Di Piero and Meehan

FAMILY COURT OF AUSTRALIA

DI PIERO & MEEHAN

[2007]FamCA 297

FAMILY LAW - CHILDREN - INTERIM PARENTING ORDERS - Young child, no relationship with the biological father - Mother separated at time of father’s drug abuse - Allegations of sexual violence towards mother - Standard of proof for findings to be made - Mother’s resistance to any relationship between father and child based on her fears of violence from the father to her and the child - Potential psychological harm to the child based on mother’s incapacity to parent if parenting orders made - Best interests of the child for interim orders under strict contact centre control to be made to ascertain whether relationship with father can develop whilst giving mother opportunity to obtain professional assistance to address anxiety and depression arising out of potential parenting orders

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

A and A (1998) FLC 92-800
B and B (1988) FLC 91-957
Briginshaw v Briginshaw (1938) 60 CLR 336
H & R (2006) FamCA 878
R & C (Unreported, Family Court of Australia, Full Court, 25 June 1993)

APPLICANT:

MR DI PIERO

RESPONDENT:

MS MEEHAN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

DGF

2138

2003

DATE DELIVERED:

1 FEBRUARY 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

15, 16, 17, & 18 JANUARY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ALLEN

SOLICITOR FOR THE APPLICANT:

VICTORIA LEGAL AID

COUNSEL FOR THE RESPONDENT:

MS SWART

SOLICITOR FOR THE RESPONDENT:

RUTHERFORD & CO

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

MR HOULT

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

O’HALLORAN DAVIS

Orders

IT IS ORDERED:

That the further hearing of all extant Applications be adjourned for final hearing on a date to be fixed by the Listings Registrar not before 1 December 2007.

UNTIL FURTHER ORDER:

The Father spend time with the child, a son, born in June 2003 for 2 hours per fortnight supervised at the B Contact Centre on days and at times to be determined by the supervisor of the said centre but the first supervised visit not occur until after 15 September 2007.
That the Mother and the Father complete and deliver all necessary forms and Applications as may be required by the said contact centre no later than 4pm on 15 February 2007.
That the mother continue to attend upon and comply with any reasonable recommendations and directions of Dr P.
That the Independent Children’s Lawyer forthwith provide to Dr P copies of the following:
(a)a copy of these orders;
(b)a copy of the reasons for Judgement of the Honourable Justice Cronin;
(c)a copy of the report of Dr N dated 7 November 2005;
(d)a copy of the Affidavit of Mr C;
(e)a copy of the Affidavit of evidence-in –chief of the Mother and Father.
The Father undergo on a fortnightly basis, supervised drug/urine screens and provide copies of same to the Independent Children’s Lawyer and the mother’s solicitor.
That the father provide to each other party on a monthly basis, a report from a treating doctor as to his mental health and symptoms or otherwise of psychosis.
That until the return date in paragraph 1 hereof, the Father continue to attend upon drug counsellor, Mr C AND IT IS REQUESTED that Mr C do all things required to keep the Independent Children’s Lawyer informed of the Father’s health and drug abstinence or drug use.
That notwithstanding paragraph 1 of these orders, each party have liberty to apply (and if practicable to Justice Cronin) to have the matter relisted before 1 December 2007 in the event that:
(a)the Father fails to remain drug free;
(b)the Father suffers a relapse in his mental health to the extent that he is hospitalised;
(c)the Father is involved in any criminal activity involving drugs, violence or offences that carry penalties of imprisonment;
(d)the Mother is hospitalised for reasons associated with her health requiring the child to be placed in the care of either family members or the Department of Human Services.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
Pursuant to s65DA(2)and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All documents produced under Subpoena be returned to the person who provided them.

BY THE COURT

JUDGE

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 2138 OF 2003

MR DI PIERO

Applicant

And

MS MEEHAN

Respondent

REASONS FOR JUDGMENT

This is an application by the father for parenting orders. He seeks to spend time with his son L, who was born in June 2003 and who is currently aged 3½ years. It is common ground that he has not seen his son since the child was ten months of age.
The mother opposes any parenting orders that would give the father time with the child.
The mother says that she has a grave fear for her own safety and also for the child and because of events to which I shall refer, including the acts that gave rise to the conception of the child, any form of association with the father is abhorrent.
The father has a history of drug abuse and psychiatric problems but says that he has now conquered them.

Background

The mother is aged 39 years and the father 32 years.
The parties commenced their association with one another in early 2001 in Melbourne and the mother says that they began living together in December 2001.
During the early part of 2002, it appears that the mother was pregnant. As a result of car accident, she underwent an ultrasound which established that the foetus had died. She then underwent a curette. Just prior to the car accident, the mother alleges that she was sexually assaulted by the father and as a consequence, determined that the relationship was at an end and insisted that the father move out from their residence. The father and mother separated in May 2002.
In July 2002, the mother moved from Melbourne to Y. The father remained in Melbourne. She said that she wished to put some distance between she and the father but acknowledged maintaining contact with him to offer support in relation to his drug and mental health issues.
On 20 September 2002 on a visit by the mother to the father in Melbourne, she alleged that he raped her. She said that he was later yelling at her and punching the furniture and walls and would not let her leave. She said that she fell pregnant as a result of that sexual contact.
Between September 2002 and January 2003, the father continued to contact the mother on a number of occasions culminating on 15 January 2003 with a police officer issuing an application for an intervention order using the Complaint and Warrant for Arrest procedure. Consequently, the father was arrested. On 3 February 2003 in the local Magistrates Court, the intervention order was made until further order. It should be noted that the father was not at court. That order still stands.
There were a number of mental health problems with the father thereafter to which I shall refer in a moment.
On 24 June 2003, the child was born. The father sought to spend some time with the child and over a period of seven months, there was limited contact between the father and the child. During that period, the father signed minutes of consent orders prepared by the solicitor for the mother culminating in orders being made by this Court on 15 September 2003 by a registrar in chambers. Those orders were final in the sense that they granted residence to the mother but that both mother and father retained the joint long term care, welfare and development of the child.
In respect of contact (as it then was) by the father, the order provided as follows:
4.That the Father have contact with the Child as follows:-
A.From 9.00am to 4.00pm on Saturday and 9.00am to 4.00pm on Sunday every second weekend commencing on the weekend as agreed between the Mother and Father and failing such agreement the second weekend after the grant of this (sic) Orders by the Court; or
B.such other times as mutually agreed between the Mother and the Father.
5.That for the purposes of the contact in paragraph 4 hereof:
A.The Mother will be present at all times; and
B.The Father will ensure that he is drug and alcohol free and that such assurance is to be given to the Mother by him and/or his psychologist through medical tests, medical evidence or whatsoever medical means necessary one (1) week before the contact or as mutually agreed between the Mother and the Father.
6.That for the purpose of the contact in paragraph 4 hereof paragraph 5 hereof is mandatory until such time as mutually agreed between the Mother and the Father and failing such agreement as agreed between the Mother and the Father’s psychologist.
7.That for the purposes of the contact in paragraph 4 hereof the Father have contact at his mother’s residence in Y, Victoria, or such other venue within Y, Victoria.
It will be obvious that the mother was to be present throughout the proposed time. The mother says that the father failed to attend occasionally and arrived late or left early and that he was not producing the drug screens nor details of his psychiatric treatment. The father says that the parties were getting along well and there were times when he looked after the child by himself when the mother went to work.
The developing relationship between the father and the child was short lived, however, when the father and the mother had a falling out in April 2004 as a result of which the police were called. The father has had no time with the child since then. Proceedings were commenced in the Federal Magistrates Court of Australia.
In the period of time that the proceedings were in the Federal Magistrates Court system, the father obtained an order for some supervised contact in the following terms:
THAT the Mother and Father take such steps as are necessary to apply for the Father to have contact with the child, [a son], born in June 2003 at [O Centre], [M] and subject to acceptance by [O Centre] for supervised contact, until further order the Father have contact with the child at such times as are appointed by [O Centre].
Those orders were never implemented and the father filed an application for contravention against the mother. In the midst of all of that happening, the father was admitted to a psychiatric ward of a hospital for a drug induced psychosis and shortly after, a further incident involving the intervention of the police with his own mother saw him again admitted to hospital. All of that resulted in the application for contravention being withdrawn and the mother filing an amended application seeking to discharge her obligation to implement the supervised contact regime referred to above.
The case ultimately ended up being transferred to this Court.
No relationship exists between the father and the child.

The respective applications

The father seeks the following orders:
4.That the Father have face to face contact with the said child as follows:
(i)At an approved Children’s Contact Service for a period of two hours each fortnight or other times as directed by that service for a period of at least eight months.
(j)Other times as agreed between the parties.
(k)That further and such other Order as this Honourable Court deems fit.
5.The Mother and Father forthwith do all acts and things necessary to apply to the Children’s Contact Service and facilitate the contact referred to in paragraph 4(i).
6.The Father pay all associated costs of the Children’s Contact Service.
7.The Father to undertake a supervised urine screen each month for a period of eight months. The Father to provide the results of the drug test to the Mother’s lawyer within 7 days of the test occurring.
8.The Mother have liberty to suspend contact should the Father’s supervised drug test result be positive to any illicit or non prescribed drug. The Mother will reinstate the Father’s contact with the child upon the Father providing to her lawyer a negative drug test result.
9.Father be at liberty to send the child gifts and greetings cards on the child’s birthday, Easter and Christmas each year.
10.The Mother provide the Father with a postal address for the child and keep the Father notified of any change to that postal address within seven days of such change.
11.The Children’s Contact Service be requested to provide a written report to the Mother and Father after eight months of supervised contact. Should that report indicate that contact between the Father and child is progressing well, that the Father have face to face contact with the child as follows:
(i)From 10:00am to 4:00pm each alternate Sunday in the presence of the Paternal Grandmother, or Paternal Uncle for a period of eight months.
(ii)From 10:00am to 4pm each alternate Sunday for a period of four months.
(iii)From 10am Saturday to 4:00pm Sunday each alternate weekend.
12.The contact referred to in paragraph 11(i) and (ii) continue throughout the whole year.
13.Should Mother’s Day fall on the Father’s contact weekend that the Mother provide the child for contact the weekend preceding Mother’s Day in lieu of Mother’s Day weekend.
14.Should Christmas Day fall on the Father’s Contact weekend that the Father’s contact be suspended from 2:00pm Christmas Day and the Mother provide the child for contact in lieu the weekend preceding Christmas Day.
15.The Mother authorise the child’s school/kindergarten to provide to the Father at his own cost a copy of all school reports and school photos.
16.Should the child engage in extra curricular activities that are scheduled to occur during the Father’s contact, the Mother shall provide the child for make up contact prior to the extra curricular activity taking place.
17.Contact changeover occur at the Children’s Contact Service, or other place as agreed between the parties.
The mother responded seeking orders simply that the father’s application for contact be dismissed. However at trial, she sought the following:
1. That all previous orders be discharged.
2.That the Respondent Mother has sole parental responsibility for the child, a son (“the child”) born in June 2003.
3.That the child lives with the Respondent Mother.
4.That the child spends no time with, and does not have any communication with, the Applicant Father.
5.That the Applicant Father, his servants and agents, be restrained from contacting the child or the mother by any means whatsoever.
6.That in the event that the Respondent Mother makes an application for a passport for the child, the requirement for the consent of the Applicant Father be dispensed with.
7.That the Applicant Father pay the Respondent Mother’s costs of these proceedings.
The Independent Children’s Lawyer initially did not have a proposal as none of the evidence of the parties had been tested. After the close of all evidence, the Independent Children’s Lawyer sought the following orders:
1.That until further order the father spend time with the child as follows:
(a)for 2 hours per fortnight supervised at the [B] Contact Centre on days and at times determined by the Contact Centre, such to commence on the first available date in September 2007;
2.That the parties do all acts and things to complete all necessary forms and applications as required by the [B] Contact Centre.
3.That the mother continue to attend upon and comply with any reasonable recommendations and directions of [Dr P].
4.That the Independent Children’s Lawyer be permitted to forward to [Dr P]:
i.a copy of these orders;
ii.a copy of the judgment of the Honourable Justice Cronin;
iii.a copy of the report of [Dr K] dated 7 June 2006;
iv.a copy of the report of [Dr J] dated 25 July 2006;
v.a copy of the report of [Dr N] dated 7 November 2005;
vi.ongoing reports received from the father’s treating medical practitioner;
vii.ongoing results of the father’s drug screens;
viii.copies of each of the father’s and the mother’s Order 30 affidavit material.
5.That until further order the mother be restrained from:
(a)taking the child to a medical practitioner, counsellor or other health professional in relation to issues regarding the child and his father without the written consent of the Independent Children’s Lawyer;
(b)discussing the allegations in these proceedings with the child;
(c)taking the child with her to any appointment, treatment or therapy relating to issues of the mother’s post-traumatic stress disorder.
6.That until further order the father be restrained from consuming or ingesting cannabis, illicit drugs or any non-prescribed medication.
7.That until further order the father undergo on a fortnightly basis supervised drug/urine screens and provide copies of same to the Independent Children’s Lawyer and the mother’s solicitor.
8.That the father provide to each other party on a monthly basis a report from a treating doctor as to his mental health and symptoms or otherwise of psychosis.
9.That until further order the father continue to attend upon [L] Community Health Service and comply with all reasonable requests and directions from Mr C from time to time.

the father

The father has a long history of heavy cannabis use and cannabis dependency. As early as 1995, he was before the courts and convicted of drug offences. Although precise details were not given, it is apparent that the father has drug-related convictions in 1997, 2000, 2003 and 2005. Throughout the period of the relationship between the mother and the father, he used cannabis on a daily basis and on his own admission, it was a heavy usage.
In addition to drug offences, the father has apparently convictions associated with resisting police, fire arm offences, driving offences, offences associated with the possession of explosives and breaches of a family violence order.
In respect of the criminal history, the father surprisingly does not have appear to have served a sentence of imprisonment. He has received suspended terms of imprisonment, been ordered to undertake community-based work, been fined and given good behaviour bonds.
Forensic psychiatrist Dr J described anti-social behaviour as not being a matter associated with mental illness. On the basis of the criminal history, one could conclude that the father has little respect for the law. His view is that it is all drug-related.
The father was the subject of a community treatment order on a number of occasions during which he was taking prescribed medication and as late as October 2005, he was being given fortnightly injections of Clopixol. Those injections ceased in November 2005. The father says that he is not on any medication of that nature at all now. He says that he has turned the corner. He says he has not used marijuana since August 2006, is currently attending a drug and alcohol counsellor and is feeling well. He is currently involved in sport and is in employment. He is living with his mother. He has not re-partnered.

The mother

Throughout the proceedings both as a litigant in the courtroom observing witnesses and as a witness herself, the mother was teary and distressed.
In relation to matters to which I shall refer in these reasons, when asked for an explanation as to her association with the father, she replied that she had never understood the environment and circumstances that she put herself in. As a witness, she was unable to refer to the father as anything other than “that person” and she described the court proceedings as an ongoing nightmare. She is currently working in well-paid employment. The child attends private day-care. The mother is currently receiving medical care from her general practitioner and from a psychiatrist. She maintains that the child was conceived as a result of being raped by the father. She was adamant and defiant that she would not comply with any orders to provide her son to the father maintaining that she did not want the child to have the stigma of knowing how he was conceived and that she did not want the child to think badly about himself as a consequence. She blames the father for the whole of her dilemma.

The first sexual assault on 16 March 2002

The mother said that in early 2002 when the parties were still together, she was pregnant with the father’s child. She then described the following:
The first occasion on which the father sexually assaulted me was on 16 March 2002. At that time I was pregnant and [my partner] was the father. [He] attacked me with a vibrator and forced it into my vagina causing me searing pain.
Despite my concerns about the way in which evidence was presented, no objection was taken to an attachment to the mother’s affidavit of a statement by a counsellor dated 26 February 2005. In that statement, the writer, psychologist, Mr B said:
[The mother] alleges that in 2002 while she was pregnant, there was an occasion when her partner used a sex toy prior to having intercourse. He allegedly inserted the sex toy with some force and caused her great physical pain. [The mother] has said that as a result of this, she had a miscarriage.
For his part, the father maintained in his evidence in chief and throughout cross-examination that he had never sexually assaulted the mother.
When cross-examined, the father acknowledged that on some occasions, the mother did use a vibrator but he had no recollection of the mother complaining of “searing pain” and he maintained that it was not possible for him not to know of something like that.
Two weeks after this incident and also apparently after a motor car accident when the mother was taken to hospital, an ultra sound was taken showing that the baby had died in utero. This was incorrectly described by the father as a “miscarriage”. He said that the mother telephoned him very upset and he rode his bike to the doctor’s office to be with her and that together, they were told by the doctor that the foetus was not alive. He said that they were both upset.
At this point, the parties’ versions differ markedly about what happened.
The mother said she was devastated by the consequences of the father’s actions namely the first sexual assault and demanded that he leave her home. The father said that after the “miscarriage”, the mother talked to him about wanting to become pregnant again and that he suggested it would be better for her to return to work and conceive another baby later. The mother persisted in asking the father to leave. The father was confident that he did not leave until between 1 June and 3 June. He said they had been arguing and not getting along as a result of which the mother asked him to leave and because it was her home, he felt that he had an obligation to go. However, whilst the mother claimed that she wanted him to leave because of the sexual assault, his view was that that subject had never been mentioned. On the contrary, his view was that they had been arguing about a number of different issues. He said that these issues included that he accused her of “sleeping with” his cousin, that she had left her job, his use of cannabis against her wish and that she was also “down” about the miscarriage.
Needless to say, he left the mother’s home.
For reasons which I shall turn to in a moment, I am unable to make any finding of fact in relation to the sexual assault. I am however quite satisfied that the separation occurred sometime late in May 2002.

The rape incident

Notwithstanding the separation in or about May 2002, both parties acknowledged that they continued to see one another and for different reasons. By this time, the mother had moved away from Melbourne and was living in Y. She said that while they were not in a relationship, she maintained contact with the father to offer him support in dealing with his drug and mental health issues. She said that on 20 September 2002 she went to his home in Melbourne and that when he made advances to her, she pushed him away but that he then pushed her down on to the couch and raped her. She said that the father was yelling at her and punching the furniture and the walls. She was scared that he was going to hit her and that eventually he went and used cannabis. When she tried to leave, he blocked her car in the carport so that she could not drive it out. He locked all of the doors of the house and pulled out the telephone from the wall. She said she was not able to leave until the following morning. The mother says that when she did ultimately leave, she made no complaint to the police or to anyone else because of the fact that she was embarrassed and ashamed.
The mother says that she conceived the child from the sexual act to which I have just referred and no-one seems to have challenged that issue.
The father says that in September 2002 he was told by the mother that she was pregnant with his child. He maintained that all of his acts of sexual intercourse with the mother were consensual and that he could not recall the mother at any time telling him that she was upset or did not consent to having sexual intercourse.
When cross-examined about the mother’s claim of what occurred on 20 September 2002, he said he had no recollection of endeavouring to kiss the mother and being pushed away. He recalled having kissed her at times in September. As far as he was concerned, they were still in a relationship because the mother wanted to become pregnant again. He said that they both wanted a relationship at that time. He denied that he was angry and was emphatic that he did not rape the mother. He did however say that they had consensual intercourse in his bedroom and that that occurred on three or four occasions.
I am unable to make any finding to the requisite standard in relation to whether or not there was such a criminal act as described by the mother.
As I have pointed out, the mother did make reference to being kidnapped during this time. The father was cross-examined about whether he recalled yelling and punching walls and he replied that there was a time when he put his hand through a cupboard door and that that may have been when the mother visited him in September or October. He said he could not remember why he put his hand through the wall but he did remember that the mother was present. He did remember also leaving the house and that a little window at the front door was smashed. He remembered that he was angry. He denied anything to do with locking doors or cars being blocked in the carport.
The mother said that when she discovered she was pregnant, she felt she could not make a report to the police as she did not want her child to carry the burden of being known as having been conceived as a result of rape. I found this statement rather odd having regard to the fact that the appropriate time to have made a complaint would have been reasonably close after the incident occurred and presumably, although I have no evidence of it, the mother would not have found out that she was pregnant for some weeks after the incident.
The mother said that over the ensuing three months, she tried to cease all contact with the father but he continued to pursue her including making abusive telephone calls to her employer which resulted in her losing her job. The mother said that some of the father’s abusive allegations included that she was having affairs with other men such as his brother and his cousin. Although the father in cross-examination denied that he had made an assertion about an affair with his brother, he was candid in acknowledging that he had made the accusation about his cousin.
In respect of this period of time, I have little doubt that the mother was being harassed by the father and I accept her evidence in respect of his bad behaviour during that period of time.

January 2003: Report to police

On 15 January 2003, the mother sought assistance from the local police because of constant telephone harassment from the father. In the course of seeking the assistance of the police, she made a statement about which she was carefully cross-examined by counsel for the father. In addition to making the statement to the police, she attended upon a registered community psychiatric nurse, a Mr E on or around 29 January 2003 to obtain a letter from him for the purposes of assisting in the application for the intervention order to stop the harassment to which I have just referred. That letter was exhibited to her affidavit of evidence in chief and like the statement to the police, was the subject of careful cross-examination.
In the statement to the police, the mother said that: “I was seeing [the father] for about 18 months leading up to July 2002”. She went on to say that there was an incident on an evening in July 2002 that she remembered the father being “at home” during which he was very angry and abusive. She described the incident in some detail and then went on to say: “After this night we broke up and he left the house”.
The letter prepared by Mr E referred to the fact that the mother had presented at his office during August 2002. Historically, it referred to the fact that the relationship with the father was abusive. It then reported:
Over the ensuing months, [the mother] realised that to survive she could not remain in the relationship unless [the father] sought help for his problems. [The mother] made the break.
All of these inconsistencies were put to the mother with a view to establish that not only what she had said to the Court about the ending of the relationship was wrong but that the two most significant violent incidents in the relationship had not occurred as she had described them. This was important because in the police statement in January 2003, the mother made no reference to either of the significant sexual assaults by the father to which she has referred throughout these proceedings.
The mother was unable to give any explanation for the inconsistencies in the dates of the conclusion of the relationship but maintained that after May 2002 there was no ongoing relationship and more importantly, there was no consensual sexual relationship. It was specifically put to her that the reference in the Mr E letter about the break in the relationship occurring after August 2002 meant that the relationship could not have concluded in May 2002 at all. Her only response was that it depended upon one’s definition of a relationship.
Having regard to those inconsistencies and the evidence of Dr M to which I refer below in relation to the incomplete history given by the mother, I do not accept that the relationship ended in May 2002 notwithstanding that the parties may have physically separated.
On the mother’s version of events, from July 2002 onwards until 20 September 2002 she maintained contact with the father to offer him support in dealing with his drug and mental health issues. It was put to the mother that between May 2002 and even beyond September 2002, there was a sexual relationship between them. The father claimed that the sexual relationship continued but she denied that. Having regard to the uncertainties that I have about all of the evidence of each party, I am unable to make any finding as to whether there was a sexual relationship as described by the father. However, very little turns on that issue.
To find that abuse of the nature of the two sexual assaults has occurred can only happen by strict application of the onus of proof as set out in Briginshaw v Briginshaw (1938) 60 CLR 336 and also s 140 of the Evidence Act 1995 (Cth). In children’s matters under Part VII of the Family Law Act 1975 (Cth), where the issue is what relationship a child is potentially going to have in future with someone like the father, the authorities make it clear that the grave consequences of a finding of abuse cannot be overstated. Trial judges must apply the strictest of standards of proof before making a positive finding such as I am being urged to do here as opposed to making a finding of unacceptable risk to the child. In a case where the evidence of each party is so inconsistent and uncorroborated as it is here, I could not be satisfied to that high degree that either of the sexual assaults referred to, did in fact occur.

The intervention order

The purpose of the report to the police on 15 January 2003 was for the mother to obtain an intervention order and she did. The father did not attend the final hearing and no explanation was given for that.
The child was then born in June 2003 and notwithstanding the intervention order, within a very short number of weeks after the child’s birth, the mother and the father came to an arrangement about the father seeing the child. The mother said that her lawyer told her that she had to give the father time with the child. There was no significant cross-examination about this issue but I found it odd that the mother initiated the legal proceedings, having her solicitor draw up some orders at a time when the father was not legally represented. Those are the orders that I have referred to earlier in this judgment. The mother said that at that time, the father was on a community treatment order requiring him to have ongoing treatment for his psychiatric condition and as he was having that treatment, she reluctantly agreed that he could see the child. She told me that she was also assured by Mr E, a psychiatric nurse who had previously been counselling her and who was then counselling the father, it might help the father’s “recovery”.
The father simply said that on 1 September 2003, he attended the mother’s lawyer’s offices to sign orders so that he could see the child and that he was happy with that “as the mother had been restricting” his contact.
In regard to the intervention order and the mother’s proactive role in organising the time between father and child, I conclude that although the father and the mother were not in a relationship at that time, their conduct towards one another was at least cordial.
The father said that he bought a cot, toys, clothes, high chair and nappies for the child but when the mother was cross-examined about those matters, she was emphatic in denying his statement and pointed out where she had received the various items. Having regard to the evidence of Dr J to which I shall refer in a moment, I have little doubt that the mother’s version is right.

The period between September 2003 and April 2004

During the ensuing six months after the orders were made by the Court, the father saw the child on a regular basis but at all times under the supervision of the mother.
I accept that during this period of time, there was no relationship between the parties but their conduct towards one another was at least cordial. This includes a period of time during which the father was continuing to use cannabis.
The mother’s counsel put to the father that she had made him feel welcome and let her into her house. He agreed.
The father described occasions on which the mother left the child with him to go to work or that she undertook domestic chores. The mother denied that.
The father referred to the role that he played in relation to the care of the child including changing nappies and assisting in bathing the child. The mother made the point that she could not leave the father caring for the child and gave an example of where he had miscalculated the child’s medication.
All of these matters could really only go to the credit of either party. Having regard to the evidence of the father’s forensic psychiatrist Dr J in relation to memory matters, I have little doubt that the mother’s version was right. However, it does not loom as a significant issue in my determination.
Around the father’s birthday in September and Fathers Day in 2003, the mother sent him greeting cards in affectionate terms. At around Christmas 2003, the mother agreed that she attended at the home of the father’s mother and there were photographs tendered in evidence showing the mother and father together. The mother denied it was Christmas and I do not think it really matters because it was clearly in the period of time up to 4 April 2004.
The significance of this period for me is that the mother was showing no reluctance in encouraging the relationship between father and child but also there were no indications of fear of the father during that time.
The court orders of September 2003 required the father to be drug and alcohol free. That was to be established by medical tests one week before the contact was to occur or otherwise as the parties agreed. The mother said that on each occasion of contact, she requested the father to provide urine screens and she asked him for details of his ongoing psychiatric treatment. She said that whenever she made that request, he became increasingly agitated and distressed and refused her requests. She said that over the months, he became increasingly abusive whenever she mentioned the drug testing or psychiatric treatment. As I have already found, I have great difficulty in accepting that during this period of time, the relationship was anything other than cordial. Having regard to the fact that the mother had an intervention order and the benefit of legal advice and a court order in relation to the control of the contact, I cannot accept that she consistently requested these details nor that the father became aggressive or abusive during this period of time.
The father’s version was that the mother had not “bothered” to ask for drug tests but that she did so around Easter 2004 and that he undertook the tests and gave her the result. I accept the father’s evidence in relation to this.

The incident on 4 April 2004

An incident occurred between the parties on 4 April 2004 that brought about the cessation of any contact between them and ended the time that the father was spending with the child.
The mother’s version was that in the week prior to 4 April 2004, the mother had a dispute with the paternal grandmother who apparently demanded that she do something that the mother refused to do. Whatever happened in that incident resulted in the mother making an application for an intervention order against the paternal grandmother. Ironically as it seems, the father spent time with the mother and the child on Saturday 3 April 2004 and the mother made no mention of having applied for an intervention order. She said that she did not tell the father beforehand because she did not want a violent outburst but then added that she thought the papers had been served and that her main intention was to protect herself and her son. It seemed implausible that the mother would not have raised the subject on 3 April 2004 having thought that the documents had been served on the father’s mother. There appears to have been no incident on that day. On the Saturday night, police apparently served documents of the paternal grandmother.
On the following day, Sunday 4 April 2004, the father attended at the mother’s home. Their respective versions of what happened differ markedly.
The father said that he had contact with the child at the mother’s home and that they argued about the intervention order taken out against his mother. He went on to say that the mother and he “fought” about him seeing the child and he left the home at her request. He denied that he was violent or aggressive or even that he raised his voice. He maintained that he simply asked the mother about the intervention order and why she had taken out the application. He said the mother was upset and told him that she did not want to speak about it. He then said that he was prepared to go to court to get “access” to see his son at his mother’s home and that he was no longer prepared to abide by the orders that had been made in September 2003. He said the mother got upset and as a result of that, he left.
In contrast, the mother’s version was that “during contact”, the father started screaming at her and threatening her. She said that he was out of control and she was terrified. Most importantly, she referred to the fact that the child was present and became very distressed about seeing her being abused. In cross-examination, she said that the father insisted that he be allowed to take the child to his mother’s home without her being present thereafter.

The mother said that the father then left. The father said that the police spoke to him and told him that he was not to return to the mother’s home.
I accept the mother’s version of what occurred that day. Her version is more likely having regard to the existence of the intervention order and the involvement of the police. The father certainly had a propensity to become angry when he did not get his way.
What is most troubling about this incident is that it appears to me to be the watershed from which all of the current problems arise. The mother said that there was a seven month period thereafter during which the child was traumatised notwithstanding there was no further association between the parties.

Incidents after April 2004

Notwithstanding that there were no further periods of time when the parties were together, I have little doubt that the mother was traumatised by incidents of which she was clearly aware being in the same locality.
On 25 April 2003 the father was admitted to the a Melbourne public hospital with a drug-induced psychosis and was there as an inpatient for ten days. The father gave evidence that he called an ambulance because he was suffering hallucinations and chest pains. Those hallucinations included speaking to the dead. This was all from cannabis abuse.
Having been released from hospital, the next incident occurred on 9 May 2003. This may be described as a “siege” with the police. According to the mother, the father was threatening to burn himself in his mother’s garage and made threats to anyone who came near him. It involved the attendance of fire brigade, police and ambulance. The father’s version was that after some hours of attendance by the police, they “peacefully arrested” him and took him to hospital.
The proceedings then began between the parties on 12 November 2004 in the Federal Magistrates Court when the father sought to spend some time with the child. There was a plethora of activity thereafter, including medical reports and paternity testing. I have already referred earlier in these reasons to the order that was made that would have been expected to start up a contact regime between father and son. That was a pointless exercise because the mother moved out of the catchment area for the supervising body but in any event, just over two months after the order was made, the father was admitted to hospital again with a drug-induced psychosis. This time, the police were called as a result of the behaviour of the father and on the father’s own version, he was suffering a drug-induced psychosis having used cannabis heavily. This incident however took on far more significance for me than one might otherwise have gathered from reading the affidavit material of both of the parties. This incident in particular would have created fear for anyone let alone the mother.
When the police were called, there was a stand-off. The father was not prepared to describe it as such but I have little doubt that that is exactly what it was. When they searched his garage, they found what could only be described as Molotov cocktails. A photograph of those items was tendered in evidence. The father’s explanation for having these was that he was going to use them at a camping site to start his fire. He described a situation in which he had a 44 gallon drum in which he lit a fire and it made it much easier to simply drop one of these Molotov cocktails in the drum to get the fire going. The Molotov cocktails were oil bottles that had about one-third of their volume filled with petrol and a rag or paper wick stuffed in the top to light. When cross-examined about these, the father said that he would carry them in a milk crate as they were, in his motor car. He conceded that that was an unsuitable way to light a fire as well as carry them.
Counsel for the Independent Children’s Lawyer asked the father whether he seriously expected the Court to believe that explanation and he said he did. I don’t accept his explanation. I do not know what he had in mind but it was certainly troubling.
Less than a week later, the father had another drug-induced psychosis and was again admitted to hospital. This time, the police found ammunition which he told them belonged to his brother who did not live at the house. This event brought about the father being subsequently released from hospital on a community treatment order and in particular, the requirement that he have medication and injections.
If those two incidents in 2005 were not bad enough, the father then breached the intervention order relating to the mother by attendance at her premises where he stole pot plants. In his affidavit, he said that he was charged with criminal offences and received a community-based order. This incident sounds innocuous enough but when he was asked as to why he stole the pot plants in the early hours of September 2005, he first said that it was an act of stupidity. It might have been sensible to have left the explanation at that but he went on to say that the mother had taken a lot of money from him and he had to take something in return. He said that he was not angry at that time but he had been drinking and smoking “dope” and he just went out to the mother’s home and took the pot plants.

The insight of the father.

Another reason why all of the incidents concerned me was that the father had very limited insight into the impact of his behaviour upon the mother. I can do no better than quote his own words:
I am concerned that the mother has put her own feelings and anxieties above those of the child.
…
The mother has taken her parenting responsibilities very seriously and has a fixed notion of parenting the child alone.
…
I am concerned that the mother is wanting to control the child and the child’s relationship with my extended family.
…
I am losing faith in court system (sic) and my role as this child’s father. It appears that the mother is allowed to do as she pleases and breach the court orders.
…
The mother only allowed contact between the child and I when it has suited her.
…
The mother will not acknowledge the importance of the child knowing his father.
…
The mother has breached the orders made 15 September 2003 by not consulting or informing me of the long term care, welfare and development of the child.
…
I have not been involved or permitted to be involved in decision making about the child at any times. The mother has made decisions about where that child lives, the child attending play group, child care and medical decisions and failed to inform me of these decisions.
Having put those matters into evidence in chief, it got worse. The father was questioned about the effect of his behaviour, for example in relation to the pot plants, on the mother. He said: “She would have been upset”. He was asked whether there was anything more and he replied: “I’m unsure”. When he was cross-examined by counsel for the Independent Children’s Lawyer, it was put to him that just turning up for contact might be too much for the mother. Counsel suggested that this might be seen as something that would only get more extensive over time and the father was asked to comment. His reply was that he understood what was being suggested but rhetorically asked: “What about how I feel?”. As I had earlier commented, he might have been well advised to leave the subject alone but he went on to add: “She has created the fear, I haven’t done anything in the last 12-15 months”.
With a look of incredulity, counsel for the Independent Children’s Lawyer asked him whether he really meant that and thankfully, he conceded that he did not. He then went on, albeit reluctantly, to accept that the mother did have some fear of him and that her fear was genuine. He felt however that the supervised contact centre should alleviate that fear.
It was very difficult to make a full assessment of the father’s insight into the dilemma for which he must take a large portion of responsibility.

The mother’s statement of her belief.

The mother’s position was set out in her affidavit of evidence in chief where she stated that if the paternal grandmother was not safe around the father, the child could hardly be safe around him either. She said that her overall physical health had been affected by the stress and anxiety as a result of the father’s treatment of her and that in September 2005, she commenced counselling with the Centre Against Sexual Assault (“CASA”) to assist in her recovery from the trauma she experienced at the hands of the father. That organisation referred her to the psychiatrist Dr P. She said that she could not accept the thought of the father having any connection with her through the child and that she was anxious and depressed about the thought of contact and that she would suffer ongoing trauma and therefore not be able to properly care for the child.
The referral by both CASA and the mother’s general practitioner to Dr P seemed not only sensible but an imperative. The need for psychiatric assistance was confirmed by Dr K whose evidence I shall refer to in a moment. But in par 94 of the mother’s affidavit of evidence in chief, she said that Dr P was trying to assist her recovery so that she might lead a normal life. She said that Dr P was her “psychiatric clinician” who did not do forensic work and had declined to provide a report for the Court. Dr P’s file was produced under subpoena and presumably was used for cross-examination purposes by one or other of the parties. However, having regard to the professional views of Dr M and Dr K to which I shall turn, I am not at all comfortable in saying that I understand what the mother is being treated for by the psychiatrist. More importantly, I do not know what view Dr P might take if I was to make orders that were a complete anathema to mother as she has described above. For example, Dr P might have said that she could deal with any new situation to help the mother lead “a normal life” or alternatively that any continuation of the association between the father and the child would have disastrous consequences for the mother’s mental health. I do not know. Counsel for the Independent Children’s Lawyer raised the subject at the end of the proceedings indicating that it was not the Independent Children’s Lawyer’s responsibility to call that evidence. No application was made by the mother even at that late stage to bring in that evidence. I found that troubling. However, counsel for the mother pointed out that the file had been produced of Dr P and that the only course that the mother wanted me to take was to dismiss the proceedings to put the whole issue behind her.

The evidence of psychiatrist Dr J

Dr J is a consultant forensic psychiatrist. He has had 25 years experience as a medical practitioner and significant experience as a psychiatrist. He holds the degree of Master of Medicine (Psychiatry) obtained from the University.
Dr J was engaged by the lawyers for the father. In my discussion with all counsel, it was agreed that notwithstanding the single expert rules, I was to treat Dr J as an expert whose evidence was to be admitted.
Dr J set out in some detail the history that he obtained from the father and ultimately made a number of conclusions and recommendations. In his view, the father had not overcome his cannabis abuse problem at the time that he saw him in July 2006. He said that the father did not present with a mental disorder and did not at that time, require psychiatric treatment. He did however say that the father needed to engage in drug education and rehabilitation.
Fundamentally, Dr J said that whilst the father had spoken about ceasing cannabis use in order to satisfy the Court of his seriousness about developing “a bond” with his son, those words had not been matched by long-term abstinence beyond 16 months. On the evidence, it was clear that at the time Dr J saw the father he was still using cannabis and it was not until one month later that the father ceased completely. Dr J said:
Whilst he continues to abuse cannabis there is a considerable risk of him developing a Cannabis-induced Psychosis. There are safety implications for others around him including his son if such a psychosis develops.
Dr J then went on to say:
The presence of psychosis and substance abuse impede [the father’s] ability to adequately parent and provide safety for his son.
Dr J made reference to the anger and violence of the father and said that adult anti-social behaviour was not a mental disorder and was not treatable as an illness.
Dr J was concerned that the father has a biological predisposition to the development of psychosis and from time to time, his drug use has triggered psychotic episodes characterised by fixed false beliefs. He said these fixed false beliefs included hallucinations and jumbled thoughts. That was a reference to the father talking to deceased people and doing things like putting the items of furniture outside of the house for no apparent reason.
Dr J said that the father’s memory of these psychotic experiences would be poor. However, his memory of other incidents in other circumstances may not be affected.
Dr J did not think that the period of 16 months abstinence previously undertaken by the father was very long. He thought that to establish abstinence, the period of time would have to be two years. He felt that the father was the sort of person who would go back to drug usage if something went wrong in his life. He made that observation on the basis that the father smoked cannabis without stressors and therefore there was now no need for a large stressor to revert to his cannabis use.
Dr J said that to trigger a psychotic episode now however, would need a “heavy burst” of drug usage which he defined as being up to “eight joints” a day. As for no longer being a risk to himself or anyone else, the father would have to show that he remained abstinent from drug usage for in excess of two years and had no psychotic episodes.
Dr J stressed that the father needed to accept responsibility for his actions as he knew that taking substances caused a relapse into psychoses.
In Dr J’s view, the father could now be with his child but only under supervision because he had already been abstinent and psychosis-free for over three months. Evidence of that abstinence would be by way of clean drug screens but it was necessary to have a medical report from his general practitioner about the absence of psychoses.
I found Dr J a very helpful witness, who was not simply an advocate for a cause notwithstanding that he was engaged by the legal practitioners for the father. His recommendations and conclusions have a strong and cautious message about the father’s reliability. I accept Dr J’s evidence.

The evidence of Dr M

Dr M is a general medical practitioner employed by I Centre. She is the mother’s treating doctor. I Centre is a medical organisation specialising in community medicine. According to Dr M, she and her colleagues see a lot of lower socio-economic patients.
Dr M was called as a witness by the mother. She had prepared a report for the solicitors for the mother. As with Dr J, notwithstanding the Family Law Rules in relation to expert evidence, no-one challenged the fact that Dr M’s evidence should be admitted.
Dr M met the mother on 12 October 2005. The child was with her.
Unashamedly, Dr M acknowledged that all of the work that she had been doing with the mother related to her current medical condition but that some of the conclusions she had drawn and which she had articulated in her report dated 31 July 2006, annexed to her affidavit, were drawn from what she had been told by the mother.
Dr M said that the child had had contact with his father as a result of a “ruling” and that it resulted in a “devastating” experience for the child. The consequence was that the child was extremely distressed because the father was verbally aggressive towards him. When asked about the “ruling”, Dr M said that her understanding was that it had something to do with the legal process and the family law courts but that whatever it was, it was something under which an arrangement was made for the child to have contact with his father over which the mother had no control. She conceded that it was the mother who told her that the outcome was devastating.
In cross-examination by counsel for the father however, Dr M said that she had understood that the contact between the father and the child had been for only one period. She was surprised to know that there had been regular visits between father and son between September 2003 and April 2004. She was even more surprised to know that the visits were fortnightly.
In Dr M’s view, the mother was suffering from post-traumatic stress disorder. Although she conceded that she had no expert training in that area, she had undertaken the necessary Commonwealth Government prescribed courses to enable her to make the diagnosis for Medicare purposes.
Counsel for the father suggested to Dr M that it would be most unusual for a victim of post-traumatic stress disorder not to avoid the subject stimuli that had given rise to the disorder. It was clear that Dr M was not aware of the various incidents of contact between the father and the mother in the mother’s home. This was particularly so when the mother had been traumatised according to Dr M. The best explanation that Dr M could give was that: “Something has happened to make her completely cut off”.
Dr M denied that her diagnosis was “over the top” and stressed that the mother was a “very fragile girl”. It was because of that fragility that Dr M sought psychiatric help.
Dr M said that she had witnessed the changes in the child in the time that she had spent with the mother. Because there had been no opportunity for the mother and the father to be together subsequent to when Dr M first met the mother, she felt that what caused the behavioural problems in the child was the mother’s attendances to issues associated with the court proceedings which were significant stressors.
Dr M had not turned her mind to the fact that the child might raise the subject of who his father was but if that occurred, she said that she would seek professional help from somewhere like the Royal Children’s Hospital.
Dr M’s conclusion was that she could not see any merit in a relationship between the child and his father but fundamentally, her view was that the mother would not provide “contact” and that if forced to do so, the mother would need inpatient care.
There was little doubt in Dr M’s mind that the mother currently has a mental illness which had been caused by more than one traumatic event. She said that the mother had given a description of the father’s anger and absence of self-control and that the mother also spoke about the rape.
I accept that Dr M had limited instructions from the mother in terms of a history and that the conclusions in her report did not have the necessary foundation. However, the importance of Dr M’s evidence was that she has been fulfilling a significant function within the community of prescribing medication and counselling the mother for over a year constantly. I accept that Dr M has serious concerns about the mental health of the mother but otherwise, her evidence was of little assistance to me in making any assessment about the mother’s possible reactions if orders of the type sought by the father are made.

the father’s drug habits

When he was asked about his use of cannabis, the father readily acknowledged that he had been a regular user but he had not smoked since the middle of August 2006. He said he remembered August 2006 and said that he smoked “a few times” in August. These had occurred at home or when he had gone to a “friend’s place”.
The reliability of the father in relation to using cannabis is significant in this case because the expert evidence makes it clear that with his history of drug- induced psychosis, he cannot afford to use cannabis at all. The father readily acknowledged that he had tried to give up cannabis previously and had in fact been successful for periods longer than the period between August 2006 and the commencement of this hearing.

When cross-examined by counsel for the independent children’s lawyer about cannabis use, the father said that in December 2005, he was having about seven “joints” for the month. He then said in January 2006 he had one joint per week and that between January and August 2006, he stopped for a few months, had a smoke probably in June and July and then a smoke in early August. He was quite positive that the last time he smoked was 23 August 2006.
I have no evidence to the contrary to say that he has been using cannabis since August 2006. However, the more troubling aspect is whether that situation will remain. The father’s drug and alcohol counsellor said that he obtained a drug test on 31 August 2006 and it showed no cannabis present. He said that the drug remains in the body for up to three months for heavy regular users. When asked why if the father had used cannabis in August 2006, it did not show up in the result, Mr C said that it was because he only had a small amount. I found the evidence of the father’s use of cannabis in 2006 unreliable because of all of the matters to which I have just referred. The significance of that evidence is that I could not be satisfied that the father will not revert to the use of cannabis again. The dangers for the father in reverting to cannabis use are obvious.
The other fundamental difficulty with the father’s evidence is that in cross-examination, he maintained that there was nothing wrong with his memory and he was confident about his recollection of events. Drug Counsellor Mr C however, had an emphatic view about the father when he first met him. He described him as being unable to function and having a lack of recall. I have little confidence about the father’s long-term abstinence.

The evidence of Dr K

Dr K is a consultant psychiatrist who was engaged by the solicitors for the mother. Notwithstanding that this evidence should have been presented using the single expert rules of the Court, no party objected to the procedure adopted.
Dr K’s role was to assess the psychiatric condition of the mother. Dr K has been a medical practitioner since 1965, became a psychiatrist in about 1973 and has extensive qualifications. No-one challenged his expertise.
Dr K met the mother on 16 May 2006. He was provided with the affidavit of the psychologist Dr N, some material from the L Regional Hospital Psychiatric Unit, an affidavit of the treating general medical practitioner of the mother, an affidavit of Mr B which was not relied upon by any party in these proceedings, and most importantly of all, two affidavits of the mother sworn 6 September 2005 and 11 May 2005. Dr K was not provided with an earlier affidavit of the mother.
Dr K was told by the mother that she separated from the father in May 2002. He was told that they separated because the father was violent, aggressive and threatening. He said she explained that the baby was conceived after separation. She told Dr K that the father was under treatment for “some condition” and that he would ring her and beg her to help him. She said to Dr K that she had moved to the country and that the father came to her home to do some work there and wanted to see her so she agreed. She said that the father barricaded her in her house, raped her and that she was unable to leave until the following morning. She said to Dr K that she did not go to the police because she was too scared/terrified.
Although Dr K said that he had no details of the location of the sexual assault, he understood that it was the mother’s house. When cross-examined about that, he confirmed that that was what the mother had told him and that the house of the mother was in the country.
It is quite clear on the evidence that the incident to which the mother was referring occurred in the father’s home in Melbourne and that in fact, contrary to what Dr K understood, it was the mother who had gone to the home of the father.
It is of course possible that Dr K just misunderstood the history when it was given to him, particularly as one of the affidavits to which I have referred above was apparently read by Dr K and made clear reference to the correct position. Dr K like Dr M, was concerned about obtaining an accurate history for the purposes of a diagnosis.
On the subject of history, Dr K was not aware that on 15 January 2003, the mother had made a statement to the police in which she made no reference to the sexual assault. In his view, it certainly would have been relevant for him to know that and as he said, his whole opinion was predicated upon her being honest with him.
He found the mother to be depressed, tearful and a fairly slow and difficult witness. He said that she was obviously fearful of her estranged partner but there was nothing to suggest that she was hallucinated, deluded or thought-disordered. He reported that the child was the result of her having been raped and that the mother expressed fear of the father. Her mood overall was depressed and she was relatively emotionally unresponsive and fearful. He pointed out however that there was no cognitive impairment. He was conscious of the fact that the mother was receiving psychiatric assistance from a Dr P.
In reviewing all of the material that he had, Dr K noted that a Mr B, who had provided an affidavit but who as I have pointed out was not a witness in these proceedings, had made a diagnosis of post-traumatic stress disorder. Dr K said about the psychiatric diagnosis of the mother:
I think it is reasonable to see her as being depressed at present – and apparently in response to concerns about this matter. She is fearful. I note there is some discussion about her as having a post-traumatic stress disorder. Well she certainly is preoccupied about the violence that he has inflicted on her. She constantly relives it; sometimes has dreams about it; she is nervous, frightened and on edge so I think it is probably appropriate to describe her as having a post-traumatic stress disorder dependent upon the traumas that he has inflicted on her (accepting that she is honest in her presentation…
However when cross-examined about the post-traumatic stress disorder condition, Dr K conceded that if the mother was not telling the truth, then his conclusion may be different. Much depended upon what actually occurred. Dr K’s view was that it may not have been post-traumatic stress disorder but there were certainly symptoms of anxiety and depression present. He noted what the psychologist said about referring the mother to the A Hospital but said that primarily, he thought the mother was depressed. He added that if what the mother said was true, her reaction would have to be seen as normal. He then added that an overall resolution of this current situation may help her anxiety and depression.
Dr K said that if the Court was to order that the father have a supervised arrangement at a contact centre, then the mother might require assistance to deal with that. He noted that she was having psychiatric assistance with Dr P and that the reaction to such an order may require medication and it may be that she needed to attend a post-traumatic stress disorder program. Dr K was surprised that the mother would participate in post-trauma incident contact supervising the child in her own home, agree to court orders and provide a birthday card with affectionate writing if the serious assaults occurred as the mother described. There are a number of possible explanations as to why the mother might have participated in the events that had surprised Dr K. Those included the exhortation of the mother’s solicitor that she had to provide contact to the father because that was the minimum required and the request for her assistance from a psychiatric nurse who was endeavouring to counsel the father. Accordingly, whilst I make no criticism of Dr K, it is clear that his evidence has to be cautiously viewed because of the inaccurate history provided to him.
Dr K sided with the mother in saying that it would be unreasonable to expect her to tolerate the father having any contact with the child under the circumstances unless her perception of events was significantly distorted. In his view, imposing a relationship between father and child would put an unreasonable stressor on the mother and markedly interfere with her ability to effectively mother the child. To this point, the flaw in that evidence is again the unreliable history and the confused situation in relation to exactly what happened as between these parties.
Dr K was also clear in his view that provided the mother saw the outcome of the proceedings as appropriate and providing she had further support and psychiatric treatment, her mood would improve and there would be no impact upon her parenting capacity.
In relation to a proposal such as that of the Independent Children’s Lawyer for a delayed and supervised regime, Dr K was concerned that if a period of time was set aside for the mother to endeavour to resolve her problems, she might become obsessed about it and that would not solve the problem. On the question of the mother’s capacity to cope with a parenting order, Dr K said that if the mother saw that the father had settled down, was stable and not using drugs, she may cope. If the converse was true however, he felt that she would not cope.

The evidence of Mr C

Mr C was called on behalf of the father. He is a drug and alcohol counsellor. He gave balanced and helpful evidence. I found him objective, honest and insightful.
Mr C made clear that the father cannot use cannabis at all.
Mr C was engaged to assist the father as a result of the criminal proceedings. He made clear that the father was dysfunctional when he met him and that in his view, the father had significant short term memory loss.
Mr C found the father open and honest and said that over time, the father accepted that he did not want to go back to what he had been like because in general, life had not been good. The turning point began when he involved himself in family activities and a local football club. Mr C said they had talked about relapse strategies much of which centred around self-esteem. Mr C was candid in saying that he was only reporting what the father told him but that the father’s insight into his addiction had improved because it was not something that he liked.
The only thing that Mr C knew about the father and son relationship was that his client said that he wanted to be “a proper father”.
Mr C felt confident that the father’s drug tests were accurate.
In cross-examination by the Independent Children’s Lawyer, Mr C said that he did not believe that the father was taking the recovery path simply for the family law case. The father had become a voluntary client and in his view, the father no longer needed psychiatric help.
Notwithstanding that the father was a voluntary client, Mr C said that he was prepared to continue working with the father if not only the father but also the Court desired it. However, he made the point that he would not have the authority to make those sorts of decisions but it would have to be done through management.
My view is that Mr C’s involvement on an ongoing basis is critical because it gives an experienced professional an opportunity not only to monitor what the father is doing but also to act as a lifeline in the event that the father is tempted to fall back to drug habits. Whilst I appreciate the resource issue, I regard the success of any future relationship between father and child to depend upon consistency of drug abstinence and a psychosis-free state of health. The ongoing involvement of Mr C must be part of any orders I make.

The evidence of Dr N

Dr N is a clinical psychologist. No-one challenged her formal qualifications.
Pursuant to an order of the court, Dr N prepared a comprehensive report. She was provided with substantial amount of reading material and interviewed the parties. She did not see the child with the father.
The assessment process between Dr N and the mother did not get off on the right foot. The mother did not want to be involved at all and in Dr N’s view, was very angry about the fact that the father was to be involved as well. Dr N described the mother as belligerent and angry but when ultimately cooperative, particularly with the child present, the interview went smoothly. The mother expressed the view that the father was unfit to be a father and that he was evil. She said that she did not believe the father had any rights to know the child because of the circumstances of the conception and the alleged rape. She maintained that the father was dangerous to both her and the child and that she could not hurt the child by bringing him into contact with the father. The mother described the period after April 2004 as seven months during which the child was traumatised as a result of the last visit with the father. The mother told Dr N that she had a fear that the father would kill the child and her fear extended to him abducting the child.
Accordingly to Dr N, the mother was distressed about her financial position and attributed those circumstances entirely to the father. The mother told Dr N that she believed that the father had no mental illness and that his behaviour about which she was concerned had been similar over his whole life and that she had been told this by his family. She expressed the view to Dr N that the father had never been made responsible for his actions and that that was the cause of his behaviour.
When Dr N saw the mother and the child together, she observed that the mother was attentive and appropriate. The observation of the mother and child occurred four days after the initial interview in which Dr N found her belligerent and angry. Interestingly, Dr N reported that on the second visit, the mother displayed her pride in the child’s abilities and that the child presented as a happy, energetic and sociable child. He engaged easily with Dr N and involved her in his games.
Dr N found one puzzling aspect of the interview. That was that she commented upon the colour of the child’s eyes and when she did so, the mother reacted defensively disputing the colour. Whilst there might clearly be some debate about exactly what colour eyes the child has, it was the reaction that caused concern to Dr N.
When Dr N interviewed the father, bearing in mind that this was 27 October 2005, the father attended unshaven and lethargic, speaking of having had “two cones” that morning as well as smoking cannabis on the drive from Y. She found the father to have the appearance of being depressed and overwhelmed when speaking of all of the trouble he was in at that time. He listed his difficulties as owing money for drugs and gambling, smoking drugs heavily and even anticipated a possible psychiatric relapse. He described himself as having no fixed address and sleeping in his car. He described his own position as “hopeless”. The significance of this assessment is that it was done at a time when on the evidence I have heard, the father had not long been discharged from the psychiatric hospital after a drug-induced psychosis and been involved in criminal proceedings in the Magistrates Court. That has to be contrasted with the evidence of Mr C, the drug counsellor twelve months later.
Little of what Dr N observed would have been any different from what the mother had observed in the last stages of the relationship with the father. Up to and around the time that Dr N saw the father, his own family had been involved in clashes with him culminating in an intervention order being taken out by the father’s mother and the father conveyed the impression that his relatives were becoming “weary” of his behaviour. It was also during this period of time that the father breached the intervention orders as a result of attending at the home of the mother and stealing pot plants. Whilst the breach of the intervention order is one thing, the bizarre nature of the theft of the pot plants was noted by Dr N. The father explained his reason for taking the pot plants as being that the mother had taken something of his so in return, he took something of hers.
Notwithstanding this depressing interview, Dr N reported that the father became interested when she talked about her description of his son. Dr N said that her impression was that the father had some real insight into his own behaviour realising that he was “self-sabotaging” his last chances of seeing his son but that he conveyed a strong desire to see the child and felt that he had developed a bond with him.
Dr N concluded that the mother was a very angry woman who was determined not to let the father see the child if it could be prevented. In that anger and perhaps because of it, the mother did not appear to have thought through the long term implications for the child.
It is this evidence of Dr N that I found particularly helpful and very much determinative of my decision. Dr N said:
The possibility exists that as [the child] matures he will resent his mother for denying him the right to have developed a relationship with his father. I feel that [the mother] believes that her devotion to [the child’s] welfare will compensate him for the lack of relationship with his father, and it may at the moment, but this does not take into account developmental changes for [the child] in the future, or the significance to him of having a relationship with his father or not as the case may be.
On this issue, Dr N was very clear that in general terms it was important for the child to have a father in his life. She said that because children are curious, they will ask questions and how that is handled requires prior consideration. This evidence was in the context of Dr N being told that the mother had not given any thought to the fact that the child might ask about his father and that if he did, she would seek professional help. Dr N’s view was that the mother should start thinking about the issue now. When cross-examined by counsel for the mother about the absence of a father, Dr N said that children cannot feel whole because their curiosity about the absent parent cannot be satisfied. They can become fixed about the absent parent and it creates problems as the child grows older.
Thus for the benefit of the child, Dr N felt that it was important for the child to have a relationship but because of the father’s background, it had to be carefully graded and “sensitively supervised”.
A second and equally important issue however according to Dr N, was the impact on the mother’s mental state of these proceedings as well as their outcome. That impact had to be examined in relation to the mother’s ability to care for the child.
Some considerable time was spent by Dr N contemplating the possibility that the mother had post-traumatic stress disorder but in my view that issue became irrelevant because no-one has given a clear diagnosis upon which I could rely.
Dr N’s view was that the mother’s main emotional feeling is her anger at the father.
Dr N was asked about the sense in having a restricted but structured supervised regime between the father and the child at a contact centre. On the one hand, that might give the child an expectation that there is the possibility of a relationship but on the other hand, if the father failed to fulfil his part of the arrangement such as by returning to drugs or having a psychotic episode, the child would be significantly let down. The effect of this upon the child at his age, according to Dr N, may be that he experiences a sense of loss. Dr N acknowledged that it was a difficult question because no-one knew what the father would do.
Counsel for the mother asked Dr N about the impact on the mother’s capacity to parent the child if her level of anxiety was great. Dr N conceded that the research shows that parental depression was not a good environment for children. However, according to Dr N, what has to be contrasted with that is that the mother was a very good mother.

I have relied very heavily on Dr N’s evidence. She said that she considered that the mother’s parenting capacity was unlikely to be impaired by the distress of a graded supervised “contact regime” and that it may defuse some of the mother’s anxiety about the father notwithstanding the possibility that the mother would react negatively to such an order and may be disinclined to comply. When questioned by counsel for the mother, Dr N stood firm in saying that she thought the mother was more resilient than she was prepared to admit. Dr N said that the child appeared to be developing well and that her assessment of the mother was that she was angry and resistant. She felt that overall, it was in the child’s long term interest for a regime to be commenced under strict supervision but then added that if the mother could not do it, there were going to be problems for the child.

The final addresses of the parties

After hearing over three days of evidence, all counsel seemed to agree that the nub of the dispute was whether or not the mother could cope with an order being made of the terms described by the Independent Children’s Lawyer. Mr Hoult as counsel for the Independent Children’s Lawyer suggested that there were two options. The first was to make no order at all but the other was to construct orders that effectively gave the mother an opportunity to endeavour to repair her mental health making the acceptance of a relationship between father and child possible. He urged that I should take the latter course giving a substantial lead-in time to ensure that the mother obtained psychiatric assistance but also that the father continued his drug abstinence and remained psychosis-free.
For her part however, Ms Swart for the mother said that on any view of the evidence, the mother would not cope and that there was no point in delaying the inevitable because the decision needed to be made now. This case commenced in 2004 and nothing had changed during that time. The mother in 2004 could not face the prospect of any relationship between father and child and that was the situation now and would be in eight months or so time. Any lead-in time or delay in the implementation of an order would simply create stress for the mother who on any view was anxious and depressed. Acceptance of the position of the Independent Children’s Lawyer, according to Ms Swart simply perpetuated the problem and as such, the only option that was open to the Court was to deny the father any association with the child because that would repair the mother’s health and enable her to adequately and properly parent the child.
Mr Allen as counsel for the father whilst conceding that there were a number of issues, acknowledged that the capacity of the mother to cope was probably the most important that I had to address. He pointed out all of the inconsistencies of the mother which in his submission affected her credit and gave rise to the question of whether or not her belief was genuinely held.
Both counsel for the Independent Children’s Lawyer and the father pointed to the fact that I had not been given any evidence of the mother’s current psychiatric state from her treating psychiatrist. Whilst to some extent this may be important, I am still left with the evidence of Dr M, Dr N and Dr K all of which still highlight that the mother is depressed and anxious. My uncertainty is whether or not that evidence is sufficient to enable me to say that the mother would not cope if the sort of order contemplated by the Independent Children’s Lawyer was made. I have already highlighted the dilemma I have in relation to the evidence of Dr M and Dr K and that I have strongly relied upon the professional view of Dr N about the mother’s capacity to deal with an order. Accordingly, having regard to the fact that Dr N believes that there is a long term benefit for the child in knowing and having a relationship with his father, and the fact that the mother’s capacity is unlikely to be impaired by a parenting order, I find that it is in the best interests of the child that I make a parenting order in this case. I am not bound by any of the proposals of any of the parties but am obliged to determine what I think is in the best interests of the child and I propose to make orders accordingly. In so doing, I am very conscious of the stress that this will cause the mother but I am comforted by the fact that she relies very heavily on her general medical practitioner who in turn has indicated to me that she would seek expert help to deal with any problem that might arise.
I canvassed with all counsel the question of two significant matters if I was to make a parenting order. They were:
(a)the question of whether I should only make interim orders as distinct from final orders regardless of the evidence I heard; and
(b)if I was to make interim orders, leaving a lead-in time before the first possible meeting between father and child, to bring the matter back to see whether there was any medical evidence in relation to the mother at that point which would indicate that the proposed parenting orders were detrimental to the child as well as giving me an opportunity to ensure that the father remained abstinent from drugs and psychosis-free.
The mother’s counsel urged me to make final orders for the reasons I have outlined above. The mother’s view is that there will be no change. Other counsel however have said that interim orders are appropriate because no-one will know whether the relationship between father and child can be fostered or what should happen if it was successful beyond the supervised stage. Accordingly, I believe that interim orders in this case are appropriate.
The second issue is more difficult. The only evidence I have is that the mother is currently being treated by her psychiatrist for what appears to be anxiety and depression. The mother’s counsel has urged me to finalise the matter without the benefit of the evidence of the mother’s treating psychiatrist and I have the strong impression that from the mother’s point of view, nothing will change. As counsel for the mother pointed out, these proceedings have been extant since 2004 at which point in time, the mother adopted the stance that she now still holds. To suddenly obtain medical evidence other than what I have heard sounds unlikely.

The law

The mother’s case has been conducted on the basis that a parenting order would be inconsistent with the best interests of the child and there is a need to protect the child from physical or psychological harm. Part of that relates to the fact that the mother cannot cope with an order being made. It is quite clear that the mother is not able or willing to facilitate any relationship between the father and the child. In her summary of argument, counsel for the mother said:
The mother was willing to facilitate the relationship in the past but became unable to do so due to the father’s continued violence.
On the evidence, I do not believe that I am properly able to conclude that the detriment that the child would suffer from the diminution of his mother’s parenting ability if a parenting order was made would outweigh the detriment that he would suffer in the long term if that order was not made.
The majority of the Full Court in B and B (1988) FLC 91-957 cautioned that a trial judge should always recognise that any benefit to a child in contact occurring should not be outweighed by any disadvantage including a risk that the child’s relationship might be undermined with the residence parent by conduct of the other parent. The Court was there referring not just to misbehaviour.
It is important to assess the expert evidence about the manner in which the mother may be affected in her capacity to care for the child if a parenting order is made. I cannot in this case be satisfied that she might be so overborne as to be unable to function adequately as the principal caregiver for the child. That evidence is clear from Dr N.
In R & C (FamCA, Fogarty, Baker and Lindenmeyer JJ, appeal SA45 1992, 25 June 1993 unreported.), the Full Court said that it was an appropriate consideration to consider the genuineness of the belief of the parent. The dilemma I have is that as I have set out above, the mother’s belief stems from the sexual assaults and I have been unable to make any finding about those incidents. More importantly, I have been unable to make any assessment that would enable me to say that the child is at risk from any physical or psychological harm bearing in mind that the psychological harm would most likely arise from the inadequacy of his mother to care for him as a consequence of making parenting orders that he see his father. As the Full Court said in H & R (2006) FamCA 878 cases such as these are not about issues of justice or injustice as between the parents. They must focus firmly upon the children.
In R & C the Full Court said in relation to psychological and emotional harm, a court must take into account anxiety on the part of the primary caregiver. In this case, I have the evidence of Dr K and Dr M to say that the mother is anxious and depressed but having regard to the limited understanding which each of those professionals had in relation to the background, I think that the professional treater’s role will be to deal with the mother’s capacity to cope with the fact that the father is going to be involved in this child’s life into the future. I have the evidence of Dr N, who had the benefit of observing the mother and the child together and whose view is that the mother would not let anything prevent her proper care for the child.
In the course of the Full Court’s judgment in A and A (1998) FLC 92-800, their Honours said:
If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in [R & C] and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.
The Court may then need to consider whether the resident parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that parties’ capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
I have no doubt that the mother now believes the views that she has articulated. What I am troubled about is whether or not those beliefs impinge upon her capacity to care for the child if I make an order. I have not had the advantage of the evidence of Dr P as to what would happen to the mother if an order was made nor what treatment (if any) might be undertaken by Dr P. Dr M thinks if the problem arises, she and the other health professionals will endeavour to deal with it.
I have to balance that dilemma against the evidence from Dr N that it is in the best interests of the child in the long run that he has a relationship with his father. I propose to make orders which will be of an interim nature to see whether:
a)a relationship can develop between father and child in very strict supervised circumstances; and
b)the mother obtains some psychiatric help during the period under which her parenting skills will no doubt be tested.
I have seriously considered what might happen if the child is exposed to the father and that relationship is unworkable or because of the father’s future behaviour, it fails. These are all matters to be considered in the future.
During this interim phase that I propose, if there is the slightest suggestion that the father cannot fulfil the promises that he has made in respect of drug usage, I would have little doubt that beyond the supervised phase, such a problem would arise again ending in a psychotic episode and making any long term relationship between father and child unlikely. Thus, my view about the interim period is that it is as much a testing period for the father as it is for the mother. Having regard to the findings that I have made, I now turn to the structure of the Family Law Act (1975) (Cth) (“the Act”) to contemplate the matters there set out.
Section 64B(2) provides that a parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)      the time a child is to spend with another person or other persons;
(c)      the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)       maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
Section 64B(3) provides:
that a parenting order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:
(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).
Section 60B also makes provision for an Aboriginal child or Torrens Strait Islander child being able to enjoy their culture but in this case, that provision does not apply.
Fundamental to my decision in this case is the provision of s 60CA which says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in a child’s best interests, s 60CC provides that the Court must consider the following matters in determining what is in the child’s best interests:
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)      the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC(4) provides:
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)      has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Section 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Before turning to those particular provisions, because this is a parenting order that I propose to make, s 61DA requires that I apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA provides:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
I find that the presumption should not apply because of the intervention orders and family violence issues as between the parties. There will never be communication between the parties as their relationship currently stands and it is therefore appropriate that the responsibility for making major long-term decisions in relation to the future welfare of the child must rest with his mother.
I turn then to the provisions of s 60CC to determine what is in the best interests of the child by reference to a number of considerations. The considerations are divided into two parts. The first of these is said to be primary considerations namely:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I have to give thought to the question of whether any relationship let alone a meaningful relationship will benefit the child in this case. I do not know whether the orders I propose beyond the supervised stage will be successful and accordingly, I am only able to say that time will tell whether the sort of relationship which on an interim basis I am envisaging will be of benefit to the child.
I am extremely conscious of the need to protect the child from physical harm as well as psychological harm. He will be protected under these orders from physical harm by having the arrangements supervised at the contact centre. More troubling, however, is the psychological harm to which he may be subjected if his mother does not adequately cope with the responsibilities that she has to parent him because of these orders. However, for the reasons I have set out earlier, I believe with the assistance of the professionals, the child will be protected because as Dr N says, the mother is a very caring and capable parent.
Section 60CC then provides a list of additional considerations which are to be taken into account. Before turning to those considerations however, it is instructive to look at the objects of Part VII of the Act as set out in s 60B(1). Those are:
(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.
The principles said to be underlying these objects are, except where it would be contrary to a child’s best interests are:
(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).
All of the decisions of the Full Court including as late as September 2006 in H and R dealing with principles such as R & C related to the Family Law Act as it was prior to 1 July 2006. In H and R, the Full Court left the question of whether or not the alteration to Part VII has meant there needs to be review of those earlier decisions. In my view, the provisions of the new Part VII still ultimately require that the decision be made in the best interests of the child notwithstanding the exhortation for courts to make orders in relation to children having a meaningful relationship with both parents and the right of the child to spend time with a parent. The fundamental principle underlying the pre-1 July cases was whether or not the parent had the capacity to provide for the needs of the child. That provision is still in the s 60CC provisions and is fundamental in a case where there is a clear primary carer upon whose shoulders the bulk of the burden of caring for the child must rest.
Accordingly, an examination of s 60B(1)(a) shows that the emphasis is not so much on the words “meaningful involvement” but rather on the word “benefit”. In a case where a parent produces evidence to show that as primary carer, he or she cannot cope in providing the necessary capacity to care for the child by a parenting order being made, there may be no benefit for the child in having a meaningful relationship with the other parent. In this case however, I do not know the extent to which the child will benefit from any relationship with his father and for that reason I am only prepared to make interim orders under strict supervision and for quite some time.
I then turn to the specific issues referred to in s 60CC(3).

Views expressed by the child

This has not been an issue because as far as I can ascertain, the child does not know of the existence of his father.

Nature of the relationship of the child with the parents

I have a very clear understanding of the closeness of the relationship between mother and child. She is proud of her son and having regard to the solitary role she has played, she should be. The father has no relationship with the child.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relatiionship between the child and the other parent and the likely effect of any changes in the child’s circumstances including the effect on the child of separation from either of his parents.

I have set out the mother’s view. I am uncertain whether, even if she genuinely believes that the child has nothing to gain from the relationship with the father, she is misguided. She cannot countenance the possible problems to which Dr N referred. However, this distinct unwillingness to promote any relationship with the father may be overcome by evidence of the father’s consistency, drug-abstinence and lack of trauma for the child.
Dr K thought a resolution of these proceedings may assist the anxiety and depression. The general practitioner seemed willing to assist. I am very conscious of the difficulties the parental relationship between father and child will face if the resistance of the mother continues. I acknowledge that there is a difference between determined resistance and a psychological inability to promote a relationship on the evidence, I am unable to say whether it is dogged resistance or psychological inability and for that reason, I am taking a cautious approach in making interim orders.
The father has little or no insight into the contribution he has made to the position adopted by the mother. His evidence about what he could do for the child in the future was very limited. He had undertaken a parenting course and could espouse what he had been shown but his efforts to develop a relationship with a little boy who knows nothing of him and whose mother’s wish is for him to disappear, will surely test him.
I do not know whether the father can develop a relationship with the child and thereafter adopt a positive attitude towards the mother. If the child’s relationship with the father causes serious psychological impairment of the mother to the extent that she cannot care properly for the child, the father will have to give consideration to his own position of whether he continues to pursue the relationship he now seeks.

The practical difficulty and expense of a child spending time with and communicating with a parent.

I would not consider anything other than limited and supervised time between father and child at this time. The father will pay for those associated costs.

The capacity of each parent to provide for the needs of the child.

The mother has done an excellent job in providing for the child. There is evidence from Dr M that the child becomes distressed when the events associated with these proceedings occur. However, no such problem was seen by Dr N. The impact of these orders on the mother is unknown but her medical practitioners are (and will be) aware of what needs to be addressed. The only reservation I have is whether these orders will prevent the mother from continuing her excellent role. Dr N thinks that the mother has the appropriate capacity and will be able to deal with what she faces.
The father’s capacity is completely unknown. If he can develop a relationship with the child and the mother’s capacity is not severely inhibited, I imagine that any phase of the relationship beyond what I am ordering will have to be carefully considered. Even if the mother can cope with a burgeoning relationship, I would want more evidence from the father about his lifestyle and his ambitions for his son. That evidence would need to include issues of his understanding of the sensitivities of the mother towards his involvement in his son’s life. For that reason, I am proposing to bring the matter back before me if practicable.

The maturity, sex, lifestyle and background of the child.

The child is being raised currently not only with an absent father but with no prospect of knowing his father, nor his father’s culture. I suspect the mother has removed herself from the drug culture of the father which she knew about when they were together. It remains to be seen whether the father can remove himself from that way of life. This little boy has been protected by his mother in recent years from exposure to the culture of drugs, violence and dishonesty. If the child is to have a stable future, it behoves the father to establish that he too can give something meaningful to his son about life values. There is hope with the father’s current drug abstinence and work ethic. That needs to continue if the child is to benefit from any relationship with his father.

The attitude to the child and the responsibilites of parenthood.

I reiterate what I have just said about the father but it equally applies to the mother. Dr N says that the child needs to know his father. The mother therefore need to address her fears and anxieties because to do otherwise would not amount to responsible parenting.

Family violence and family violence orders.

I have made findings about the father’s aggressive and abusive behaviour towards the mother and the community has indicated its intolerance to this sort of violence by imposing permanent intervention orders. In this case, Dr J says that the anti-social behaviour of the father is not associated with mental illness. The father’s insight into that behaviour appears limited if his answer is that he has not caused the mother trouble lately and that she has nothing to fear if his time with the child occurs at a contact centre. Leaving aside her resistance to the father having any association with the child, I accept that the mother has every reason to desire to have nothing to do with the father. The difficulty is that provided there is some indication that the child can benefit from a positive relationship with the father and is not at risk of physical harm from him, I think it is important that the relationship be fostered.
If the mother is protected from the father by the family violence order, so much the better. What the mother has to do is overcome her anxiety about the relationship between the father and son. As I have already said, what happens beyond the interim period will depend on the evidence. One of the factors I would want to know about will be the father’s insight and understanding of the impact of family violence on the family.

Making a final order.

I think I have made the position abundantly clear why a final order cannot be made.
I have also considered how each parent has taken opportunities as described in s 60CC(4) to participate in and facilitate participation in matters affecting the child.
The father certainly pursued a relationship with the child from the outset of his birth. The father’s own inept handling of his drug abuse created the difficulties we now have of trying to establish a meaningful relationship. The mother was not encouraged to foster any relationship given that the father’s behaviour.
Section 60CC(4)(c) requires a court to consider the maintenance obligation. I am quite satisfied that the mother convinced the relevant authorities that she wanted nothing to do with the father as a consequence of which, they ceased pursuing him for child support. The father claimed to have saved the money in an account for the child. I appreciate even if he had sent it to the mother through her lawyers, it may have been rejected. However, I see no reason why that offer should not at least be now made again because I do propose to endeavour to establish a relationship between the father and son. The prospect of the child attaining 18 years of age and then possibly receiving a sum of savings from his father is unpalatable to the community which contributes towards the support of this child.
For the purposes of s 60CC(4A), I have taken into account the tortuous path that each party has followed since 2002.

I certify that the preceding Two Hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 1^st February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as DI PIERO & MEEHAN

[2007] FamCA 297

1 February 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Evidence

Legal Concepts

Duty of Care

Procedural Fairness