Davidson and Cox
[2015] FCCA 1908
•16 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DAVIDSON & COX | [2015] FCCA 1908 |
| Catchwords: FAMILY LAW – Contravention – whether reasonable excuse. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 65N, 70NAC, 70NAD, 70NAE, 70NAF |
| Childers & Leslie [2008] FamCAFC 5 In the Marriage of Gaunt (1978) FLC 90-468 O’Brien & O’Brien (1993) FLC 92-396 Stevenson & Hughes (1993) FLC 92-363 Stavros & Stavros (1984) FLC 91-562 Davidson & Cox [2014] FCCA 3147 |
| Applicant: | MR DAVIDSON |
| Respondent: | MS COX |
| File Number: | HBC 95 of 2013 |
| Judgment of: | Judge Baker |
| Hearing dates: | 3 June 2015 & 12 June 2015 |
| Date of Last Submission: | 12 June 2015 |
| Delivered at: | Hobart |
| Delivered on: | 16 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ryan |
| Solicitors for the Applicant: | PWB Lawyers |
| Counsel for the Respondent: | Mr Munro |
| Solicitors for the Respondent: | John Munro & Associates |
| Counsel for the Independent Children’s Lawyer: | Mr Fitzgerald |
| Solicitors for the Independent Children’s Lawyer: | Fitzgerald & Browne |
THE COURT FINDS THAT:
The Mother without reasonable excuse contravened Order 2(b) of the Orders made on 21 November 2014 and amended on 11 December 2014 on the following occasions:
(a)9 January 2015 at 3:00 pm;
(b)16 January 2015 at 3:00 pm;
(c)23 January 2015 at 3:00 pm;
(d)30 January 2015 at 3:00 pm;
The Mother without reasonable excuse contravened Order 4(h) of the Orders made on 18 December 2013 on the following occasions:
(a)8 January 2015 at 6:30 pm – 7:30 pm;
(b)13 January 2015 at 6:30 pm – 7:30 pm;
(c)15 January 2015 at 6:30 pm – 7:30 pm;
(d)20 January 2015 at 6:30 pm – 7:30 pm;
(e)22 January 2015 at 6:30 pm – 7:30 pm;
(f)27 January 2015 at 6:30 pm – 7:30 pm;
(g)29 January 2015 at 6:30 pm – 7:30 pm.
THE COURT ORDERS THAT:
This matter be adjourned to 15 July 2015 at 10:00 for hearing of the Application in a Case filed by the Mother on 8 April 2015.
IT IS NOTED that publication of this judgment under the pseudonym Davidson & Cox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT HOBART |
HBC 95 of 2013
| MR DAVIDSON |
Applicant
And
| MS COX |
Respondent
REASONS FOR JUDGMENT
Revised from Transcript
This is a contravention application of the father of the child X, born (omitted) 2007.
There are eleven allegations. The respondent mother admitted that she has contravened the orders made on 21 November 2014 and amended on 11 December 2014, but asserted that she has a reasonable excuse in respect of each allegation.
Evidence
The applicant father relied on the following documents:
· His affidavit filed 2 March 2015;
· affidavits of Ms J filed 5 November 2014 and 2 March 2015;
· affidavit of Andrew John Munro filed 18 November 2014;
· Memorandum of Family Consultant dated 17 November 2014;
· Reasons for Judgment dated 21 November 2014;
· written submissions;
· subpoenaed documents in list of exhibits.
The respondent mother relied on:
· her affidavit filed 8 April 2015;
· affidavit of Mr S filed 27 May 2015;
· affidavit of Ms C filed 27 May 2015;
· affidavit of Dr C filed 8 April 2015;
· written submissions;
· subpoenaed documents in a list of exhibits.
The Independent Children’s Lawyer (‘the ICL’) cross-examined Dr C and the mother. The father and his mother gave evidence and were cross-examined. The mother, her father, her mother and Dr C gave evidence and were also cross-examined.
Background
The parties were in a relationship from around 1992, and separated in 2007 according to the father; in 2013 according to the mother. The mother lives in (omitted) with X. The father lives in (omitted) with his mother.
Final parenting orders were made by consent on 18 December 2013 which provided that X spend alternate weekend times, special day time and school holiday time with the father. On 21 November 2014 I delivered Reasons for Judgment in respect of the father’s application to vary the orders.
The mother sought an order that X spend no time with the father and have no communication with him. She asserted that X was at risk of harm in the father’s care due to him physically hurting X on a number of occasions from January to July 2014. X had not spent time with the father from 13 July 2014. I read in paragraphs 19-44 of my Reasons for Judgment as follows:
19.The father said the mother obtained a police family violence order against him on 14 July 2014. She subsequently obtained an interim family violence order on 1 August 2014, which prevents the father having any time with him, including telephone time.
20.The father denied that he assaulted the mother on 5 July 2014. He denied he assaulted or hurt X. He said he has rebuffed the mother’s continuous sexual advances. He contends that she is mentally unwell.
21.The staff at (omitted) Primary School helped him with changeover, requesting that the mother not attend at the school. She then insisted collection occur at the father’s home. The parties agreed that the father collect X from school and then return him to a park in (omitted) until 13 July 2014. He has not seen him since.
22.The paternal grandmother also raised a concern about the mother’s mental health. She referred to an AFL football match on 7 June 2014 when the mother attended and wanted to sit with the father, her and X. She said that the mother telephoned the father 26 times and left 30 text messages.
23.The affidavit gives details of the constant contact by the mother with the father when X is with him, the difficulties on changeover and the very troubling conversations that she has had with X. I refer to paragraph 35 of her affidavit:
“X had a meltdown and told me and Mr Davidson that I was not his grandmother and Mr Davidson was not his father, and only the Cox’s were his family and that we were liars
He said he was the last of the Cox line. He said Mr Davidson was a liar, because he said he would marry his mother but he didn’t. He said Mr Davidson lost his mother’s house at (omitted) and a big white car. He said Mr Davidson was a bad person because of lots of other bad things he had done to his mother. I asked X if Mr Davidson was not his father then who was, and he stated mum is still looking for him and that she is the only one that really cares about him”
24.The mother’s affidavit contains extensive allegations about the father and family violence against her and X prior to the making of final parenting orders by consent in December 2013. She has over the years been in contact and engaged with many organisations and practitioners as a result of the given history. At paragraph 114, she said:
I have been instructed not to allow Mr Davidson near X or me again. That had been confused by Child Protection, the department initially suggesting that, “You must allow Mr Davidson to see X.” The enormous pressure I was put under last year by Mr Davidson that included his abuse that led me to give into him, because I had been terrified of what he may do next, and even the ideal of the Family Law Act. But I now understand the need to protect X and keep him safe far outweighs that ideal.
25.The mother in paragraphs 46 to 53 gives details of a sexual abuse allegation made against the father in respect of X in 2012. This allegation was investigated by Child Protection and the police. At paragraph 53, she said:
When playing a computer game later that year, X had asked me about the truth and imagination. I explained to him the difference in the context of movies and computer games, and X then told me, quite unexpectedly, “You know that thing about dad poking me up the bottom: it is true. When he pulled it out, it hurt,” but that he was too scared to tell me about it again, because Mr Davidson told him to lie and threatened his life if he didn’t. X said, “Please don’t tell anyone, because he will kill us.” Mr Davidson has been inappropriately affectionate with X, kissing him on the lips as if he was his lover, not father, and then making a point of not giving the same affection to me, since X was one or two years old. It was weird.
26.This allegation was made prior to the mother agreeing to the final consent orders made in December 2013. Also in her affidavit, she outlined in detail allegations of sexual activity by the father with her in 2011 and 2012, implying that it is likely that the sexual abuse against X occurred. The evidence against the father after the making of the consent orders on 18 December 2014 is contained from paragraphs 78 to 116 of her first affidavit, and to her second affidavit, she has annexed her counselling records, which also makes reference to allegations.
27.The mother in her first affidavit complained about the father being late for visits with X and missing visits with him. She said that:
He would go to places he should not with people he should not whilst X was in his care. He took X to the toilet and showered him when X was perfectly capable of doing these things by himself. He physically hurt X on a number of occasions from January to July 2014. He admitted doing these things to me over the telephone but denied it a minute later and to others.
28.At paragraph 89 of her first affidavit, she said:
He would take X away on weekends where he could drink and use drugs and have X sleep with him without his mother. He used drugs at his mother’s house right under her nose, presumably, without her knowing. I could hear the bubbling of his bong over the telephone as he spoke to me and he self-reported this. He said he would have X taken away from me if I tried to do anything about it.
29.At paragraph 95 she said:
The police were informed by me of genuine concern for the wellbeing of X – that X was being taken to placed where there was illicit drug use and X was being physically harmed.
At paragraphs 102 and 103 of her first affidavit she said that X was distressed about time with the father. She said on the weekend of 4 April 2014 the father repeatedly pushed X causing bruising and cuts as a means of discipline and X was very distressed. There was no medical evidence of bruises and cuts after that weekend.
30.The mother said that X was distressed about not being able to telephone her when with the father. She said:
Each of the visitations were with incident of physical violence, intimidation, drug use and much distress to X.
I refer to paragraph 107. At paragraph 116 she said:
We do not wish to live in fear and it is most unfair to a child of X’s age to have to deal with such responsibility. X and I are not willing to neither continue a live with violence nor suffer further from the consequences of that life, including trauma and anxiety and request that the Court protect us from that now and in the future.
31.The mother asserted that X is not safe in the father’s house. In respect of the family violence incident on 5 July 2014, she asserted in her application for the Family Violence Order that X was bruised by the father badly in the chest and legs. She said that X’s injuries were apparent on his return to her and were confirmed by the GP when X had complained of chest pain on a few occasions since. I refer to page 36 of annexure C to her first affidavit.
32.The counselling note dated 7 July 2014 attached to her second affidavit states that the mother explained to her counsellor ( this is two days after the incident) how she was assaulted by the father. There was no mention by the mother about the father hurting X. There was a discussion about varying the parenting order to reflect the police family violence order. The mother also mentioned that she attended a general practitioner appointment some time ago, and that X in the GP appointment had disclosed to the GP that the father had assaulted him and was being abusive about the mother during access visits.
33.As I have said, there was no mention to the counsellor of the father assaulting X on 5 July 2014. There was also no mention of any assault to X in the after‑hours doctor report dated 6 July 2014, when the mother attended Dr A in respect of her injuries which she asserted occurred on 5 July. The counselling note on 8 July 2014 at 5.29 pm states:
Ms Cox ambivalent re usefulness of police family violence order if X not included on order.
34.The counselling note dated 10 July 2014 referred to the mother having plans to apply to suspend the family law court orders and then apply to have the matter reheard on the basis of X being at risk while in the father’s care. The first mention by the mother of an assault on X by the father is on 16 July 2014, 11 days after the incident, when she spoke of taking X to the GP because of chest pains. X disclosed to the GP that his chest was sore because his father had pushed him in the car seat, and it had been sore the whole time. He told the GP it happened when his father was hitting the mother.
35.Annexure P of the mother’s affidavit is a progress note for X of Dr J dated 15 July 2014, 10 days later, which says that:
10 days ago, X was pushed on left chest by dad and has tender left ribcage. X reports he hit him on head a few times on a different occasion and reports he saw his dad hit mum in face with his elbow approximately 10 years ago.
36.The mother asserted that should read “10 days ago”.
37.I turn to the Education Department’s records which are annexed to Mr Munro’s affidavit. These records raise concerns about the mother’s lack of cooperation in providing X for changeover and about her relationship with X. The statement of the principal of (omitted) Primary School, Ms E, indicates her concerns about the mother’s behaviour with X:
Ms Cox found it very difficult to separate from X, and when he did come to school, Ms Cox wanted to come in for parent help on an almost daily basis in the classroom as well as additionally help in the canteen and library. X lives within metres of the school boundary. He is always brought to the classroom by Ms Cox. He often arrives late or just as the bell goes and does not connect with other children or staff prior to his class time. If he plays with other children at the end of the day, Ms Cox shadows him very closely.
At times, X has appears resentful of this and pushed Ms Cox away or run off in a different direction (as observed by myself and other duty staff). During the water safety program in 2013, Ms Cox was by the poolside every day, sometimes driving X down and back in her own car or sitting beside him on the bus. Ms Cox’s constant vigilance and close presence has meant X has comparatively few opportunities to explore and play independently or to develop other significant relationships of his choosing.
Ms Cox has expressed animosity towards Mr Davidson to me and other staff, such as Ms M and class teachers, on many occasions. Her actions at parenting changeover times have resulted in difficult situations for the school to manage and also difficult for X to accept the parenting arrangements as normal. Mr Davidson has always been cooperative with school requests and behaved sensitively during his interactions at (omitted) Primary School.
38.On 18 March 2014, Ms E wrote an email to Ms D, a school social worker:
I wonder if you may be able to advise us this prior to Friday. X access stress with his mother is fast snowballing, with Ms Cox [the mother] trying hard to claim that X is traumatised and not safe during his visits with dad. We have not seen any indication that this is the case, and if anything, X is more settled when he sees his dad, not less. I am actually increasingly concerned about mum’s mental health. X is never anywhere without her, and as he grows up, he is being stifled. The next scheduled visit with his dad is this Friday, and Ms Cox has medical appointments for X today. I suspect that she is hopeful a doctor may be convinced to disallow dad’s visit this week on medical grounds. Ms Cox is also deadset on collecting X from the classroom on Friday afternoon and taking him out to dad in the car park, all of which is completely unnecessary. There is no reason why dad cannot collect X himself. This process not only puts us on edge, particularly the classroom teacher, but I’m sure it makes more of a fuss than X would like to. Is there anything we can do?
39.Ms E wrote a letter to the mother in March 2014 requesting her not to attend the school for changeover. She wrote:
School staff will ensure that X is collected by Mr Davidson in accordance with the order. In my capacity as principal, I advise you not to be on school property during this time. I have asked our school social worker, Ms D, and school psychologist, Ms H, to contact you and offer their assistance and support your family.
40.On 21 March 2014, the mother wrote an email to (omitted) Primary School, including the content of a letter to the father’s solicitor, to suspend time immediately and enclosing a letter from X’s medical practitioner. The letter to the solicitor indicated that after obtaining expert medical advice, the mother’s view is that X’s welfare is not being served by the current contact regime and that she had been advised by the treating medical practitioner that time should be suspended. She wrote:
Please be aware that contact shall only be resumed when the medical expert advises that it is in the child’s best interests to resume such contact and your client fulfils his obligations pursuant to the orders. Contact may be able to be resumed on a reduced and fully supervised basis by agreement.
41.The mother had taken X to his doctor, Dr J. She obtained a medical certificate on 21 March 2014 in which he gave his opinion that the visitation arrangements should be reviewed and X’s wishes be considered. He wrote that X has told him on more than one occasion that he does not want to spend time with his father. He has observed him for the last few months in his practice and has noticed his behaviour is very disruptive immediately after a visit to his dad, and his behaviour improved after a visit. Prior to the next visit, he became very apprehensive, with a change in behaviour.
42.The mother did not want the father to attend school to collect X. She telephoned the school on 31 July to inform Ms E that the family violence order protected X from his access visits as all school boundaries were within the 50‑metre exclusion zone. Ms E had a copy of the order from the father and informed the mother that she had received instructions from the police and the Department of Education legal services that the father could collect X without breaching the order. The mother told Ms E that the papers on file were wrong and she had different orders.
43.On 1 August 2014, the mother informed the school by email that X was unwell and she was taking him to the doctor for an immediate assessment and he would be returned to school later that day. He was not returned to school, and an updated family violence order was emailed to the school after 4 pm. X was again absent from school on 15 August 2014. The updated family violence order restricted the father to 2000 metres outside school grounds and prevented the father from contact with X. This interim order was obtained without an appearance in Court by the father.
44.The interim family violence order of 1 August provided, amongst other things, that the father must not stalk the mother or X; nor directly or indirectly threaten, harass, abuse or assault the mother or X; not approach the mother or X directly or indirectly by telephone, email, facsimile, letter, SMS, text message or any other form of electronic communication, except during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings consented to by both parties. He must not enter the premises at (omitted), where the mother or X is presently living; not go within 2000 metres of the boundary of the premises at (omitted). The hearing for a final order is listed in January 2015. The father is opposing the application. He denied the allegations made by the mother.
I found that it was in X’s best interests to have time with the father. I was not persuaded that there would be an unacceptable risk of physical or emotional harm to him if he has time with his father. I made orders that X spend time with the father each Friday from after school until 5:00 pm Saturday in the presence of the paternal Grandmother, changeover to occur at (omitted) Primary School and return changeover to occur at the (omitted) Children's Contact Service or if unavailable at the (omitted) Police Station.
I concluded that there were reasonable grounds to find that family violence has occurred in the past, in particular, during 2008 and 2009 when family violence orders were made and there were breaches of orders made by the father. I also found that it is likely that in the past, X has witnessed family violence. In December 2013 the father admitted to the family consultant that there had been yelling and screaming between the parties which X witnessed.
I noted that X’s genuine views needed to be investigated to determine whether the mother is influencing his attitude to the father. This investigation has yet to be completed in the substantive proceedings. An expert’s report has been ordered, but has not yet been completed.
X made a disclosure to his GP, Dr J, on 5 January 2015. His disclosure was that his father had hit him over the head at Christmas and that his father always hurts him on visits. Dr J told child protection that he had a small bruise on his mid-back, but could not confirm the cause.[1]
[1] Exhibit RM36 – Child Protection Records dated 9 January 2015.
On 13 January 2015, in the presence of the mother, X disclosed to Dr C that his father had “punched him to the back of the head a couple of weeks previously and he passed out until the next morning.” He also said his father had kicked him in the back. He then went on to detail a traumatic handover whereby Mr Davidson reportedly pulled Ms Cox out of the car, elbowed her to the gravel leaving bruises, and drove off with X in his car. X said his father had hurt him “my whole life”, he pointed to his mother’s stomach and added “even since I was in there.”[2]
[2] Dr C's Report, at page 7.
On 19 January 2015 the mother went to Tasmania Police to make a statement.
On 21 January 2015 the mother’s Family Violence Order application for hers and X’s protection was listed for hearing. She had not served Tasmania Police with the application, and an adjournment was sought. The matter was listed for mention on 27 February 2015, with a trial listed for 18 March 2015. The application was adjourned sine die, and the interim order has continued.
The mother said that the first time she became aware that the father had punched X to the back of the head and had kicked him in the back and he had passed out until the next morning, was at Dr J’s surgery on 5 January 2015.
This alleged assault had taken place on 19 or 20 December 2014, but X did not tell his mother after the incident. He spent time with the father on 2 and 3 January 2015 without incident.
The father denied the assault. The paternal grandmother said she was present at home, and nothing untoward happened.
On 27 January 2015 X was interviewed by Tasmania Police under video. The father has also been interviewed by Tasmania Police. He has not been charged with the assault of X or of the mother.
Relevant Law
The meaning of ‘contravention’ with respect to an order is defined in s.70NAC of the Family Law Act 1975 (‘the Act’), which provides:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
In this matter the court has not made an order or imposed a sanction on the mother previously for a contravention of parenting orders.
The standard of proof is on the balance of probabilities.[3] Section 70NAD provides that:
[3] Family Law Act 1975 (Cth), s.70NAF(1).
…
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order.
…
If a person has a defence of reasonable excuse, the onus is on that person to prove on the balance of probabilities the asserted reasonable excuse.[4]
[4] Family Law Act 1975 (Cth), s.70NAF(1),(2).
Section 70NAE(1) sets out the meaning of reasonable excuse. While it sets out the circumstances which can give rise to a reasonable excuse, the section does not limit the meaning of reasonable excuse to those circumstances. Section 70NAE(5) provides:
A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order, to the extent to which it deals with whom a child is to spend time with, in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
An order that entitled the father to spend time with the child places serious obligations on the mother. Section 65N and the objects set out in s. 60B of the Act are relevant:
65N. General obligations created by parenting order that deals with whom a child spends time with:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
60B Objects of Part and principles underlying it:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
In Childers & Leslie[5] Warnick J stated that an order that entitled a father to spend time with the child “places serious obligations on persons in the position of the mother”. His Honour referred to s.65N which was the relevant section in that case, and also the objects in s.60B:
The objects and principles offer considerable support for the proposition that a parent who is entitled to spend time with a child ought to be able to do so in various conditions and circumstances, unless, of course, an exception such as that which s.70NAE(5) deals, applies.[6]
[5] (2008) FamCAFC 5.
[6] Ibid, at para 33.
Justice Warnick referred to the statement made in In the Marriage of Gaunt:[7]
The essential question is this – can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
…A party’s subjective view of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable excuse’.
[7] (1978) FLC 90-468.
In O’Brien & O’Brien[8] Smithers J said:
…The passing of s.112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interest of the child. The question is whether it is necessary to protect the health or safety of a person, including the child. (emphasis added)
[8] (1993) FLC 92-396.
In Stevenson & Hughes[9] the Full Court of the Family Court referred to Stavros & Stavros[10]:
… namely, that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access.
The Father’s Evidence
[9] (1993) FLC 92-363.
[10] (1984) FLC 91-562.
The Contravention Allegations
On 6 January 2015, 9 January 2015, 16 January 2015 and 23 January 2015 (during the school holidays), the mother did not make X available at (omitted) Contact Centre at 3:00pm.
On 8 January 2015, 13 January 2015, 15 January 2015, 20 January 2015, 22 January 2015, 27 January 2015 and 29 January 2015 the father telephoned X, but on each occasion the call was not answered. Since 6 January 2015 the father has not had telephone communication with X.
In his affidavit, the father denied that he assaulted X when he was in his care in December 2014, as alleged by the mother. He said that during the weekly Friday nights when X was in his care, his mother was present in the house. He said that X enjoyed his time with him and did not resist being in his care when he collected him. He was not in any way distressed when he returned him to the (omitted) Contact Centre.
On 27 February 2015, on the mother’s application for a Family Violence Order, the Police Prosecutor told the Magistrate that the police would not be taking any interest in the family violence proceedings.
The father has not been charged with assault of X or anyone else. He has been told that there will be no charges laid against him as a result of the mother’s allegations about assaulting X.
Cross-Examination
The father was not aware on 21 December 2014 that X was seeing Dr C, although he was spending time with him at that time. He said that Dr C has never tried to contact him, nor has the mother (prior to 5 January 2015) discussed any behavioural problems with him.
He did not deny that X made disclosures to Dr J in July 2014 and January 2015, or disclosures to Dr C and to the Tasmania Police.
He had no explanation for the disclosures which X made to his mother as listed in her affidavit.
Of significance, he was not challenged about his denial of punching X in the head and any other allegation of violence to X. This is relevant to the issue of whether the mother’s belief that not allowing X to spend time with the father was necessary to protect his health and safety was based on reasonable grounds.
The Paternal Grandmother
Her affidavit evidence was not shaken during cross-examination. She said that she has always been present during X’s time with the father. She did not hear anything untoward on the night of the alleged punching incident.
I consider that she was a credible witness and I accept her evidence that she was present at the home when X was there overnight.
The Mother’s Evidence
The mother asserted that she has a reasonable excuse in contravening the orders. She relied on Dr C’s report to defend the contravention application and assert a reasonable excuse.
In respect of telephone time, she said on 8 January 2015 the father rang and X became agitated and stressed and refused to speak. After she cancelled the first visit on Friday 9 January 2015, the father called X, who would not speak. X has refused to speak to his father since. She said that he stopped calling after a couple of weeks.
She said:
He would run to his room when the phone rang. He said, “I’m not talking to him.” A few times, he came to the phone, took the phone, and hung up immediately. Each time his father has called or there is mention of seeing his father, X is rocked again. He panics.
The mother was asked during cross-examination about X telling Dr C that his father tried to call, but they had a flat battery. She answered that she could not recall there ever being a flat battery. She said that when X told Dr C he wanted to speak to the father:
Well, X wanted to talk to him on that occasion. There were many telephone calls and on many occasions I encouraged him to take calls and X did not want to speak to him. There are other occasions, which became just about every occasion in recent times, where he refused to go near the phone.
She added that X’s statement that the father tried to call them and they had a flat battery could be in reference to any number of phone calls prior to January 2015.
This is not the first time the mother has relied on medical advice.[11] I dealt with this in my Reasons of November 2014.[12]
[11] See: letter dated 21 March 2014, Annexure I to M’s Affidavit filed 8 April 2015.
[12] Davidson & Cox [2014] FCCA 3147, at para 59-60.
I noted that Dr J had not been cross-examined and I was not able to make a finding about the alleged injury to X and about what Dr J had been told by the mother and X.
Dr J suggested at that time that X’s time with the father be reviewed. Yet, the mother wrote:
After obtaining expert medical evidence that the child’s welfare is not being served by the current contact regime, I’ve been advised by the treating medical practitioner that at this time the contact should be suspended. I enclose the relevant report.[13]
[13] Ibid.
The mother’s oral evidence about X’s attendance on Dr C conflicts with the report from Dr S to Dr J. The mother’s evidence was that:
Since late 2013, I was seeing Dr S in (omitted). He informed me he was going on extended Christmas leave. He would not be back for months. That was the reason for referral to Dr C. Since well before orders of 21 November, I had been aware that Dr S was going on leave and I was already phoning around for appointments. Dr C’s name came up. That was the reason for asking for the referral for X at that time, because I had an appointment with her coming up. We had the referral a long time before court was ever a twinkle in anybody’s eye.
The mother did not refer to Dr S’s leave in her affidavit. All she said was that X’s counselling was transferred to Dr C, as was her counselling. She said that Dr J made the decision to refer X.
Dr J’s records indicate the referral to Dr C was made on 8 December 2014.
X had his 10th session with Dr S on 16 December 2014. The report dated 22 December 2014[14] from him to Dr J said:
X – and this is supported by his mother – wishes to continue to have therapy support for an indefinite period of time. A new referral was requested for 2015 by Dr S from Dr J.
[14] Exhibit AF10.
There was no mention by Dr S about leave. If he knew well before the 21 November 2014 orders that he would be on leave, it is surprising that he requested another referral from Dr J for the therapy to continue in 2015.
The report of Dr S to Dr J dated 5 December 2014[15] reads:
At his first session, 26 November 2013, there were times when X displayed the following behaviour towards his mother: hitting, kicking, disobedience, interrupting conversations and being very unsettled. According to Ms Cox, this behaviour has been occurring since late 2012, early 2013. Due to X’s young age, that is six to seven years of age, it was impossible to conduct the regular psychological assessments. Instead, X’s mother provided occasional comments on relevant matters. However, due to prevailing legal matters, Ms Cox was extremely cautious, overly self-composed, when asked to do this. She therefore made very few comments to assist. The psycho-emotional assessments, therefore, were conducted in a cursory manner. It is anticipated that Ms Cox will assist in the near future, giving her own beliefs, opinions, observations et cetera on the aspects pertaining to the above psychological assessments.
[15] Exhibit AF07.
Aside from the troubling comments about the mother’s presentation and her lack of assistance due to prevailing legal matters, I find her evidence about why she moved X’s therapy from Dr S to Dr C unconvincing. Dr S had been seeing X for several years and was aware of the history. If he was going on leave, the mother did not explain why she could not wait for his return.
In respect of her description of X’s disclosure made on 5 January 2015; “I got a scooter, a budgie and my dad is still hurting me. He has punched me in the back of my head and kicked my back” – the mother denied that she told X to say this to the doctor. She agreed that prior to this disclosure, X had not said anything about anything untoward that had happened to him while he was in the care of his father on 19 and 20 December 2014.
The mother took X to Dr C on 23 December 2014. She was asked about him not disclosing to her on that day about the punch to the head. She was in the room with X and her explanation was that it was the first time he had met Dr C and was just getting to know her in that session. She said “since then he has been able to say how he has not been able to talk about these things because he was afraid of the repercussions.”
She was asked why X would not have told her about the hit to the head right away. Her answer was:
He eventually told me but there have been numerous occasions where we have both told somebody and got nowhere with it or had very little done about it. He had lived that experience as I had.
She said that she did not ask X when the hit to the head and back had occurred after he made the disclosure because she was in shock. She said “the doctor did discuss it with X” but she could not recall if he asked when the injury occurred.
Her explanation for X spending a week with the father after the July car incident was that on speaking with police and child protection, she was advised that to prevent further aggression by the father and to keep X safe from further harm, not to make the father aware of the situation and the pending charges, and that it would be best to keep the status quo and arrest him at the end of the time.
She agreed the father was never charged, but said that the police were intending to charge him. She said they were going to arrest him and question him. She saw them apprehend him and drive off with him back to the police station.
She said that X’s time with the father ceasing after the July car incident was a coincidence, as time was stopped due to a Police Family Violence Order coming into effect.
This was not a coincidence. The mother obtained a Family Violence Order on 1 August 2014 which prevented X spending time with the father. The Police Family Violence Order named her, not X.
She was asked about not reporting X’s alleged injury in July 2014 to Dr A or her counsellor. I refer to paragraphs 31 to 35 of my reasons for judgment delivered 21 November 2014:
31.The mother asserted that X is not safe in the father’s house. In respect of the family violence incident on 5 July 2014, she asserted in her application for the Family Violence Order that X was bruised by the father badly in the chest and legs. She said that X’s injuries were apparent on his return to her and were confirmed by the GP when X had complained of chest pain on a few occasions since. I refer to page 36 of annexure C to her first affidavit.
32.The counselling note dated 7 July 2014 attached to her second affidavit states that the mother explained to her counsellor ( this is two days after the incident) how she was assaulted by the father. There was no mention by the mother about the father hurting X. There was a discussion about varying the parenting order to reflect the police family violence order. The mother also mentioned that she attended a general practitioner appointment some time ago, and that X in the GP appointment had disclosed to the GP that the father had assaulted him and was being abusive about the mother during access visits.
33.There was no mention to the counsellor of the father assaulting X on 5 July 2014. There was also no mention of any assault to X in the after‑hours doctor report dated 6 July 2014, when the mother attended Dr A in respect of her injuries which she asserted occurred on 5 July. The counselling note on 8 July 2014 at 5.29 pm states:
Ms Cox ambivalent re usefulness of police family violence order if X not included on order.
34.The counselling note dated 10 July 2014 referred to the mother having plans to apply to suspend the family law court orders and then apply to have the matter reheard on the basis of X being at risk while in the father’s care. The first mention by the mother of an assault on X by the father is on 16 July 2014, 11 days after the incident, when she spoke of taking X to the GP because of chest pains. X disclosed to the GP that his chest was sore because his father had pushed him in the car seat, and it had been sore the whole time. He told the GP it happened when his father was hitting the mother.
35.Annexure P of the mother’s affidavit is a progress note for X of Dr J dated 15 July 2014, 10 days later, which says that:
10 days ago, X was pushed on left chest by dad and has tender left ribcage. X reports he hit him on head a few times on a different occasion and reports he saw his dad hit mum in face with his elbow approximately 10 years ago.
The mother said she reported it to the police who asked her to go to Dr A for her injuries. She was there to get her cheek examined. She mentioned it to counsellors, and she talked further with the police.
She said that she called her counsellor that night after hearing the Reasons because she was upset about that. The counsellor said she had talked about the assault on X with her. The counsellor explained that the counselling notes were only a summary. The counsellor did not write down everything that was said.
I find this evidence concerning. If a counsellor had been told about an alleged assault, I am not convinced that this would not have been written down.
The mother was asked about the (omitted) school records, which were negative about her behaviour. They read that she expressed animosity towards the father to the Principal and other staff. She denied that and denied she caused problems at the school. She said that the school report has not been tested, and some of it is quite incorrect. She did not state which parts were incorrect.
The mother made it clear that she will not support X having any time with the father. She was asked when X can have time with the father. She answered “when he is grown up. When he is 18 would be ideal with no time in the meantime”. Then she said “possibly in the future but certainly not at present.”
In respect of X having time with the paternal grandmother, she said that she has a positive towards that, “if that is what X wanted – he may feel apprehensive about it. He may even feel fearful about it – he said he had tried to raise issues with her and had them dismissed as rubbish.” In respect of the paternal grandmother’s supervision, she said “X has said she wasn’t always there.” She agreed that the paternal grandmother has supervised time well “most of the time”, but she does not accept her evidence that she was always there.
In respect of telephone calls, she said “they seem to traumatise X, quite severely recently, so that is the reason for saying no at the moment – maybe in the future.”
In respect of supervised time at the (omitted) Contact Centre, she said “I could consider that but, again, not immediately. I think X would need some time and he may object altogether as well. I think his wishes should be given some weight given his age and experience.”
The mother was not prepared to trial some time with the father, for example, with changeover at the school. She said “there are lots of reasons. The information given in the affidavit of Mr Munro that he refers to as the school report has not been tested and some of it is quite incorrect.” And she said “I agree with Dr C’s advice on that matter that X’s trust could be jeopardised between him and the school.”
The mother was not an impressive witness. Her oral evidence was self-serving. Whenever there was evidence that did not support her case, she answered in a way that supported her or she said that she behaved in a certain way because she was advised to. For example, the evidence about why X stayed for a week with the father after the car incident in July of 2014; her explanation as to why she did not inform Dr A or the counsellor about X’s alleged assault; her evidence about the school report; and her evidence about the change in therapist to Dr C. She did not make concessions during her evidence.
I consider that the mother is intent on ensuring that X does not spend time with the father. She has been a victim of family violence and this may have affected her judgment as a parent. She has used medical professionals to support her claims that X is at risk in the care of the father. X’s disclosure is improbable. It is likely that the mother has influenced X. Statements made by children can be influenced consciously or unconsciously by their parents or others with whom they spend a lot of time.
I reject the mother’s evidence that she does not talk to X about the father and the family violence issues. She said “there have been numerous occasions where we have told somebody and got nowhere with it. He had lived that experience as I had.” X cannot have known he has been hurt by the father all his life without having been told.
The Maternal Grandparents
The mother’s parents are supportive of their daughter. They have assisted her and have witnessed damage at the mother’s home in (omitted).
They have seen the type of behaviour from X described by Dr S. They said that X’s behaviour has been different and calmer since January 2015. Their evidence was not challenged and the reason for X’s behaviour being different needs to be investigated.
Police Interview of X
On 27 January 2015 X was interviewed under video by Tasmania Police. I have viewed the video.
X told the police that the father has hurt him ever since he was born. He said that he hurt him in lots of places, the back of his head, shook him up by the arm and threw him by the legs. He said “when I was a baby I used to pick up his shoes and bring them to him. They were heavy. He hurt my mum a lot.”
He was asked whether he went to the doctor and told the doctor something. He answered “it was a bit hard to remember. I don’t know.” He was then prompted “did something happen in the kitchen?” He answered:
It was quite late. He punched me in the head. I closed my eyes because it hurt, passed out. He dragged me across the floor into my bed. I had a big bruise on my head. I was just walking and he hit me in the head. He said nothing. He tiptoed then ran and I turned to get to the tap and he hit me in the head.
He was asked whether dad got angry because he got out of bed and he answered “maybe”. He was asked whether he was angry before he went to bed and he answered “kind of. I didn’t agree with something.” He said:
He hit me so hard I fell forward on my head. No, I didn’t cry because I passed out. I woke up in bed. My nanny was there. When I was punched she was watching TV in the lounge. She did not say anything. When I passed out I forgot about it. It was after a few days that I remembered. He’s done bad things to me many times.
He could not remember whether his father said anything because he passed out. He said he didn’t take him to the doctor as he thought he had a headache. He did not give him anything.
Dr C
Dr C is the mother’s psychologist as well as X’s psychologist. They both commenced consulting her in December 2014. Dr C has seen the mother on her own on six occasions in a therapeutic capacity, the last time being on 22 May 2015.
Dr C has not spoken with the father, nor has she been provided with the Family Consultant’s Memorandum and my Reasons for Judgment of 21 November 2014. There was no evidence that she had read the reports of Dr S or the school records.
In her report dated 4 April 2015, she gave her opinion that contact with the father presents at least a psychological risk to X if such contact was forced. She said that whether or not the father presents a physical risk to X is beyond her capacity to comment; however X appears to firmly believe that this is likely.
During cross-examination, Dr C agreed that when she first interviewed X on 23 December 2014, it was in the presence of his mother. She had a session with the mother first. The mother told her there was a long history of family violence against her and X and gave her examples.
On the same day, Dr C wrote to Dr J and said:
My role was explained and rapport-building exercises engaged in. X presented as happy and keen to participate, but he deflected any attempt to discuss issues with emotional content. He is happy to come and see me again. As you know, X is having supervised weekly overnight visits with his father, who has a documented history of perpetrating family violence against X and his mother. I will work with him on building a range of coping and communication strategies aimed at improving his overall adjustment. Naturally, there may be some attention to trauma recovery also if such symptoms become apparent.[16]
[16] Exhibit AF09.
On 13 January 2015, in the presence of the mother, X disclosed to Dr C that his father had punched him in the back of the head a couple of weeks previously, and he “passed out until the next morning”. He also said his father had kicked him in the back. He then went on to detail a traumatic handover whereby the father reportedly pulled the mother out of the car, elbowed her to the gravel, leaving bruises, and drove off with X in his car. X said his father had hurt him “my whole life”, he pointed to his mother’s stomach and added, “ever since I was in there.”
Dr C made a notification to Child Protection on the same day.[17] It reads “X said that the assaults had occurred since he was ‘in there’. X pointed to the mother’s stomach while saying this.”
[17] Exhibit RM35.
The Child Protection officer asked her how X knew that his mother had been assaulted while pregnant. Dr C said that while someone must have told X about this, she is not concerned that he is being coached. She said “X spoke about the assaults for a short time, then when he had enough, he really switched off, and it was clear that he had finished speaking about it.” Dr C advised that X spoke genuinely about the assaults and that there would be psychological evidence present regarding this.
It is clear from this notification to Child Protection that Dr C, during this second session with X, had made up her mind that X’s disclosure was genuine.
She agreed that X was referred to her by a letter dated 8 December 2014 from Dr J. X was referred for “hyperactivity”. She does not think he has hyperactivity. She believes it is more likely his behavioural problems are to do with symptoms of trauma.
She said that X did not make any disclosures to her about being dragged “by his ankles to his bed” after he had been hit to the back of the head and passed out.
She agreed that she did not challenge what was reported to her by the mother. She did not ask X about the mother’s report that X has expressed fear of retribution from his father.
Dr C said that X has reported to her that his nightmares continue, and his mother also reported that to her, in terms of being woken by X.
The reported mood swings and swearing were based on the mother’s reports and some observations by Dr C in the playground. She has observed low tolerance of emotions. She said that in their early sessions, if there was any attempt to engage X in conversation about how he was feeling, he would shut that down, and if she was talking to his mother about how he was going, he would shut that down too. Dr C said that traumatised children learn this skill to manage their emotions. She said this was noticeable to her in X.
Counsel for the father put to her that this behaviour would be the same whether the trauma was real or made up, as long as the child believed it was true. She answered that she would not expect to see such intensity if the trauma was made up.
She was referred to X miming being punched in the face, when asked what he thinks would happen if he went to see his dad. It was put to her that if the mother has an extremely negative view of the father and portrays that to X, that would be exactly what X would do. She answered that this was an explanation in hypothetical terms, but said that she did not believe that he was coached.
She agreed that if there was evidence of the mother coaching X against the father, then that would be having a serious psychological impact on him. However, she would expect to see hesitance and uncertainty, perhaps an unwillingness to be in session with her without his mother present. She would not expect to see an improvement over time; she would expect to see more inconsistencies about what was being said and with presentation. If coaching was happening, she would expect to see much more uncertainty and fear in getting it wrong.
Dr C said that when they have talked about the father, the mother has only given her a bit of information about their history. She did not give her much background to the relationship. She has expressed on a number of occasions her concern about X having contact with the father and her concerns having been confirmed by X’s disclosures to the GP.
The mother did not disclose to Dr C that the school had concerns about her. The file note from the school dated 14 November 2013 was read to her. Dr C interpreted it as being a mother who is “overly protective because of the violence history”.
She was asked how time should resume with X and his father. She was unwilling to make a comment on his readiness for resumption of contact until she had some evidence that that was X’s wish.
It was put to Dr C that if she had access to the family consultant’s memorandum, the father’s affidavit and the reports from the school, she would be in a much better position to offer an opinion. Her answer was:
It would be additional information. Whether it would be better information than working with him – the consultant memo might be of use. The father’s input would certainly add to the other side of the story. But my opinion is based on what is before me, and that is the primary information, the symptoms I am observing.
When questioned on X’s allegation of a “punch to the head, then I passed out until the next morning”, Dr C said “those are words he said to me. I can’t explain what he actually meant by those words.”
Dr C said that she has not observed anything which would support the conclusion that X has made the disclosure to her to look after his mother by endorsing what she has said to him.
When asked if she had been told that the mother consented to final parenting orders in this Court, Dr C said she was not told of details, but the mother mentioned that she agreed to contact at one point. She could not recall whether there was a mention of final orders.
She was asked what the mother told her about family violence in respect of X. She had previously said that the mother had not provided her with much information about their history. She answered:
She has mentioned the incidents of holding him up by the ankles and hitting him – this occurred when he was younger, small, before December 2013. She mentioned him hitting her when X was in her arms, when X was an infant, before December 2013. She mentioned him locking her out of the house because he was jealous that she modelled swimwear very early in the relationship. She has talked about yelling and swearing. She described an incident where they were chased by him, she pulled over to the side of the road, he hit her to the ground and drove off with X in the car.
She agreed the violence in that instance was directed at the mother in front of X. Head-butting of X was reported by the mother, who said that X had told her on 30 January 2015. Dr C noted that there was:
a period of no contact, then minimal contact, because the father wanted to prove that he was not violent, that he wanted contact with X, but there was violence every time he visited. The police would tell him to go. This happened more than 20 times. X saw it all. This was violence between them in front of X.
Dr C said that there were lots of incidents described, but she did not document each one.
Dr C said that she accepted what the mother and X had told her, and she weighed that against what she observed clinically. She said she always looks for consistencies and inconsistencies in the therapeutic setting, but she did not explain how she did that.
I asked Dr C if she accepted the description given by X that he was punched in the head and passed out until the next morning. She said that she “takes at face value that that is what happened.” Whether he was knocked unconscious and stayed unconscious overnight, she could not say, but she said that X “certainly appears to believe that he was knocked to the head and knocked out for an extended period of time.”
She said “there are any number of explanations about what X meant, and it’s typical for children to want to provide an explanation in their own minds of what happened.”
Conclusion about Dr C's Evidence
Dr C is treating the mother as well as X. The mother has given her an account of the history of family violence of the father towards her. She has given her an account of X’s behaviour following time with the father. She reported that X has expressed fear of retribution from his father if he discovers X has spoken about the alleged violence. Dr C has accepted these reports from the mother and X’s disclosures.
Dr C has not spoken to the father. She has not obtained any independent information. She did not have independent information given to her, such as the Family Consultant’s Memorandum and my Reasons for Judgment of 21 November 2014. There was no evidence that she had read the reports of Dr S or the school records. Her opinion is founded on the assumption that X has been assaulted by the father as reported to her. I consider that she has then looked for behaviours that affirm this abuse.
Dr C did not consider a possibility that the assault may not have occurred. She did not consider any other explanation. She did not consider a possibility of coaching by the mother. She was convinced from 13 January 2015 that X was traumatised due to family violence perpetrated by the father.
I am of the view that Dr C has not considered the objective reality of X’s experiences described by the mother and X to her.
Dr C’s conclusion that the father presents a psychological risk to X must be treated with caution. I do not place weight on it.
X's Disclosures
There are inconsistencies in X’s disclosures.
The mother’s evidence was on 5 January 2015 X told Dr J “I got a scooter, a budgie; my dad’s still hurting me. He’s punched me in the back of my head and kicked my back.” The mother’s evidence was on 9 January 2015 X told Dr J that his father had punched him in his back, his dad was still hurting him, and he had a couple of bruises on his back. Dr J asked to have a look at his back, and they pulled up his T-shirt together. Dr J saw two bruises located centrally on X’s back.
Dr J’s notes of the mother’s attendance on him on 5 January 2015 read:
X mentioned spontaneously that dad hit him on the head on a visit over Christmas. He was going to the kitchen to fetch water. X was not being interviewed by myself. He was with his mum. X also spontaneously mentioned that his dad hurts him on visits. X RT mid spine bruise, also skin peeling. Examination physically fine. She is worried re: impending court cases but otherwise mentally stable. Reason for contact: anxiety.[18]
[18] Exhibit RM30.
On 13 March 2015 in the presence of his mother, X told Dr C that his father had punched him in the back of the head a couple of weeks previously, and he “passed out until the next morning”. He also said his father had kicked him in the back. He then went on to detail a traumatic handover which I’ve already referred to. X said his father had hurt him “my whole life”. He pointed to his mother’s stomach and added “even since I was in there”.
Dr C reported that X appeared sensitive to his mother’s response to his disclosure, and he was quite gentle with her, giving her a big hug. Ms Cox said “is that for you or for me” X replied “both”.
The disclosure by X to police on 27 January 2015 was:
It was quite late. He punched me in the head. I closed my eyes because it hurt, passed out. He dragged me across the floor into my bed. I had a big bruise on my head. I was just walking and he hit me in the head. He said nothing. He tiptoed then ran. I turned to get the tap and he hit me in the head. He hit me so hard I fell forward on my head. No, I didn’t cry, because I passed out. I woke up in bed…
I consider that X’s various accounts of the head punching are not believable. It is not believable that the father, without saying anything, came up behind X and punched him in the head whilst he was getting a drink of water. If X had passed out, he would not have known that his father had dragged him across the floor to his bed.
The father denied the allegation, and his mother heard nothing. If X had been punched in the head by an adult with such force that he passed out, it is probable there would be a lump or bruising. There was no injury to the back or front of his head. There was no evidence the two bruises on his back were consistent with a kick.
If an assault had occurred in the way described, the paternal grandmother is likely to have heard something. If it had occurred as described by X, it is inconceivable that he would not have told his mother straight away.
The Police interview and the disclosure to Dr C raises concerns about the possible coaching of X by the mother. X could not have made the statement that he has been hurt by his father ever since he was born without being told. He could not have made a statement, “he hurt me my whole life, ever since I was in there.”
Even if the mother has not coached X, it is likely that he is aware of the negative picture of the father held by her. It is likely that she has conveyed that message to X over many years, whether consciously or unconsciously. I refer to paragraphs 22 and 23 of my reasons, which gives an example of what X has said to the paternal grandmother, which X had to have been told by the mother:
22.The paternal grandmother also raised a concern about the mother’s mental health. She referred to an AFL football match on 7 June 2014 when the mother attended and wanted to sit with the father, her and X. She said that the mother telephoned the father 26 times and left 30 text messages.
23.The affidavit gives details of the constant contact by the mother with the father when X is with him, the difficulties on changeover and the very troubling conversations that she has had with X. I refer to paragraph 35 of her affidavit:
“X had a meltdown and told me and Mr Davidson that I was not his grandmother and Mr Davidson was not his father, and only the Cox’s were his family and that we were liars
He said he was the last of the Cox line. He said Mr Davidson was a liar, because he said he would marry his mother but he didn’t. He said Mr Davidson lost his mother’s house at (omitted) and a big white car. He said Mr Davidson was a bad person because of lots of other bad things he had done to his mother. I asked X if Mr Davidson was not his father then who was, and he stated mum is still looking for him and that she is the only one that really cares about him”
The mother’s evidence was that she believes that X should not see the father until he is 18 years old. She has a negative view of him. I refer to my concern about this at paragraph 77 of my reasons:
77.School records indicate concerns about the mother’s attitude to the father. She has expressed animosity about him. She has not cooperated with the school about changeovers. The school records indicate the father has been cooperative with school requests and behaved sensitively during his interactions at the school.
The mother’s oral evidence at this hearing confirms my concern. She has made numerous allegations about the father over many years in respect of his behaviour towards X, including a sexual abuse allegation, which I dealt with in paragraphs 25 and 26 of my reasons:
25.The mother in paragraphs 46 to 53 gives details of a sexual abuse allegation made against the father in respect of X in 2012. This allegation was investigated by Child Protection and the police. At paragraph 53, she said:
When playing a computer game later that year, X had asked me about the truth and imagination. I explained to him the difference in the context of movies and computer games, and X then told me, quite unexpectedly, “You know that thing about dad poking me up the bottom: it is true. When he pulled it out, it hurt,” but that he was too scared to tell me about it again, because Mr Davidson told him to lie and threatened his life if he didn’t. X said, “Please don’t tell anyone, because he will kill us.” Mr Davidson has been inappropriately affectionate with X, kissing him on the lips as if he was his lover, not father, and then making a point of not giving the same affection to me, since X was one or two years old. It was weird.
26.This allegation was made prior to the mother agreeing to the final consent orders made in December 2013. Also in her affidavit, she outlined in detail allegations of sexual activity by the father with her in 2011 and 2012, implying that it is likely that the sexual abuse against X occurred. The evidence against the father after the making of the consent orders on 18 December 2014 is contained from paragraphs 78 to 116 of her first affidavit, and to her second affidavit, she has annexed her counselling records, which also makes reference to allegations.
The mother has been attempting to cease X’s time with the father since 2014. She alleged that the father hurt X in July 2014.
At paragraph 62 of my Reasons I referred to my concern about the mother’s attitude to X’s relationship with the father:
62.I have concerns about the mother’s attitude to X’s relationship with the father. The evidence indicates that she has used the interim family violence order to prevent X from spending time with the father. She has made the changeover difficult prior to that. She has not denied the allegations made by the father and the paternal grandmother about what she has said to X about them.
I consider she has no intention of agreeing to X spending time with the father. She will not agree to supervised time. She does not think he should see him until he is an adult.
I am not persuaded that the mother believes that not allowing X and the father to spend time together was necessary to protect his health and safety. I am not satisfied that she believes that the father has assaulted X. Dr J did not think it serious enough to examine him on 5 January 2015, even though it was not X’s appointment. It was not so serious to require examination until four days later.
The mother has accepted without any consideration of the reality that the alleged assault has occurred. She did not test the reality of it with X. She did not ask him anything about what had happened, apart from when it happened. There was no injury to X apart from two bruises on his back, and there was no evidence that this was consistent with the alleged cause.
The mother did not call Dr J as a witness, even though he is a professional who has been X's GP for some years and the person to whom X made disclosures. She relied on his reports in 2014. She did not call him to give evidence about those reports or about the attendances and examination in 2015.
Nothing untoward occurred during the visit to the father on 2 and 3 January 2015. There was no evidence that X did not want to go to visit his father. There was no evidence that he was fearful of being punched by his father. If the assault had occurred as alleged, it is inconceivable that he would not have been fearful about attending.
If I am wrong about the mother not believing that she had to contravene the order to protect X’s health and safety, I consider that her belief is not based on reasonable grounds.
The mother has sought and obtained an opinion from Dr C to assist her to cease the father’s time with X. She did not provide to her a full history, including the Reasons of 21 November 2014. Her information about the father is negative. Dr C accepted her account and X’s accounts about family violence. In my view, she cannot reasonably rely on Dr C’s opinion, when it is she who has provided the information that has formed the basis of that opinion.
I do not accept the mother’s evidence that she has encouraged X to spend time with the father on the telephone. I accept the father’s evidence that he called the telephone on every occasion alleged and it was not answered.
X told Dr C he wanted to talk to his father. I do not accept the mother’s evidence that X refused to come to the phone. I do not accept her evidence that she has encouraged X to speak to the father.
The mother relied on Dr C’s report to provide her with a reasonable excuse. I find that she does not have a reasonable excuse. I find her guilty of each contravention. She has not proved on the balance of probabilities that she has a reasonable excuse for contravening the order on each occasion.
I certify that the preceding one-hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date: 14 July 2015
Key Legal Topics
Areas of Law
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Civil Procedure
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Family Law
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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