DALEY & SAWYER

[2016] FamCA 789

FAMILY COURT OF AUSTRALIA

DALEY & SAWYER [2016] FamCA 789

FAMILY LAW – CONTRAVENTION – Whether the mother contravened parenting orders by failing to present the child for contact with the father on a number of occasions – Whether there was a reasonable excuse for contravention of orders – Where the mother claims the orders were varied by agreement between the parties – Where the father had spent extra time with the child – Where the child’s allegations of abuse to the police regarding the mother were unsubstantiated – Where the mother believed withholding the child was necessary to protect his emotional well-being – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Daley

RESPONDENT: Ms Sawyer

FILE NUMBER: BRC 11648 of 2009

DATE DELIVERED: 20 September 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15 December 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT:

Mr O’Meara

(Direct Brief)

Orders

(1)That the contravention application contained in the Amended Application – Contravention that was filed by the father on 29 September 2015 is dismissed.

(2)That the contravention application contained in the Amended Application – Contravention that was filed by the mother on 20 October 2015 is adjourned for hearing on a date to be listed by the trial Judge.

Note: The form of the Order is subject to the entry of the Order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daley & Sawyer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11648 of 2009

Mr Daley

Applicant

And

Ms Sawyer

Respondent

REASONS FOR JUDGMENT

1.On 15 December last year, 2015, the father and the mother in these long-standing, highly conflictual, parenting proceedings both had contravention applications before the Court for hearing.

2.Comprehensive final parenting orders had been made, with the consent of both parents and an Independent Children’s Lawyer, by Bell J in October 2011. These were the substantive orders each parent was alleging the other had contravened.

3.The proceedings had been reopened by the father in the Federal Circuit Court (“the FCC”) earlier in 2015 after he alleged the subject child, L (now 7 years of age), had disclosed to him that his mother had sexually abused him, and the mother, with whom the child was principally living, stopped handing the child over to the father pursuant to the existing orders consequent to the father making those allegations against her.

4.When the matter was before the FCC in mid-June, the FCC Judge who heard the matter made some orders that confirmed that the substantive orders made by Bell J remained in place, and required the parents to reconnect with a children’s contact centre to facilitate handovers of the child between them but permitted the use of a Surf Club location for handovers until the contact centre was able to be used. His Honour also transferred the matter to this Court.

5.The mother then recommenced sending the child to the father pursuant to the orders, but after a few weeks, at the end of July 2015, she once again stopped sending the child to his father and she filed an application for orders that sanctioned her actions, seeking a suspension of the existing substantive orders.

6.In the meantime, the father filed a contravention application alleging the mother had contravened the substantive orders in early 2014 and again in 2015 when she had stopped sending the child to the father after he made the sexual abuse allegations. The mother then filed her own contravention application alleging the father’s contravention of the substantive orders.

7.In October, 2015, the father then filed a Response to the mother’s application for suspension of the orders in which he asked for interim orders that the child live with him. Rather extraordinarily, given that the father alleges the child disclosed to him that the mother repeatedly sexually abused him, the father also asked for orders that the child spend alternate weekends in the mother’s unsupervised care. He also asked for alternative orders for the child to spend time and make-up time with him in the event that the Court does not determine to move the child to his principal care.

8.The matter was before Principal Registrar Filippello on 17 November 2015 for a hearing of the parents’ competing applications for interim orders. The Principal Registrar was assisted by a Child Inclusive Conference memorandum prepared by a Family Consultant who had seen the parents and the child and prepared a brief report. The Principal Registrar did suspend the existing substantive orders that provided for the child to spend time with his father pending a psychiatric assessment of the father and the preparation of a report on him and adjourned the further hearing of the competing applications for interim orders.

9.Against that factual and procedural backdrop, the competing contravention applications came on for hearing before me, nearly a month after the Principal Registrar’s interim decision.

10.At the commencement of the hearing, I asked the parties if it really was appropriate for the contravention applications to proceed that day. Counsel who appeared for the mother quickly informed the Court that the mother was not pressing her contravention application that day and was prepared for it to be adjourned over to the trial of the competing applications for final parenting orders that would eventually come. The father, who was unrepresented, was adamant that his contravention application should be heard and determined. In fact, he had filed an Amended Application-Contravention which he wanted heard and determined. It also included all of the occasions since the June hearing in the FCC, up until 11 September, 2015, that the mother had not sent the child to the father for his alternate weekend time.

The father’s Amended Application-Contravention

11.The father’s Amended Application-Contravention contained sixteen alleged counts of contravention without reasonable excuse. I took him carefully through the particulars of each alleged contravention included in his amended application and also his affidavit evidence that he relied upon and I was satisfied that he did not make out a prima facie case of contravention by the mother in respect of four of those alleged contraventions. I struck those out and told him that I would not hear those.

12.That left, amongst others, three allegations of contravention without reasonable excuse by the mother in 2014. The father alleged that the mother did not hand the child over to him for the weekends commencing at 4:30 pm on Friday 24 January 2014 and Friday 2 February 2014 and he alleged that she did not hand the child over to him on Father’s Day 2014. The mother, when called on, denied that she had not delivered the child to the father on Father’s Day 2014 and said, as to the weekends in January and February 2014, that she had not handed the child over, relying on an agreement reached between her and the father, when the child spent additional days with the father outside the requirements of the orders, that such additional days were in lieu of the subsequent weekends.

13.As for the alleged contraventions in 2015 - 24 April, 8 May, 22 May, 5 June, 31 July, 14 August, 28 August, 6 September and 11 September – the mother accepted that she had not sent the child but asserted that she had a reasonable excuse for not doing so.

The evidence about the January, February 2014 weekends and my findings on point

14.The father was cross-examined by counsel for the mother. The mother was cross-examined by the father. Unsurprisingly, the father did not have the knowledge, skills or training to do that normally difficult task very well at all. As a consequence, I was forced to ask the mother many questions myself.

15.It became evident that it was common ground that the child was spending time with his father as provided for in the substantive orders on Christmas Day and Boxing Day 2013. That time was from 2:00 pm on Christmas Day until 4:00 pm Boxing Day. No other holiday time outside the alternate weekend regime was provided for. It was also common ground that the child’s time with the father on alternate weekends had progressed to the point of commencing at 4:30 pm on the Friday and concluding at 4:30 on the Sunday.

16.It was also common ground that on the afternoon of Boxing Day, the father received news that his mother was gravely ill and dying in Melbourne and that he called the mother and asked her if he could take the child with him to Melbourne to spend the time with him and his family whilst his mother lived out the remaining days of her life in a coma in hospital. The mother agreed and let the child go with his father. The father’s affidavit evidence satisfied me that the father knew that the child was otherwise due to go back to the mother’s care on Sunday 29 December (whether by agreement he had reached with the mother when she agreed to let the child go or otherwise by the operation of the substantive orders) and that he and the mother were in telephone contact with each other, discussing the matter of the child’s expected return from Melbourne to the mother. 

17.An email exchange between the mother and the father that was in evidence before me shows the mother confirming (most likely following one of those telephone conversations already had where the issue was discussed) that the child could stay in Melbourne until Wednesday 1 January 2014 “which is in lieu of the two and a half weeks of your fortnightly contact visits”.  In the email, the mother asked the father to confirm that the child would be delivered back to her in Region B at midday on New Year’s Day and also that the next visit of the child with the father would begin at midday on Saturday 25 January.

18.That email satisfies me that the mother had most probably already made her position on that clear to the father during a telephone conversation prior to that email and that she was seeking to have the father confirm with her what his position on those matters was.

19.An email in response from the father to the mother on Tuesday 31 December 2013 is in that email exchange that is in evidence. The father thanked the mother for allowing the child to be with the father in Melbourne (when such time was not prescribed by the parenting orders). He also told her he would respect her “demands” to have the child back “as soon as possible” but did not actually confirm that he would have the child back to the mother at 12 midday the next day, nor did he answer her request for confirmation about the weekend of 25 January.

20.Nevertheless, it is common ground that the father did return the child to the mother the next day, New Year’s Day 2014, although the mother asserted that the father delivered the boy later than the agreed time by around an hour.

21.The father’s mother died on the morning of 1 January 2014 and her funeral was held on Monday 6 January. The father again asked the mother if he could take the child back to Melbourne to attend the funeral. Again, the mother agreed. The father said that he and the child flew to Melbourne on Sunday 5 January, attended the funeral on Monday 6 January and then flew home to Region B that same day, and that he returned the child to the mother that day. The mother said she thought the child was in Melbourne for “a couple of sleeps”. I do not consider it necessary to determine that factual issue.

22.What is clear, is that the child spent seven nights with the father from Christmas Day until New Year’s Day when the orders seemingly provided for him to otherwise spend three nights with his father in that same period. Accordingly, the child seemingly spent four more nights with the father than the orders provided for in that time.  The child then stayed either one or two more nights with the father when the funeral was on, that were not nights prescribed by the Orders.

23.So, by the time the child returned to his mother on Region B after the funeral of his paternal grandmother, he had spent at least five, perhaps even six nights with his father that the orders did not provide for.

24.I am satisfied that it is common ground that the child did not spend the weekend of 10, 11 and 12 January 2014 or the weekend of 7, 8 and 9 February 2014 with his father. As for the weekend of 24, 25 and 26 January 2014, the father gave evidence that the child was not delivered to him at 4:30 pm on Friday 24 January but he did not assert in his evidence anywhere that the child was not delivered to him at midday on Saturday 25 January. Neither did he challenge the mother on that assertion in his cross-examination of her. On the other hand, the mother gave evidence that she thought she had complied with what she believed was their agreement about this matter, including by delivering the child to the father at midday on that Saturday, 25 January. As I have said, she acknowledged that the child did not go on the alternate weekends either side of that weekend though, maintaining that was consistent with the terms of the agreement she had understood them to have reached.

25.In his cross-examination of the mother, the father repeatedly asserted that he had not agreed to forfeit any time that he was entitled to otherwise have pursuant to the orders, in return for obtaining the mother’s agreement to let the child go and spend the seven nights with him in Melbourne and then the further one or two nights. That is the very foundation of his argument that the mother contravened the substantive orders by not letting him have the child for those weekends.

26.If there was no agreement reached between the mother and the father that the time the child spent with him in Melbourne was in lieu of the alternate fortnightly weekend time provided for in the orders, then it is easy to understand the father’s argument that the mother contravened the orders without reasonable excuse by withholding the child from him on those weekends.

27.In her oral evidence, when asked about the matter, the mother said that it was a long time ago (nearly two years prior to the hearing) and that her memory about the specifics was not great, but that she is reasonably certain that she only withheld the child in accordance with the terms of the agreement they had reached because she has always been aware that the father jealously protects his position provided for in the orders. She said she knows that if she just unilaterally withheld the child from him without good reason that he would resent that and take steps to do something about it, so, consequently, she was always very careful not to simply contravene without good reason.

28.The mother’s oral evidence and the email evidence she adduced persuaded me, on the balance of probabilities, that she had reasonable grounds to believe that an agreement had been reached with the father in respect of the child’s time with him in Melbourne being treated as time with the father, not provided for in the orders, that was to be had in lieu of the time that was provided for in the orders. She clearly set out her understanding of the terms that had, by then, been agreed upon in her 30 December 2013 email to the father and, although he did not answer “yes” or “no” to the two questions she asked of him in that email in his response the next day, he clearly acted in acquiescence with what she regarded was the first part of their agreement by bringing the child back to her around midday on New Year’s Day. In my judgment, that supports the probability of there being an agreement such as what was said to have been relied upon by the mother.  In addition, there is just no evidence of the father responding, either orally or in writing, to the mother in any way that suggests he disputed her email claim of an existing agreement, which would support a finding that, in fact, there was no such agreement.

29.Consequently, I do not find that the father has satisfactorily proven that the mother contravened the orders without reasonable excuse on Friday 24 January 2014 and Friday 7 February 2014.

The evidence about Father’s Day 2014 and my findings on the point

30.The father alleges that the mother did not deliver the child to him at 9:00 am on Father’s Day, 7 September 2014. His evidence was that she did not appear at the changeover location at 9:00 am that day with the child to hand him over for time with the father. In fact, the father said in his affidavit that he had never spent any time with the child on Father’s Day since the child was born.

31.In her affidavit evidence in response to that assertion, the mother said that the weekend of Father’s Day 2014 was a scheduled alternate weekend for the child to spend the whole weekend with his father. She said that she sent the child and even gave a card and a gift (a chocolate guitar) to the child for him to give to his father for Father’s Day. She said that she even has a text message on her phone from the father acknowledging that he received the gift. She said that she sent a response text to him at 8:16 pm on Saturday, 6 September saying “yes & chocolate guitar that he chose. Best if you put it in the fridge”.

32.When the mother was in the witness box being cross-examined by the father, he did not ask her any questions about Father’s Day 2014. Accordingly, I asked her what her response to his allegation was. She said quite confidently that his allegation was a lie and that the child had been with him for the whole weekend that included Father’s Day 2014. She said she had sent the father a text message to check that he had received the card and the gift of the chocolate guitar and that he had acknowledged that he had received them. After the mother said that, the father blurted out from the bar table “that was the year before”. When the mother said that the father did not even thank her for it, the father retorted “thank you? I thanked my son, he gave it to me”. Such assertions by him are rather odd as they are seemingly inconsistent with his affidavit evidence that he had never had Father’s Day with his son. He did not go on to challenge the mother’s oral or affidavit evidence about the card and the gift in 2014 or that the child had been with him for the whole weekend.

33.Although the mother did not adduce into evidence a copy of the text messages she referred to, I was quite satisfied that her evidence was truthful. Starting with the alternate weekends that the parties agreed were the father’s scheduled weekends with the child in January and February 2014, checking the calendar confirms as correct the mother’s evidence that the Father’s Day weekend in 2014 was another scheduled alternate weekend for the child to spend with the father. The father did not allege that the mother failed to deliver the child on Friday 5 September 2014 as one might have expected him to if the child spent no part of that weekend with him. Accordingly, I do not find that the father has satisfactorily proven that the mother contravened the orders without reasonable excuse on Father’s Day, 7 September 2014.

The evidence about the weekends from 24 April to 5 June 2015 and my findings on the point

34.The mother accepted that she did not send the child to the father for any of the four weekends that he was scheduled to spend with the father during this period. She asserted that she had reasonable excuse not to do so.

35.Relevantly, the father gave evidence that on Saturday 28 March 2015, the child said to him, whilst getting out of the bath, “my bum is sore”. The father said that he pointed out to the child that “this problem has been happening for a while … for a few months” and asked him “what’s up?” He said that the child responded “Mummy has been putting her finger up my bottom when I get into bed with her”. The father said he was so shocked that he asked a friend who was visiting him at the time to hear what the child had just said. He said that he asked the child “could you please tell [Mr C] what you just told me?” He said he heard the child then say to [Mr C] “mummy has been putting her finger up my bottom when I sleep in her bed”. He said the child then turned to him (the father) and said “please don’t tell the police what I said, you don’t know what mummy will do to me.”

36.Mr C swore an affidavit that the father relied upon. He said that he was visiting the father and the child on Saturday 28 March 2015 when the father, upset, came to him and asked him to listen to what the child had just said to him. He said that he went with the father who he heard ask the child to tell Mr C what he had just told him. Mr C said the child said, with very little hesitation, “sometimes mummy puts her finger up my bottom and hurts me”. He said he asked the child if it was something that a doctor had asked mummy to do and the child had said “no”. He said he asked where, when and how often the child’s mother does this to him. He said the child responded “sometimes when I get into mummy’s bed with her”.

37.Mr C said that before he left that afternoon, he noticed the child appeared to be “very frightened of the idea of [the father] reporting his mother’s indecent assault on him, to the police or any other third party”. Mr C said the child kept saying “I don’t want to get Mummy in trouble, and began crying a lot”.

38.The father said in his affidavit that the next day he went to Region B hospital with the child. He said that when he spoke with staff there they told him that they could not examine the child and that he had to go to see the police first. He said that he then went to the Suburb E Police Station. He said that he spoke to a female police officer and reported the matter to her. He said that she was not very helpful and gave him the impression that she did not believe him. He said she told him to take the child to F Hospital and have them do a “welfare check”. He said he then took the child to F Hospital.

39.The father said that a doctor at F Hospital examined the child and confirmed redness and irritation and absence of worms (presumably around the anus) and told the father that he would contact “DOCS”.

40.The father said that he then took the child to the Suburb G Child Protection and Investigation Unit and that they interviewed the child. The father also gave the police a statement that day which was typed up and he signed. That is in evidence before me too. The father said that an officer said to him afterwards “being so young, it’s going to be hard to prove in court”.  The father said that he believed he had done all he could responsibly “but no one seemed to take it seriously” so he “took [the child] to changeover that day.” 

41.In his statement to police, the father said that the child had been complaining of having a sore bottom for months before that particular weekend and that the father had obtained advice from a chemist at some time and had applied a “worm lotion along with other creams and lotions to the affected area”. He said that he had tried to discuss it with the child’s mother and she was not interested.

42.He said that on 28 March, the child had asked him if he (the father) could do something to make his “bum feel better”. The father said he had a look at his son’s “bum area” and saw a “really red tender skin area around [the child’s] anus”. He said it looked “very painful and little scratch marks were evident”. He said it looked like a nail or something had scraped the skin.

43.The father also said in his police statement that when he took the child to Region B Hospital a doctor in the emergency section “appeared” to assess the child’s injuries and is said to have told the father that it was not chaffing but rather appeared to be an inflicted wound to his anus.

44.The father said he then spoke on the telephone with an officer of DOCS who told him that DOCS could not give him permission to breach the Court order but said to him that he believed his son was in danger and that the father should keep him in his care until a “fair assessment” could be done. 

45.In his affidavit evidence, the father said that on 21 April 2015 he rang DOCS to find out “if they had taken any action”. He said that he was told that “they couldn’t get in touch with the mother because she was out of the state.” He said that on Friday 24 April 2015 the mother did not turn up at the changeover location with the child and when he sent her a text message, she messaged back saying “No contact centre in place”.

46.In contrast, the mother asserts that the father withheld the child from her for four hours after the prescribed changeover time on Sunday 29 March. That seems to be common ground. The mother said she messaged the father when she was waiting at the changeover point asking how long he would be and she says he responded telling her that they were talking to the police and DOCS and that the child “will not be coming home” and that she (the mother) was a “very sick individual”. The mother said that she had to go to the Suburb E Police Station to find out what was happening. She said that she spoke with a police officer at around 8:00 pm who was from the CPIU who told her he had interviewed the child and that he did not believe the “stories”.

47.The mother said the father called her around 8:30 pm that night and told her that the child had been crying for two days about a sore bottom and making allegations about her. The mother said that she had to go and pick up the child from outside the father’s home at 9:00 pm that night.

48.She said that a short time later the child told her “I don’t want to see or speak to Dad because he lies and makes me lie”. She said the child told her that he was scared of his father as “I gave him my word to tell the police and doctors that you put your finger in my bum”. She said the child then started to cry and said he was sorry for lying and that “Dad made me lie”.

49.The mother said that on the next day, Monday 30 March, 2015, she took the child to the doctor and he diagnosed a fungal infection and prescribed cream for it. Adduced into evidence by the mother is a letter from a medical practitioner dated 14 May 2015 in which the doctor says he saw the child on 1 April 2015 (not 30 March) and that he observed “a minor rash in his natal cleft which was treated with topical antifungal cream”. The natal cleft is, I understand, the groove between the buttocks from below the sacrum to the perineum. 

50.The mother also said that the child started wetting his pants day and night after that weekend and was doing so regularly for a few weeks. She said that she had been having the child counselled for two years up to the time of the emergence of the sexual abuse allegations because of his difficult behaviours after he returned from time with his father, but that the child nevertheless seemed “more disturbed, fearful and unhappy” and that she attributed this to the father “grooming” the child to “go against” her.

51.The mother said she then sought advice from solicitors and children’s contact centre staff who told her that she should not let the child go to spend time with his father after the allegations he had made and the child reporting that the father had encouraged him to lie. So, she stopped sending the child, asserting, as I understand her case, it was to preserve his emotional well-being and also believing that as a children’s contact centre was not being used for changeovers that she did not have to attend.

52.Some police and hospital records were adduced into evidence before me. Those included some notes from Region B Hospital file. The notes record that the child was brought in on the morning of 29 March 2014 by his father who said that the child had disclosed to him overnight that the mother has been sexually abusing him. The notes record the father as having reported that the child told him that the mother has been inserting fingers and objects into the child’s anus. The notes record the father as being “worried that something has been going on for some time” and that he was unclear what triggered the child’s disclosure overnight. The hospital notes record the doctor’s impressions of the conversation with the father and that the father “keeps talking about how [the mother] has made his life hell”.

53.The doctor’s notes record that there was no obvious external evidence of trauma but that his genitals and anus were not examined at this presentation and that the father was advised to go to the police with his concerns. The notes also record that the father was concerned and not wanting the child to return to the mother’s care that day, but that the doctor told him that the police and DOCS should assess that issue.

54.Police records reflect that the father went to the Suburb E Police Station just after 11:00 am on Sunday 29 March 2015. They reflect that he reported that the child had disclosed that his mother had inserted her finger in his anus. The notes record that the father had said that another incident had occurred around April 2014 as well. The police records reflect that the father was advised to take the child to a GP to have him examined and produce a medical record and for the father to contact DOCS and report it to them. The police records also reflect that the father told the police that he had further evidence of an assault on video and that he opened a file on his phone to show the police. The notes say:

...the file consisted of the nominated victim child sitting on a chair, being asked questions by the [father] about an incident and what the person did. Police told the [father] the video is not specific evidence of an occurrence of assault as he stated, the file shows the child being prompted by the informant.

55.The police records reflect that the CPIU was to review the matter and medical evidence was awaited.

56.There are also notes from F Hospital that confirm the father took the child there in the afternoon of Sunday 29 March and reported that the child had disclosed that the mother had inserted her fingers into his anus. The father is reported to have told the hospital staff that the child did not tell him much about it, “except if the dad promised not to confront the mother”.

57.The F Hospital notes, made by the doctor, record that when the child was asked if his bottom was sore the child said “yes”. The notes record an examination was done and on inspection the anus was red. The notes say “no obvious skin tears/bleeding/worms seen”. No further examination was done. The notes record that the doctor spoke to the doctor at Region B Hospital and learned from him that he had also seen the child that morning. The father had not volunteered that information to the F Hospital but had told them he had taken the child to the police that morning. The notes record that a social worker spoke with the father and recorded many complaints about the history of his relationship with the mother. They also record the father alleged that the child is “very fearful” of his mother. Finally, the notes record that the father said he would keep the child at his home and have the police inform the mother of the impending investigation.

58.The police records then reflect that the father took the child to see CPIU officers and the child was interviewed. The notes say that when the child was asked why he was at the Police Station he stated “because mum stuck her finger in his [must have been “my”] bum”. The notes say that police tried to obtain context around the incident but that the child was unable to provide any details of the incident”. The notes record that the child did engage and disclosed that his mother had pushed him into a coffee table and that he had injured his “doodle” in that incident. The notes record that the child said that he liked living with his mother and that what he did not like about living there was that she did not have Foxtel. The police records include opinion expressed by the note taker that the child engaged freely on other subjects but could provide no detail in relation to the specific incident alleged to have occurred. The notes also reflect that the father told the police that he has a video of a previous incident where the child was assaulted by his mother, but that when the police viewed this video on the father’s phone, the father is seen to tell the child directly what happened and to ask the child to agree with him. The police notes say the police said that the video is of no evidentiary value and actually casts doubt on the validity of the boy’s alleged disclosures about the latest alleged incident. The police notes record that police communicated with DOCS and received information that the doctor who had seen the child “did not perform any examination of the child”. That must have been the doctor at Region B Hospital as he had not examined the child. The notes reflect that police then told the father there was insufficient evidence to commence proceedings against the mother and no justification in not adhering to the existing Court Order requiring him to return the child to the mother. The notes reflect that the father argued at length with police about this. They also record police having spoken with the mother who is recorded as having told police that the father is “delusional and paranoid”. The police notes finish with a statement of opinion that as the offence was not sufficiently particularised and as the circumstances suggested the child had been coached by his father, it was considered to be “unfounded”.

59.A copy of the diary notes of the CPIU officer who conducted the interview with the child were adduced into evidence as well. They appear to confirm that the child gave little contextual detail about the alleged sexual abuse after he said “my mum has been hurting me” and “she’s been putting her finger up my bum” and “when I come into her bed she puts her finger up my bum.” Later they do record that the child said that it happened when he got into his mother’s bed and that it happened three or  four or five times, but that he did not know when it had happened. The notes reflect the child as saying that his mother did not say why she put her finger in his bum and that he said that he told his father about it a long time ago. He is recorded to have also said that his mother is “being mean” to him by putting her finger up his bum.

60.The mother’s view, reported by her to police, that the father is “delusional and paranoid” was not just something she had made up. She was referring to a report by Dr H, a psychiatrist, written in November 2010 for the parenting proceedings between them. The mother put that report into evidence before me. Dr H had concluded that report by expressing the opinion that the father’s “different diagnosis” was “paranoid personality disorder or delusional disorder.” She had said that “present indications are that he would be likely to alienate the child from the mother”.

61.Of particular note in that report were Dr H’s observations that the father volunteered to her that he believed the destruction of the twin towers of the World Trade Centre in New York on 11 September, 2001 was “an inside job” organised by the CIA and not a terrorist attack and that the two Presidents, George Bush Senior and George Bush Junior, were “gun runners”. Dr H also observed that she had seen evidence of email communications between the father and the mother in which the father also expressed the belief that the man convicted of the mass murders at Port Arthur in Tasmania was innocent and set up and that the murders were actually carried out by a black operations unit.

62.In an effort to counter the impact of that report, the father adduced into evidence a report from another psychiatrist, Dr I, that he had obtained in October 2011 for the proceedings. Although Dr I reported the father than as being “preoccupied with his current legal problems” and as describing much of the mother’s behaviour towards him in “persecutory terms” he said that he did not agree with Dr H’s opinion that the father was suffering from a Delusional Disorder or a Paranoid Personality Disorder. He thought there was no evidence the father was suffering from any psychiatric disorder. Rather extraordinarily, because it appears to me to be beyond the remit and expertise of a psychiatrist reporting on patients to this Court, Dr I went on to say that he believed the father to be “an honest and reliable witness”. He even went on to press the case for the father to be given greater “access” to the child.

63.In any event, those two reports were four and five years old when the matter was before me and neither of those doctors was cross-examined. Although they were useful to give the conflict between the parents some historical context, I give them little weight in the determination of this matter.

64.There was also documentary evidence before the Court from DOCS that shows that the mother was interviewed by a Child Safety Officer on 12 May 2015 and that the CSO subsequently informed the mother that the investigation of the father’s complaint was concluded and that the allegation was assessed as unsubstantiated with there being “no immediate harm indicators identified” or any “unacceptable risk” to the child whilst he remained cared for by the mother identified.

65.The mother also said in her affidavit evidence that on the afternoon of 12 May 2015, a welfare check was conducted at her home by people she called “Child Protection Services” and that the child was interviewed by them. She said that she was told afterwards that the child had disclosed to them that his father had made him lie about the alleged abuse.

66.The mother gave further evidence that she thought that at the hearing before the FCC Judge on 17 June 2015, her decision to withhold the child from time with his father would be vindicated and the existing orders varied. That did not happen. Both parties appeared without legal representation that day and the Court was not assisted by an ICL. I have not had the benefit of seeing the FCC Judge’s reasons for the orders that he made. In any event, the mother obviously left the FCC that day aware that there was a continued obligation for her to send the child to the father, as she again began to comply with the existing orders, sending the boy throughout June and July until she stopped doing so again on the last weekend in July.

67.The evidence is that the mother became even more concerned about the child’s behaviour and emotional state after time with his father recommenced. She said that the child was shuffling around with his shoulders hunched over, asking her why his father hates her so much, and telling her that his father makes him lie about her. She said he was “withdrawn, sad and confused, often changing his mind and apathetic about doing things that he would normally be excited about”. The mother said she became so worried about the child that she obtained a referral to a psychologist and a mental health plan for the child from their general medical practitioner.

68.She began taking the child to the psychologist right at the beginning of July. Around that time, on 5 July, she said that after time with his father the child said that he wanted to kill himself if the police came to interview the mother. She said he said “they won’t be wearing a uniform, they’re special police”.

69.The mother said that the child’s treating psychologist told her on 21 July that the child is “depressed, sad, lost, guarded and needed ongoing treatment”. The mother said that the child defecated in his pants a few days after that, something he has not done since he was toilet trained. After that, the mother again ceased sending the child to spend time with the father. My understanding is that he had not spent time with the father again before this matter was before the PR on 17 November when the suspension of the existing orders was ordered.

70.Some of the child’s treating psychologist’s notes were adduced into evidence before me. They reflect notes the psychologist took whilst conducting early sessions with the mother and also with the child. I do not read them to contain the expression of any concluded opinions formed by the psychologist. They confirm reporting by the mother of her concerns for the child’s behaviour and well-being at the time.

71.Another piece of evidence that was before the Court was an affidavit of a woman who is a neighbour of the mother. She deposed to the fact that on 14 May, 2015 at about 3:30 pm a man who the father conceded was him rang her doorbell at her gated home. She answered the ring but spoke to the father from a few metres away with the gate closed. She did not know the father at that time. He started asking her questions, she said, about whether she knew her neighbours and had heard anything strange from next door. The woman said that she asked the father why he wanted to know these things and said his response was because he was chasing his wife for the last six years and that she had been abusing their son.

72.The woman said she felt very uneasy about the conversation and suggested he ask the neighbours the questions himself as she had heard someone at the next door home just before he arrived. She said that he responded that he could not do that and went on to tell the woman that the mother had “penetrated” the child. The woman said that she became really troubled by what the father was saying and she went inside her place to get away from him. She said that she told him to go to the police to which she said he responded “they won’t do anything”. She said that he left a card with his name and telephone number on it and she exhibited a copy of it to her affidavit. It was clear that she was not very familiar with the mother at all and had not previously had much to do with her. However, she said that after the father’s visit she went to the mother’s home and told her what had just transpired.

73.The father cross-examined the woman at the trial and challenged her on virtually all of her affidavit evidence, suggesting that she was not telling the truth at all in her evidence and that the mother had manufactured and written the affidavit for her.

74.The woman was clearly quite shocked at his challenges and suggestions. Her oral evidence was clear and completely consistent with her affidavit. She was clearly offended by his assertions that she was lying. I had no doubt that she was an honest witness, very careful to be telling the truth. The father’s challenges and cross-examination did nothing to improve his case or to detract from the mother’s case. In actual fact, the father’s cross-examination of this witness had the completely opposite effect.

75.The determination by this Court of the appropriate parenting orders to have in place to regulate the co-parenting of the mother and the father in circumstances where the father alleges the mother has repeatedly sexually abused the child and the mother denies it and alleges rather that the father has encouraged or coached the child to tell lies to police and doctors about the mother in respect of these allegations, something that the child is said to have subsequently disclosed to the mother and third parties is, of course, a determination that must await a full hearing and testing of all of the evidence, outside of the context of a truncated hearing of a contravention application. However, in this instance, the father was insistent that his contravention application be heard and, at the time, I acceded to his expectations.

76.As such, having now to determine the contravention application, I must make some determination as to whether the mother had reasonable grounds for not sending the child to spend alternate weekends with his father from 24 April to 5 June 2016. That, in my judgment, necessarily requires me to consider whether on the balance of probabilities, considering only and all the evidence before me, the mother believed, on reasonable grounds, that not sending the child to spend the alternate weekends with his father in April, May and early June last year was necessary to protect the child’s health or safety.

77.It was effectively submitted by counsel for the mother that I would find that she truly believed that withholding the child was necessary to preserve and protect his emotional wellbeing. It was further submitted that I would be satisfied that she had reasonable grounds for believing that.

78.I accept those submissions. The preponderance of the evidence and my observation of the mother in Court and in the witness box persuades me that she did actually believe that it was necessary to withhold the child from the father on those weekends when, by the existing orders, he was to spend time with him, in order to protect and maintain the child’s emotional well-being and mental health. That same preponderance of the evidence, including:

(i)the evidence of the police records that included police observations of a video recorded by the father on his phone that was viewed by police as well as police opinion about what they saw, in addition to other police involvement in the matter;

(ii)the mother’s evidence (which I accept as truthful) of her observations of the child’s concerning and deteriorating behaviour at and around the last weekend in March, 2015 supported, to a degree, by the psychologist’s notes of some of her sessions with the mother and the child;

(iii)the child’s general medical practitioner’s diagnosis of a fungal irritation in the child’s natal cleft just after that last weekend in March;

(iv)records of third party observations that the father was preoccupied with what he considered was the mother’s persecutory behaviour towards him;

(v)the mother’s evidence (which I accept was truthful) that the child told her and that she was told by others he had told them, that he was made to lie about her to police and doctors by his father;

causes me to consider, on the balance of probabilities, that the mother had reasonable grounds for holding the belief that she did.

79.Accordingly, I am satisfied that the mother did have reasonable excuse for contravening the substantive orders that provided for the child to spend time with his father on alternate weekends in late April, May and early June of 2015.

The evidence about the weekends from 31 July to 11 September 2015 and also Father’s Day 2015 and my findings on the point

80.I have already set out what I consider to be the relevant evidence about what transpired after FCC Judge Howard’s 17 June orders. I am equally satisfied that from 31 July 2015, the mother honestly believed, on reasonable grounds, that it was necessary to withhold the child from going and spending time with the father on the occasions provided for in the existing orders. I am fortified in that view by the knowledge that PR Filippello determined in mid-November 2015, a month before the hearing before me, that the child’s best interests at that time required a suspension of the existing orders requirements that the child spend time with his father.

81.Accordingly, I am also satisfied that the mother had reasonable excuse for contravening the substantive orders that provided for the child to spend time with his father on alternate weekends from late July to early September 2015 and on Father’s Day 2015.

Conclusion

82.I acknowledge that it has taken nine months for me to deliver this judgment. I appreciate that delay in delivering judgments in matters such as this adds to the anxiety that parents involved in high conflict parenting disputes already experience. I attribute the delay to the responsibility to hear and determine so many other complex, high conflict cases, as well as having three months of scheduled leave, in the months since I heard the matter.

83.I will now dismiss the father’s contravention application contained in the Amended Application – Contravention that was filed by him on 29 September 2015. I will also adjourn the mother’s contravention application contained in the Amended Application – Contravention that was filed by her on 20 October 2015 for hearing on a date to be listed by the trial Judge.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 September 2016.

Associate: 

Date:  20 September 2016