Bell and Bell

[2017] FCCA 173

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELL & BELL [2017] FCCA 173

Catchwords:
FAMILY LAW – Parenting – whether the court should order a 14½ old to attend counselling with his father in an attempt to repair their seriously estranged relationship.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 60CA, 60CC(2), 60CC(3)

Cases cited:

Mazorski v Albright (2008) 37 FLR 518

Tait & Densmore (2007) FamCA 1383

Applicant: MR BELL

Respondent: MS BELL

File Number: MLC 12264 of 2007

Judgment of: Judge Small

Hearing dates: 13 July 2016, 14 July 2016 & 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Dandenong

Delivered on: 3 February 2017

REPRESENTATION

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Self-represented

Counsel for the Respondent: Mr Stanley

Solicitors for the Respondent: Plaza Legal

Counsel for the Independent Children's Lawyer: Mr Strong

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

1. All previous parenting orders in relation to the child X born (omitted) 2003 (“the child”) are hereby discharged.

2. The mother shall have sole parental responsibility for the child.

3. The child shall live with the mother.

4. The child shall spend time and communicate with the father only at the child’s instigation and in accordance with the child’s wishes.

5. The father shall be at liberty to send the child cards and letters on four occasions per year including for Christmas and the child’s birthday.

6. Otherwise, that is, save to respond to any communication from the mother or the child, the father is hereby restrained by injunction from contacting the mother or the child in any way, save to inform them of paternal family emergencies.

7. The mother shall ensure that the child’s school makes available to the father, at his cost if any, all school reports, information about parent-teacher interviews, and information about all prizes or awards won by the child and the father shall be at liberty to attend parent teacher interviews at a different time to that of the mother.

8. The mother shall inform the father of any serious illness or injury suffered by the child which requires hospitalisation, and she shall authorise any treating medical or allied practitioners who are caring for the child to speak to the father about the child’s treatment.

9. The mother is hereby restrained by injunction from:

   (a)criticising, insulting, belittling, or otherwise denigrating the father or any member of the father’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;

   (b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain the effect of these parenting Orders to him, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;

   (c)allowing the child to access, read or have read to him any portion of the Court’s Reasons for Judgment in this matter.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 12264 of 2007

MR BELL

Applicant

And

MS BELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a parenting matter concerning Mr Bell (“Mr Bell” or “the father”), Ms Bell (“Ms Bell” or “the mother”) and their only child X born (omitted) 2003 (“X”).

2. Mr Bell has not spent time with X since May 2014 and is now seeking orders for X to attend counselling or therapy in an attempt to repair their relationship.  

3. Ms Bell seeks orders that X spends time with Mr Bell by agreement, and maintains that X does not want to spend time with his father. She opposes any orders for X to attend counselling.

4. It is acknowledged by both parents that whatever the cause, X is currently estranged from Mr Bell, and at the time of trial had not spent time with him for more than two years.

5. The parties are agreed that X should remain living with his mother.

6. The issues to be decided in this matter, as agreed between the bar and bench during the trial, are as follows:

   B.Should the court make an order that X and his father attend family therapy?

   C.If the answer to the first question is in the affirmative, who should pay for it?

   D.If the answer to the first question is in the affirmative, should the therapy be reportable or confidential?

   E.Should these orders be Interim Orders or Final Orders?

   F.Should any conditions be attached to the sole parental responsibility order to which the parties have otherwise agreed?

Background

1. Mr Bell was born on (omitted) 1971 and is currently 46 years old. He works full time as a (occupation omitted).

2. Ms Bell was born on (omitted) 1969 and is currently 47 years old. Ms Bell works part-time as a (occupation omitted) and part-time as a (occupation omitted), her hours averaging approximately 28 hours per week.

3. The parties began living together in 1993 and were married on (omitted) 1998. They separated on a final basis on 30 June 2005 after a 12 year relationship and marriage, and divorced on 9 February 2008.

4. X, their only child, was born on (omitted) 2003 and is therefore currently 13½ years old.  

5. In the period after separation to March 2013, the parties had an informal arrangement for X to spend time with Mr Bell, although they have differing views in relation to the regularity and frequency of that time.

6. Mr Bell repartnered with Ms L (“Ms L”) in (omitted) 2005 and they were married on (omitted) 2014. The couple have two children together, A born (omitted) 2009 and B born (omitted) 2013.

7. The mother has not repartnered.

8. X has refused to spend time with Mr Bell since May 2014. The parties have differing reasons for this.

9. Mr Bell claims that Ms Bell has kept X from him and undermined their relationship to the extent that X has become alienated from him.

10. Ms Bell claims that Mr Bell was not interested in parenting X either during or after the marriage, and X is now reacting to this lack of care, and to Mr Bell’s alleged emotional abuse of him, by refusing to spend time with Mr Bell.

Procedural History

1. These proceedings began with the filing of the Father’s Initiating Application on 25 August 2014.

2. In that Application, Mr Bell sought orders for the parties to have equal shared parental responsibility for X, that X live with his mother, and that he spend certain regular time with his father.

3. Ms Bell filed her Response on 13 October 2014, seeking sole parental responsibility for X, that X live with her and that he spend time with his father “by agreement”.

4. The matter first came before me in the Duty List on 14 October 2014. I ordered the parties to attend section 11F counselling the next day and adjourned the matter to 15 October 2014 at 2:15pm.

5. When the parties returned before me on 15 October 2014, they had agreed on certain consent orders on the recommendation of the Family Consultant, Mr B (“Mr B”). Those orders provided for the parties to attend the Parenting Orders Program, to complete an application form for the father to have supervised contact with X at a children’s contact centre, and for a further section 11F conference on 27 March 2015.  I then adjourned the matter for further Directions before me in the Duty List on 12 May 2015.

6. In the interim, the mother sought to change the date of the s.11F conference on two occasions, and the matter was ultimately administratively adjourned to 19 May 2015.

7. On 19 May 2015, the parties returned to court after attending their section 11F conference with Mr N (“Mr N”) on 12 May 2015. At that hearing, I made orders for psychiatric assessment of both parties, for the preparation of a Family Report, and for the appointment of an Independent Children’s Lawyer, before setting the matter down for trial on 1 June 2016 for three days and issuing trial Directions. The trial was later adjourned administratively to 13 July 2016.

8. The psychiatric assessments of the parties conducted by Dr P (“Dr P”) and dated 28 February 2016 were annexed to an affidavit and filed on 27 April 2016.

9. The Family Report was released on 5 May 2016 and the father filed his Trial Affidavit and the Affidavit of his partner Ms L on 24 June 2016.

10. The mother filed her Trial Affidavit on 6 July 2016 and her Outline of Case Document on 8 July 2016. The Independent Children’s Lawyer and the father also filed Outline of Case Documents on 8 July.

11. The parties came before me for trial on the adjourned date of 13 July 2016 where the Court heard evidence over three days.

12. Witnesses were the father, the mother, Ms L and Family Consultant Ms R (“Ms R”), all of whom were subject to cross-examination.

13. I reserved my judgment at the conclusion of the trial on 15 July 2016.

Issues and Evidence

A.    Should the court make an order that X and his father attend family therapy?

The father’s evidence

1. The father wants the court to make orders that he and X attend family therapy or counselling aimed at repairing their fractured relationship so that they can have a healthy and positive relationship into the future.

2. It is his evidence that the breakdown in his relationship with X is solely due to the mother’s actions in preventing X from developing a close and healthy relationship with him over many years, and that she has conducted a deliberate and persistent “master plan” to eliminate him from X’s life, including encouraging X to feign illness in order to avoid spending time with him.

3. That evidence is found in his affidavits affirmed and filed 25 August 2014, affirmed and filed 23 September 2014, affirmed 21 September 2015 and filed 22 September 2015, and affirmed 23 June 2016 and filed 24 June 2016, and in the affidavit of his wife, Ms L, sworn 23 June 2016 and filed 24 June 2016, as well as in the oral evidence given at trial by both Mr Bell himself and Ms L. 

4. I note that on the first day of trial, paragraphs 136 to 151 and “Annexure B-2” to Mr Bell’s affidavit affirmed 21 September 2015 and filed 22 September 2015 were struck out, as paragraphs 136 to 151 purported to provide expert evidence which Mr Bell was not qualified to give, and the author of the document marked “Annexure B-2” was neither on affidavit nor available for cross-examination. I have not considered any of that evidence in coming to my decision in these proceedings.

5. Mr Bell’s affidavit material is replete with examples of behaviour on the part of the mother between the date of separation and the institution of these proceedings which he says indicate her wish to remove him completely from X’s life.

6. These include:

   ·    13 specific examples between 16 September 2011 and 14 November 2013 of communication difficulties between him and the mother, many of which had resulted in him being unable to spend time with X;

   ·    the mother telling him at separation that X would not be able to spend overnight time with him because his accommodation was unsuitable; then when he obtained suitable accommodation that he could not have X overnight until he turned seven; and then when he attained that age, that X was afraid to stay overnight with his father;

   ·    X’s time with him often being cancelled at the last minute on the basis that X was unwell or that the mother wished to change the time (Mr Bell deposes that this situation occurred at least 20 times before he instituted these proceedings);

   ·    the mother withholding from him any information about X’s educational progress, including excluding him from the decision as to which school X would attend;

   ·    the mother informing X that Mr Bell’s behaviour towards her would cause her and X to lose their house;

   ·    the mother refusing to allow him to spend time with X on Christmas Day and Father’s Day; and

   ·    the mother allowing X to remain home from kindergarten when Mr Bell was to attend to collect a television and lounge suite so that X became distressed when the items were being removed.

7. In addition, Mr Bell sets out several examples of incidents where he says X was at best, allowed and at worst, encouraged to resist spending time with him.

8. These include:

   ·    specific examples of X feigning illness when he was supposed to spend time with his father, including an incident when X disgorged undigested Weet Bix from his mouth in the father’s presence as though he were vomiting when Mr Bell attended at his home to collect him, and another when X suddenly became “well” again after being told he would be taken to the doctor; and

   ·    an incident at a suburban swimming pool where X asked his father if he could change his surname to that of his mother, and when Mr Bell demurred, X “became hysterical” and began shouting and screaming, repeating the request “at least 20 times the top of his voice” and saying “if you do not let me change my last name I will tell everybody seeing you causes me psychological harm and I won’t ever have to see you anymore”.

9. At trial, Mr Bell presented as a confident, perhaps even cocky man, who appeared to want not only to repair his relationship with his son, but to ensure that the mother was held to account for what he saw as her myriad attempts to prevent him from having a relationship with X.

10. In his opening, he said that while it was important to acknowledge the past, he wished to find a path forward. It was in that context, he said, that he wished to follow the recommendations of Ms R's Family Report.

11. Under cross-examination from the mother’s counsel Mr Bell conceded that Ms Bell had not always prevented him from seeing X but stated that it had been irregular. He confirmed that he had not seen X for more than two years and that he had no information about him other than that written in reports provided by family consultants in that time.

12. He agreed that in those circumstances he had had no involvement in X’s school or sporting activities, nor any involvement in X’s activities with the (hobby omitted), saying that he had never received any information about those activities and did not know when X’s sporting activities and concert performances were scheduled.

13. He stated that he was aware that X played (hobby omitted) for the “(omitted)” but acknowledged that he never attended games, saying he had never been invited. He was also aware that X played (hobby omitted), but despite being a passionate supporter of the (hobby omitted) himself, he had never seen his son play.

14. When asked whether X might not have interpreted his non-attendance at X’s activities as a lack of interest, Mr Bell stated that he did not think so, and that it would have been confusing for X had he attended. He did concede, however, that X may have formed a view about his non-attendance.

15. When it was put to him that he had missed multiple opportunities to spend time with X before 2014, Mr Bell said that he had missed his time with X very rarely, and that the only time he had cancelled because of “bad behaviour” on his part was the day after his 40^th birthday when he had been hung over. He acknowledged that he had spent make up time with X in lieu of other occasions, such as when he was participating in the (omitted).

16. When asked to review text messages sent to him by the mother, Mr Bell conceded that the tone of those messages was conciliatory and that their content was about the parties working together and attempting to promote a relationship between him and X. However, Mr Bell stated that the mother’s actions had been inconsistent with those statements and that she had “threatened” him by mentioning financial issues in relation to child support.

17. Mr Bell conceded that he had paid no child support for X since 2007, saying that that situation was the result of a financial settlement reached between the parties in that year. He had, however, paid for X’s school fees until April 2010, when he had asked Ms L to telephone the school to inform them that he would no longer be paying X’s fees.

18. I note that it is Ms L’s evidence that “Mr Bell and I made this decision, as his contact to X was still being regularly interrupted and cancelled, combined with the fact that we could not really afford this additional expense anyway.” [1]

    [1] Affidavit of Ms L sworn 23 June 2016 and filed 24 June 2016 paragraph 34

19. Mr Bell agreed that he had not spoken to Ms Bell before cancelling the payment, but it was his evidence that he did not think that X would have been removed from his school as a consequence. He denied having cancelled his payment of X’s fees in order to hurt X or to place a greater financial burden on Ms Bell, although he accepted that he had known that Ms Bell would have to pay the fees if he did not. He stated to counsel rather dismissively: “I don’t think life changes for your client for a few hundred dollars”.

20. It was put to Mr Bell that there was no documentary evidence of any agreement for him not to pay child support for X and that there had been no oral agreement between the parties to that effect.

21. Mr Bell stated that there had been no claim on him for child support for some nine years and that Ms Bell would surely have made such a claim had there been no agreement.

22. Mr Bell was then taken to the incident that happened at a swimming pool on 10 March 2013 when X had asked repeatedly to change his surname to his mother’s maiden name.

23. He conceded that he had placed a telephone call to the mother at that time and was asked whether, as he was reported to have told Ms R, “he was angry and yelled at her on this occasion accusing her of coaching X, which she denied”[2]. He denied under cross-examination that he had been really angry, but accepted that he had been upset and had raised his voice to the extent that he might have been yelling. He further agreed that he had called Ms Bell “a disgusting human being” during that call.

    [2] Family Report  paragraph 12

24. When he was asked why he had placed that call instead of comforting X, who had been extremely distressed about the issue[3], Mr Bell stated that he had consoled X later but had considered that the conversation between him and the mother “needed to happen” at that time.

    [3] Ms R records that Mr Bell had told her that X had been "inconsolable" at that time.

25. However, when asked whether he had considered it more important to abuse Ms Bell than to comfort X, Mr Bell stated that he had already spoken to X before he made the telephone call. In later evidence, Mr Bell asserted that he had discussed X’s wish to change his name “rationally” and that there had been no “argument” between him and X at the pool on that day.

26. Ms L, in her affidavit sworn 23 and filed 24 June 2016, deposes to the following in relation to that incident:

    35. […] I was sitting in the viewing area watching them all in the wave pool, due to being pregnant at the time with B. I started to notice lots of yelling from X towards Mr Bell, and then Mr Bell got out of the pool abruptly and was charging towards me, X and A following quickly behind him, Mr Bell lead (sic) the way towards me and was walking in front of X and A, I could hear yelling from X behind him, as they all got closer to me I heard X still yelling at Mr Bell from behind “if you don’t let me change my last name, all I have to do is tell people that seeing you is doing me psychological harm and I won’t have to see you any more” Immediately Mr Bell got to me he said “look after X, and where is my mobile phone? I need to make a phone call” he left X with me, I handed him his mobile phone from my bag and he marched outside the swimming centre alone.

1. At trial, Mr Bell accepted that Ms L’s affidavit represented her experience of the incident, but stated that she had omitted to say that X had been repeating his statement over and over again.

2. When it was put to him that there was a contradiction between Ms L’s experience of the incident and his evidence that he had been rational, Mr Bell stated, “I was rational. I wasn’t arguing. I was upset.”

3. He did acknowledge that he had been speaking loudly when he made the telephone call to Ms Bell, and that he had called her “a disgusting human being”.

4. It was Mr Bell’s evidence that while the incident might have been unpleasant for X, it had all been orchestrated by X and his mother. He said that it was at that time that he came to believe that Ms Bell had developed a “master plan” to remove him from X’s life.

5. Mr Bell’s evidence in relation to this incident is particularly concerning to the court. He appears to diminish and downplay his angry response to X’s request and the abusive nature of his communication with Ms Bell, while at the same time denying the possibility that X’s behaviour, while it might have been extreme and even worthy of some intervention, might have indicated a genuine wish on his part to change his name.

6. Mr Bell was then taken to the occasion on 28 April 2013 when he arrived at Ms Bell’s home to collect X.

7. It was his evidence that upon arrival he was informed that X was ill and therefore unable to spend time with him.

8. He denied allegations made in the affidavit of Ms Bell sworn 10 October 2014 and filed 13 October 2014 that he had said on 28 April 2013 “that he would get me, take me down and make me suffer, or words to that effect.”

9. He also denied that X had vomited after seeing him being abusive to his mother. It was his evidence that X had burst out of the house and “produce(d) Weet-Bix from his cheek at my feet”. He said that X had chewed the Weet-Bix and then propelled it from his mouth in his father’s direction to simulate vomiting. Mr Bell says that X attempted to go inside to repeat the process but that his mother had told him not to bother.

10. Under further questioning Mr Bell confirmed that there was no doubt in his mind that that incident had been orchestrated between the mother and X, and he agreed that X would have to have been involved in the planning of such an incident. He said that X’s motivation to participate in such a plan would have been “strong”, but that it was his belief that X was not mature enough to behave like that “under his own steam”. 

11. If Mr Bell’s version of events in relation to this incident is true, then it would certainly raise concerns in the mind of the court as to the mother’s motivation in planning, and X’s motivation in executing what amounts to a blatant lie in relation to the reason for X’s refusal to see his father.

12. When counsel for the mother asked Mr Bell about Mr B’s description of X’s presentation at the first s11F conference, Mr Bell said that he did not think that X’s distress when asked about him was feigned, that those reactions were genuine at that time, but that X’s “narrative” was in line with that of Ms Bell. However he was not prepared to say that X was lying when he told Mr B that his mother was encouraging him to see Mr Bell but that he did not want to.

13. When asked why he had not taken X’s views to heart when those views had been reported consistently to 3 separate family consultants, Mr Bell said that he wanted to hold the mother accountable for her behaviour and to get X into therapeutic counselling. He said: “My intention is to have a relationship with my son”.

14. It was his further evidence that between October 2014 and May 2015 he had sent some 47 texts to Ms Bell who had not responded to them. Mr Bell acknowledged that he knew that Ms Bell did not want him to send the texts, and that he had been told in a letter from her solicitors that the texts were causing X great distress, but that he ignored that information and had sent them in any event.

15. When asked about Mr N’s 11F memorandum, Mr Bell reaffirmed his belief that Ms Bell had developed and carried out a “master plan” to eliminate him from X’s life.

16. He acknowledged that he had told Mr N that he knew that it was unlikely that a court would make an order for him to see X, but stated that what he meant was that a court would be unlikely to make such an order “at that time” (ie in mid-2015). He said he could not recall telling Mr N that he would nevertheless persist with these proceedings.

17. Mr Bell was then taken to Mr N’s report where Mr N stated as follows:

    […] His comments suggested that his primary motivation for doing so relates to his intention to “pursue” Ms Bell so that a “blowtorch” can be applied to her through ongoing Court processes. He believes that such pressure will eventually result in Ms Bell’s acquiescence and X being able to spend time with him.

18. Mr Bell acknowledged that that statement is probably an accurate record of what he said but stated that he could not recall using the words “pursue” or “blowtorch”. He said that would be a question for Mr N but of course Mr N had not been called for cross-examination. Mr Bell denied being evasive in his answer stating that he simply did not recall saying those two words.

19. Mr Bell stated that his belief as set out in the final sentence of the above paragraph is “my version of accountability”. However, he says that he would now substitute the word “process” for the word “pressure”.

20. He said that he had read Mr N’s recommendation that he not continue with the court proceedings but that he disagreed with that recommendation.

21. When asked about texts he had sent to Ms Bell after the second s11F conference, those texts being set out in paragraphs 103 and 104 of these Reasons, Mr Bell denied that his intention in sending them had been to intimidate, harass or bully Ms Bell, and said he was simply attempting to get her to cease her “master plan”. He asked the rhetorical question “Why would you go to the expense” of continuing with proceedings if there were no prospect of success?

22. Under further cross-examination on the issue of those texts, Mr Bell said that his intention in sending them had been to resolve this dispute, that is, for Ms Bell to give up and allow him to see X. He accepted that there is no request in those terms in any of the text messages, and indeed that X is not mentioned in them at all.

23. He then gave evidence that he does not believe that Ms Bell finds his text messages intimidating harassing or bullying, although he acknowledged that that is her evidence in relation to them. He said that on the basis of that belief he has ignored requests to stop sending text messages to her, and that indeed he had continued to send such messages, the last one being one day prior to trial.

24. That message simply stated: “3/47”. It was Mr Bell’s evidence that he was referring to the fact that Ms Bell had responded to 3 of his 47 text messages.

25. It was put to him that Ms Bell would say that she had “googled” “3/47”  and had found multiple references to Chapter 3 Verse 47 of the Book of Lamentations from the Old Testament, which reads, in one translation:

    47 panic and pitfall have come upon us, devastation and destruction;.

26. Mr Bell absolutely denied having sent the text message “3/47” the night before trial knowing that it would refer to that biblical verse. He was adamant that he was totally unaware of the reference. He appeared genuine when giving that evidence and presented as very surprised and even incredulous about the question asked.

27. He did, however, acknowledge that he had not had any reason to send that message, nor any of the 47 messages he said he had sent Ms Bell, in the course of these proceedings.

28. Under later cross-examination by counsel for the Independent Children’s Lawyer, Mr Bell said that while he had not taken any notice of Ms Bell’s requests for him to cease texting her, he would comply with a court order that he not do so.

29. Mr Bell was then referred to the Family Report of Ms R.

30. He agreed with Ms R’s statement that he was “determined for the court to “test every piece of evidence” in support of his explanation responding to the allegations made by Ms Bell”[4].

    [4] Family Report paragraph 38

31. When asked about X’s experience of his father’s behaviour and of these proceedings as expressed to Ms R, Mr Bell said that he had read that information and accepts that X does not wish to see him, and that he has said so to three separate family consultants. He also accepted that X had told Ms R that his mother does not talk negatively about his father.

32. However, he stated that he had no doubt that X had colluded with what his mother thinks and says, and that he did not believe X when he said that Ms Bell did not speak negatively about him. It was Mr Bell’s belief that “someone has played with (X’s) feelings”, and he stated further, in relation to his persistence with these proceedings, “The only chance of my having a relationship with my son is the one I have chosen”.

33. He stated that he had read all three family consultants’ reports, and he said that while he did not agree with the opinions contained in them, he did agree with Ms R’s recommendations.

34. When it was put to Mr Bell that his motivation in these proceedings is to pursue the mother and do her harm, he denied that suggestion and said his motivation was in his documents.

35. It was then suggested to Mr Bell that the only evidence about Ms Bell’s “master plan” that he had presented to the court was that contained in paragraph 41 of his affidavit sworn 21 September 2015[5]. Mr Bell stated that those examples were the ones that he had at his fingertips and that he “could be bothered typing”. He said that the examples were not an exhaustive list, and that there was evidence in text messages passing between the parties and in other documents which he did not specify.

    [5] That paragraph sets out 14 occasions on which arrangements for X to see Mr Bell had been changed, some as a result of his requests and some as a result of Ms Bell's requests.

36. When it was put to Mr Bell that the examples he had provided in that paragraph did not support his case that Ms Bell had prevented him from seeing X, he denied that suggestion and stated that he was looking forward to cross-examining Ms Bell on that issue.

37. Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Bell confirmed that he wished to follow the recommendations of Ms R's Family Report.

38. When asked how he would refer to Ms Bell when he was with X, Mr Bell said that he would need the therapeutic counselling recommended by Ms R in order to develop the appropriate skills to do so. That appeared to me to be an extraordinary statement from a man claiming to be a good and competent parent.

39. When asked, Mr Bell said that he takes 50% of the responsibility for the dispute that has existed between the parties ever since separation in 2005. He further acknowledged that it had been unacceptable for him to shout at Ms Bell on the one occasion that he acknowledges that to have happened, and that some of his behaviour at changeover had also been unacceptable.

40. When he was referred to Dr P’s statement that the relationship between him and Ms Bell was irreparable, and it was put to him that he would never trust anything Ms Bell said, Mr Bell replied that that was “fair comment”.

41. At one point during his cross-examination by counsel for the Independent Children’s Lawyer, Mr Bell said that his opinion was irrelevant, and that it would be “up to the professionals”.

42. Nevertheless, he did not agree with Ms Bell’s proposal that these proceedings should end and that X should see him according to his wishes, saying “I am asking for my orders and I will get them or I will not”.

43. Mr Bell was asked what his position would be if orders were made for therapeutic counselling and the therapist told him at some stage that there should be no time between him and X and no further counselling. Mr Bell replied to the effect that if he could be satisfied that the counselling had gone as far as it was able, and that it had not been undermined, he would “accept that”. He said that he was “happy to roll the dice” and take his chances in that regard.

44. However, Mr Bell said that that position was dependent on Ms Bell sharing the costs of the therapist, as he said that if she were paying half the costs, it would be more difficult for her to undermine the therapeutic process.

45. Counsel for the Independent Children’s Lawyer then asked Mr Bell whether, in the event that ongoing counselling were not to proceed, he would be prepared to attend one session with either the therapist or the Independent Children’s Lawyer and X so that he could explain to X that he respected his wishes and was “there for him” and that there would be no further proceedings.

46. Mr Bell’s reply was that he would attend and appreciate such an interview.

47. When asked what he would do if the court were to make orders for counselling and X refused to attend, Mr Bell said that while the question was pre-emptive, and he had confidence in the therapist’s ability to engage X, he would attend appointments until it became clear that the exercise was futile.

48. Mr Bell was then asked what he would do with X if he were able to spend time with him in the future. He replied that if there were no prearranged plans, activities would be by negotiation with X, and he added that having heard what X had said to the family consultants, he would spend more one-on-one time with him. He said there was no reason why he would not attend X’s sporting activities if they fell within his scheduled time.

49. At the end of his cross-examination, and as part of the “re-examination” process, Mr Bell stated that the selection of text messages he had sent Ms Bell, as presented by counsel for the mother, was not complete, and he asked to read some more of those messages into the court record.  I allowed Mr Bell to read three messages of his choice from the 47 available.

50. He then read the following:

    (omitted) 2015: We’re going for dinner on (omitted) – also A’s actual birthday. X welcome to come to that also. Still awaiting a response regarding X’s required attendance to A’s birthday.

    (omitted) 2015: wish X my best wishes for today. Also, if he’s interested in doing something his birthday, just need to organise a mutually agreeable time and location with him.

    (omitted) 2015: Hope X had a great birthday. B’s second birthday (omitted) around 7 pm at mum’s place. Let me know if X is available. Don’t forget X’s invite for B’s birthday. Go (omitted)’s. I hope X enjoyed his Christmas. Looking forward to next year. Hoping X got himself something with his voucher and has some recall memories of happy times from the photos to which we seem to forget. Tell X I hoped his new school (sic) and will make lots of new friends and from his dad (sic).

The evidence of the father’s wife

1. On 24 June 2016 Mr Bell’s wife, Ms L, filed an affidavit sworn 23 June 2016.

2. In that affidavit Ms L sets out the history of her relationship with Mr Bell, stating that they had begun living together in (omitted) 2005, were married in (omitted) 2014, and had two children, A and B.

3. It is Ms L’s evidence that Mr Bell has experienced “contact issues with his son” since he separated from Ms Bell in July 2005. Like Mr Bell, she attributes those issues to Ms Bell’s uncooperative behaviour.

4. However, I note that when under cross-examination at trial, Ms L said that she did not agree with Mr Bell’s assessment that Ms Bell had developed a “master plan” to prevent X from seeing him.

5. Ms L deposes that there had been an agreement between Mr and Ms Bell in 2007 that Ms Bell would keep the family home and that Mr Bell would “transfer all his stake as an upfront payment for the following sixteen years of child support, and that he would eventually receive a cash payment in exchange for doing so”[6]. She says that Mr Bell had agreed to do this so that Ms Bell and X would have secure accommodation.

   [6] The affidavit of Ms L sworn 23 and filed 24 June 2016 para 12

6. Ms L confirms Mr Bell’s evidence that Ms Bell had not allowed X to stay overnight initially because of unsuitable accommodation, and had then told Mr Bell “that X would not be able to stay over until he was at least seven years old, due to his poor sleeping habits and anxieties’s (sic). I also heard X around this time start mentioning to Mr Bell occasionally, that he did not want to stay until he was seven years old”[7]. Ms L says that by that time, in 2008, she and Mr Bell had rented a property in which X would have his own room, and that they had purchased a bed for X, expecting that he would be coming to stay overnight.

   [7] Ibid. paragraph 19

7. Ms L deposes that between 2005 and 2013 Mr Bell would drive to Ms Bell’s home in (omitted) on each alternate Sunday to collect X as agreed between him and Ms Bell, but that he had returned without X on at least 20 occasions during that period. Ms L says that she recalls this clearly because she and Mr Bell would arrange activities or events for the day which included X, and later A and B, and that they would have to rearrange those activities or events to occur without X.

8. She says that on other occasions Mr Bell would receive text messages from Ms Bell between 7:00 am and 8:00 am on the Sunday morning cancelling Mr Bell’s time with X on that day, usually because Ms Bell said that X was ill.

9. It is Ms L’s evidence that there were periods of months at a time when Mr Bell did not see X because of what Ms L describes as “these regular cancellations and holiday exclusion periods imposed by Ms Bell”[8].

   [8] Ibid. paragraph 26

10. Ms L further deposes that she had heard X say “Mum and I are going to lose the house because of Dad”[9] or “I am sick I need to go home”[10] when he was at her home during this period.

    [9] Ibid. paragraph 46

    [10] Ibid. paragraph 28

11. It is her further evidence that when X did spend time with his father, she and Mr Bell would plan for his visits and that “these hardly ever consisted of staying inside the house or watching TV”[11]. She says that Mr Bell “was always focused on making the limited fortnightly Sunday contact days to X as memorable as possible” [12]. Later in her affidavit she describes the following activities as those the family engaged in: “the movies, (omitted), (omitted), visiting the beach, visiting various parks and much much more”[13]. She says X’s favourite activities were riding bikes or going to the swimming pool.

    [11] Ibid. paragraph 30

    [12] Ibid. paragraph 30

    [13] Ibid. paragraph 76

12. I have already set out Ms L’s version of the events that occurred at a suburban swimming pool on 10 March 2013 in paragraph 55 of these Reasons and will not repeat it here.

13. After setting out her evidence as stated in paragraph 55 above, Ms L deposes to the following:

    37. He returned a few minutes later and told me the details of the conversation he had just had with Ms Bell, he told me that Ms Bell had denied coaching X the psychological harm comment and that she had offered no reason to why his son was so aggressively demanding to change his last name to match her maiden name. He stated that he had loudly told her she was a “disgusting human being” while accusing her of coaching X this information.

    38. During this situation Mr Bell never raised his voice at X at the swimming pool or back at our house, at home X quietened down alot (sic) and became extremely withdrawn, until finally they left in the car for drop off a couple of hours later.

14. It is Ms L’s evidence that “After this swimming pool incident, Mr Bell was now totally convinced that his nine-year-old son X was totally serious about attempting to threaten him on behalf his mother and her family, and that X was now totally under her psychological control”[14].

    [14] Ibid. paragraph  40

15. Ms L then sets out what Mr Bell had told her about the events of 28 April 2013 that account essentially being in accordance with Mr Bell’s own evidence about those events, but curiously in considerably more detail.

16. Ms L deposes that once these proceedings had been instigated, X’s behaviour became negative and that he demanded that his father buy him expensive presents, giving an example of such a time. She then sets out the following evidence:

    47. On A’s 5^th birthday party (omitted) 2014, we had organised eight of A’s friends and X to attend. In the car X was complaining of a serious stomach illness, telling Mr Bell that he needs to ring Ms Bell immediately, so Mr Bell rang Ms Bell on the mobile, X briefly spoke to Ms Bell, and again X repeated the story complaining of this stomach illness to his mother, finally Mr Bell spoke to Ms Bell and hung up the phone, I noticed Mr Bell was very careful in this final conversation with Ms Bell not to divulge any information to X regarding being picked up. Immediately Mr Bell ceased the phone call, X began to ask “so is my mum coming?” Mr Bell responded with I have spoken to your mum, and I am taking you to the doctor, X became very agitated with this response, finally admitting he was NOT sick (sic) however admitting they had arranged with his mother prior to contact to go motorbike riding that afternoon, Mr Bell then informed X that yes his mother was on her way and he would be getting picked up at around 1:30pm at the usual meeting spot, and yes he would make his motorbike riding.

1. I note that Ms L was not subject to cross-examination at trial about this incident, or her evidence about the events of 10 March 2013.

2. Ms L then deposes at some length to the positive involvement Mr Bell now has in A and B’s lives, including picking A up from school, taking the children to their midweek activities, attending A’s (hobbies omitted) and introducing “an exercise and education program into the household for both A, B and (omitted) the dog”[15].

   [15] Ibid. paragraph 54

3. It is her evidence that since she returned to work in 2014, Mr Bell arrives home from work by 3:15 PM on weekdays and that he “then does what is required e.g. including shopping, bathing, cooking, feeding, nappy changes, play activities, readers, homework, take them to the park, Parent teacher interviews, exercise program and all tasks associated with the raising, welfare and education of our children”[16].

   [16] Ibid. paragraph 55

4. Ms L attributes A’s positive progress at school to his father’s involvement with him at home and says, in paragraph 61, that she believes that A and B will perform at an “above average” or “excelling” level in all aspects of their lives “as long as there is no change to the amount of quality time my children are exposed to their father”[17].

   [17] Ibid. paragraph 61

5. Under the heading “The Mr Bell I know, in response to allegations made against him”, Ms L states:

   I have never seen Mr Bell being violent, or displaying any uncontrolled aggression towards me or anybody else including X throughout our nearly eleven year together relationship […..][18]

   [18] Ibid. paragraph 64

6. The only exception to this, she says, was on an occasion in 2012 where Mr Bell intervened to protect a neighbour who was being violently assaulted in their street one evening.

7. A learns martial arts as a result of allegations of bullying against him at his kindergarten, and Ms L deposes that Mr Bell does not allow A to use the skills learned in those situations in any uncontrolled environment.

8. She also deposes that A and B love “play fighting” with their father. It is her evidence that initially, X had been reluctant to join in, but that he had eventually done so, and indeed had encouraged A to initiate “play fights” with Mr Bell so that he could be involved. It was on one of these occasions, she says, that X received “a knock to the leg” which she then says was “surely not hard enough to bruise or tell expert 11F report writer negative stories about ‘dad punched me in the leg’”[19].

   [19] Ibid. paragraph 67

9. Ms L describes Mr Bell as “extremely protective and thoughtful of his children’s safety” and says that he attempts “to inspire them to achieve their full potential and always espouses the virtues of education, health and a balanced lifestyle, but mostly goes on about ‘being kind to each other’ ”[20].

   [20] Ibid. paragraphs 81 and 82

10. Ms L then goes on to describe her relationship with X, whom she has known since 2005. She says that since that time she has been present on almost every occasion when Mr Bell has spent time with him. She points out that she had a relationship with X for many years before A and B were born, and that she had always assumed that X would be involved in her children’s lives.

11. Ms L states that she will continue to support Mr Bell in his attempts to have X re-join their family. She states that while B does not know X, having only seen him a few times when she was a very young baby, A “adores” his big brother, and often asks when he will be coming to visit again.

12. Under cross-examination at trial, Ms L conceded that she did not know Ms Bell, and knew of her only by way of Mr Bell’s view of her.

13. In relation to the telephone call she made to X’s school in April 2010, Ms L said that she and Mr Bell had not discussed the possible implications for X’s schooling of their decision not to continue paying his school fees, and that they had not considered that their decision might cause Ms Bell financial hardship as the amount Mr Bell had refused to pay was “only $400”.

14. She said that the reason she and Mr Bell had decided to stop paying X’s school fees was that Ms Bell had broken an agreement with them and “if she didn’t hold up her end why should we?”. She denied that their motivation had been to punish Ms Bell.

15. Ms L said she had read both s11F reports and the Family Report of Ms R and that she had discussed their contents with Mr Bell. She said she had never raised with him the possibility of him withdrawing from the litigation, saying that litigation was the only way Mr Bell was likely to be able to see his son.

16. She reiterated her views of Mr Bell’s positive role in her family saying that he had a good relationship with both their children.

17. Ms L supported Mr Bell’s evidence about the reason why he did not attend X’s sporting or school events saying that Mr Bell had not been told about them.

18. Ms L presented as an honest woman who is very supportive of her husband. Her written evidence about his lack of violent and controlling behaviour in his relationship with her was not challenged at trial and I accept that evidence at face value.

19. However, her evidence about Mr Bell’s demeanour on 10 March 2013 contradicts Mr Bell’s evidence, as he acknowledges that he yelled at Ms Bell on the telephone on that day.

The mother’s evidence

1. Ms Bell’s evidence is found in her two affidavits: one sworn 10 and filed 13 October 2014 (“the mother’s first affidavit”) and the other sworn and filed on 6 July 2016 (“the mother’s second affidavit”); in her outline of case document filed 8 July 2016; and in her oral evidence given at court.

2. I note that Ms Bell’s trial affidavit was filed only one week before trial, and that paragraphs 101 to 166 were struck out at trial as they contained responses to the father’s trial affidavit which had been filed within the timeframe set out in the trial Directions made on 19 May 2015. I have therefore not considered the evidence set out in those paragraphs in coming to my decision in this case.

3. In her first affidavit, Ms Bell asserts that Mr Bell “was rarely at home after X’s birth due to his work and social commitments. [….] (He) has also told me that he does not think that a child needs their father until they are at least seven years old”[21]. I note that Mr Bell denies having said any such thing.

   [21] The affidavit of the mother sworn 10 October 2014 and filed 13 October 2014 paragraph 9

4. Since separation, it is Ms Bell’s evidence that:

   14. The Applicant did not ask about or have any involvement in X’s kindergarten activities or events and did not attend any of the usual kinder occasions such as fundraising, working bees, father’s day stalls, Christmas stalls and the like. I enrolled X at (omitted) of the (omitted) Primary School. The Applicant did not ask about or show any interest in where X would go to school. Further he has not attended any events that are usual for parents to attend such as concerts, fetes, various special event stalls and parent student activities.

5. She deposes that the relationship between her and X’s father was “tumultuous, as the Applicant was emotionally and verbally abusive to me”. It is her further evidence that:

   15 […] On an almost daily basis throughout the relationship, the Applicant would accuse me of manipulating him and being evil. The Applicant has little insight into the thoughts and feelings of other people and has demonstrated an inability to take responsibility for his own actions and feelings and instead, places the blame on others.

6. Ms Bell’s evidence is that she has always attempted to foster the relationship between X and his father, but that X has never truly bonded with Mr Bell, who, she says, has little understanding of X’s life and little insight into X’s needs.

7. She says that since Mr Bell has been “agitating to spend increasing time with X” X has “developed recurrent chronic abdominal pain and anxiety. X has become withdrawn and is less positive and energetic than he used to be”[22]. Ms Bell says that this behaviour caused her to seek psychological help for X.

   [22] Ibid. paragraph 22

8. Ms Bell then states:

   The Applicant’s behaviour demonstrates a clear lack of insight into the needs of X and I do not think that the Applicant is even aware of the negative impact his behaviour has on X’s well being. The Applicant seems to be preoccupied with the idea that he has legal rights to see his son and his desire from (sic) X to form relationships with his new partner and children and has totally lost sight of the needs and wishes of X. I can think of no other reason why the Applicant would commence proceedings some nine years after separation and where X is almost 12 years of age. The Applicant wrote me a text message on 9 October 2014 stating that he is “looking forward to an 80/20 ruling and finally obtaining my lawful rights to my son, A has been beside himself with the loss of contact to his brother, he is my inspiration to run all the way”[23].

   [23] Ibid. paragraph 23

9. Ms Bell is adamant that she has never attempted to obstruct X’s time with his father, and that the principal reason why X has not spent such time is due to choices made by the father.

10. For instance, Ms Bell cites an incident on Christmas Day 2008, when the then five-year-old X received a Nintendo Wii games console for Christmas about which he was very excited. She deposes that when X told his father he did not want to go to his home on Christmas Day, Mr Bell forcibly took the Wii from X and told him if he didn’t get into his car he would never see it again. She then says X “ran into the Applicant’s car, crying and screaming”[24].

    [24] Ibid. paragraph 17. I note that Mr Bell’s view of this incident was that Ms Bell had deliberately given X his present shortly before he was to be picked up by his father.

11. It is Ms Bell’s evidence that after the parties attended mediation in late 2009, there had been an agreement that X would spend time with his father every second Sunday. She deposes that X was very anxious about the prospect and that initially she would drive him to a local park to meet his father and remain in the car while X spent time with him in order to reassure X. It is her evidence that by April 2010 X had become comfortable enough to spend time with his father without her presence.

12. Ms Bell deposes that Mr Bell “has often cancelled and rescheduled these arrangements due to his personal commitments”[25]. She then gives four examples from 2011 when Mr Bell had either cancelled his time with X or asked that the time be changed.

    [25] Ibid. paragraph 20

13. In relation to the incident at the swimming pool on 10 March 2013, Ms Bell states as follows at paragraph 30:

    […] I say that on 10 March 2013, I received a telephone call from the Applicant while X was spending time with him. The Applicant was angry, abusive and threatening. The Applicant told me he told X to get stuffed an (sic) to get that idea out of his head. The Applicant accused me of attempting to convince X to change his name. I have never suggested to X that he should change his name. During this telephone conversation, the Applicant was yelling at such a high volume that I had to put the call on to the speaker phone. My friend Mr K heard most of this conversation and became concerned for the safety of X. After the conversation ended, I became concerned for the safety of X and I took Mr K with me to pick X up. When we picked X up, he was very upset and confused by the argument he had with the Applicant. X told me that the Applicant had yelled at him and said that he would never let him change his name. After this date, X became increasingly reluctant to spend time with the Applicant.

14. In describing the events of 28 April 2013, when Mr Bell came to collect X, Ms Bell simply says that X was unwell on that occasion and had told her that he did not wish to spend time with Mr Bell. She said that Mr Bell then stood in the driveway of her home yelling abuse at her. She does not mention X vomiting at that time, nor that there was anyone else present.

15. Ms Bell then deposes as follows:

    On or about April 2013 (sic), many unexplained things began happening around our home. Our electricity was turned off at the switchboard, outdoor taps were turned on overnight, our evaporative air cooling system was damaged, our rubbish bin was stolen and the tap used to drain our swimming pool was turned on[26].

    [26] Ibid. paragraph 33

16. Ms Bell states that these experiences were extremely concerning and that both she and X had become “extremely frightened”. She believed that it had been Mr Bell who had been causing those “unexplained things”, and states that she had installed security cameras and alarms around her home due to the fear she had for her and X’s safety. She deposes that she had considered obtaining an intervention order against Mr Bell at this time, but she had no proof that he was responsible for the incidents and she was afraid that his behaviour might escalate.

17. She says that on 14 June 2013 she had had a constructive conversation with Mr Bell about these incidents and the impact they were having on X, and that the incidents “stopped immediately after this conversation”.

18. Ms Bell’s view of any benefit X might derive from having a relationship with his father is put succinctly at the end of her first affidavit:

    36. X has complained that he does not wish to spend time with his father. There is no benefit for X being forced to spend time with the Applicant. Indeed at the moment such conversations are having a negative impact on him causing him undue stress and anxiety.

    37. Unfortunately the Applicant has on the rare occasions he has spent time with him failed to protect him from being subjected to physical and psychological harm. There have been many instances when the Applicant has yelled at X and been critical of him when he has told me did not want to go with him. On many occasions over the years the Applicant has yelled at me in the presence of X blaming me for X not wanting to spend time with the Applicant. He often finishes his tirade of abuse at me by saying I will see you in Court and he will have to come with me. This has been very upsetting for X.

    38. The Applicant has little insight to X’s needs or day to day care. I have in the past tried to encourage a relationship between X and the Applicant however I have ceased to do so as I do not intend to be exposed to the yelling and abuse from the Applicant in X’s presence or at all. The animosity the Applicant has towards me is acute and there is no capacity for any civil conversation in relation to X’s future care.

19. In her second affidavit, sworn and filed 6 July 2016, Ms Bell deposes that during the proceedings Mr Bell had sent her regular text messages asking about X’s well-being. She says that prior to the proceedings he had “very rarely” contacted her to ask about X’s well-being and that she believed he had been doing so in order to “upset or distress me”.

20. It is Ms Bell’s evidence that, contrary to Mr Bell’s allegation, she does not discuss court proceedings with X, and says that X knows about the proceedings only because he had “met with family consultants on three occasions”.

21. Ms Bell further deposes that in July 2015 Mr Bell had sent her several text messages which she found “distressing, intimidating and upsetting”. She annexes screen shots of those text messages to her affidavit. They read:

    Even your lawyers have stopped responding. I hope u have been paying your bill.

    The discovery of truth will be a monumental day in our families lives, very exciting, had your quote yet for a minimum 3 day trial, are you still using plaza legal??

    FYI….(sic) Just finished my 9 page affidavit, took over 30 hours to do, but a lot of that time was used gathering evidence. There’s only 1 truth.

22. Ms Bell says that other text messages sent during that time included photographs of A and B and Mr Bell’s mother, invitations for X to attend various family functions, and the statement that B “is an inspiration to persist with his Application in the Federal Circuit Court proceedings”. It is Ms Bell’s evidence that she responded to none of these text messages.

23. Ms Bell states that she believes that Mr Bell is “more intent on punishing me rather than working to re-establish his relationship with X in the appropriate fashion.[27]”

    [27] The affidavit of the mother sworn and filed 6 July 2016 paragraph 32

24. She deposes that she is concerned about the level of anger and animosity that X displays towards his father, but says that that anger and animosity are caused by X’s experience of Mr Bell’s verbal and psychological abuse of X himself and of her.

25. Ms Bell states that while she understands and appreciates the importance of fostering X’s relationship with his father, she believes that X is now old and mature enough to consider that relationship in a reasoned manner and based on his own experiences.

26. She believes that X was telling the truth when he told the family consultants that he would not comply with any order that he spend time with his father. She says that any order that he do so would further entrench his opposition to having any relationship with Mr Bell. She does not believe that such an order would be in X’s best interests.

27. In response to Mr Bell’s affidavit affirmed on 21 September 2015, Ms Bell denies obstructing X’s relationship with his father, and states that she had invited him to dinner at her home, to birthdays and Christmas in an attempt to foster that relationship. She says that she “did everything (she) could to foster and facilitate this relationship” but that Mr Bell had not taken advantage of those opportunities.

28. Ms Bell states specifically that Mr Bell had not responded to her invitations for him to be involved in choosing X’s kindergarten other than to say that she could deal with such matters, and that he had refused to attend an induction day at the kindergarten. She says that he was similarly uninterested in choosing the primary school that X would attend, and she specifically denies receiving any written concerns from the father in relation to that issue[28].

    [28] Mr Bell deposes to having sent such concerns to her in writing in his affidavit sworn 21 September 2015, para 33

29. Ms Bell deposes that at the s11F conference in October 2014 Mr Bell had been asked to sign an application form for X to enrol at (omitted) School for his high school education. She says she later sent Mr Bell further applications for four other private schools as well as a passport application. It is her evidence that he neither signed any of the applications nor responded to her letter requesting that he do so.  

30. Under cross-examination at trial, Ms Bell provided evidence about the text sent to her on the night before trial and a copy of that text was tendered and entered into evidence.  It was her evidence that she had “Googled” the meaning of “3/47”, and tendered a printout of a document which sets out six versions of verse 47 of chapter 3 of the Book of Lamentations.

31. I have already stated that Mr Bell appeared genuinely confused and surprised when it was put to him that he had deliberately sent that text message knowing that it referred to that verse of the Bible, and I accept his evidence that he was totally unaware of that reference.

32. That finding does not absolve him from the responsibility of having sent Ms Bell dozens of text messages when he had been asked to stop doing so and knew they were not welcome.

33. Ms Bell was subjected to cross-examination by Mr Bell at trial.

34. It is my view that when there are allegations of emotional abuse in proceedings of this kind, whether I accept the evidence of the mother or that of the father, it is inappropriate for a party to be cross-examined in person by the other party. I note, however, that there is no provision in the legislation governing family law proceedings in this court which provides for separate representation in those circumstances. That is unfortunate, but it is not a matter over which I have any control.

35. Fortunately, in this case, I saw no signs that either party felt particularly distressed by that situation and I am satisfied that it did not affect Ms Bell’s evidence to the court.

1. Regrettably, the court was not assisted by the fact that Mr Bell was unrepresented at trial, and his style of questioning and lack of forensic skill prolonged the trial to a significant extent. That is not necessarily a criticism of Mr Bell, but merely an observation of the court. However, that observation confirmed the impression he made on the court, which is discussed later in these Reasons. 

2. Mr Bell’s initial questions put to Ms Bell related to what he said were contradictions in her evidence about why X had been referred to a psychologist in April 2013. He was particularly concerned about the timeline of events occurring around that period.

3. Ms Bell’s evidence to the court was that after the incident at the swimming pool on 10 March 2013, Mr Bell had been threatening her with court action from about April 2013, and that is when she had sought psychological assistance for X who was distressed about the whole situation in relation to his father. She said that the damage to her property, which had also distressed X significantly, had begun in about May 2013.

4. Mr Bell referred Ms Bell to a text she had sent him on 26 June 2013 which stated: “As I explained to you, the psychologist was due to the damage caused to our house”. When asked to explain how the referral to the psychologist in April could be the result of events that had happened in May, Ms Bell responded as follows:

   I had threats, and the threats have blended in over the years, so if I’m out by a month or two from my memory from three or four years ago, it’s pretty understandable.

5. When pressed later about the contradiction, Ms Bell said:

   May I just say that I’ve probably written that in an emotional state because I was at wit’s ends trying to get X – the referral was for the anxiety and it was just – when I look back on that time it was all those things entwined. So it was probably an error on my point (sic) sending the message, but it was all happening at the same time.

6. Mr Bell told the court that he was asking those questions to show “that there is an absolute determination to make up a story, involve a child psychologist and a doctor, and the whole scenario and lose track of the timeline”.

7. In the course of this questioning counsel for the mother objected to a particular question, saying that it had been asked and answered three times. Mr Bell then made the rather peculiar comment: “And I haven’t heard the right answer”.

8. Mr Bell then took Ms Bell to the s11F report of Mr N and Ms Bell agreed with Mr N’ statement that: “Whilst referencing X’s allegations of abuse, while subjectively important to him, they nevertheless did not suggest that his father had been physically violent and or significantly abusive towards him”. She further agreed that X had not provided any examples to Mr N of his father being abusive towards him.

9. Similarly, Ms Bell said that she had read the psychiatric assessment of Dr P, which stated: “In my opinion based on the interview mental state examination and a review of the supplied documents there is no imminent or foreseeable risk of violence to the child or the mother”.

10. She further agreed that Mr B had written in his section 11 F report that “there was no direct risk factors identified today”.

11. Mr Bell then asked her whether her stated concerns that Mr Bell might harm X in order to punish her were not “deliberately alarmist, considering no supporting evidence could be provided”.

12. Ms Bell denied this proposition, saying that her evidence reflected a genuine feeling on her part.

13. Ms Bell was then referred to her affidavit evidence and to the statements she is reported to have made to both Dr P and Ms R that X had witnessed his father yelling at his mother, that he had been extremely distressed by that experience.

14. Ms Bell confirmed her evidence and those statements, although she said that Ms R had been incorrect when she had quoted her as saying that X had only witnessed his father abusing his mother on one occasion. It was her adamant and repeated evidence that there had been many such occasions.

15. The following exchange then took place:

    Mr Bell: Did you brief X prior to a child psychologist visit to fake illness upon arrival?

    Ms Bell: Absolutely not.

    Mr Bell: Did you brief X that due to his father’s actions you were financially struggling and would lose the house?

    Ms Bell: Absolutely not.

    Mr Bell: Did you brief X to fake anxiety and sleep related issues to resist staying overnight and holiday time with his father?

    Ms Bell: Absolutely not.

16. Mr Bell then began to ask the question whether Ms Bell had provided X with the phrase “psychological harm”, but unfortunately the question was lost in a discussion between him and the bench about how he was asking it. I told Mr Bell that he could ask questions in a much more direct manner than he had been asking, but he went on to other matters and does not seem to have returned to this particular question. As X was nine years old at the time he is said to have used that phrase, the question might have been pertinent but ultimately, my decision does not turn on that issue.

17. In the course of her cross-examination, Ms Bell denied “double booking” X on days when he was to spend time with his father or arranging competing activities on those days.

18. She accepted, however, that there had been occasions when Mr Bell had attended at her home to collect X, and that X had “become unwell” when his father arrived. She said that he had “always suffered abdominal pain and stomach ache when he had to see his father”.

19. She confirmed, when asked, that X had never wanted to stay with his father overnight and that he had shown no interest in doing so since separation when he was two years old. She confirmed her evidence that in the immediate aftermath of separation, the reason for her reluctance to allow X to stay overnight was that Mr Bell was sharing a house with a man suffering from alcoholism.

20. Later in his cross-examination Mr Bell referred Ms Bell to a text she had sent him on 26 June 2013 and to another cent on 2 July 2013 which read:

    26 June: It’s not about eight years. He has a lifetime with you always be his dad.(sic) The urgency shouldn’t be about him sleeping. It should be a good relationship. He is not keen at this point. I will see you on the 14^th.

    2 July 2013: X does not sleep anywhere, he is not keen to stay even at your house. It would be more beneficial for yours and his relationship to build up to this and have him want to go and look forward to it rather than forced to go. The way you treat now will determine the relationship you have with him later. Look how you don’t speak to your mother. I will discuss after holidays, as there are some things I would like to ask you about regarding financial assistance with X.

21. Ms Bell agreed that she had sent those text messages.

22. When asked whether she thought that X’s rationale or justification for not seeing his father was that “you were yelled at multiple times”, the following exchange took place:

    Ms Bell: There has been a series of incidents and the history over the years has resulted in X forming his own opinion and I think that he – his opinion is valid because of what he has been through.

    Mr Bell: So, again, you feel like yelling is a justifiable reason for eliminating – for resisting all contact with his father?

    Ms Bell: Well, yes. If you’re treated poorly, you’re going to resist somebody.

    Mr Bell: When he was nine years old?

    Ms Bell: He has resisted the whole – pretty much his whole life with you, any relationship with you, from an early age.

23. Ms Bell was then taken to Ms R’s report where she stated, at paragraph 62:

    The prospect of X having contact with Mr Bell is poor without the genuine support of Ms Bell. It would appear that in the past when potential contact between father and son has occurred, Ms Bell has not provided that support […]

24. Ms Bell said that she did not agree with Ms R’s statement and that she had provided support for X and Mr Bell’s relationship in the past. She said she understood that if she were not supportive of that relationship, then it would not “go ahead” in the future.

25. She was then referred to paragraph 27 of Ms R’s report which states:

    […] She was not able to provide any details pertaining to a specific instance that precipitated her decision to disallow contact between Mr Bell and X, other than X told her he did not want contact with his father.

26. Ms Bell first gave quite an unresponsive answer to the question of whether she agreed with that statement, but when redirected to it she said that her reason for time between X and his father ceasing was “because of the threats, the ongoing threats, and the way in which I was treated”.

27. The following exchange then took place:

    Mr Bell: […] so then, is it true you’re agreeing that you ceased all contact and communication with X’s father, and extended family, when he was nine years old, with your reasoning being it was X’s wishes?

    Ms Bell: I didn’t cease contact when he was nine years old.

    Mr Bell: Sorry. He had turned 10, yes? 10.

    Her Honour: Well, what’s your answer to the question?

    Ms Bell: I’m just trying to think back to the time – when he was nine, and the legal---

    Her Honour: Well, I think we’re talking about when the time between X and his father ceased.

    Mr Bell: Yes.

    Her Honour: And the question is – well it’s put to you that you stopped that time because X didn’t want to go, and X was 10 at the time.

    Ms Bell: We had started the court – well, the threats for court had started, so legal proceedings were starting.

    Her Honour: So you’re saying it wasn’t because of X’s wishes?

    Ms Bell:  No. It was my own fears.

    Mr Bell: So you can influence X? It was your own fears, not his?

    Ms Bell: You’ve got to remember that at that time there was a lot of things happening to X, the house, the threats, and it was a very emotive time…

28. And shortly after that:

    Her Honour: […] The question I want you to answer is that it was put to you that you stopped the time occurring between X and his father because of X’s wishes.

    Ms Bell: No.

    Her Honour: And that that happened when X was 10.

    Ms Bell: No.

29. Mr Bell then took Ms Bell to paragraph 61 of the Family Report which states:

    Ms Bell and X appear to have a positive relationship. Ms Bell claims that she has supported X to have contact with Mr Bell and has not actively discouraged that contact or been disparaging of Mr Bell. While she presents as articulate generally, it is difficult to ascertain the antecedence (sic) to the animosity and subsequent discord about contact between X and Mr Bell. She claims that she has been accommodating in access arrangements, which is in contrast with Mr Bell’s claims.

30. Ms Bell simply stated that she agreed that that was Ms R’s opinion.

31. When taken to statements made to report writers and in her own evidence we she says that Mr Bell was uninterested in spending time with X and developing a relationship with him despite her encouragement, Ms Bell simply affirmed that evidence.

32. Ms Bell also confirmed her affidavit evidence that she believed that X had felt “pushed aside” after A’s birth.

33. When asked about X’s activities, Ms Bell said that X played (hobbies omitted), that he had (hobby omitted), and that he had played (hobby omitted) for several years. She said that he had started all of those activities when he was in Grade 1 at school.

34. When asked to confirm that Mr Bell had never been invited to any of those activities Ms Bell said that X did not want Mr Bell to attend. The following exchange then took place:

    Mr Bell: He has never wanted me to attend?

    Ms Bell: Never.

    [….]

    Mr Bell: Any invites to the father to participate in any of those events?

    Ms Bell: You knew of all them, and you never showed any interest, and X had asked me not to invite you to anything.

    Mr Bell: So is problem with his father wasn’t when he was nine, it was when he was six?

    Ms Bell: He has had a problem with his father from as early as I can remember.  [… ] There’s not an age limit on it. He has always had an issue.

    Mr Bell from: […] So I didn’t see contact with him when he was 2 to 5 years old due to the protection from an alcoholic, and six years old, he is not interested in my participating in his life?

    Ms Bell: You had limited contact when we separated. You didn’t establish a bond, and as he has grown up he has resisted you.

    Mr Bell: I put it to you that the reason I don’t have that Bond is the protection of X between the ages of 2 to 5?

    Ms Bell: I protected X from an alcoholic home. I didn’t protect or stop contact. There’s a difference.

    Mr Bell: It would seem that it’s pretty dire by the age of six, would you not agree?

    Ms Bell: I am – I am – no, I’m saying a protected X from an alcoholic home. At no point did I stop contact. So the relationship that you have – and I remember saying it to you very often – that I cannot be the glue that keeps you and X in a relationship.

    […]

    Mr Bell: So you also acknowledged that you protected him from the ages of two to five, so I’ve I had a really bad patch there when he was between five and six that caused him to absolutely hate his father, or there’s something else that is going on.

    Ms Bell: Well, many occasions when X did go out with you, he would come home upset because you had picked on his freckles, and he was trying to wash them off. There was an incident where you threw him in a pool, and then when he went to swimming lessons the next week, he was terrified of water.

    […]

    Mr Bell: So just so – in that period between five and six years old, I went on a campaign of picking on my son, which alienated him. Is that what you’re saying?

    Ms Bell: You have – you have – even the two years that you were in – when we were together, you are never a father to him, and you were always chastising him, picking on him – you were jealous of him.

    Mr Bell: So I just repeat: 2 to 5 years old, you acknowledge that you protected him from his father’s new premises?

    Ms Bell: Yes.

    Mr Bell: And at six years old, he was not interested in activities with his father?

    Ms Bell: He was not interested in activities with his father earlier than six years old.

35. When asked about Ms R’s statement in paragraph 62 of her report that X appeared to have decided not to spend time with his father in order to reduce the conflict between his parents, and that that refusal was to his detriment, Ms Bell said that she did not think that X spending no time with his father was “the desired result” but that “history has created this situation and it’s for X to choose when he is ready”.

36. It was her evidence that every child should have the opportunity to have both parents in his or her life, and she said that when X was between two and five years old[29] his father had had “plenty of opportunities” to see X and that he had in fact had contact with him during that period.

    [29] I note that this was the period when Mr Bell and Ms L were living together in a house with a third person who apparently had an alcohol problem.

37. Ms Bell said that the arranged time of every second Sunday had not eventuated every fortnight because Mr Bell was not interested in X, being “more interested in your new found freedom and your social life”. She said that he was “erratic” and that he was “never there to establish a bond with X between the ages of two and five”.

38. She was then referred to an email exchange between the parties on 8 November 2006, when X was about 3½ years old. That email exchange reads as follows:

    Mr Bell: Please note, we need to discuss custody arrangements.

    Ms Bell: Split material assets and discuss X and daddy time.

39. When asked if she did not think that that email indicated an interest in X’s care arrangements, Ms Bell replied that “many things and conversations and texts and emails have transpired since that time”. She did not deny that there had been some negotiation between the parties about X’s care arrangements at that time, but said that “actions speak louder than words” and “actions speak louder than emails”.

40. Ms Bell conceded that she did feel some responsibility, as X’s mother, for resolving the relationship between X and his father in the future, but that she was not prepared to pay for counselling for X and Mr Bell because, she said, the only reason counselling was necessary was because of Mr Bell’s behaviour.

41. It was her evidence that while X had stated he did not want to go to counselling, if she thought he would be comfortable and not stressed, she would try to encourage him to attend either reportable or non-reportable counselling as long as Mr Bell was not involved.

42. Under cross-examination by counsel for the Independent Children’s Lawyer, Ms Bell stated that she has continually encouraged X to see his father.

43. However, her evidence about that encouragement was that it consisted of telling X that if he wishes to see his father she would drive him for that purpose and that she would support him in that endeavour.

44. It was Ms Bell’s evidence that when X was seeing his father under the fortnightly arrangements made between the parties, he actually spent time with him only about once per month on average. She blamed that fact on Mr Bell’s propensity to cancel time, sometimes as late as the night before it was due to occur.

45. In relation to the possibility of X attending therapy, Ms Bell said that she had taken X to a therapist in 2013 on four occasions, and that since then X’s generalised anxiety had been managed by meditation and relaxation exercises, which he still did every night.

46. It was her evidence that X’s anxiety is not controlled in relation to the issue of whether he spends time with his father, but that it was able to be managed in his father’s absence.

47. When it was put to her that Mr Bell’s decision not to pursue time with X, but only orders requiring X to attend counselling, might indicate that he had gained some insight into X’s needs, Ms Bell very reluctantly conceded that point.

48. It was Ms Bell’s evidence that X is angry about the continuing legal proceedings because he feels that the court is not listening to him, despite him having articulated his views to three separate family consultants and the Independent Children’s Lawyer, and him having told those professionals that the views were his own, uninfluenced by his mother.

49. She said that he sees the legal process as an indication that his father does not love him, and is more interested in harassing him than in wanting to spend meaningful time with him.

50. I note that that statement leaves Mr Bell in a “no win” situation as far as X is concerned.

51. Ms Bell said that X needs a break from the pressure of the court process.  She was however prepared to consider that there may be some benefit for X in attending counselling to discuss his feelings about his father, although she was only prepared to say that such counselling might take place “at some stage”.

The psychiatrist’s evidence

1. On 19 May 2015 the parties were ordered to attend upon Dr P to obtain psychiatric assessments.

2. As previously stated, Dr P’s report containing those assessments was attached to an affidavit sworn on 4 April 2016 and filed on 27 April 2016.

3. I note that Dr P was not required for cross-examination by any party at trial.

4. Dr P records the mother’s information about the nature of parties’ relationship in the following terms:

   20. The mother told me the relationship she would describe as “love, hate, toxic”, and she said, “It was like that from the start”. She told me they are “both headstrong”. She told me it was not an easy relationship.

   […]

   24. The mother told me that there was “no real relationship”. She told me it was “love/hate relationship”. She told me she had “a lot of verbal abuse” from him. She told me she was very independent. She told me her perception is that she was independent, and he never liked that.

   25. The mother described the relationship as “a rollercoaster ride”.

   […]

   27. The mother told me “the war” began when she bought (sic) the child home. She told me that “he was jealous of my love for the baby” and how I was looking after the child instead of him. She told me that “he couldn’t help”.

   […]

   33. The mother said that he had been physically abusive. She said that she remembers being dragged and kicked, and pushed by him. She said that she received verbal abuse daily. She described him “as evil, manipulative and nasty”.

   34. The mother said the (sic) he would put her down.

   [….]

   36. The mother told me that after the split, she tried to make him welcome for dinners and also at Christmas. She told me that his relationship developed. She told me that he was invited to everything to be with the child.

   37. The mother told me that he had as much access as he wanted. She told me he could have had every second weekend on a fortnightly basis if he felt like it. She told me that he could come around every night. She told me that the child was two years old, and the mother was not prepared to deny him that possible contact.

   […]

   39. The mother told me over the years the father would see the child, and he would do it “when his social calendar allowed”.

   40. The mother told me that he threatened that he would take her to court. She told me that he was always threatening to go to court to spend money, and she said she had to pacify him. She told me the father would wind her up and then she would have to pacify him.

   41. The mother told me that is how it has been for the past ten years. She told me the father would see the child when he feels the need. She said he demands to have him on Christmas Day. She said the father plays games and uses the child to try and control her.

   42. The mother told me the father commenced the legal proceedings, and did so because, “He wants to punish me”. She told me that he has never had overnight access to the child. She told me the child has never wanted to be on overnight access with the father. She told me there has never been a strong bond, and he does not like the father. [….]

   43. The mother said the father had never had the child overnight. She told me he started seeing the child on a Sunday but it never eventuated that he would have the child for the whole weekend on a fortnightly basis. She told me the father has had the opportunity to have the child overnight. She said that there just has never been any consistency in the father’s access to the child. She told me that the father was never around when the child was younger. She told me that he never formed a bond with the child, or the child with him. She told me “the father was always a bully, intimidates and bullies if he wants something”. She told me that he threatens. She told me he is demanding, and will demand a relationship with the child, but will not try to develop one.

   44. She told me that the legal proceedings started in October 2014.

   45. She told me that access ceased just before May 2014. She told me that was the last time the father had the child. She told me the father took the child to the paternal grandmother’s place. She told me that he flared up and started a fight when the child commenced playing (hobby omitted) on the Sunday, and that that was a game changer, and the father did not have control. She told me, “He does not like me telling him something”.

   46. She told me that the father abused her. She told me that after May 2014, he was screaming and yelling, and saying that he would take to court and make her suffer. She told me that he threatens her and she was later served with papers.

   47. [……] The mother told me that she has told the child that if he wants to see the father, she will drive him there. She told me the father has no relationship with his son. She told me that the relationship never developed. She told with when the child was little, the father was never involved in anything, and now the father expects a relationship.

   48. The mother said that the child is getting older, and he resists seeing the father. She told me that the father never buys him presents. She told me that the father does not treat the child with care.

   49. The mother said to me, “I have never bagged his dad to X”.

1. There is abundant evidence before the court, in the two s11F memoranda and the Family Report, in the psychiatric opinion of Dr P, in the Affidavits and oral evidence of both parties, and in the oral evidence of Ms R, to say that X is indeed at risk of psychological harm if he is forced to see his father.

2. That risk lies in his father’s somewhat overbearing and rigid personality and lack of insight into his son’s needs, perhaps arising from his own experience of childhood, and in his mother’s failure, because of her own outstanding issues with her former husband, to foster and encourage X’s relationship with his father, thus exacerbating any genuine anxiety X might feel about that relationship.

3. On the basis of that evidence, I must take the need to protect X from that harm as the most important consideration when I am considering what orders might be in his best interests.

4. The Act then sets out, in s60CC(3), 14 “additional considerations” which the court must take into account when deciding what orders to make in a child’s best interests.

   (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;

5. X’s views could not be clearer. He has maintained from the commencement of his involvement in these proceedings that he does not wish to spend time with his father and that he does not wish to be involved with him in any way whatsoever.

6. He has expressed those views to three separate family consultants and to the Independent Children’s Lawyer, and his view has not changed in the past two-and-a-half years. The evidence is that his views are so entrenched that they are unlikely to change in the future.

7. X is now 13½ years old, and although from the accounts of his interviews with the various family consultants he has attended in the course of the proceedings he does not appear to be overly mature, he is an intelligent and socially competent child, and his wishes, while not determinative, have considerable weight in these proceedings.

   (b)     the nature of the relationship of the child with:

   (i) each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

8. X’s relationship with his mother is clearly close and loving, although if I accept even some of the father’s evidence about the mother allowing X to behave inappropriately towards his father, it could be said to be a little too enmeshed.

9. The court is particularly concerned about the evidence of Mr Bell, not challenged by Ms Bell’s counsel, that X has pretended to be ill on multiple occasions when he was to see his father, to the extent that on one occasion he chewed Weet Bix and disgorged it in an attempt to prove his illness.

10. Nevertheless, Ms Bell has been X’s primary carer for his whole life, and the evidence is that he has successfully passed his developmental milestones to date.

11. Mr Bell, on the other hand, cannot be said to have any kind of real relationship with X at this time. Whether that is because of his own inappropriate treatment of X or because Ms Bell has failed to promote that relationship for her own reasons is difficult to tell, but the result is the same.

    (c)     the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

    (i) to participate in making decisions about major long‑term issues in relation to the child; and

    (ii)    to spend time with the child; and

    (iii)   to communicate with the child;

12. Ms Bell has of course taken every opportunity to “participate” in making decisions about “major long-term issues” in X’s life. Indeed, she has essentially made all of those decisions on her own since separation in 2005.

13. Similarly in intention if not reality, Mr Bell has attempted to participate in those decisions, but for whatever reason, he has not been able to come to agreement with Ms Bell about several important matters in relation to X’s welfare and particularly in relation to his health and education.

14. The parties are in dispute about the reasons for that lack of participation, but the evidence does show some failure of Ms Bell to consult with X’s father about those important long-term decisions.

15. It also shows some reluctance on Mr Bell’s part to be flexible in relation to the agreement process.

    (ca)   the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

16. I accept the father’s evidence that the agreement the parties reached in or about 2007 was that Ms Bell would retain the former matrimonial home, and that instead of her paying him his share of the equity in the property, he would be released from his obligation to pay child support for X until he turned 18.

17. Both the father and his wife gave consistent evidence in relation to that matter, and it is inconceivable that Ms Bell would not have sought a child support assessment in the immediate aftermath of the parties’ separation if such an agreement had not been in place. That is especially so in circumstances where there is such animus between the parties.

18. I therefore consider that both parties have fulfilled their obligations to maintain X.

    (d)    the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

    (i) either of his or her parents; or

    (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

19. The evidence before the court is that if an order were made for X to spend time with his father, even in therapeutic setting, which would constitute a hugely significant change in his circumstances, he would simply not comply with it.

20. In addition, all three family consultants involved in this case have recorded X’s distress at the mere thought of such contact, and it is clear that such an order would result in further distress for X.

21. I am conscious, however, that X has been separated from his father now for some 2½ years, but the evidence in relation to the impact that separation has had on him does not indicate that he has suffered any specific detriment from it.

22. He has been separated too from his half siblings and his stepmother, but there is no specific evidence before the court about how that separation has impacted on X. While there is Ms L’s evidence about how that separation has impacted negatively on A, A is not the subject of these proceedings.

23. I note that Mr Bell does not pursue his application for X to spend time with him, but only for X to attend counselling to address the issues which have led him to his refusal to do so.

24. The evidence of the mother is that X does not wish to attend counselling, and that she also is reluctant to force him to attend. Therefore, I must also consider the impact on X if I make such an order, and there is significant evidence that it would, at least initially, cause him some considerable distress.

25. However, I am also conscious of Ms R’s opinion that X would likely cope with such distress as it would be no more than he is experiencing now.

    (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;

26. There is no evidence that there is any practical difficulty or expense involved in X spending time with his father, were I to make orders to that effect.

    (f) the capacity of:

    (i) each of the child’s parents; and

    (ii)    any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs;

27. The evidence before the court indicates that both parents have the capacity to provide for X’s material and intellectual needs. There is no suggestion from either parent that the other does not have that capacity.

28. It is in the area of X’s emotional needs that concerns have been raised in these proceedings

29. I am satisfied that X’s behaviour on 10 March 2013 was, in essence, as described by both Mr Bell and Ms L. That is I am satisfied, on balance, that when his father told him he would not consent to X changing his surname, X threw a tantrum and yelled and screamed at his father.

30. I am further satisfied that X said words to the effect that if he were not allowed to change his surname he would say that seeing his father caused him psychological harm and that he believed he would not thereafter be forced to see him.

31. I am unqualified to say whether an almost 10-year-old would be likely to use phrases such as “psychological harm”.

32. In my view, X’s behaviour was unacceptable, but there is no evidence other than Mr Bell’s belief that Ms Bell was involved in that behaviour in any way. Indeed, both parties agree that she denied having coached X in that regard during the immediately subsequent telephone call with Mr Bell.

33. In those circumstances I cannot make a finding about whether X’s behaviour on that day was the expression of his own feelings or of his mother’s views.

34. Mr Bell, when confronted with his son’s slightly hysterical behaviour, chose to immediately leave X with his wife and two young children, take his telephone and make an abusive call to Ms Bell.

35. His evidence about his demeanour in dealing with X’s behaviour on that day was contradictory and I find on the balance of probabilities, that he was angry, that he raised his voice when speaking to X, and that he behaved in an abusive manner when speaking to Ms Bell on the telephone.

36. That does not indicate an ability to provide for X’s emotional needs.

37. In general, Ms R was mildly critical of Ms Bell’s behaviour in relation to encouraging X to spend time with his father. I accept her evidence that what she referred to as Ms Bell’s lack of nuance in that encouragement was not malicious, but that nevertheless it may have had the unintended consequence of aligning X to her view.

38. That, too, indicates a lack of capacity to provide for X’s emotional needs.

39. The evidence before the court about Mr Bell’s motivation in bringing these proceedings, and especially in his motivation for persisting with them, also raises serious concerns about his ability to provide for X’s emotional needs, or at least to prioritise them over his own.

    (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;

40. X is described by the professionals who saw him in the course of these proceedings as an intelligent child, who appears well able to grasp his role in these proceedings, but Ms R in particular opines that he does not have the maturity to fully understand the consequences and impact upon him of his decision to never spend time with his father.

41. His sex is a relevant issue in these proceedings. Again, Ms R in particular gave evidence about the need for adolescent children to have a relationship with their same-sex parent and the detriment to them if that relationship is absent.

42. There are no other lifestyle or background issues in this case which the court deems relevant. Nor are there any other characteristics of the child which might influence the court’s decision.

    (h)     if the child is an Aboriginal child or a Torres Strait Islander child:

    (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

    (ii)    the likely impact any proposed parenting order under this Part will have on that right;

43. This is not a relevant factor in these proceedings.

    (i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

44. Both parents gave evidence that indicated that they love their son and that they want only what was best for him. Each believes that there is a need to protect X from the other parent.

45. Such is their animosity towards each other that neither trusts a word of what the other says, and each is quick to take offence at what they perceive as wrongdoing by the other.

46. Simple examples of that include Ms Bell’s belief that Mr Bell had sent her a text on the night before trial containing a verse from the Bible which was intended to intimidate her, and Mr Bell’s belief that anything X says which might be critical of him has been planted by Ms Bell as part of her “master plan” to eliminate him from X’s life.

47. Based on the evidence of Mr N, Dr P and Ms R, the court has grave concerns that Mr Bell sees X, or at least the legal proceedings in relation to him, as a means to hold Ms Bell to account for what he sees as past wrongdoings and insults to his parenting.

48. That evidence, together with the evidence of Ms Bell herself, satisfies the court that at least part of Mr Bell’s motivation has been to punish to cause distress to Ms Bell.

49. All of the above evidence raises concerns in the court about both parents’ attitude to their responsibilities in parenting their son.

50. Where there is neither trust nor communication between parents, and each is convinced that their position is right, a child is inevitably triangulated in that dispute to his or her great detriment.

    (j) any family violence involving the child or a member of the child’s family;

51. Ms Bell deposes to there having been physical violence perpetrated upon her by Mr Bell during the relationship and marriage, but she reported to Ms R that there had been no such abuse since separation.

52. Mr Bell does not allege physical abuse by Ms Bell.

53. Both parties allege verbal and emotional abuse by the other, and the evidence shows that at least on one occasion, Mr Bell did engage in what can only be termed verbal abuse of Ms Bell.

54. There is also evidence in the text messages between the parties, and especially in the text messages from Mr Bell to Ms Bell, of verbal and emotional abuse.

55. Mr Bell simply does not seem to understand that many of the 47 text messages he admits to having sent to Ms Bell since separation could be seen as intimidating and harassing, or, as the Act defines them, “repeated derogatory taunts”, which fall under the definition of family violence.

56. Indeed, they could be seen as a form of stalking, which is also specified as a form of family violence in the Act.

57. I cannot find to the requisite standard of proof, that is that it is more probable than not, that Ms Bell has engaged in a systematic, deliberate, or even unconscious pattern of behaviour designed to eliminate X from Mr Bell’s life.

58. She has however, as stated by Ms R, been less than diligent in ensuring that X spends time with his father, which could be seen as a form of emotional abuse of both X and Mr Bell. 

    (k)     if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

    (i) the nature of the order;

    (ii) the circumstances in which the order was made;

    (iii)   any evidence admitted in proceedings for the order;

    (iv) any findings made by the court in, or in proceedings for, the order;

    (v) any other relevant matter;

59. There is no evidence of any family violence order having been obtained by either party in these proceedings.

    (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;

60. X has been the subject of Family Law proceedings since 2014. He is now 13½ years old. It is my view that, given his experience of this litigation, he needs both finality and certainty in relation to the proceedings and I will therefore make final orders in the hope that X’s father will change his focus from punishing X’s mother to listening to X and giving him some space.

61. That said, I will not make orders for X to spend no time with his father, but rather will make orders that allow X to decide if, when, where and under what circumstances he would like to pursue that relationship.

62. I will also make certain injunctions which I hope will make further proceedings unnecessary.

    (m)    any other fact or circumstance that the court thinks is relevant.

63. The animosity between these parties as indicated in the evidence before the court is toxic for X. There is unfortunately little if any evidence that either is prepared to make any positive contribution to change that situation.

Conclusion as to Issue A

1. Regrettably and reluctantly, I concur with Mr B’s observation that no matter which party is to blame, “the damage has been done” to X’s relationship with his father. As it stands at the moment, that relationship appears irretrievable, a situation which will have emotional and psychological consequences for both X and Mr Bell and his family.

2. While both parties are to blame for the situation in which X currently finds himself, the father’s palpable hatred and contempt for the mother as seen in both his written and oral evidence, and his focus on holding her to account in some way for what he perceives as breaches of his rights as a father, permeated these proceedings.

3. He cannot expect to have a relationship with X that is positive, close and nurturing while he holds and expresses those views about X’s mother.

4. It was Ms R’s evidence that she thought that Mr Bell’s motivation in bringing the litigation was “two pronged” in that he genuinely wanted to have a relationship with X, but that in the absence of that relationship, it was important to him that his voice be heard in relation to the reason for X’s resistance to seeing him.

5. That is not an unreasonable motivation, but on the basis of all the evidence before the court I find that at least part of his motivation has been to punish Ms Bell and cause her to spend money on these proceedings.

6. His lack of insight about that issue is regrettable, as, indeed, is the lack of insight in his responses to any questioning of his motives or behaviour.

7. It is to be hoped that Mr Bell will consider attending counselling or therapy himself in order to deal with those feelings towards Ms Bell, and any issues arising from his childhood, as they clearly stand in the way of X’s capacity to even consider a relationship with his father at this time in his life.

8. There is a pattern in Mr Bell’s evidence of downplaying his own role in the dispute between him and his former wife in relation to X, and of attributing all of X’s behaviour in not wanting to see him as part of a “master plan” concocted by Ms Bell and X to remove him from X’s life.

9. I cannot be satisfied, on the basis of the evidence before me, that Ms Bell has engaged in such a “master plan”, and I note that even Ms L does not support her husband in that view.

10. There is no doubt that Mr Bell loves X, but his attempts at resolving the conflict between him and Ms Bell display an inability to empathise with her or X, or indeed anyone else unless they agree with his view of the world. There is a rigidity in his thinking patterns which simply does not allow for other people’s views or any suggestion that his own views may be wrong or at least that they may be less than completely correct.

11. Ms Bell presented overall as a reasonable, though frustrated parent. Her evidence was nonetheless non-responsive and evasive at times, and it was very clear that she had no positive feelings at all about Mr Bell.

12. The evidence of both her and Mr Bell indicates a reluctance on her part to positively intervene to foster the relationship between Mr Bell and X for many years, and it clear that she sees no benefit to X in pursuing that relationship.

13. Ms Bell’s evidence about her experience of Mr Bell both during and after the marriage was cogent and consistent, and I accept her evidence that she feels some wariness, if not fear, about interacting with him.

14. She did not show any obvious fear of Mr Bell when being cross-examined by him, but the tenor of her answers did indicate that wariness.

1. The evidence of Mr B and Mr N, which I note was not challenged at trial although it was referenced repeatedly, is that there should be no orders for X to spend time with his father.

2. Ms R, however, who was a most impressive witness in my view, was more willing to consider X’s views in the context of his maturational development, and it was her view that X requires therapy in order to fully realise his emotional potential.

3. While Ms R was very clear that any ordered therapy should include issues X has with his father, it should not be solely directed towards X spending time with him.

4. However, Ms R also agreed with counsel for the mother that there was a “calculated risk” in sending X to therapy, that he might rebel against that order, and that his views about his father may become even more entrenched.

5. She was also clear that X should not spend time with his father in the current situation in which the parties find themselves, and indeed said that even indirect contact with his father at this time would be detrimental to X.

6. On the basis of the expert evidence, I find that it would be enormously beneficial to X to engage in long term psychotherapy in order to help him understand and integrate his feelings towards his father. It is to be hoped that his mother will organise such therapy for X, and that his father will contribute to half of the cost of that therapy in order simply to help his son and to let him know that he loves and supports him.

7. However, taking into account all of the above evidence, and keeping closely in mind the issues set out in s.60CC of the Act, I cannot be satisfied that it is in X’s best interests to force him to attend counselling with his father in order to repair their relationship.

8. Given the complexities surrounding this litigation, X’s views the and his statements of non-compliance, the extreme animosity between the parents and the potential for future litigation because of that animosity, I find, on balance, that it is positively not in his best interests in all the circumstances to make such an order, and I therefore decline to do so.

B.     If the answer to Issue A is in the affirmative, should the therapy be reportable or confidential?

1. As the answer to Issue A is in the negative, this question is moot.

C.    If the answer to the first question is in the affirmative, who should pay for it?

1. As the answer to Issue A is in the negative, this issue too is moot, although I note that the mother would have been unwilling to pay for any of the counselling, while the father sought an order that the parties pay equally.

2. It is to be hoped that if the mother does organise therapy for X, she and Mr Bell will note what Ms R said about the positive message sent to X if both parties contribute to the cost.

D.    Should these orders be Interim Orders or Final Orders?

1. This question only arises in the context of whether the father and X should attend counselling in an attempt to repair their relationship.

2. Clearly if they were to attend such counselling, final orders would have been inappropriate at this time.

3. However, in light of the discussion of X’s best interests under Issue A above, and my conclusion that he should not be forced to attend counselling with or without his father, it follows that these orders ought to be final.

E.     Should any conditions be attached to the sole parental responsibility order to which the parties have otherwise agreed?

1. Because of the animosity between the parents, and the unlikely probability that they will ever be able to come to agreement in relation to X’s welfare, it is my view that an order which requires Ms Bell to consult with Mr Bell in relation to parental responsibility issues will simply result in further dispute and consequent litigation.

2. For the reasons stated above I find that further litigation is not in X’s best interests, and therefore, while I will include an order that requires Ms Bell to authorise X’s school to provide information to Mr Bell, I will not attach any further conditions to the order making Ms Bell solely responsible for X’s care welfare and development.

Conclusion

1. It has occurred to me many times throughout these proceedings that it might be said these parties, with their two very different and particular personalities, have created a “perfect storm” in their relationship.

2. By that I mean it is not perhaps the fault of one or the other that X has found himself in the quite tragic position of having no relationship with his father, but that it is a combination of two strong and incompatible personalities that has led us to this point.

3. The evidence before the court is that Mr Bell’s personality vulnerabilities as described by Dr P and Mr N, have combined with Ms Bell’s somewhat over protective parenting style to create a situation where each is quick to find fault with anything the other says or does.

4. That has led to a complete lack of trust between these parties, the result of which is a level of animosity between them which is caustic and toxic, and which has landed X squarely in the middle of the dispute.

5. X simply deserves better. At the age of 13½ he deserves to be exploring his world as an adolescent, with all the change, confusion and excitement that that brings, rather than being concerned about how his parents feel about each other.

6. In some cases that come before this court, it is not possible to make orders which are actually in the “best” interests of the subject child or children. It is only possible to make orders which are in their “least worst” interests. This has been such a case.

7. It is to be hoped that the orders I will make will provide some respite for X, although it is also to be hoped that his mother will seek for him, and for his sake, the therapy which Ms R sees as his only hope of a psychologically healthy future.

I certify that the preceding four hundred and twenty-seven (427) paragraphs are a true copy of the reasons for judgment of Judge Small

Date: 3 February 2017