the evidence of Dr T. All of that evidence needs to be properly tested. I have not been provided with any assistance by their evidence in the determination that I now have to make.

One of the significant additional considerations is the question of the attitude of the parent to the responsibilities of parenthood each parent demonstrates. Again each points the finger at the other as a cause of the problem here. The difficulty I have is the very strong finding of Guest J. It seems to me that on the papers, I could not and should not depart from those findings. Accordingly, I should not make any finding that the father is doing anything other than what is in the best interests of the child. I am not at all comfortable that I know just what role the mother is playing in the damage that is clearly being caused to the child at this stage.
I have already expressed serious reservations about taking away what little relationship the child now has with his mother. However, in my view, the evidence is overwhelming in this case that the child needs a rest from the turmoil. That turmoil was clearly described by Dr T and I accept, is heightened around the time of the association between the child and his mother and/or court proceedings. Accordingly, I find that it is in the best interests of the child that he have that respite until the matter can be comprehensively examined.
Accordingly, I propose to make orders.

I certify that the preceding One Hundred and Forty Two (142) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 9 July 2008

[2008] FamCA 641

9 July 2008

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Injunction

Costs

Stay of Proceedings

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Procedural Fairness