Fennick and Fennick (No. 2)

[2008] FamCA 908

FAMILY COURT OF AUSTRALIA

FENNICK & FENNICK (NO. 2) [2008] FamCA 908

FAMILY LAW – CHILDREN – Final Orders – Allegations of physical abuse by the father on the mother and the children – Psychological effect of abuse on the children –  Genuine belief by the mother that father poses a risk to herself and the children - Orders made that the children have no time with the father.   

Family Law Act 1975 (Cth)

B and B [Access] (1986) FLC 91-758
Grant and Grant (1994) FLC 92-506
R & C (unreported, Full Court of the Family Court of Australia, Fogarty, Baker & Lindenmayer JJ, 25 June 1993)
Irvine & Irvine (1995) FLC 92-624
A and A (1998) FLC 92-800
Re Andrew (1996) FLC 92-692
V & V & Child Representative (1998) FamCA 126
V & V & Child Representative [2001] FamCA 78
H &K [2001] FamCA 687
B & M and M [2004] FamCA 537
TKR & CPW [2006] FamCA72
Moose & Moose [2008] FamCAFC 108
CA & JA [2004] FMCAfam 78
PST & CPR [2006] FMCAfam 36

APPLICANT: Ms Fennick

RESPONDENT: Mr Fennick

INDEPENDENT CHILDREN’S LAWYER: Mr O'Dowd

FILE NUMBER: SYF 4590 of 2005

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 1 - 3 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Snelling

SOLICITOR FOR THE APPLICANT: M. Rushton & Co

COUNSEL FOR THE RESPONDENT: Mr Allen

SOLICITOR FOR THE RESPONDENT: Bell Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Messner

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

Orders

1. All previous parenting orders be discharged.

2. The child J (“J”) born … December 1999 and the child S (“S”) born … September 2002 (“the children”) live with the mother.

3. The mother have sole parental responsibility for the children.

4. Until the children each turn 18 years respectively, the children are not to spend any time with the father nor have any communication with the father other than as set out in these orders.

5. Leave be granted to the Independent Children's Lawyer to send a copy of the Judgment and Orders to the Department of Community Services within 14 days of receipt, together with the current contact details for the father and the Independent Children's Lawyer provide a copy of the Judgment and Orders to Dr S as soon as is practicable.

6. On or near 1 August and 1 February each year the mother, at her mailing cost, provide to the father, care of his solicitor at his legal cost, the following:-

   6.1.A minimum of 5 current photographs of each child;

   6.2.A copy of each of the children’s most recent school reports;

   6.3.A copy of any medical reports relating to the children’s health and well being;

   6.4.A copy of the children’s awards of certificates related to sports, academic achievement and extra curricular activities;

   6.5.Any other information relevant to the welfare of the children.

   AND the mother shall be entitled to black out or remove any location identification from these documents or photographs.

7. To facilitate Order 6, the father keep his solicitor from time to time advised of his contact details and any change of details be given to the mother in writing as soon as is practicable.

8. The maternal grandfather shall provide to the father, his current email address from time to time and the father shall provide the maternal grandfather with details of any change in the father’s residential address from time to time by the father sending those details to the maternal grandfather’s email address.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4590 of 2005

MS FENNICK

Applicant

And

MR FENNICK

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a very sad and unusual case.  I am asked to decide what time J, currently aged 8 years and 9 months (born in December 1999) and S aged almost 6 (born in September 2002) will spend with each of their parents.  The primary focus in this hearing has been on J’s mental status. At his tender age he has been diagnosed with a mental illness and has spent a month in a psychiatric hospital at the commencement of this year.  Much of the time in this hearing has been spent by the parties’ focusing upon what might have caused J’s problems and who is at “fault”.  Whilst that question is important, particularly for the father, it is not in the end a question which I necessarily have to answer.  The central question I have to decide is whether it is in the bests interests of J and S to spend time with their father.  

APPLICATIONS

Mother

1. The mother seeks the following orders, which substantially adopt the recommendations of the single expert in her report dated 14 February 2008:

   1.      That all previous parenting orders made in the matter are discharged;

   2.That the children [J] born […]/12/99 and [S] born […] September 2002 (“the children”) live with the mother;

   3.      That the mother have sole parental responsibility for the children;

   4.That the children spend no time with the father and there be no contact of any kind between the children and the father, and no further application in this regard be brought by the father or entertained pending the children attaining 18 years respectively;

   5.That pursuant to Section 68B of the Act, the father be and hereby is restrained from seeking out and/or approaching the residential address of the mother and the children and/or the schools attended by the children or any other place where the mother and/or the children might reasonably be expected to attend, and the father further be restrained from approaching or contacting or attempting to approach or contact the mother and/or the children in any way or form either directly or through a third party or agent.

Father

1. The father filed a Response to an Amended Application for Final Orders on 30 July 2008 seeking the following:

   1.That all previous parenting Orders made in this matter be discharged;

   2.That the children [J] born […] December 1999 and [S] born […] September 2002 (hereinafter referred to as “the children”) live with the Father;

   3.That the Mother and Father have equal shared parental responsibility for the children;

   4.That the children spend substantial and significant time with the Mother including as follows:-

   a)    Each alternate weekend;

   b)   Half school holidays; and

   c)   Such further time as agreed between the parties.

   5.That the Father shall authorise the Principal of the children’s school to provide to the Mother copies of all school reports and notices and both parents shall be entitled to attend school events where parents are invited including parent/teacher interviews;

   6.That both the Father and Mother shall keep each other informed with respect to their current address and telephone number;

   7.That both the Father and Mother shall keep each other informed with respect to any health matters concerning the children;

   8.That the Father shall ensure that the child [J] receives appropriate psychiatric counselling from qualified experts. 

2. The father gave oral evidence that the reason he filed this Amended Application seeking that the children mostly live with him was because the mother had indicated in her affidavit that there was some possibility that the children would have to be placed in foster care and in his view he was a better alternative for the children than foster care.  At paragraph 10 of the mother’s affidavit sworn 19 August 2008 the mother said that in the months and weeks leading up to J’s hospitalisation on 30 January 2008 she was becoming increasingly stressed and finding it more and more difficult to cope with J.  She felt that she was losing control of the situation and whilst she relied upon her parents for assistance, she had contacted DoCS.  Having discussed her problems with DoCS, they had offered to place J in temporary foster care once he was discharged from hospital and to keep him in such care until he had settled down and could be returned to his mother.  This was only ever to be a respite care option, not a permanent placement.  The mother says despite her desperation at the time she would never have consented to a permanent placement.  The mother however decided against any respite care when it became clear to her that whilst the children would be in temporary care she would only be able to see them when DoCS allowed her to. 

3. At the commencement of the final stage of the hearing, counsel for the father announced that he no longer pressed the orders sought in his response filed 30 July 2008 but rather sought orders to the following effect:-

   1.That the children not see him for a further three months.

   2.That for a period of six to twelve months following that time the children see him for two hours per week at […] Contact Centre.

   3.That the parties participate in family therapy.

   4.That at the end of the six to twelve month period referred to in paragraph 2, the matter come back to the Court for the purposes of reviewing what orders should be made. 

4. The father therefore sought that no final orders be made in the matter and the matter in effect be adjourned part heard. 

5. During final submissions the father provided a written document formally setting out the orders sought which is in the following terms:

   1.That the father spend supervised time with the children [J] born […] December 1999 and [S] born […] September 2002 (hereinafter referred to as “[J] and [S]”) at the […] Contact Service at […] commencing on 29 November 2008 for a period of twelve months.

   2.That the father have two hours additional time with the children [J] and [S] on 20 December 2008 at […] Contact Service at […].

   3.That the father be at liberty to forward to an address nominated by the mother, letters, cards and presents for the children.

   4.That the father and mother participate in family therapy to facilitate the children’s time with the father, such therapist to be agreed between the parties other than Dr [S], or as nominated by the Independent Children's Lawyer.

   5.That leave be granted for the reports of Dr [R] to be provided to the family therapist referred to in the previous order.

   6.That the father and mother be guided by the family therapist with respect to an increase in time for the children to be with the father.

   7.That the case be relisted on a date 12 months from the date of these ordes or a date sooner if nominated by the family therapist.

Independent Children's Lawyer

1. The orders sought by the Independent Children's Lawyer in final submissions were as follows:

   1.That all previous parenting orders be discharged.

   2.That [J] born […[ December 1999 and [S] born […] September 2002 (“the children”) live with the mother.

   3.That the mother have sole parental responsibility for the children.

   4.That there be no spend time with periods between the children and the father, and no communication between the father and the children other than as set out in these orders.

   5.That leave be granted to the Independent Children's Lawyer to send a copy of the judgment and Orders to the Department of Community Services within 14 days of receipt, together with the current contact details for the father.

   6.That on or near 1 August and 1 February each year the mother, at her mailing cost, provide to the father, care of his solicitor at his legal cost, the following:-

   6.1A minimum of 5 current photographs of each child.

   6.2A copy of each of the children’s most recent school reports.

   6.3A copy of any medical reports relating to the children’s health and well being.

   6.4A copy of the children’s awards of certificates related to sports, academic achievement and extra curricular activities.

   6.5Any other information relevant to the welfare of the children.

   AND the mother shall be entitled to black out or remove any location identification from these documents or photographs.

   7.That to facilitate order 6 the father keep his solicitor advised of his contact details.

2. The Independent Children's Lawyer said that Order 5 as sought acknowledges the dangers as explained by Dr R that notwithstanding her recommendations, there was still risks in this case for J.  As indicated in paragraph 4 above, there has been some suggestion in the past in this case that foster care for J was a possibility.  Order 5 as sought by the Independent Children's Lawyer is designed with that (what today is a remote) contingency in mind.

3. There was some discussion about how the father would be able to receive the items from the mother referred to in Order 6 as proposed by the Independent Children's Lawyer if the father moved addresses (there being no line of communication between the father and the mother).  The paternal grandfather made an offer to provide an email address to the father as a means of the father informing the mother of a change of address. 

4. On the Independent Children's Lawyer’s proposal, if the father changes address there will also be an onus on him to provide the Department of Community Services with notification of his new address so that the Department will know where he is if they need to contact him in respect of any intervention they have made. 

PREVIOUS ORDERS

1. On 19 June 2006 orders were made in terms of the document titled “Interim Consent Orders” and provided that;

   1.That [J] born […] December 1999 (“[J]”) and [S] born […] September 2002 (collectively “the children”) live with the mother.

   …

   3.That upon successful intake with […] Contact Centre that father have supervised contact with the children for 2 hours, on a monthly basis at times and dates as nominated by the coordinator of [the contact centre].

   …

   8.That the mother forthwith request a referral from her local General Practitioner for [J] to a Paediatric Psychiatrist for non reportable therapeutic intervention for [J’s] psychological/psychiatric problems identified by Dr [R]…

   …

   10. That the mother ensure [J’s] attendance at all appointments with the Paediatric Psychiatrist as nominated by him/her.

   11.That the mother and the father are permitted to consult with the Paediatric psychiatrist if such consultation is requested by him/her, at such times and places nominated by the paediatric psychiatrist. 

   …

   16.That the father is hereby restrained by injunction from questioning the children about where they live or the school, pre school, day care that they are attending.

   …

   20.That the mother and the father are hereby restrained by injunction from:

   20.1Denigrating the other parent or permit any other person to do so in the presence or hearing of the children;

   20.2Discussing these proceedings or any allegations of physical or sexual abuse raised in these proceedings in the presence or hearing of the children or permit any other person to do so;

   20.3Taking either child to any medical professional/ counsellor/therapist with the exception of the children’s treating General Practitioner, or any specialist referral from that treating General Practitioner except in accordance with these Orders or by further Orders of the Court.

2. On 25 June 2007 I made the following orders in relation to the parenting of the children J and S;

   1.1.        By consent, and pursuant to the Family Law Rules, Orders be made in terms of the document entitled “Short Minutes of Consent Orders” and marked as Exhibit “A” as annexed hereto.

   2.…

3. The Short Minutes of Consent Orders referred to above were as follows; 

   1.That [J] born […] December 1999 (“[J]”) and [S] born […] September 2002 (collectively “the children”) live with the mother.

   2.Until the 5^th of October 2007 that the father have supervised contact with the children for two hours on a fortnightly basis at times and on dates as nominated by the co-ordinator of the […] Contact Service.

   3.That the father be responsible for all costs associated with supervised contact in accordance with Order 2.

   4.That the mother do all acts and things to ensure that the children are delivered to the [contact centre] at times nominated by the [contact centre].

   5.That the mother and father adhere to all directions and requirements of the co-ordinator of the [contact centre].

   6.That the mother continue to consult with Dr [S], Paediatric Psychiatrist, with respect to [J] and to attend all appointments with Dr [S] as nominated by her.

   7.That the mother be at liberty to provide Dr [S] and her General Practitioner with copies of all reports from Dr [R].

   8.That the mother and father do all acts and things to ensure their attendance and the attendance of the children upon Dr [R] on 21 September 2007 or such other time to be nominated by Dr [R].

   9.All change overs for unsupervised visits will occur at the [contact centre] or other change over centre agreed by the parties in writing.  Each party will pay their share of change over costs.  In the event that the [contact centre] or other agreed contact centre is unavailable the changeover shall be inside [H] Police Station.

   10.From the 6^th of October 2007 the father shall spend time with the children from 9.00 am to 1.00 pm or for such other four hour period as agreed each Saturday on the provisions that:

   10.1On one month’s written notice to the mother, the father may vary a visit to Sunday from 11.00 am to 3.00 pm or such other four hour period as agreed and as accommodated by [the contact centre] or other relevant change over contact centre; and

   10.2On one month’s written notice to the father, the mother may vary a visit to Sunday 11.00 am to 3.00 pm or such other four hour period as agreed provided same can be accommodated by [the contact centre] or other relevant change over contact centre.

   11.From the 6^th of January 2008 the father shall spend time with the children from 9.00 am to 5.00 pm each Saturday or for such other eight hour period as agreed each Saturday on the provisions that:

   11.1On one month’s written notice to the mother, the father may vary a visit to Sunday from 9.00 am to 5.00 pm or such hours as agreed and as accommodated by [the contact centre] or other relevant change over contact centre; and

   11.2On one month’s written notice to the father, the mother may vary a visit to Sunday 9.00 am to 5.00 pm or such hours as agreed provided same can be accommodated by [the contact centre] or other relevant change over contact centre.

   12The mother may twice a year give notice of varying visits in accordance with Orders 10 and 11 for one day to allow her and the children a free weekend, on condition that such period is made up during the next school holiday period at a date convenient to the father and to the [contact centre].

   13.As close as practicable to the 5/7/08, the parties shall make further appointments with Dr [R].

   14.Commencing the 5^th of July 2008 the father shall spend time with the children:

   14.1Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;

   14.2Time referred to in 14.1 be suspended during school holiday periods and recommence the alternate weekend arrangement the first weekend after the commencement of each school term;

   14.3The first full week during each mid-year school holiday period unless otherwise agreed commencing at 9.00 am on the Saturday and concluding at 9.00 am the following Saturday; and

   14.4For 14 days commencing 24 December 2008 at 9.00 am and each even numbered year thereafter and for 14 days commencing 3 January 2009 at 9.00 am and each odd numbered year thereafter.

   15.The parties shall be equally responsible for the costs of further appointments with Dr [R].

   16.That the mother and father are hereby restrained from:-

   16.1Denigrating the other parent or to permit any other person to do so in the presence or hearing of the children; and

   16.2Discussing these proceedings or any allegations of physical or sexual abuse raised in these proceedings in the presence or hearing of the children or permit any other person to do so with the exception of a medical professional/counsellor therapist recommended by the children’s treating general practitioner or any specialist referral from that general practitioner.

   17.That each party advise the other and keep the other informed of a current mailing address and contact telephone number through which that parent may be reached in the case of an emergency.

   18.That the mother shall ensure the father is kept informed of:-

   18.1Significant medical problems or illnesses; and

   18.2Any medication that has been prescribed for the child that the father will be required to administer.

   19.The mother shall provide copies to the father of all school reports and parent notices provided by each of the children’s school promptly upon receipt of same until Order 20 comes into effect.

   20.From 5 July 2008, or the commencement of overnight periods whichever is later, the mother shall authorise and direct the principal or director of each of the children’s schools or pre-school to discuss with the father all matters relating to the children’s education.

   21.That the father shall keep the children informed of his mobile telephone number and the mother shall ensure the children are allowed if they wish to telephone the father at reasonable times.

   22.The mother shall provide the children with a contact telephone number that the children may use to contact her during overnight visits to the father at reasonable times.

   23.The mother shall provide a communication book that each party will return to the other at the commencement and end of time spent with the children.

   24.The father is prohibited from attending the children’s home without written invitation from the mother in the communication book.

   25.In the event that no Application is brought to re-list the matter before the 5^th of July 2008 then:

   25.1The ICL is discharged as at 5^th July 2008; and

   25.2The matter shall be removed from the Active Pending Cases List.

   26.In the event either party wishes to travel interstate or overseas with the children they must give the other party 28 days notice.

   NOTATION

   1.The Court notes that the father has agreed that during initial unsupervised visits he may utilise the services of a kids and dads playgroup.

   2.That Dr [R] be at liberty to consult with the parties, children, Dr [S], [the contact centre] and the children’s teachers.

   3.In the event that Dr [R] opposes the commencement of Orders 10 or 14, either party or the ICL shall be at liberty to re-list the matter on seven (7) days notice.

   4.The parties intend to communicate issues relating to the children’s welfare and any variation proposed or agreed to the “time with” schedule in the communication book and the use of the book be limited to exchange of this information only.

   5.The father may have work commitments that will require him to change the Saturday periods referred to in Orders 10 and 14 to Sunday or may prevent him seeing the children on some weekends.

   6.The father intends to be available to care for the children during the time he spends with the children during block school holidays.

1. This matter came back before me on 5 November 2007 at the instigation of the former Independent Children's Lawyer. The original orders that had been made by consent proposed that Dr R play a role in the future management of the case. As set out above, notation 3 provided that in the event that Dr R opposed the commencement of Orders 10 to 14 (unsupervised time) the Independent Children's Lawyer had liberty to relist the matter. This is a matter which I then commenced to hear pursuant to the provisions of Division 12A Part VII of the Family Law Act 1975.

2. The Independent Children's Lawyer filed an affidavit on 5 November 2007.  Annexure D to that affidavit was a letter written to the Independent Children's Lawyer by Dr R on 23 October 2007 which is in the following terms:-

   “This is to confirm my telephone call to you last week to inform you that following the family assessment on 10 October 2007 I oppose the children’s time with their father proceeding to the next stage because of the significant deterioration of [J’s] mental state.  It would be in his best interest to return to spending monthly visits with his father in the contact centre.”

3. I was informed by the Independent Children's Lawyer that although the letter only referred to J, Dr R’s actual opposition was in relation to both children moving to the next stage (unsupervised time). 

4. Based on this information, on 5 November 2007 I made the following orders:- 

   …

   2. Order 10 made 25 June 2007 be suspended until further order.

   3.Until further order the father have supervised contact with the children for 2 hours on a monthly basis at times or dates as nominated by the coordinator of […] Contact Service (“[the contact centre]”), first day to be Saturday 17 November 2007.

   ...

5. The matter was relisted before me on 19 November 2007.  On that day I dealt with an application for an updated report and dismissed the father’s application that Dr R be removed as the single expert and that a new single expert be appointed.

6. On that day I had before me an affidavit of the mother sworn 9 November 2007 which annexed a copy of a letter to the Independent Children's Lawyer written by Dr S which was undated but was in the following terms:

   Following our conversation of 18/10/07, I have interviewed [Mrs Fennick], [J’s] mother, regarding [J’s] current mental state.  Given the possible changes to contact, [the mother] has told me of previous death threats from [the father] against herself and her parents if the contact were to change.  Given his previous history of violence, I believe that [the mother] is justified in her fears and that currently the AVO has lapsed.  She has reasonable concerns regarding her safety, the safety of her children and the safety of her parents.

   The children have told me that her ex-husband [the father] (DOB […]/1963) has been saying things to them which I construe as harassing towards the mother and I am concerned that he may try to perpetrate some violence towards [the mother] or her family.

   Thank you for taking this into account when dealing with the case.

7. At that time I asked the Independent Children's Lawyer whether or not she knew what Dr S was referring to in the second paragraph of her letter.  I was informed that the Independent Children's Lawyer did know but that there was no immediate cause for concern and that the allegations that were being referred to were different from the allegations that the mother made in paragraph 19 of her affidavit.  The mother in paragraph 19 of her affidavit said that after J’s contact with his father on 7 October 2007 J said to her:-

   “Dad showed me a knife.  It had a yellow handle.  He said to me ‘this is the knife I am going to stab mum with’.  Dad told me our address.”

8. On 19 November 2007 I left in place the orders made on 5 November and awaited the outcome of Dr R’s further report. 

9. The father saw the children in December 2007 and January 2008.

10. J was hospitalised on 31 January 2008 for about one month in a psychiatric ward at T Hospital in circumstances more fully described below.

11. Neither of the children have seen their father following J’s hospitalisation in January/February 2008. 

12. Following the receipt of Dr R’s final report, on 26 March 2008 I made the following orders:

    1. Pending further order, Orders 2 and 3 made 5 November 2007 are suspended.

    …

    3. The husband’s legal representative not disclose to the husband any material that would identify any address at which the mother or children reside or the school at which the children attend. 

SHORT HISTORY

1. The applicant mother, Mrs Fennick, was born in June 1971 and is 37 years of age. She is not in paid employment and is a homemaker. 

2. The respondent father, Mr Fennick, was born in December 1963 and is 44 years of age. He was born in New Zealand but is a permanent resident of Australia.  He is employed as a factory worker.

3. In about 1993 the parties commenced cohabitation.

4. In May 1999 the parties married.

5. In December 1999 J was born and is 8 years of age.

6. In September 2002 S was born and is 6 years of age. 

7. On 6 September 2005 the parties separated.

8. On 7 November 2007 the parties divorced.

ISSUES

1. The solicitor for the father filed a document dated 1 August 2008 pursuant to orders made by me on 5 June 2008 that provided a statement of the issues to be determined at trial. The issues identified are as follows:

   35.1.Whether it is in the best interests of the children to spend time with the father. The mother seeks an order that the children spend no time with the father. The father seeks orders to spend time with the children.

   35.2.If the Court does find it is the children’s best interests to spend time with the father, the nature of those spend time with and communication orders.

   35.3.Whether the presumption of equal shared responsibility under section 61DA is rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for the father to share with the mother parental responsibility for the children. 

   35.4.Is it in the best interests of the children to make the section 68B injunction as sought by the mother in relation to the father being restrained from:

   35.4.1.Seeking out and/or approaching the children’s residential address or school;

   35.4.2.Seeking out or approaching any other place the children might reasonably be expected to attend;

   35.4.3.Approaching or contacting, or having any third party approach or contact the children.

   35.5.In the circumstances that the mother does not wish the children to spend time with the father at all, whether it is in the best interests of the children to live with their father.

   35.6.If the children live with the father whether it is in the best interests of the children to spend shared or substantial and significant time or lesser time, including supervised time with the mother. 

2. Given the amended application made by counsel for the father orally at the commencement of the final stage of the hearing, issues in subparagraphs 5 and 6 in the preceding paragraphs were no longer relevant. 

DOCUMENTS RELIED ON

1. The following documents are relied upon by the respective parties in this matter:-

Mother

1. Affidavit of the mother sworn 10 May 2006 and 11 May 2006;

2. Affidavit of the mother sworn 28 May 2007 and filed 30 May 2007;

3. Affidavit of the mother sworn 9 November 2007 and filed 12 November 2007. 

4. Affidavit of the mother sworn 19 August 2008 and filed 19 August 2008;   

5. Affidavit of Mr N (family friend) sworn 12 May 2006;

6. Affidavit of Ms L (women’s refuge worker) sworn 15 May 2006 and filed 17 May 2006;

7. Affidavit of the maternal grandfather sworn and filed 19 August 2008.

Father

1. Affidavit of the father sworn 8 May 2006;

2. Affidavit of the father sworn 28 May 2007;

3. Affidavit of the father sworn 15 November 2007;

4. Affidavit of the father sworn 22 August 2008.

Independent Children's Lawyer

1. The initial report of Dr R dated 31 May 2006 and two updating reports dated 26 February 2007 and 14 February 2008 respectively.  

Exhibits

1. Documents were tendered from material produced under subpoena. 

LONG HISTORY

1. The applicant mother, Mrs Fennick, was born in June 1971 and is 37 years of age. The mother is not in paid employment and is a homemaker. 

2. The respondent father, Mr Fennick, was born in December 1963 and is 44 years of age. He was born in New Zealand but is a permanent resident of Australia.  He is employed as a factory worker.

3. In about 1993 the mother asserts the parties commenced cohabitation (the father asserts it was 1996 – see below). The mother asserts that the relationship was one of “significant violence” up to separation perpetrated by the father towards both the mother and the children, including inappropriate discipline of the children. The mother asserts that the father’s illicit and prescription drug use contributed to this.

4. The father says that the mother had told him throughout the marriage that she was sexually abused by her stepfather, cousin and brother but that the stepmother refused to accept that anything happened.

5. In 1996 the father says the parties commenced cohabitation in rented accommodation and then the parties bought their first house together in 1997 in the Blue Mountains region which was purchased with funds from the father’s inheritance and a mortgage. At the time of cohabitation, the father says that the mother worked as a caterer and he obtained work with F Company as a factory worker.  The father asserts that about this time the mother told him that she had worked as an adult entertainer in Queensland.

6. In about early 1999 the father says the mother had said to him that she wanted to open an adult entertainment business in the Blue Mountain region as a way to make money and that she would only be doing the administrative and operative side of the business; based on this he agreed. The father says the business operated for about four to five months until just before the mother found out that she was pregnant with J.

7. In May 1999 the parties married.

8. In December 1999 J was born and is 8 years of age.

9. The father says that about 6-8 months after the birth of son J that the mother returned to work, working in adult entertainment venues in Sydney for about 4 to 5 months.  The father says that when he started at F Company he worked long hours but that he did what he could to help raise J.

10. In 2002 the father asserts that the parties sold the house in the Blue Mountains and moved to a home at P.

11. In September 2002 S was born and is 6 years of age. 

12. During 2005 the mother asserts that J displayed deteriorating behaviour and was getting in trouble at school for fighting and other unacceptable behaviour. 

13. On 15 July 2005 there was an incident of violence between the mother and father and the father and J, involving allegations of choking and other physical violence. This incident is discussed below.  There are also allegations by the mother regarding indecent assault of J by the father.  The mother’s allegation of sexual abuse against the father was not the subject of any concerted questioning of either the mother or the father and were not seriously pressed during the hearing.

14. In or about late July to early August 2005 there was an incident involving the daughter S riding a shopping trolley pushed by the father, and the subsequent injury to the child. This issue will be discussed in detail later.

15. On 6 September 2005 the parties separated and the mother and children moved out and went to reside at E Women’s Refuge. The mother and workers at the refuge assert that J’s behaviour deteriorated and that he grew more fearful of his father finding the family.

16. On 29 September 2005 the mother says that she took S and J to the Sexual Assault Unit at Westmead Hospital but that the subsequent examination did not find evidence of sexual assault. This was after a recent visit to the doctor indicated that the child had an infection/ was displaying redness of her genital area and the child alleging that the father had inappropriately touched her.  Again these allegations were not the subject of any testing of the father. 

17. On 6 April 2006 a final AVO was made restraining the father having contact with the children and the mother except pursuant to orders made under the Family Law Act.

18. On 19 June 2006 orders were made in the Family Court of Australia that the father have contact at a Contact Centre with the children for two hours per month (the important parts of that order are set out above). 

19. On 5 May 2007 the father commenced fortnightly supervised contact at the Contact Centre for two hours. 

20. On 25 June 2007 orders were made by me (as set out above) and the father continued to see the children in accordance with those orders (ie: fortnightly visits) until about the end of September 2007.

21. 5 November 2007 orders were made by me (as set out above) that the supervised contact return to monthly.

22. On 7 November 2007 the parties divorced.

23. In or about late 2007 to early 2008 the mother asserts that J’s behaviour continued to deteriorate. On 31 January 2008 J was hospitalised for about one month in a psychiatric ward following incidents of threatened self harm and violence towards the mother.

24. On 26 March 2008 orders were made by me that pending further order that the father spend no time with the children.  He has not seen the children since then. 

25. Following his discharge from hospital and ceasing contact with the father, the mother asserts that there had been significant improvement in the behaviour of J both at home and at school. 

CREDIT

1. Both parties have given very different versions of particular events.

2. I am unable to accept the mother’s evidence in relation to certain matters that are particularised later.

3. On the other hand, I am unable to accept the father’s version of events particularly as they relate to the level of his aggression in the household while the parties and the children lived together as a family unit. 

4. Consequently, where there is a difference in the evidence between the parties about factual matters, I will attempt to determine those matters by way of other evidence or on the basis of which version is more inherently likely.

5. In the end, findings of credit in this case do not greatly effect the outcome.  As Dr R says in her final report, which parent is more accurately recording history at the current time is not relevant to how J’s fears are to be dealt with. 

PARTICULAR MATTERS

J’s problems

1. Dr R referred to the two “very serious” de-compensations that J has experienced.  The most recent and the most dramatic was J’s hospitalisation in January/February 2008 for a period of about one month. 

2. The second de-compensation was an earlier one shortly after the separation.  It happened whilst the mother and the two children were living in the E Refuge.  There is a description by Ms L contained in an affidavit sworn 15 May 2006.  Her evidence goes to J’s behaviour at the refuge which included J requiring “hidey holes” and J hearing voices and it is discussed in detail below.

3. J’s problems are not recent.  A note from P Primary School (Exhibit H) dated 23 June 2005 evidences a meeting at the school requested by the mother.  It is noted that the mother reports that J’s mood changes quickly at home and that only since he joined the school had he been learning social skills.  The note records that at home J behaves in an unusual way, getting distressed and agitated, not being able to tolerate music and behaving in an erratic manner.  The mother said she had to actually get down to his level and physically make eye contact and ask him to repeat the instruction that she had given him.  He could be very disorganised and fixates on certain toys.  The mother records that as a baby he did not like being cuddled and stiffened up when other’s hugged him.  He did not really cry even if physically hurt. When he did cry he sobbed for a long time.

4. The mother says in her affidavit sworn 10 May 2006 that it was in 2005 that she noticed disturbances with J and a decline in his behaviour.  The mother says that when J was in kindergarten he was getting in trouble for fighting and swearing (getting white cards) and there was one incident where J reported hearing voices in his head (para 10(a)).  The mother says there was one occurrence when the child brought home a white card for fighting and the father praised him for it (paragraph 10(b)). The mother says that by September 2005 she was told by the kindergarten coordinator that if J was issued with another white card then DoCS would have to be notified (paragraph 10(b)). J became increasingly difficult to control and discipline.  J’s semester 1 report from P Public School in 2005 recorded that J has had some difficulties adjusting to school expectations especially in the playground. The report otherwise is fairly positive in relation to his behaviour.  There is no indication in the school records (Exhibit G) of the matters to which the mother refers, although it may be that it would not be normal for “white cards” to be recorded in kindergarten school records. 

5. The father seemed to wish to challenge the mother’s evidence and tendered an entry from J’s current school which indicated that on 13 March 2006 J’s classroom teachers provided an assessment which said inter alia:-

   “[J’s] mum was concerned about possible violence on [J’s] part towards his fellow students but we have seen no evidence of this since [J’s] arrival at the school.  There has been no evidence of self-mutilation or excessive visits to the toilet.”

   This assessment is from 2006 and from a different school to the one J attended in 2005 and so is not directly relevant. 

6. The document details some concerns that they had about J, including that he spoke loudly and sometimes did not hear instructions, but generally the assessment of J at that date is a positive one. 

7. In her affidavit sworn 28 May 2007 the mother says that J stopped acting in certain ways (paragraph 9); he no longer collects sticks as weapons to protect him against the possible arrival of the father, he no longer has hidey holes or cubby holes, he no longer pulls out his hair or bangs his head on walls, he no longer gets in fights at school and in 2007 there was only one incident of fighting or violent behaviour (paragraph 9). The mother says that J has become more considerate and thoughtful of others (paragraph 9) and his concentration and focus on tasks has improved significantly in contrast to previously being active and fidgety (paragraph 10). He also displayed a dramatic improvement in his overall achievement in school subjects and had been involved in a play at school (paragraph 11). 

8. On or about December 2006 the mother says that following contact with his father, J said to her words to the effect of “Dad said he knows where we live, what our telephone number is, and where we are going for Christmas” and around time that the children both said to her words to the effect of “Dad told us he knows where we live and he’s allowed to come here because the laws have changed” (paragraph 17). The mother says it was around this time that J refused to sleep in his own room and refused to go to bed until he had checked all the locks on the doors (paragraph 17). The mother asserts that on another occasion that J said words to the effect of: “Dad said he hates you and he hates grandad” to which J added, “That really hurt me mum” (paragraph 17). The mother says that before Christmas 2006 that the father brought a birthday cake to the contact centre because of J’s birthday being in late December; the mother says that J took the cake home but would not let anyone eat it (paragraph 18).  The evidence was that J thought his father had poisoned the cake. 

9. In her affidavit sworn 19 August 2008 the mother asserts that there were a number of occasions during the second half of 2007 and January 2008 where she found “[J] with electrical cords wrapped around his neck and imitating hanging sequences” (paragraph 7). J also engaged in self harm such as cutting and slashing his legs and arms with toys and sticks to draw blood, thrusting a butter knife into his stomach, attempting to stab the neighbour’s cat and becoming increasingly violent at school and home (wanting to fight the mother and S and fight older, bigger boys at school) (paragraph 7).

1. The mother says that immediately before the January 2008 incident (which resulted in hospitalisation) J had cut his pet lizards into small pieces after caring for the lizards for a long period of time and devoting much time to them (paragraph 7). The mother says that there was one occasion in January 2008 that J tried to stab her with a carving fork and she called the police (paragraph 8). The mother says that when the police asked J why he did it J replied, “Because mum makes me go back to see dad” (paragraph 8).

2. J told Dr W something similar to the last sentence in paragraph 90 on 5 February 2008. 

3. The mother says that during the second half of 2007 and early 2008 that J would go into fits of rage, screaming uncontrollably/rock back and forth while screaming, cry and sometimes become incontinent and she became scared and distressed (paragraph 8). 

4. At paragraph 9 of her affidavit sworn 19 August 2008 the mother describes J’s first day back at school for 2008 that was on or about 30 January 2008 and the events leading to J’s hospitalisation;

   He came home from school that day and he seemed to break down completely. He started to scream and shriek. He sat on the floor in the corner of his room with both hands to his head and he rocked back and forth. He started gouging at the carpet with toys and sharp objects and he started to rip the carpet up. His eyes changed in their appearance. He then became violent and hit me. He kept wanting to fight me. He was screaming. He had kicked and punched holes in the walls of his room. It was terrifying and I did not know what I could do to control him or alleviate his state. I rang the area mental health team and an ambulance and police attended. They would not approach [J] until I gave him his medication…[J] was initially conveyed by ambulance to [D] Hospital where a psychiatric team was waiting. He was restrained and put in isolation…The next day [J] was assessed and transferred to [T Hospital] and admitted to the […] ward, being the psychiatric ward of the hospital and he was to stay there for a month. (paragraph 9)     

5. Upon his admission to T Hospital on 31 January 2008, J’s treating psychiatrist was Dr C (assisted staff included Dr W, a psychiatric registrar).  When Dr W saw J on 5 February 2008 (at about 2.30pm),  he made the following notes about what J said:-

   “I know why I am here but I don’t think I need to be here.”

6. Dr W told J it would help us to help him:

   “I tried to hurt mum.

   I feel pretty bad about it.

   It has happened a few times before over the last few weeks.

   I hated seeing my dad and mum wouldn’t do anything to stop it, I might hurt her because she won’t stop me seeing her (sic).

   Re:  Dad

   He upsets me.  He says bad things about mum.  I could try and fight him but there is too many contact people around.  They don’t really watch us, they sit around drinking coffee.”

7. Ms I in her evidence denied that the supervisors were not attentive.  She conceded that, although father and children might be observed running around the large outdoor play area, there might be occasions during those times when it would be possible for the father to communicate with J in a way that was not audible to the supervisors.  Ms I’s evidence was that in the main however, conversations between the father and the children were monitored and that it was not a case that the children were left alone with their father.

8. Dr R had a conversation with Dr C prior to 14 February 2008 and she records that Dr C gave her the following information:

   “At times he displayed a hostile attitude and bravado – he wanted to go home and protect his mother, made inappropriate sexual comments and he was able to “take on adults”. He had spoken somewhat of his fear of contact with his father and his anger with his mother for not stopping it. Dr [C] wondered if [J] warranted a diagnoses of complex PTSD and will continue to assess him as an inpatient for possibly another week.”  (Annexure B, page 7)

9. Dr S was of the view that J had suffered and is suffering from post traumatic stress disorder.  I am unable one way or the other to say whether or not that diagnosis is accurate.  Dr R was not pressed to make a conclusive diagnosis of J’s problems and in summary her evidence saw the mother’s fears as a significant part of J’s problems.  

10. At paragraph 10 of her affidavit sworn 19 August 2008 the mother asserts that in the months leading up to the hospitalisation that she was finding J increasing hard to handle and felt she was losing control of the situation despite assistance from her parents.  After J was discharged from the hospital, he returned to live with the mother (paragraph 10).

11. The mother says that J’s behaviour and adjustment has markedly improved following hospitalisation and ceasing contact with the father (paragraph 11). The mother says that his attitude and performance at school has improved and that he is completing his homework on time, is engaged in his school projects and is well organised (paragraph 12). In May 2008 J received an “Assistant Principal’s Award” which is given to children displaying consistently good behaviour, application and achievement and his name was published in the school’s weekly newsletter (paragraph 12).  In contrast to 2007 the mother says that she no longer has to drag J out of bed to get ready for school;  now J frequently leaves early to get to school so that he can play with his friends before school starts (paragraph 13). An “Action Plan” has been developed at the T Hospital for J to help him to control his anger (if it arises) and a DoCS Life Care Officer has been allocated to J to engage J in meaningful activities outside of school (paragraph 14).  The mother says that when J is with the Life Care Officer, S spends time with the mother’s parents (paragraph 14). Both children attend gymnastics a couple of times a week (paragraph 14).

12. The mother says that since the discharge from hospital that J’s violence has declined significantly, he has started using his “Action Plan” to control his anger and when he does fight with S it is like normal brother/sister fights; there have been no incidences of violence towards S or the mother; J has only self harmed once when he scratched hard at his legs drawing blood but this was when he first came home form hospital and his previous scars were healing (paragraph 15).

13. The mother says that the children were sleeping in their own beds prior to supervised contact commencing in 2006 but then wanted to sleep with her and J insisted that the dog sleep at the foot of the bed; the children refused to sleep in their own rooms (paragraph 16). The mother says that in about June 2008 J moved into his own bed in his room and no longer requires the dog to sleep at the foot of the bed but S is still resistant to sleep in her own bed (paragraph 16).  

14. The maternal grandfather gave evidence that it had on occasions been particularly difficult for the mother to get J to get ready to come in the motor vehicle to be taken to see his father.

15. The maternal grandfather commented that after J came out of hospital in February he noticed significant changes in J’s demeanour and general improvement in his behaviour.  He says that both children are now sleeping in their own beds when they stay with him.  I was generally impressed with the maternal grandfather’s evidence.  He is J’s “fishing buddy” and he commented that J is now content to sit and fish and talk in contrast to previously losing interest if he did not catch anything immediately.  Generally, he commented that J now appears to be more like a child of his age. 

16. I accept the description of J’s behaviour as related by the mother as I have detailed it in paragraphs 83, 84, 87, 88, 89, 90, 92, 93, 99, 100, 101 and 102.

The events of 15 July 2005

1. The mother says that an example of the father’s aggression and unpredictable behaviour occurred on 15 July 2005. The mother’s version of events on this day is detailed in her affidavit sworn 10 May 2006. At the time of the incident the mother says she was bathing S and for no reason the father went into J’s room and proceeded to throw objects including J’s toys around his room and the hallway, with J pleading with the father not to kill him, to which the father responded, “You can blame your mother for this” (paragraph 14).

2. Later that night the mother says the father approached her in the kitchen, pushed her and grabbed her by the throat (lifting her off the ground), drew his hand back (as if he was going to punch her) but subsequently released the hold (paragraph 15). The mother says that S was screaming and sobbing and J later said to her that the father had also placed his hands around J’s neck, mimicking the action (paragraph 15).  The mother says they were then moved into the lounge room by the father and told to sit down and not move; the mother asserts that when S attempted to stand up the father kicked her in the legs with his steel capped work boots (paragraph 16). The father refutes this and says that he does not bring home his steel capped boots he wears for work (paragraph 66 of husband’s affidavit sworn 8 May 2006).  I am unable, on balance, to find that the father kicked S’s legs with steel capped boots.  Later that night the mother says J reiterated that the father had tried to choke him and once again mimicked the action (paragraph 17). The mother asserts that later that night the father had non consensual sexual intercourse with her (paragraph 18). The father refutes that sexual relations occurred that night (paragraph 68 of husband’s affidavit sworn 8 May 2006).

3. On the following day (16 July 2006) the mother says J had said to her that “Daddy put a rocket up my bum” (referring to the toy gun from one of his Transformer toys) (paragraph 19).  

4. The father’s version of the events of 15 July 2005 are that he returned home from work early due to feeling unwell (paragraph 38). He says that he had words with the mother regarding their family expenses and the need to reduce them but says that the mother told him that she hated him; in response, the father says he became upset and pushed her and then the mother bumped her head on the kitchen cupboard door (paragraph 40).

5. In his affidavit, the father says that he then saw J standing in the hallway.  This was inconsistent with the oral evidence that he gave that J did not see any incident of violence between his parents on this occasion. 

6. The father asserts that following this he walked to J’s room with J and, upon seeing the room untidy, said words to the effect of: “Come on [J], you are so slow, you need a rocket up your arse. I want this room cleaned up and then it will be bed time” (paragraph 41) or something like: “You are slower than a wet weekend” (paragraph 69).  When Dr R asked J about the father putting a rocket in his bottom, J replied by saying it was a “rock” (page 7 of her first report).  The father says that he subsequently read J a bedtime story (paragraph 42). The father says that after the incident involving the cupboard door that the parties had discussions about him moving out but that did not occur (paragraph 43). 

7. I conclude that on 15 July 2008:

   112.1.The father took the mother by the throat;

   112.2.J saw this happen.

8. I am unable to conclude to the requisite standard that the father had non consensual sex with the mother on this date.

9. I find that there is no unacceptable risk that J was sexually interfered with by the father on this day. 

Sexually explicit behaviour by S

1. About two weeks prior to separation (about late August 2005) there was an incident regarding J and S in the bathroom. In her affidavit sworn 10 May 2006 the mother says the father came out of the bathroom and said to her that S was performing fellatio on J in the bath and the father did not appear to take any action regarding the matter (paragraph 21). The mother says that the event caused J distress and J was worried that S would get in trouble if he talked about it (paragraph 21).

2. The father refutes that he responded to the fellatio incident in the way asserted by the mother, saying that when he thought that S may put her mouth over J’s penis that he told them to “cut that out” and subsequently sought the mother’s assistance, after which the mother went and spoke to the children (paragraph 71 of husband’s affidavit sworn 8 May 2006).

The shopping trolley incident

1. In late July to early August 2005 the mother says in her affidavit sworn 10 May 2006 that there was an incident at the shopping mall as S was riding a shopping trolley pushed by the father (paragraph 20). When returning to the family car S became upset when her foot caught in the wheel of the trolley and the mother says the father ignored S’s distress, started to laugh and proceeded to keep pushing the trolley to the car (paragraph 20). The mother says that S continued to act out the event after it happened and stated that “Daddy hurt me” (paragraph 20).

2. The father at paragraph 45 of his affidavit sworn 8 May 2006 gives a very different version of this event and I am unable to say which version is more accurate. 

Dr S’s evidence

1. Dr S is J’s treating psychiatrist.  Tendered in evidence as Exhibit E were various bundles of records subpoenaed to the court from time to time from Dr S being her notes of her consultations with J and the mother.  Dr S has been qualified as a child psychiatrist for 3 ½ years and has been treating J for about two years of that time.  Dr S’s notes indicated that she first saw J on 28 July 2006.  Dr S gave evidence by electronic means not having filed any affidavit or made any statement. 

2. Dr S became involved as a result of recommendations made by Dr R. 

3. The recommendations in Dr R’s first report which flow from her discussion about the underlying causes of J’s problem were in the following terms, inter alia:-

   121.1.Contact should commence on a supervised basis in a contact centre once a month at this frequency to promote familiarisation with a non threatening father and to give [the mother] time to manage her anxieties. 

   121.2.Professional psychological help for [the mother] and [J] individually.  As well, family therapy would assist with parenting.

   The orders that were made on 19 June 2006 required the mother to arrange for a non reportable therapeutic intervention for J by a paediatric psychiatrist (Order 8) and permitted the mother and father to consult with that paediatric psychiatrist if such consultation was requested by that parent (Order 11).  It is agreed that the father made no request to be involved with Dr S but it also seemed that it was conceded that Dr S could have carried out the family therapy recommended by Dr R had everybody agreed for that to happen. 

4. Dr S’s evidence was that the mother gave her an ultimatum.  The mother’s fears were such that she was not prepared to engage in therapeutic counselling with the father and indicated that she would withdraw from the process if Dr S insisted upon that.  The mother also provided Dr S with information about the father which disturbed Dr S.  Dr S indicated that she was not prepared to see the father alone and she made the decision to involve herself in therapeutic counselling for J without the father being involved. This is not what Dr R had in mind.  It is, however, what has happened in the last two years.

5. Dr S said that she was not treating the mother for her own mental health issues.  It was put to her that the mother would benefit greatly from therapy to deal with the problems that she had arising from being sexually abused in her younger years.  Dr S said that this type of therapy could take two to three years on a weekly basis and during that time the mother would get very upset and that would destabilise her and that for a mother of younger children Dr S doubted whether or not the mother would have the time to involve herself in that activity without it impacting negatively upon the mother’s ability to parent the children. 

6. As Dr S explained, she spent some time working with the mother with a focus on improving the mother’s parenting skills as part of the therapy that she is providing for J.  She has not attempted to treat the mother in respect of issues that she may have arising from historical matters such as the sexual abuse of the mother when she was younger.

7. Dr S made it clear that she had never seen the father and did not pretend that she approached the dispute between the mother and the father with any objectivity. Dr S freely admitted that her therapy of J had proceeded by her accepting what the mother had told her.  Dr S agreed that she did not know if the mother was exaggerating.  She did however add that she had additional information from other sources.  Those other sources, most importantly, included J.  They also included Mr O, the school chaplain at J’s school, who had obtained considerable information from J (see paragraphs 145 - 149).

8. Dr S also made it clear that not having seen the father she was not doing any analysis as to the effects of the interaction between the parents in the past upon J.  She was making a diagnosis of J’s condition and treating the symptoms.  Dr S was clearly of the view that the father had a history of violence and that J had witnessed some things when he was young which had left scars on him.  She was treating J’s scars.  Dr S clearly had formed the view that seeing J’s father triggered something in J that meant that J seeing his father was a significant risk for J’s future mental status.  J believed his father was a potential murderer and so does J’s mother.  Dr S said it was very difficult to change the mother’s perceptions and that her belief was extremely engrained.  Dr S did not see it as part of her role in any event to attempt to disabuse the mother of those fears. 

9. Dr S was of the view that both the mother and J have a devastating fear of the father.

10. Dr S said that her goal was to stabilise J’s behaviour and to try and get him into a position where he could tolerate contact with his father.  Her battle was to simply treat what was happening at the time for J.  Dr S formed the view that support from the father or involvement of the father in her therapy would not have been useful. 

11. Dr S agreed that her role in treating J came about as a result of orders made on 19 June 2006 (particularly Orders 8 and 11). 

12. Dr S had been forwarded a copy of the notes from the Contact Centre (Exhibit F).  Dr S did not think the notes were useful either way in helping to determine what should happen in J’s best interests.

13. Dr S was taken to the parts of the contact centre’s notes where J on 23 August 2007 was noted as saying that he wanted four hours with his father, he did not like the contact centre, he was bored with it and he wanted time away from it.  She was also taken to a quote which had J saying to his mother that he wanted to go and live with his father.

14. Dr S referred to the latter as a primitive defence mechanism known as “splitting”. That is, J was making a threat to his mother to try and get his own way but a threat that J would have had no intention to implement. 

15. Dr S was referred to some behaviours by J at the contact centre where J clearly was oppositional to his father.  It was put to Dr S that if J was truly terrified of his father then that condition could not co-exist with oppositional behaviour by J towards his father.  Dr S disagreed with that proposition and said that the two were not mutually exclusive.  She described J as the type of boy who would act tough on the surface but who was a very vulnerable boy. 

16. Dr S formed the view that in about October 2007 J had started to decompensate.  At that point Dr S started J on medication.  Her aim was to minimise the risk of J deliberating harming himself and reducing J’s hyperactivity.  The initial drugs prescribed did not have much affect and Dr S went on to prescribe an anti depressant for J’s anxiety.

Dr S’s conversation with Dr W

1. Dr S was cross examined about a conversation that she had with a doctor at T Hospital on 5 February 2008.  Dr S had not herself taken any notes of her conversation with Dr W.  The records of T Hospital contain an entry which indicates that Dr W (who is a psychiatric registrar) at about 11am on 5 February 2008 telephoned Dr S.  The record indicates that Dr S told Dr W that she has known J for two years in the midst of family court cases and animosity between the parents.  The note continues:-

   -Dr [S] never met father ([Mr Fennick]) but thinks from what she’s heard that he’s a psychopath (charming on surface, nasty underneath). 

   -[Ms R] (court officer) has interviewed father who has apparently come across quite well (but? is she changing her opinion). 

   -Court’s saying mother is transferring her anxiety onto kids.

   Dr [S] says:

   -During contact – father making threats to mother and tells [J] if he stops seeing him he will kill [J] as well. 

   -[J] vomits prior contact

   -Is upset rest of week

   -Started bed wetting

   -Erratic violent behaviour

   -Goal in life is to protect mother by killing father

   -Only goes to contact to protect sister

   -Mother alleges sexual abuse (penetrating) & DV to kids

   Time line

   -2006 doing well

   -But were increasing contact with graded contact working towards o’night leave

   -Then ‘went of rails’ [sic]

   -Medications

   ·    Fluvoxamine with good effect – 150mg now

   ·    End of 2007 increase violence – 1mg risp which initially worked well

   Ax: fear reaction to increase contact with dad. 

   Happy to be called

   Dr [W], Registrar

1. Dr S said that the source of the information that she relied upon to make the comment that she did to Dr W (namely that ‘never met father ([Mr Fennick]) but thinks from what she has heard that he is a psychopath (charming on the surface, nasty underneath)) was made as a result of what J had told her and what she had been told by Mr O.  She had been told by J that the father was sending messages back through the children.  She conceded she was not sure whether or not that had ever happened.  Dr S did not say that she was making a diagnosis of the father as a psychopath and that the opinion she expressed was not binding and she did not say it in court.

2. Dr S insisted that she was not giving a diagnosis to the psychiatric registrar but I am unable to be confident that the psychiatric registrar would have interpreted it in that way. 

3. Dr S has been criticised in submissions for not making it clear to Dr W when she was talking to him that she had made no diagnosis of the father as being a psychopath.  Dr S did make it clear when making that statement that she had not seen the father and she might have assumed that a psychiatric registrar would understand that a psychiatrist who had not seen somebody would not normally be in a position to make a diagnosis.  Dr R has diagnosed the father as having certain traits which exist in people who otherwise have a psychopathic personality disorder but Dr R in her first report did not conclude that the father had a personality disorder.  It would have been helpful if Dr S had given that complete picture but I am not over critical of Dr S in that regard.  She had information from J and from the school chaplain which would point in the direction of the father having psychopathic personality traits.  It would have been helpful if Dr S was clearer to Dr W about what she meant by using the shorthand term “psychopath”. 

4. Dr R agreed that it was inappropriate for Dr S to have provided the description of the father which she did. Dr R was asked whether or not the treating psychiatrist, Dr C, would have relied upon Dr W’s notes.  Dr R said that she had spoken to Dr C and given her information. She said it was possible that Dr C had read the notes but in her view, given that Dr C saw J over a four week period and would have received a lot of information from those treating him during that period, that she would have made up her own assessment and that she was not concerned that anything that Dr S said might have influenced the diagnosis that Dr C had made. 

5. Counsel for the father described Dr S’s evidence as singularly unhelpful, saying she did not do what Dr R recommended at page 22 of Dr R’s May 2006 report and asserting she became an advocate in the mother’s cause.  It was submitted the clearest example of her bias was her description of the father to the psychiatric registrar at T Hospital as being a psychopath. 

6. The Independent Children's Lawyer concluded that if Dr S’s evidence was the only evidence of an expert nature available to me then I would hesitate before accepting her recommendations.  The Independent Children's Lawyer submitted that Dr S’s evidence was unhelpful, partisan and criticised her for being unable to countenance any other cause for J’s behaviour than the trauma that J had been exposed to during the period of time that he lived with his parents when his parents were together.  I accept Dr S placed great weight on a history of the father’s aggressive behaviour during the cohabitation as the prime cause of J’s problems but it would be to misrepresent Dr S’s evidence to say Dr S failed to countenance any other contributing cause of J’s symptoms.  Dr S admitted that the mother’s anxiety and fears were part of J’s problem.  I find though that Dr S too lightly discounted positive statements about the father (notes as to kissing and cuddling and positive interaction during the contact events) by saying the notes were not helpful.  I do not accept Dr S’s opinion about those notes.  I think Dr S can be criticised for not placing any weight on what is in the records from the Contact Centre but again that criticism is not of any great substance given the larger picture confronting Dr S.

7. Counsel for the mother accepted the criticisms of Dr S but said I could still rely upon her clinical findings.  She has diagnosed J with significant post traumatic stress disorder.  Counsel for the mother submitted that the mother’s evidence in relation to domestic violence was not successfully challenged (here she referred to the evidence of Ms L and the first decompensation as described by Dr R).  Given Ms L’s unchallenged evidence, I do not dismiss lightly Dr S’s diagnosis that J at the age of 8, has post traumatic stress disorder but as I have already said, I am unable to say one way or another whether that diagnosis is accurate.  Whatever label is put on J’s problems I find they were significantly caused as a result of aggressive behaviour by the father during cohabitation.  I do find however that the mother’s current fears contribute in a significant way to J’s current problems.  I discuss below whether the mother’s fears are objectively based. 

8. The deficiencies of Dr S’s evidence are not critical in this case given that I am greatly assisted by the evidence of Dr R who has seen the father on a number of occasions with the children and has had available to her a larger range of material than Dr S.

9. I find Dr S has attempted to treat J’s complex problems in a professional manner.

J’s conversations with Mr O

1. As already mentioned, Mr O is the school chaplain at J’s school. 

2. J had been involved in the program run by Mr O which helped children deal with family breakdown. At page 7 of the report Dr R makes the following comments;

   “Mr [O] described [J] as slowly opening up to him over the term. [J] had disclosed that his father had made threats to him and about his mother. [J] had chopped up one of his lizards in his bedroom and then attacked himself out of guilt. He had also killed a friend’s lizard.”

3. Both Dr S and Dr W have spoken to Mr O.  In February 2008 Mr O had known J for six months and he told Dr W that he was not surprised by the admission.  Dr W’s notes record that Mr O had been told by J that J hates seeing his dad; that his role in life was to protect his mum and to kill his dad; that his dad tried to drown him when he was four years of age; that J had witnessed domestic violence towards the mother and he goes on contact to protect his sister; that it is supposed to be supervised but it is not and that his dad tells him that he is going to kill his mother.  Mr O indicated that he was aware of J’s self harming by cutting, putting a blind cord around his neck and trying to get bitten by redback spiders.  J also displayed other erratic and violent behaviour including mutilating his pet lizards. 

4. Dr W’s notes indicate that Mr O told Dr W that J had reported to Mr O the ways that dad had threatened his mother through J which included for example:

   148.1.“took box home to mum full of wedding photographs with fire arm licence on top”;

   148.2.took photo of holding an knife to mum – taken at party.

5. These “threats” are discussed below. 

Dr R’s evidence

1. Counsel for the father indicated that he intended to challenge Dr R’s opinion on the basis that Dr R had relied upon flawed information from Dr S.  Counsel for the father did not ask Dr R any questions which would have attempted to establish that she had done so, nor was that proposition otherwise established.  Dr R conceded that to some small degree she had relied upon information that Dr S had given her, but unlike Dr S, Dr R has had the advantage of observing the whole family on four occasions, including multiple interviews with J.  Dr R has also had information from Mr O who has been told things by J, she has had conversations with Dr C about her observations whilst J was hospitalised and has reviewed most of the material exhibited at the hearing. 

2. Dr R provides compelling evidence which has been of great assistance in determining the outcome of the case.  I was impressed by the objective way in which she answered questions and made concessions.  On a number of occasions she took her time to consider difficult questions and responded in a thoughtful way. Once all the evidence is looked at as a whole, I find that the recommendations that she has made should be accepted.   

3. Dr R provided three reports dated 31 May 2006, 26 February 2007 and 14 February 2008. 

4. Prior to her giving oral evidence she had been provided with a copy of Dr S’s notes and a copy of the notes of the supervisors at the contact centre. 

5. Dr R confirmed that on the first occasion in May 2006, in her observations between the children and their father, she saw nothing that would indicate that the children were frightened of their father. She says this was a possibility given the initial reaction, particularly of S, but she did not place any emphasis upon it. 

6. Dr R said at page 20 of her report dated 31 May 2006:- 

   “The therapist assisting him needs to be aware that [J] has been traumatised as much (or more) by the parental interactions, and his mother’s subsequent fears, as by his own experiences of physical abuse by his father.”

7. At the subsequent assessment in February 2007 she said one of the things that she noted at that time was J’s very pressured speech. This, she said, could be a fear response but it also could be a symptom of anxiety and part of how J is naturally.

8. In the final assessment conducted on 10 October 2007, J was quite angry and out of control.  He was still pressured.  Dr R was concerned about his demeanour at that time and her concern was such that she thought that his demeanour may give way to something far more serious. 

9. Dr R agreed any fear the children had of their father might have been pushed into the background by the fact that on the majority of occasions the father rewarded the children with toys or money.  Dr R was not as dismissive in respect of the notes made by the supervisors of the contact centre as was Dr S. She said they were useful in the sense that they confirmed that what she saw during her observations also took place outside her office. Dr R agreed with Dr S’s assessment that when J challenged his father, that type of oppositional behaviour was not inconsistent with him also having some fear of his father.

10. Dr R said that when she saw J in October 2007 he had started to de-compensate. He was taking on the bigger boys at school, he was taking on his mother, taking on his maternal grandparents and during that assessment he took on Dr R herself.  His school performance was off, his behaviour was off and he was atrocious during the assessment with her.

11. Dr R said that there was nothing that she had read in Dr S’s notes nor in the notes from the contact centre nor from her meetings with J and his parents that would change her view that J’s trauma primarily has three sources:-

    160.1.parental interaction observed by J whilst the parties were together;

    160.2.his mother’s fears;

    160.3.J’s own experiences of physical abuse by his father.

12. Dr R said that she was concerned to read in Dr S’s notes that at the most recent consultation with Dr S for which we have notes (October 2008), the child S is starting to say the same type of things that J has been saying.  Dr R commented that it appears that there is a lot of fear in the mother’s household and it is also clear that the mother’s own fears are part of a circular dynamic.  Dr R said that the feeding of fear overloads the system and the weakest link, namely J, gave way.  Dr R was asked, given that the father had not seen S for eight months as at 18 August 2008, how it could be that the father had played some part in S’s current presentation.  Dr S had referred to the development of an infant brain in circumstances where the infant is exposed to high anxiety.  Dr R gave a fuller explanation as to the physiological effect of the flooding of an infant brain with cortozol (a hormone). The brain develops in a different way neurologically and is prediposed to developing anxiety as a result.  Also in this family there is the question of genetics.  Dr R referred to the family history of anxiety.  If however life has not been as horrific as the mother paints it, then this explanation as to S’s current presentation is not as powerful and it is more likely that the dynamic currently at play in the mother’s household, arising from the mother’s fears, play a bigger part in the aetiology of S’s current presentation. Dr R was asked about whether or not there is any reasonable prognosis for the mother’s current level of fear being reduced. Dr R said that she believed that there was and that if the stimuli for the mother’s fear was removed, then although fear of the father would still remain, Dr R opined that it would not remain at the same level of intensity.

13. In cross examination by counsel for the father, Dr R agreed that prior to her first report she was aware of a de-compensating event at the refuge.  Notwithstanding that she had recommended family therapy and supervised contact, Dr R explained that at that time she thought there was sufficient life in the relationship between the father and the children to attempt to improve and re-establish it.  Speaking generally, Dr R said that she is very concerned about children who are just left with a negative image about one of their parents.

The box delivered to the mother

1. Exhibit J is a photograph and a handbook which was contained in a box delivered by the father to the mother at the contact centre. 

2. The photograph in Exhibit J shows the mother bending over a table and opening the box which contains a birthday cake with three candles.  J looks on.  The photograph shows a person (not depicted in the photograph but whom the father concedes was himself) holding a bread knife which is pointed towards the mother’s back. 

3. The handbook is a handbook on firearms safety and awareness and has a gun on the front cover of the book and drawings of other guns inside the book.

4. The mother gave information to Dr R about the items that the father returned which is recorded in Dr R’s report in the following terms (page 5 of her report dated 14 February 2008):-

   “[The mother] referred to [the father] giving back some of her belongings and her beliefs that he made threats to her through this process. She perceived these threats in:

   i)a photograph of [the father] holding a knife behind her while she is busy organising three year old [J’s] birthday cake

   ii) finding a booklet titled “Handbook on Firearms Safety Awareness “ (showing a picture of a gun on the cover) in a box with her name on it”

5. The father’s evidence is at paragraph 12 of his affidavit sworn 22 August 2008 in the following terms:-

   12.When I was seeing the children at the […] Contact Centre last year I delivered a couple of boxes to the centre for [the mother]. These boxes have not been unpacked since [the mother], the children and I moved from [the Blue Mountain region] to [P].  I had a quick look in the boxes and noted books on top, I think it was a cooking book.  Otherwise I do not know what was in the boxes but I presume that it was ‘kitchen stuff’ belonging to [the mother].

6. In oral evidence the mother, when recalling her reaction when she had discovered the items which are Exhibit I, seemed to me to be displaying genuine fear.  I find that the mother formed the genuine view (and I discuss elsewhere whether or not this was a reasonable view) that these items have been placed in the box by the father for the purposes of intimidating or harassing her. 

7. The bread knife can also be seen depicted in Exhibit K.  Exhibit K depicts the father posing with J in front of J’s birthday cake. The father looks ready at that point to cut the cake.  Exhibit K is a photograph that the father tendered in evidence in reply. It is a photograph which seems to have been taken shortly after the photo which is in Exhibit J.  Exhibit K, however, was not in the box that was delivered to the mother. The father, when asked how those two photographs (which were taken after one another) became separated, with the one with the knife held at the mother’s back being placed in the box which the father delivered to the mother.  The father’s explanation was that photographs had become jumbled over the years and had become separated.  It was only when he looked through his photographs at home he found this other photograph (Exhibit K). 

8. Counsel for the Independent Children's Lawyer referred to the photo and the gun and to Dr R’s report dated 14 February 2008 at page 6 which reads:-

   “When shown the firearm booklet, [the father] stated it was ‘not put there on purpose’ before he added ‘knew [the mother] would freak....thought doing her a favour (returning the boxes)....will look more closely next time’.”

9. The Independent Children's Lawyer stressed that the father used the word “knew” to Dr R to imply that the father was saying he knew at the time that he did it that the mother would freak.  I am not sure that such a connotation can be placed upon the note in Dr R’s report.  The word “knew” could mean knew at the time he packed the boxes or knew once he found out that the booklet was in the boxes.  Neither Dr R nor the father was tested on the word “knew” and I am uncomfortable placing great weight upon it.

10. There is a reference on page 5 of the February 2008 report by Dr R to the photograph and the book with the firearms being shown to Dr R during consultation. Dr R confirmed that the mother brought those items in and has shown them to her.

11. Whilst I am not able, on the Briginshaw standard, to say that the father deliberately delivered to the mother these two items for the purposes of conveying a violent message to the mother, I accept that the mother’s reaction to receiving these items, one of severe fear, was a genuine reaction.

12. The mother received this material at a time when she says the children had reported to her that the father intended to stab her.

Alleged threat made during contact on 7 October 2007

1. At paragraph 19 of the mother’s affidavit sworn 9 November 2007 she says:-

   The last contact occurred on Sunday 7/10/07.  I never question or quiz the children about the contact with their father, about what they said to their father, or about what their father said to them.  But sometimes they volunteer information.  After the contact on 7/10/07 [J] said,

   “Dad showed me a knife.  It had a yellow handle.  He said to me ‘This is the knife I’m going to stab mum with’.  Dad told me our address.”

   Annexure D is a copy of correspondence from Dr [S] which I received in late October 2007.

2. The annexure is the letter from Dr S which is undated which the Independent Children's Lawyer tendered before me. Dr S’s letter says, “the children have told me that her ex-husband [the father] has been saying things to them which I construe as harassing towards the mother and I am concerned that he may try to perpetrate some violence towards [the mother] and her family”. On 5 November 2007, when I inquired of the former Independent Children's Lawyer whether or not there was a connection between the threat in relation to the yellow handled knife and what Dr S was reporting the children were saying, the former Independent Children's Lawyer said that there was not such a connection and that Dr S’s concerns were based on other things the children were saying. 

3. The mother, during oral evidence, said that she reported what J had said to her on 7 October 2007 to Ms I. 

4. Mrs I is the director of the Contact Centre.  She gave evidence by electronic means.  She has held the position at the centre for ten years and is familiar with its systems. She said that supervised time at her centre means exactly that.  If the two children split, the supervisor would stay with the father.  The notes that are in evidence were written up after each session by the supervisor, relying on their short term memory.

1. The incident on 15 July 2005 where the mother was taken by the throat by the father, an event was witnessed by J, is a serious event of family violence. 

2. The mother thereafter went to a refuge with the children.  The mother and the two children attended the refuge some time in early September 2005. 

3. Ms L is an employee at E Women’s Refuge and as at May 2006 she had been employed at that refuge for 21 years. Her evidence is:-

   “A few days after I first met the [Fennick] children, [J] volunteered to me:

   ‘My dad tried to choke mum and he tried to choke me.’

   While saying this [J] placed one hand around his throat and presented a pained and distressed expression on his face and said, ‘and I called out to Jesus, Jesus - Jesus and dad stopped’.” 

4. Ms L said that that allegation had been reported to her in the presence of other workers at the refuge on a number of occasions.  Dr R concluded that J had experienced his first episode of decompensation at the refuge.  J was focused on making sure he had a “hidey hole” where he could go and hide from  his father.  He also told Ms L that:

   “I can hear dad’s voice in my head and I hit my head to stop the voices, but it doesn’t stop them so I run around and hit other people and things, but I can’t help it.”

5. Ms L says incidents of J being unsettled at night occurred on most nights that he was at the refuge and he was the subject of complaint by other people who stay at the refuge.  There is no doubt also at the time S, even at her age, was reporting distressful things that her father had done.  Ms L said that S said the words “daddy touched me” and she reached over and put her hand between her mother’s legs and touched her genital region.  So far as that might be interpreted there is an assertion that the father had sexually interfered with S, that assertion was not pursued at the final hearing in any serious way.  Whilst there was some attempt in 2005 to involve the authorities in relation to the sexual abuse allegation, the authorities took no further action and I find that there was no unacceptable risk that S was sexually abused by her father.   S, according to Ms L, also on a number of occasions said words such as “daddy’s naughty” and “daddy’s hurt me”.  It should be remembered that in October 2005 S had only just turned three years of age. 

6. Ms L’s overall conclusion was that in the 21 years that she had been working at the refuge, she had to deal with many disturbed children but that the Fennick children stood out for their level of apparent disturbance.  She says that she rarely heard children express such fear of seeing or being contacted by their father or being so scared of the possibility of their father finding them or having contact with them. These unchallenged observations were made at a time when the parties had only just stopped living together (in 2005).

7. On page 15 of the first report of Dr R notes that the mother had said that J had said when they were in the refuge that he would rather kill himself than be killed:

   “I’m scared”, he wants to die and doesn’t want to go home.  He has previously talked about wanting to die and how he would rather kill himself than be killed when they were in the refuge.  He has now said he “wants to be removed from the family” and explained to mother that [the father] said during the interview that “some members of your family need to be removed”.  He has said he was also scared of me and thought Dad was going to hit him when they were seen.

8. Dr S has worked with J on a regular basis over a two year period.  As discussed above, she does not pretend to bring an objective and balanced view to the factual disputes between the mother and the father.  She has accepted that there have been in J’s life while the parties were together multiple traumatic events involving violence to him personally or involving him witnessing violence to his mother.  That violence was not usually physical.  I have found that there was a high level of angry behaviour by the father in circumstances where he was stressed and had little ability to control that anger.  He concedes that on two occasions that anger developed into physical aggression to the mother but I also find on balance that there were a large number of other occasions where the father’s aggression, whilst menacing to the mother, fell short of physical contact.  It seems from what J has related to the school chaplain, there were things that J is convinced happened to him (including being held under water by his father at about the age of 4).  The father concedes that he, as well as hitting J with a strap on more than one occasion, also on other occasions threatened J by snapping the strap in his presence.

S’s emerging fears

1. On 27 June 2008 Dr S wrote the following in her notes:

   “She told me her vagina hurts

   he’d touch her with his finger

   [S] standing there staring, asleep

   bent down to shoes

   jumping & crying in her sleep

   so scared

   if Dad turns up here who’ll hide with me

   I told her Dad wont come

   Are you & Mo gonna hide with you

   all tog & call the Police

   She said Dads got a pocket knife & gun

   He’ll stab Mo.”

2. I interpret “tog” in the third last line to be the word together and the word “Mo” in the last line to be mother.  Dr S was not actually asked any questions in relation to this passage in her notes and it is not entirely clear to me whether or not it records only a conversation between Dr S and the child S.  It appears in Dr S’s notes under a heading “[The child S]” which would indicate it was a conversation between Dr S and the child S.  Notwithstanding some doubt in my mind as to whether or not the mother had any input into parts of this conversation, it seems clear that by June 2008 S had started to exhibit escalating fears. 

3. On 18 August 2008 in a consultation that was between Dr S and the child S, it seems clear that S, who at the time was about to turn 6, was developing some of J’s anxieties.  Part of Dr S’s note is in the following terms:-

   “Note from mother.  [S] disturbed sleep. Coming into mother’s bed.

   [The child S]

   ‘Daddy’s gonna come in the night.  I want to protect my mother, my brother […].  I’d tell mother.  She would ring police.  And they would come.  We would hide.

   He would have a pocket knife and stab me in the throat.  (illegible)  he told me at (illegible) the centre.

   ? contact

   if I say naughty words he would smack me.  He did and I told (illegible) and the ladies.

   Sent him to the office.

   One day he said he would come to mother’s house and would get along together again.  That’s not true.

   My brother and me told him accidentally where we lived. We told mother.  If my mother hides I want to hide cause I can bite really hard, blood would come out when I am finished.

   He’d kill mum and [S …]. 

   ? friends with dad

   yeah a little bit but not good.  I used to get smacked when I was a baby.

   Good dream drawing

   Was the day when mother was friends with dad.

   …bad dream

   (distractible)

   I hope my dad won’t come

   My mother shouting at me

   ‘[S], dad’s here’

   I am going to hide and get a wooden spoon

   Whack him on the head.”

4. It is unclear on the evidence as to whether or not the source of these emerging fears in S are partly as a result of trauma that she experienced whilst the parties lived together (she was only 3 at the time of the separation).  It is more likely, in my view, S is taking on the mother’s fears and that S has become exposed to and is being affected by J’s fears. 

5. It is disturbing that S keeps talking about what happened three years ago.  S has now started to believe things that on balance I find she has probably heard from J or the mother, although I do not discount the evidence given by the experts as to the psychological effect on S’s infant brain, given she experienced at an early age a high level of angry outbursts and arguments in her household. 

Conclusions about need to protect from exposure to abuse or family violence

1. Dr R would not dismiss outright the possibility that the father had been involved in sexual abuse of S but, as already indicated, I find that, based on the evidence before me, there is no unacceptable risk that that has occurred. 

2. Allegations have been made that the father tried to choke J, tried to drown him, and that the father is a murderer.  I have been invited to find that none of those matters are likely.  Ms L says J reported that to her shortly after the separation that his father tried to choke him.  I can not find, to the requisite standard, that that happened but I accept that J saw his mother being held by the throat by his father.  I find that the claims made by the mother and the level of her fear in respect of the father’s current violent tendencies are exaggerated.  I accept that the mother has exaggerated a number of things including S being kicked by the father with steel capped boots and J telling her that the father intended to stab her with a yellow handled knife. 

3. On page 8 of the report of 31 May 2006 Dr R notes that J said:

   “Dad hurt us…from Last Christmas…since I was a baby…when I was a baby, he punched…he kicked [S] up the bum…played with [S’s] vagina…he also strapped…he also holded me and Mummy up in the throat…” (page 8).

4. This passage demonstrates the dynamic at work in this case.  Clearly J does not have his own memory of what happened to himself as a baby. 

5. The mother’s fears are not however entirely without any foundation and although the degree is unreasonable some level of fear by the mother of the father is not unreasonable.  

6. Dr R gave evidence that it is her view that the mother’s fear will vary from time to time.  Her ability to contain that fear will vary from time to time.  Dr R said that at the date of the second report (February 2007) she was impressed by the mother’s progress in containing her fear.  The mother’s current fear is now high again.  Dr S’s notes of 21 July 2008 records that the mother was hyper vigilant.  Dr R believed that if the mother was well supported and when not stressed she is able to contain her fear and even though that fear is always present and always unpleasant for her she is able to put it into the background.  The ongoing threat in the mother’s mind of the father’s involvement in her life and in the life of her children is a huge stresser for her which provokes in her a lack of ability to contain her fear.  If that stresser is removed, Dr R’s opinion is that the mother does have the capacity to contain her anxiety and that she can shut off what to her is intolerable anxiety if it is not brought into her every day life (that is, as Dr R explained, she can disassociate as a defensive technique). 

7. Dr R said that if the mother’s fear persisted year after year and did not resolve that was not good for the children.

ADDITIONAL CONSIDERATIONS

Expressed views and their weight

1. In relation to s 60CC(3)(a) of the Act the Independent Children's Lawyer submitted that S was too young for any views that she expressed to be taken into account. The contact centre notes disclose that J towards the end of 2007 was expressing the view that he wanted to have four hours unsupervised time with his father away from the contact centre. At one point J told his mother he wanted to live with his father. The Independent Children's Lawyer submits and I accept that J’s level of anxiety and his mental health mean that those expressed views cannot be given any significant weight in this case. I accept in the circumstances of this case that is so.

Relationships

1. The father’s application concedes that the mother should be the resident parent.  I do not therefore need to explore in any great depth the quality of the relationship between the mother and the children.  The point is made elsewhere extensively in the judgment that the mother’s current level of fear does have an impact on J’s health.  The relationship between mother and J is a relationship currently coloured by her anxiety.

2. Dr R referred to the doubts that the mother has had as to whether or not she can control J.  Dr R did not see anything untoward in the fact that the mother had referred to J as at times being “a little [father’s name]”.  I have found that J has been exposed to some level of family violence during the period the parties lived together.  I do not find it unusual that J may be exhibiting behaviours which replicate things that he has seen whilst living with his father.

3. In her affidavit sworn 28 May 2007 the mother says that the children still sleep in her bedroom despite her efforts to get the children to sleep by themselves in their own rooms and beds (paragraph 8). S sleeps in the double bed with the mother while J sleeps on the floor beside the bed with the family dog sleeping near the foot of the bed (paragraph 8). The mother says that even if the children were put to bed in their own beds they would wake up in the night and come in and sleep with her (paragraph 8).

4. Dr R agreed that the mother had little ability to challenge J on what would seem to be exaggerations by J (for example, his father making him drink three cans of coke; his father giving him a poisoned cake).

5. The content of the reports from the Contact Centre on the whole indicated the children showed no evidence of distress in their father’s presence.  The notes show spontaneous affection and taken by themselves I accept that the notes on the whole would point to there being benefits of the children having some time with their father.  

6. One issue raised by Dr R was the quality of the parenting that the father would provide to the children.  Dr R clearly had reservations about the father’s capacity as a parent.  The father concedes that he has never looked after the children for four hours at a time.  Dr R cited as one example the way in which the father dealt with J not wanting to see her.  Dr R was critical of the father’s attitude to the parenting of J in the way that he handled negative comment about Dr R.  Dr R made it clear that she was not taking personal affront at the father’s attitude to her (confirmed in oral evidence where the father indicated that he did not have a lot of faith in ‘shrinks’).  Dr R was of the view that the way the father helped J through this process was not the way a parent should parent and provided a little vignette of how the father found it difficult to edit his own personal feelings in a way that would enhance his ability to parent the children.  Another example of his inability to edit his behaviour was when he was promising J to take him to the desert to find lizards in circumstances where the assessment that would lead to that opportunity had not yet taken place and the results of it were not yet known. 

7. I accept the submission made by counsel for the father that the father has had very little opportunity by way of time with the children to apply the parenting skills which the father asserts he has acquired as a result of attending parenting courses.

8. The children have a positive relationship with their maternal grandparents and particularly J has a bond with the maternal grandfather who is his “fishing buddy”. 

9. Dr S made comment about the support that the mother had from both her own parents.

10. The children seem content with the other occupants of the home in which they live, a 21 year old mother, who had been abused by her own mother and who has a small baby.  There was some suggestion by the father that the presence in the mother’s household of a young mother with a very young baby would have been destabilising for J.  There is no evidence that that is so.

Willingness to encourage and attitude to relationship between child and other parent; attitude to the responsibilities of parenthood

Mother to father

1. The mother and the maternal grandparents have to date cooperated with all court orders in an exemplarily manner.  There is evidence that J was very reluctant to go on contact on occasions. I particularly accept the maternal grandfather’s evidence in that regard.  Nonetheless there has been no occasion where the children have not been taken to the contact centre.

2. The willingness to facilitate an ongoing relationship however is affected by the mother’s current level of fear.

Father to mother

1. The father’s willingness to facilitate time with the mother is not an issue that needs to be considered in this case. 

Effect of Change

1. Dr S saw as indicators of J’s improvement the fact that he was now doing well at school.  He was not fighting with friends.  He was involving himself in gymnastics and involving himself in imaginative play. 

2. Dr S is of the view that given J has been damaged in the way that he has, he will always have the scars of that early trauma.

3. Before January 2008 arrangements were tried which were not successful.  The children have not seen their father since.  There is no guarantee about what might happen in the future but Dr R’s strong advice is that the best course is to eliminate the children’s further contact with their father.  Dr S conceded that it was still possible that J would regress. J has settled down since his hospitalisation in January/February 2008.  Reintroducing the children to their father is a change that has risks associated with it which, in my opinion, significantly exceeds the risks associated with not changing the current position. 

Practical difficulty and expense of being with and in touch with other parent

1. There is no evidence in this case that there would be any practicable difficulty or expense in the children spending time with their father.

The capacity of parents and others to provide for needs of the children (including emotional and intellectual needs)

1. There are deficiencies in both parents. The father is immature and has an inability to acknowledge the seriousness of the situation that J found himself in in January 2008.  He lacks insights into the effect that his behaviour has had, particularly upon the mother.

2. The Independent Children's Lawyer submitted that the mother had sought treatment.  This was hotly disputed by counsel for the father in his submissions.  The treatment that the Independent Children's Lawyer referred to was treatment by Dr S.  Dr S however made it clear that her assistance to the mother was in the context of her treating J.  Her focus was to provide the mother with increased parenting skills so as to equip her to more effectively handle J’s difficult behaviour.  Dr S did not provide the mother with ongoing therapy for her underlying fears.

3. Counsel for the wife highlighted the fact that the father indicated that he would not believe anything J said unless J told it to his face.

4. Counsel for the father laid heavy emphasis upon orders made on 19 June and pages 20 and 21 of Dr R’s first report dated 31 May 2006.  Dr R made recommendations and recommendation 2 on page 22 is in the following terms:.

   “2.Professional psychological help for [the mother] and [J] individually.  As well, family therapy would assist with parenting.”

5. Counsel for the father’s submission was that the mother has not undertaken the therapy which was envisaged by Dr R and that the mother’s fears will continue to persist, given that they are untreated, into the adulthood of each of the children. The second of these submissions was not supported by Dr R’s evidence.  I accept Dr R’s view that removing the stimulus for the mother’s fear may mean that it will abate. 

6. Counsel for the father said I would not accept Dr S’s evidence that it would not be practical for the mother to be treated for underlying problems including problems of being sexually abused as a child whilst she had the current care of the children.  Dr R was not asked questions about this topic and I am not comfortable in taking judicial notice of the fact that the mother could obtain this therapy without adverse affect on her parenting capacity, particularly in light of Dr S’s evidence to the contrary. 

7. I do not accept that without therapy, the mother’s emotional state will remain at the same heightened level. 

Family violence

1. I have already dealt with this issue when discussing the second primary consideration. 

Any family violence order

1. As mentioned, in about 2005/06 the mother had an apprehended violence order protecting her and the children.  There does not seem to be any current order. 

The order that would be least likely to lead to the institution of further proceedings

1. The Independent Children's Lawyer’s proposal is far more final than the father’s.  The father is in effect suggesting a further trial period.  The Court’s involvement in the case would not conclude for another six to twelve months at the minimum.  Comparing the two proposals, the proposal by the Independent Children's Lawyer is the one which is the least likely to lead to the institution of further proceedings.  Of course if there is a significant change in circumstances sufficient to attract the provisions of Rice & Asplund (1979) FLC 90-725, then fresh applications can be brought.

2. It was put to Dr S that an order now excluding the father from the children’s lives would in effect be a life long exclusion.  Dr S said that that was up to the children and that often adults become curious about their birth parents. 

Any other fact or circumstance

1. In this case I have found that the mother has formed genuinely held beliefs as to the current threat the father poses to her.  I find the level at which she holds those fears is not reasonably and objectively based. 

Equal shared parental responsibility

1. The Independent Children's Lawyer submitted that given the provisions of s 61DA(2), the provisions of s 61DA(1) did not apply.  Given a high incidence of family violence as described above, the presumption does not apply. Also s 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  Such evidence exists in this case. 

CONCLUSIONS

1. In her final report on the final page under the headings “Discussion” and “Recommendations”, Dr R says:-

   “[J] has a significant emotional and behavioural disturbance which indication whioh [sic] indicates a psychiatric disorder. Its aetiology is likely to be multifactorial but the undoubted precipitant to this current crisis has been the changes in contact with his father, with discussions about further change in the near future. For whatever reason, he has felt very unsafe, which has lead to uncontrolled anxiety and anger. The threats from [the father], as perceived by [J] and his mother, must be removed in order for [J] to recover and hopefully move forward on a normal development trajectory. How substantiated [J’s] fears are is unfortunately at present not relevant for his recovery.  The contact over the last year has not diminished his and his mother’s fears, rather [J] (and at times [S]) have persisted in their allegations of statements from [the father] which have confirmed [the mother’s] fear and been provocative to [J’s] anxiety.

   At present I consider his prognosis to be guarded, with the risk of significant psychiatric pathology if he cannot resolve this current crisis by a complete emotional and cognitive integration. The few years before his teenage years are vital for his mental health in that he needs no further disruptive experiences once this crisis has been settled before the developmentally normal stresses and strains of adolescence commence.

   Hopefully [the father] will be able to appreciate that contact is too anxiety provoking for [J] and must stop. This will be painful for [the father] but necessary for his child’s well being. [The father] seeking [S] is also not an option as this contact will also be provocative for [J].”         

2. Following this consideration and under the heading of “recommendations” on page 8 the following recommendations are made by Dr R;

   “1. All contact between the children and their father to cease. No further contact to be considered, unless the children, as adults, initiate this.

   2. All members of the family receive appropriate psychosocial intervention and supports warranted by this very sad situation.”

3. The father’s proposal is that this case not be finalised for six to twelve months to enable the children to be treated by a family therapist in relation to the issues that arise in this case and to enable the mother to commence to obtain therapy for herself. 

4. Dr R agreed that the initial recommendation that she made in her 2006 report envisaged family therapy that would involve the whole family including the father.  The Independent Children's Lawyer asked Dr R whether or not the father’s proposal was worth attempting. The father’s proposal was that there be a reintroduction of supervised contact (after a period of three months) and that during a period of about 12 months the whole family would go to therapy.  Dr R was asked:-

   264.1.Whether or not that was worth a try;

   264.2.What the likely outcome would be. 

5. Dr R took the questions in reverse order and said that there was absolutely no guarantees as to what the outcome might be and it could in fact simply prolong the inevitable.  In relation to the first question she said that in her view it was not worth a try, that it was too late.  She said that the delay in reaching finality in these proceedings had been the source of uncertainty in the family dynamics.  This had played into the mother’s fears and was something that was hanging over her household. 

6. Dr R was asked whether or not there was a mechanism by which the father could be allowed to make a new application at a future date.  Dr R gave some careful thought to that question but in the end opined that any order that would leave the gate open in the future would have the counter productive effect of destabilising the mother’s ability to contain her fears.  In the end, Dr R did not agree with the proposition that it was in the children’s best interests for them to have contact with their father until they were adults.  I find that the mother’s capacity would be destabilising if an order was made granting an automatic review at some specified time in the future.

7. Dr R’s view was that any attempt at family therapy now could very well be counter productive.

8. Dr R agreed that it would be a brave and loving thing for the father not to persist in his application.  The father, however, I accept has not been able to make that decision and wishes the court to decide what is in the children’s best interests. 

9. Counsel for the father submitted that the father wished to understand his own issues further and that was another reason why he wanted this period of six to twelve months of family therapy.

10. Counsel for the father forcibly and passionately submitted that the children should not be excluded from their father’s life.  He pointed out that the orders that were proposed by the Independent Children's Lawyer and supported by the mother were serious.  J would not see his father for the next ten years.  S would not see her father for the next twelve years.  Counsel for the father submitted that, in effect, it would mean that the children would never see their father again.  I cannot be sure about that. The children may well, when they become adults, seek out their father. 

11. Counsel for the father submitted the father would have little information to know if circumstances have been created which would give him the grounds to come back to the Court. 

12. As mentioned above, the orders I make are final orders. Whilst there is no basis for making Order 4 as sought by the mother (which is effectively only an order that could be made under s 118 of the Act and even then not in the terms sought by the mother), it is not presently envisaged that the father will be able to reopen this case.

13. There would need to be a serious and significant change of circumstance.  Order 5 is, in part, designed to allow DoCS to contact the father if such a change occurs.  Orders 6 to 8 are aimed at giving the father some information as to the children’s progress. 

14. Dr R said that she thought the mother could cope with an order that required certain minimal amount of material to be sent to the father each year advising him of the children’s progress. 

15. What the father is basically proposing however is a return to a trial that has already taken place and has proven very unsuccessful for J.  The orders sought by the father have in fact been trialled in 2006 and 2007 and not been successful.  They have not re-established a satisfactory regime of the children spending with the father nor have they allayed the mother’s fears nor J’s fears.  Dr R’s strong recommendation is that the experiment not be tried again.

16. Dr R’s view was that it was important for J that there to be finality with certainty.  It was important for J to be able to integrate with those around him and for conditions to be created so that he can be in the best place for him to move into adolescence. 

17. Dr R was asked about her recommendation that S not see her father.  She agreed that when she initially made that recommendation it was based upon the following reasoning:-

    277.1.If S went to see her father, J would become aware that that was happening;

    277.2.This would provoke J because he would think that he was missing out on something, particularly if S was coming back with presents; AND more importantly, he would be fearful of what might happen to his sister whilst his sister was with his father AND the mother would be fearful as to what would happen to S while S was with her father and that would feed back into J’s anxiety.

18. From S’s point of view, given that she is part of the family dynamic, the increased anxiety caused to J and caused to the mother would impact upon her. Recent observations made by Dr S would indicate that that impact upon S is starting now to exhibit itself.

19. Dr R was asked whether or not there now should be an attempt at engaging a new therapist for J who could implement Dr R’s initial recommendation for family therapy.  On balance, Dr R concluded that the disadvantages to the children of that course outweighed the advantages (one of the disadvantages would be for J to have to re-tell his story to somebody with whom he then needs to develop a new therapeutic relationship).

20. In relation to the issue of an alternate therapist, the Independent Children's Lawyer said, that Dr S should not be changed as the therapist.  I am attracted to the argument by the Independent Children's Lawyer that it would be a form of systems abuse to require the mother to retell her story to another therapist and to require J to re-establish a relationship with another therapist.  I think it is important however for Dr S to be sent a copy of my reasons for judgment.

21. I accept the submission made by counsel for the father that a no contact order does itself carry some risks in respect of the welfare of the children.  The judgment I have to make in this matter however is all about balancing the risks.  The risks in the father’s proposals are far greater in my view.

22. I accept Dr R’s view that it is too late to go back and try and recreate what might have happened in 2006.  J has been in very serious trouble.  There is now a need to protect him moving forward as far as that protection can be provided.  Both Dr R and Dr S have made it very clear that there are no guarantees, even if her primary recommendation is accepted, that there will not be a further period where J’s behaviour deteriorates. 

23. There are substantial risks to J (and alarmingly now S).  The orders that I make need to be designed to minimise the chances that there will be any further decompensation or if it happens that it will not lead to some dramatic (and possible fatal) consequence for J.

I certify that the preceding two hundred and eighty three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  24.10.08