K and H

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	[REGIONAL CENTRE]
CITATION:	K and H [2006] FCWA 52
CORAM:	MARTIN J
HEARD:	17, 18, 19, 20, 21, 24, 25, 27, 28 MAY & 2 JULY

2004

DELIVERED:	28 OCTOBER 2004
PUBLISHED:	26 MAY 2006
FILE NO/S:	PT 1430 of 1999
BETWEEN:	K

Applicant
AND
H
Respondent

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Catchwords:

Contact - supervised - capacity - psychiatric illness - alleged sexual abuse

Legislation:

Family Court Act 1997 - s 66, s 90, s 166 and s 242

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Bannerman
Respondent	:	Self Represented
Child Representative	:	Ms Young, with Ms Bourgeois

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Solicitors:

Applicant	:	Sicard Crisp & Bannerman
Respondent	:	Self Represented
Child Representative	:	Legal Aid WA

Case(s) referred to in judgment(s):

M and M (1988) FLC 91-979
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1 Before me were competing applications, mainly for parenting orders, in relation to the parties’ child, a girl, who at trial was aged five years. The mother’s application was filed 17 January 2003, and amended by an application filed 10 May 2004. At the commencement of the trial, the applicant sought orders that she have residence, and sole parental responsibility for the parties’ child, and the respondent have contact for one hour each alternate weekend, to be strictly supervised at the sole expense of the respondent. The applicant also sought that the respondent be restrained by injunction from attending within 100 metres of any educational establishment where the child attends during any period when the child may be in attendance at that establishment.
2 By the conclusion of the trial, the mother proposed the father have no direct contact with the child at all. In addition, restraining orders and injunctions were sought against the respondent.
3 The respondent had sought extensive orders by a response filed 14 April 2004, a copy of which is annexed to this judgment. In summary, the respondent proposed that the child reside with each parent week about, with the non residential parent to have contact with the child during the week to facilitate ongoing activities and arrangements. He proposed that contact, where possible, be concurrent with that of his daughter of another relationship, [KBN], then aged four years. A number of detailed parenting orders were sought.
4 By the conclusion of the trial, it having been indicated by me to the parties that there was no possibility of unsupervised contact occurring for some time, the respondent sought supervised contact for about six months, and thereafter unsupervised contact.
5 On 28 October 2004, I made the following orders:-
1. The child, [SHK], born May 1999, reside with the mother and she be responsible for her day-to-day and long term care, welfare and development.
2. Until further order, the father have no direct contact with the child.
3. The mother ensure that the child, [SHK] has ct physical contact with [KBN] on at least two occasions per year.
4. The mother:-

(1)

Provide to the child any presents, gifts, or letters from the father, but the mother have the right not to
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provide the item, or part of it, if she deems it
inappropriate.

(2) Provide to the father a minimum of three photographs of the child each six months, and a brief summary of her activities and progress.
(3) Ensure the child has knowledge of her father,
including provision of a photograph.
(4) Ensure the father is informed if the child requires
hospitalisation or serious medical treatment.
5. Each party is to ensure the other is provided with a contact telephone number and contact address, and maintain a notice of address for service in the Family Court of Western Australia.
6. Until 30 April 2005, there be a misconduct restraining order restraining the father from approaching within:-

(i) 100 metres of the child;
(ii) 100 metres of any day care, kindergarten or school attended by the child;
(iii) attending within 100 metres of any property where the child is residing.
7. From 1 May 2005, the father be restrained by injunction from approaching within:-

(i) 100 metres of the child;
(ii) 100 metres of any day care, kindergarten or school attended by the child;
(iii) attending within 100 metres of any property where the child is residing.
8.(1) Until further order, the father be restrained from filing any
application without prior leave of the Court.

(2) Any application seeking leave, if practicable, be listed in
the first instance before the Honourable Justice Martin.
9. There be liberty to apply to members of the father's immediate family for contact orders.
10. The applications otherwise be dismissed.

6 I now publish full reasons for decision, having published only brief reasons on 28 October 2004. As I have done directly to the parties, I again apologise to them for the inordinate delay, although
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I have been concerned about reopening old wounds, given the comparative calm between the parties since the proceedings before me.
7 I remind the parties that the facts and conclusions reached are as at the time of trial, for example, my statements regarding the respondent’s mental health, and the parties’ personal circumstances and interrelationships at that time.
8 There are now further ongoing proceedings between the

parties.
Background

9 The respondent is 44 years old and has been, for several years now, a disability pensioner, although he has profession. The applicant is 34 years old and engaged in home duties. The parties met at [evening] classes and commenced a relationship in early 1998, which ended about five months later, in August 1998, about 10 weeks after the applicant became pregnant by the respondent. The child, the subject of these proceedings, is [SHK], born May 1999. The parties have never resided together.
10 The applicant has no other children. The respondent has two adult boys, [SH], then aged about 23 years, and [DH], then aged about 21 years, who, as a teenager, spent considerable periods of time living with him after his separation from their mother. In January 2004, [DH]’s partner gave birth to his son. Sadly, the child is severely disabled and, I believe, is in residential care. The respondent has done his best to help the grandchild and [DH].
11 The respondent also has a child by a relationship with [Ms BN]. Their daughter, [KBN], was born in May 2000. There have been defended proceedings in relation to this child, which were heard immediately following, and partly together, with these proceedings.
12 In early 2002, through the internet, the respondent met an American woman, [Ms LL], who came to Australia with her daughter, [KL], then aged four years, in September 2002. [Ms LL] and the respondent married in November 2002. She went back to America for a time in December 2002, returning in May 2003. She finally left the respondent on 9 January 2004, and moved to the eastern states with [KL]. She has been involved with the respondent in Family Court proceedings for property settlement, and gave evidence in these proceedings by video-link.
13 The applicant’s case is that from the outset, the respondent was controlling and obsessive, and was very keen to have a baby girl.
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Initially, he was very involved in the pregnancy, for example, trying to control the applicant’s movements, what she ate, and where and in what manner she would have the baby. Shortly after the relationship broke up, the applicant attempted to obtain a violence restraining order against the respondent, she says because she was scared of him and because he threatened violence to her and the baby.
14 The respondent’s position was that the applicant told him she was involved with another man, and the child would not even know that the respondent existed. The applicant admits that she then had a male friend, [GP], whose assistance she called on, but says she was not in an ongoing relationship with him, although she did refer to him as her boyfriend in court documents. She had been in a relationship with him at some time.
15 The applicant had been prepared to move into a property owned by the respondent in October 1998, for which she paid a reduced rental. However, the respondent retained keys so that he could come in and out of the property as he wished. In December 1998, the applicant moved out of the respondent’s property and into a home with [GP].
16 The father was anxious to become involved in parenting the child, and, on 4 February 1999, three months prior to the child's birth, commenced proceedings in the Court of Petty Sessions in [the regional centre]. He sought a number of orders, including -

•

an injunction restraining the applicant from leaving Western Australia;

•

he be informed of the delivery of the child as soon as possible after birth;

•

he be acknowledged as the father on the birth registration form;

•

the mother have the option of the child either having her surname or selecting the child’s first names, with the father having the other choice;

•

[GP] not be present at the birth or immediately after, until the respondent had seen the child;

•

a raft of orders in relation to contact to be effective either prior to, or immediately upon, the birth of the child, including that he be given access within two hours of her birth for 15 to 30 minutes;
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• until breastfeeding ceased or one year, whichever came first, the father sought two hours contact on alternate days and then either week-about contact or contact each week from 16:00 hours each Friday to 0800 on the following Monday.
17 On 12 March and 9 April 1999, there were court hearings in [the regional centre]. On 12 April 1999, it was ordered that the mother notify the father, within 24 hours, of the fact of the birth of the child and the details of the sex of the child.
18 Shortly prior to [SHK]’s birth, the applicant again attempted to obtain a restraining order against the respondent, she says because he had said that he would forcibly be at the child’s birth, would allow her 30 minutes with the new baby and then would take the baby away and home with him. The applicant was not successful in obtaining an interim restraining order, and did not pursue the application on its final hearing.
19 After [SHK]’s birth, on 4 May, the respondent attended the hospital, uninvited, having found out about the birth from a friend. He brought his sons and a friend, [SW]. [SW]’s evidence was that the mother did not ask him to leave the hospital.
20 On 11 May 1999, orders were made restraining the respondent was restrained by injunction from attending at the hospital to visit [SHK], unless specifically invited to do so. The mother undertook to contact the father on discharge from hospital and for arrangements to be made to allow contact.
21 Unfortunately, the applicant and [GP] appeared in a local newspaper photograph of new babies, the implication of the caption being [GP] was the father of the child. The mother’s explanation was that it all happened very quickly and there was not really an opportunity to explain the situation.
22 A dispute arose about the registration of the child’s birth. The applicant, she says because the respondent would not agree on the child’s name, attempted to register the child’s birth without including the respondent as the father. However, the father had contacted the Registrar-General’s Office back in October 1998, and informed them that he was the child’s father.
23 The respondent then filed a further application to have the child’s name changed from [SHK] without specifying to what name he wanted it changed. The mother had to respond, and try to get him to sign the birth certificate, because he refused to do so.

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24	About a month after [SHK]’s birth, the respondent came to the applicant’s home, demanding to see the child. [GP] came to the door, and the father became violent and smashed a window. The father did apologise the next day. As a result of damage to her home, he was charged and convicted of causing malicious damage. He was accompanied by his then girlfriend, [Ms BN], who referred to the incident in her affidavit evidence.
25	On 23 June 1999, on the respondent’s application filed 4 February 1999, it was ordered, until further order, that the father have contact with the child for two hours on Wednesday after work and for two hours on Saturday, with the Saturday contact to be exercised at the Family Visiting Centre in town, and the Wednesday contact to be supervised by Mrs [K], the applicant’s mother, if she consented, or by any other person mutually acceptable to the parties. The parties were to do all such acts and execute all such documents as necessary to register the birth of the child, naming the parties as the natural parents of the child and, until further order of the court, describing the child with the Christian name of [SHK] and the surname of [K]-[H] with no middle given name. Therefore, as a result of the dispute, the child’s birth was not registered until 4½ months after the child was born.
26	It was also ordered that the child be separately represented at the further hearing of the proceedings.
27	On 7 September 1999, the order for supervision of contact at the Family Visiting Centre was discharged, and it was ordered that supervision of contact was to be at the discretion of the applicant. The applicant’s evidence is that she then started supervising the contact as she was anxious to ensure the child was alright and she also wanted to get the matter out of the court system. Her evidence is that the respondent did not seem interested in the child during contact visits, but seemed more interested in questioning her about her life.
28	Other restraining order applications were filed by the mother, but not proceeded with.
29	By early 1999, the father had recommenced his relationship with [Ms BN] and they started living together in May 1999. She moved down to the country town with her two children to live with the father in one of his rental properties. For several weeks in early 2000, the couple and [Ms BN]’s daughter, [B], went to [the eastern
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states] on holiday. In June 2000, three weeks after [KBN]'s birth, she left the respondent.
30	The respondent had suggested that both the applicant and [Ms BN] and the children should live together with him in a shared type of relationship. This suggestion was rejected by the applicant.
31	On 14 May 2001, it was ordered that, until further order, the respondent have contact on two occasions per week on Wednesday from 9:00 am to 12:00 noon and on Sunday from 3:00 pm to 6:00 pm with handovers to again take place at the Family Visiting Centre and the costs of the handover service be shared equally between the parties.
32	On 18 June 2001, it was ordered, as and by way of additional contact, the respondent have defined contact on special occasions, including on Father’s Day from 4:00 pm Saturday to 4:00 pm Sunday. The respondent was then to have contact on Wednesday of each week from 9:00 am to 12:00 noon and on each weekend from 2:00 pm Sunday to 2:00 pm Monday, with changeover to be at the Family Visiting Centre. The respondent was also to have additional contact with the child at the Father’s Camp on two occasions each year on 21 days’ notice.
33	On the weekend of Father’s Day in 2001 (not 2000 as the applicant says in her affidavit), contact was to commence at 4:00 pm on Saturday, but [SHK] was sick on that day and the applicant did not think that she was fit to go on contact. She rang the family centre and said that she would bring the child at 9:00 am on the next day, Father’s Day, so that the father could have contact from then. The respondent was very unhappy about this, and gave the centre a note saying that he was owed a number of hours and would not bring the child back until Tuesday night, his normal contact being from Sunday through to 2:00 pm on Monday. He proposed not to return the child until Wednesday, as the centre was not open on Tuesday night for handovers.
34	The respondent snatched the child from the applicant in the car park and drove off in his car with her. The mother and supervisor ran after him. The applicant had had her arms trapped in the window of the car as she had been trying to reach [SHK] who was screaming and the respondent had wound up the windows, but the supervisor pulled her free. The child was thrown into the back seat, and she was not immediately properly secured in the car, although the respondent says he did this soon after. The respondent sped off. When the child was returned on Wednesday,
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the applicant’s evidence is that she was very dirty, tired and upset and still sick.
35	The mother’s evidence was that the child would be very angry after being away from her mother for two nights at a time and suffered tantrums.
36	On 13 September 2001, the applicant filed an application seeking to vary the orders of 18 June 2001. The father filed a detailed response, seeking, among other orders, that [SHK] be baptised into [a church] and attend services, he describing himself as an "intermittent but regular church attendee".
37	Having regard to the recent events, surprisingly, on 27 September 2001, at a conciliation conference shortly afterwards, in [the regional centre], the Registrar noted that the mother was "content with the current regime of contact". The respondent had not attended the conference. The mother’s evidence is that she did not think there was anything she could do about the situation.
38	The father filed a Form 49 application on 9 October 2001, in relation to failing to make the child available at 4:00 pm on the Father's Day weekend. On 3 December 2001, the Form 49 application was dismissed, with the father to pay costs of $300.
39	The applicant father appealed the order on 21 December 2001, and on 11 February 2002, the appeal was dismissed, but with no order for costs of the appeal.
40	On 21 January 2002, the mother obtained a violence restraining order against the father.
41	On 17 May 2002, an item appeared in the “West Australian” newspaper about the father seeking a surrogate mother to have a baby through the Internet. It said he was keen to bring up a child on his own. This was at a time when the father had two little girls, aged three and two years, for whom he was responsible, and with both of whose mothers he was embroiled in legal proceedings. He was not working, was suffering from depression and could ill afford, emotionally, practically or financially to have more children. The father’s explanation was it was not a serious option and he was “just trying to do something”.
42	The father met [Ms LL] through the site as she contacted him and wanted to know why he would do such a thing.
43	On 21 June 2002, the applicant filed an application for departure from child support assessment. By July 2001, he had been
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retrenched from his employment and received a redundancy payment, which meant his income remained the same until 30 November 2001, but he then received Centrelink payments. He was suffering from major depression by that time. The father’s evidence was he had to cease work because of the demands of contact and the proceedings. The mother claimed it was because he did not want to pay child support. The father's application for departure was dismissed on 24 February 2003, partly because of the father's asset position as compared to that of the mother. He then had several rental properties.
44	On 3 September 2002, the father unsuccessfully applied for an adjournment of the trial of the proceedings in relation to parenting orders because he was not ready to proceed. The father did not then appear at the hearing a few minutes later, and, at trial the trial Judge dismissed his application filed 4 February 1999, finding the father was not in tune with the child's financial or emotional needs. There were concerns about his behaviour towards the mother. Handover was to continue at Family Visiting Centre with costs to be shared equally.
45	It was ordered that the child reside with the mother, who was to have sole parental responsibility. [SHK] was to have contact with the father every second weekend from Friday at 4:00 pm until Sunday at 5:00 pm, and every Wednesday for five hours, until she attended kindergarten in 2003.
46	The respondent refers to this as “a great tragedy” when he and [SHK]’s time together was “maliciously, deliberately and unnecessarily removed”.
47	On 6 September 2002, by consent, but without admission, a misconduct restraining order was granted against the applicant, for a period of two years.
•	48 On 22 October 2002, the father filed an application seeking, among other parenting orders, that [SHK] reside with him and [Ms LL], and have contact with her mother for five days per fortnight, varying when [SHK] commenced kindergarten.

49 The mother’s evidence was that after the trial she had concerns about the contact, which are referred to later.
50 In January 2003, the applicant received a telephone call from [Ms BN] advising her of serious concerns about the father’s behaviour and, in particular, the contents of two emails which contained highly disturbing information regarding the possibility of [SHK]
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and [KBN] being sexually abused by their father. During this conversation the applicant states that she was “struck by the similarities in what she was saying about her daughter and also with [SHK].”
51 It is alleged that the father’s then wife, [Ms LL], who at that time was in America, had sent the email to a friend [Ms AJ]. The email, dated 1 January 2003, contained allegations that the father had:-

• deceived her as to his presentation, lifestyle and home environment;
• that he and his home environment were “filthy”;
• that he allowed his youngest child to go for hours with a messy diaper;
• that he hid behind the computer looking at porn or slept all day when the children are with him;
• that he paraded around them undressed, told them they had to sleep naked with him while they are naked, made them bath with him even when they said they did not want to, and rubbed them in ways she did not find acceptable when they got out of the bath telling them that they were “sexy”.
52 [Ms LL] had allegedly confronted him about these behaviours but the father had said “it was normal” and she was “overreacting because of cultural differences between Australia and America”. The house was described as having "mouse poop" all over the kitchen cabinets, faeces spread over the bathroom and being filled with trash and clutter. She then stated “his obsession with filing court appeals, his obsession with porn, the sexual behaviour with his children and the severity of his depression” as being reasons why she allegedly decided to return to the United States.
53 The applicant then contacted the Child Abuse Prevention Service. She contacted Crisis Care at DCD, and following their advice, she withheld contact. She filed an application for contact to be supervised, and on 23 January 2003, filed a Form 66 Notice of Child Abuse based on the allegations contained in the emails.
54 On 23 January 2003, there was a further hearing in Perth and separate representation for the child was again ordered.
55 In February 2003, the child commenced kindergarten. The father turned up on the first day and took photographs. The mother said [SHK] was terrified, but she does not appear upset in the photographs tendered into evidence. The father sought ongoing
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contact at school and the principal, [CN], was very concerned about the situation, the father being very insistent and demanding. His explanation was he had been brought up in a Steiner school in which parents were very actively involved. This issue will be referred to further subsequently.
56 A court expert, Denise Cull, a forensic psychologist, was appointed to prepare a report in relation to both proceedings. The father indicated he would not be prepared to cooperate, nor would [Ms LL], who by then had returned to Australia. [Ms LL] filed an affidavit denying she was the author of the email in which the allegations were contained.
57 At this time, to March 2003, contact was still continuing, with changeovers occurring at the Family Visiting Centre, supervisors reported [SHK] was pleased to see her father, but, on return, she was often dirty, with food on her clothing and without shoes.
58 On 16 March 2003, the mother wrote to the father, saying she had concluded it was in [SHK]’s best interests for unsupervised contact to cease as she was appalled and deeply shocked by the child having been returned with no underwear, under a rag of a dress, with mosquito bites. The child was filthy dirty and covered in different layers of food. Her hair was a matted mess, with food in it. In addition, the father had confused the child by saying she had two homes.
59 On 26 March 2003, the respondent filed a Form 49 application.
60 On 11 April 2003, it was ordered, until further order, that the father have liberal contact, to be exercised under the supervision of the Family Visiting Centre, at all reasonable times that did not interfere with the child's attendance at kindergarten, with the parties to meet the costs equally. The father was entitled to attend at the child's kindergarten to be involved in the parent roster.
61 On 12 April 2003, the father forwarded to the child representative a document he entitled “notice of withdrawal of cooperation”, saying he was focusing on an appeal, the court being biased against men:
“As such I cannot formally support the continuation of the current resolution path and I will then become an accomplice to the operation of an unfair and discriminatory system.”

62 He advised he was refusing to cooperate in the preparation of any expert report.

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“Thus I will not commit myself to obey the current court orders and I will take actions as necessary to protect [SHK] [the other child subject of proceedings]. Should it be seen as necessary, this will include removing her to a location of safety, however in such a case, I will continue to attend all case listings and I will inform U after I have taken these issues.”

63 On 14 April 2003, he filed a Form 43 appeal, which was partly dismissed on 12 May 2003.
64 On 30 June 2003, the court expert produced her report which will be referred to subsequently.
65 On 7 July 2003, an application of the applicant filed 9 June 2003, and an appeal were dismissed, and it was ordered, until further order, that the respondent be restrained by injunction from attending at the child's school, Primary School, or within 100 metres of the school. From October 2003, to trial, there had been no incidents at the child’s school.
66 On 31 July 2003, it was ordered that the orders of 7 July 2003, be varied to allow the respondent to contact the school to make arrangements to set up an interview between him and the Principal and/or teacher provided they were willing to participate.
67 The respondent filed an application on 26 August 2003, seeking that the current court expert, Ms Cull, be dismissed from the current proceedings and there be a new expert appointed.
68 The father exercised some supervised contact at the Family Visiting Centre in August and September 2003. During the second half of 2003, he exercised less contact than that to which he was entitled.
69 On 12 September 2003, the father filed a response seeking to have liberty to attend school parent activities, dismissal of the order for supervised contact, and contact for five nights per fortnight. He also sought an order that the child's correct surname be used, and that the contact arrangements revert to those in place before supervision was imposed, and there be make-up contact at the rate of an extra two days per week.
70 On 16 October 2003, the Chief Judge heard the father's application and ordered that the trials in relation to the two separate cases proceed consecutively.
71 On 9 January 2004, the father and [Ms LL] separated for the final time, in difficult circumstances. The father’s mental health
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deteriorated. The couple had been going to move to [the eastern states] where [Ms LL] intended to study. The respondent’s evidence was that he planned to travel back to visit [SHK] and [KBN] for two to three months of the year, but would not do so unless he had unsupervised contact.
72 On 5 February 2004, the Chief Judge dismissed the father's application to be permitted to attend all parent activities, for dismissal of the court expert, and appointment of a new expert, and extended make-up contact. His Honour referred to the father’s criticisms of the expert, which were themselves unsupported by expert evidence, and referred in his judgment to the 98 pages of material filed by the father in support of his application.
73 From December 2003 to May 2004, the father exercised supervised contact about twice per month.
74 At the conclusion of all the evidence, on 28 May 2004, I made the following orders:-

1. Pending determination of the proceedings, paragraph 3 of the order of 11 April 2003, be suspended in relation to the child.
2. There be an interim misconduct restraining order restraining the respondent from approaching within:-
(i) 100 metres of the child;
(ii) 100 metres of the applicant's residence at [address];
(iii) 100 metres of the [name] Primary School.

3. The respondent be restrained and an injunction is hereby granted restraining him from approaching within 100 metres of the child or removing the child from the care of the applicant.

The parties and their credibility

75 Although there were some inaccuracies in her affidavit material (particularly dates), I am satisfied that the mother is a truthful witness, genuinely trying to be fair to the father, while doing her best for her daughter.
76 While the father is also a genuine person who loves his children, I am satisfied that he has tried, at the least, to minimise his problems, the most striking example of this being that he did not volunteer during the trial that he had so recently been a psychiatric in-patient. His evidence was he did not mention it “because he did not see it as
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that big a deal”. He also attempted to hide Ms Yom-Tov’s evidence from the court, which supported that of the court expert, and downplayed the significance of the surrogacy advertisement.
77 While he presented surprisingly well at trial, having just been released from hospital, he responded to difficult cross-examination with his eyes closed.

Relevant factors

78 The object of Part 5 of the Family Court Act 1997 relating to children and the principles underlying it are set out in s 66 of the Act.

“(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests -

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.”

79 Section 90 of the Act provides, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
80 Section 166 provides, in determining what is in the child’s best interests, a Court must consider a number of matters set out in sub- section 166(2).

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Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s wishes

81 [SHK] was only five years old at the time of trial and was therefore too young to express wishes in relation to residence and contact. I accept that [SHK] often enjoyed contact with her father, and spending time with her half sister [KBN].

The nature of the relationship of the child with each of her parents and with other persons

82 I am satisfied [SHK] has a loving relationship with her mother and is closely bonded to her. She has always been [SHK]’s primary caregiver. Ms Cull reported that the mother provided a carefree and loving home environment and observed her and [SHK] to be openly affectionate with one another.
83 The mother’s parents and brother live close by, and have a good relationship with [SHK].
84 For a time, [SHK] had a loving relationship with her half sister [KBN], but they did not spend much time together. At trial, the children had not seen each other for over a year. When interviewed by Ms Cull, [SHK] appeared to be interested in [KBN]. The girls’ mothers are prepared for them to have contact with each other, but there are practical difficulties. I accept that it is in the children’s interest to have a relationship with each other, particularly since they are so close together in age.
85 [SHK] does not have a close relationship with her half brothers [SH] and [DH] and, at trial, she had not seen them for some time. Generally, I accept she had a reasonable relationship with them, having regard to the age difference. However, there was evidence that, on one occasion at least, [SH] was rough with her when she was in his care, and I accept that it is likely this incident occurred.
86 She had a good relationship with her paternal grandparents, but has not seen them for a considerable time.
87 As to the important issue of the child’s relationship with her father, it was difficult for the court expert to report on this, as he refused to fully participate in the investigative process. Ms Cull reported that while various reports suggest [SHK] appreciated her contact with the father, she presented as if apprehensive or in some way disturbed by past contact with him. When asked if she liked it when she had visits with her dad, [SHK] did not reply. When
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asked if the visits were good, she merely nodded. Ms Cull then asked [SHK] what was good about the visits and once again she did not reply, but then said “don’t want to go to his house.” When asked why she didn’t want to she responded, “I don’t want to tell you.” [SHK] then said that she felt safe at her mother’s house but when asked about her father stated “no, not safe with him.” When asked if she feels sad that she doesn’t see her father and brothers [SHK] responded “no...yes...no.”
88 The court expert was not satisfied that the father’s relationship with [SHK] was motivated by concern for her. She stated that there was no evidence of grief or loss at his lack of contact with her, but this was viewed more in terms of the need for him to win, in the context of the lengthy litigation instigated by the father in relation to [SHK].
89 The father claimed that he and [SHK] had a positive relationship and that she enjoyed her contact time with him, and I accept this was generally the case. During times when [Ms LL] and her daughter [KL] were also present, much of [SHK]’s interaction revolved around [KL]. I accept [SHK] enjoyed this contact. [SHK] did tell a contact supervisor in February 2004, that she did not like her dad telephoning her.
90 From March 2004, [SHK] appeared less shy and comfortable at the commencement of contact and whilst she did not hold her arms out to hug her father she allowed him to hug her. [SHK]’s paternal grandparents also attended some visits. She appeared excited to see them and consistently seemed comfortable in their presence.

The likely effect of any separation from her mother and any other person with whom the child has been residing

91 If [SHK] were separated from her mother for more than short periods, this would cause her a great deal of distress. She has always resided with her mother, although she has stayed with her father overnight prior to supervised contact commencing.

the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

92 If contact occurs and is independently supervised, there would be a financial strain on the parties. The father is on a disability pension, but has some assets, including the home in which he resides. At trial, the mother was on Centrelink payments. Both parties live in
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Bunbury so there would be no difficulties and expenses associated with travelling.

The capacity of each parent, or of any other person, to provide for the needs of the child, including her emotional and intellectual needs

93 I am satisfied the mother can provide for all of [SHK]’s physical, emotional and intellectual needs. Although the father has made some criticisms of her, he conceded at trial that she is an excellent mother, his only real criticism being her attempts to limit his contact with the child, which I accept were justified.
94 There was evidence that the father is an involved and interested parent. He has read widely in this area, attended several courses, been a cub leader for many years (after being vetted), been involved in Dads & Kids Camps, been a voluntary tutor, and has been a Parents Without Partners committee member. There is no doubt he is genuinely interested in children and loves all his children, but at times, this has been to such an extent he becomes obsessed.
95 However, there is a serious issue in relation to his mental health. The father has been treated, since 1998, for chronic depression. He has had ongoing involvement with Mental Health Services, being treated by a psychiatrist, Dr John Kemp, and undertaking psychological counselling from Sigari Luckwell and Barbara Lamparski. Ms Luckwell’s evidence was that, in 2000, she had found it hard to deal with the father and felt abused by him.
96 By early 2001, the father had been diagnosed with major depression and ceased employment. He has not returned to work since. There were possible risks as the medication had some side effects.
97 In June 2003, the court expert’s conclusions regarding the father’s mental state were as follows:
“As a consequence of the various interviews conducted and the nature of the information provided...it is my professional opinion that the father has some significant mental health issues and personality dysfunction which extend beyond those typical of a clinically depressed state. His...obsessive determination to parent a child...would appear to be well beyond the normal parameters of paternal desire, acknowledgement and responsibility. Numerous reports of his behaviours suggest he is controlling, manipulative, self- determining and bullying in his determination in this regard,
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with his persistent litigation through the courts creating distress and difficulties for his former partners which will inevitably have some impact upon the children.”

98 Prior to trial, the father attempted to have the court expert removed and have a new one appointed. He was not successful. Having obtained the court’s approval, the father approached another clinical psychologist, Ms Carmela Yom-Tov on 18 March 2004, to obtain a separate report, as he hoped to obtain a report that was more favourable towards him. The conclusions in Ms Yom-Tov’s report are similar to those of the court expert’s. Her evidence at trial was that the father has an egocentric and narcissist view of things. She stated “he analyses the needs of others through his own needs and has no empathy for what other people are feeling. He has difficulty accepting points of view that is not consistent with his own and there is a high likelihood that he could self-harm.” She referred to the father as having a pervasive personality disorder which is fairly permanent. Her recommendation was that if contact was ordered it should be supervised. This would be positive if the supervision focused on the needs of the children and he was able to cope with the restrictions. Supervision in the long term may not be positive for the father.
99 When the father became aware of Ms Yom-Tov’s conclusions, he attempted to conceal the extent of his problems from the Court by asking Ms Yom-Tov to destroy her file. He further refused to provide the name of the doctor who he had been seeing to the Child Representative prior to trial.

100 The father also called another clinical psychologist, Stephen Cohen, in relation to the validity of the personality tests. He had first consulted Mr Cohen in October 2000, in relation to earlier proceedings, at which time he had concluded there was no indication that the father should be required to have supervised contact as he presented no threat to the child or her mother.

101 Mr Cohen administered the MCM Inventory-III on 7 April 2004. He concluded:
“the overall result is an average, honest disclosure about Mr [H]’s depression and the concomitant factors of anxiety, dysthymia and self-defeating views all of which indicate negativity towards himself rather than others. …
It is of interest to note that there were no significant indications of any narcissistic antisocial, histrionic or sadistic/aggressive personality features.”
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102 His evidence was

that the father had a borderline personality disorder.

103 At trial, Mr Cohen gave evidence that children masturbating was not necessarily indicative of abuse, but it may be cause for concern if both girls had similar behaviours.

104 At trial, the father’s condition was quite acute. His treating psychiatrist, Dr Amelia Hill, gave evidence that the father was admitted as a voluntary patient to the psychiatric unit of the Regional Hospital on 20 April 2004. His symptoms were that he could not cope, could not get out of bed, was crying for no reason, and could not sleep. He was overwhelmed and obsessed by the court case. He had been treated with anti-depressants, an antipsychotic drug, and a drug to make him sleep.

105 By 25 April 2004, he was being allowed to leave the unit in the day and return to sleep as he was preoccupied with the court case and needed to prepare for it. He was also permitted to leave hospital to exercise the supervised contact. On 27 April 2004, he was referred to as being distressed and overwhelmed by the court case. He was a fairly compliant patient, although sometimes argumentative.
106 Dr Hill’s conclusion was he was suffering from chronic treatment resistant depression in the context of severe social stressors. He was referred to as having an obsessional personality style.
107 The father was discharged on Thursday, 13 May, just before the trial. The hospital records indicate that he admitted to suicidal thoughts, but he had not disclosed any suicidal ideation to Dr Hill. He had said he had thought of suicide as a future option if he did not get unsupervised access to his daughters. There was no concern about harm to others.

108 The father was on anti-depressants at the time of trial and was being assigned to a case manager.

109 By 29 June 2004, the father had been transferred from Mental Health Services to the care of his general practitioner, Dr L Smith. It was noted he was compliant with treatment.

110 The father’s position was that his mental health would improve and the evidence regarding his medical state was outdated, even though he had so recently been an in-patient. He says the major depression was initially triggered by the stress of having to fight for contact, and the loss of [B]. I do not accept this to be the case. Obviously, difficulties with contact and Family Court proceedings are stressful. However, the father’s first contact with the Mental
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Health Service in November of 1998, before [SHK] was born. The evidence is that his mental health and personality traits are a long entrenched problem, probably stemming back to issues from his own childhood, including that he is an adopted child.

111 In cross-examination, the father admitted to struggling with suicidal thoughts and frankly stated that he considered attempting suicide on one occasion driving home after seeing [KBN] when he closed his eyes and hoped the car would go off the highway. He did however say that he would never involve his children. [Ms LL] gave evidence that the father had, on one occasion, threatened to crash the car with both her, and her daughter, in it.

112 The father has made allegations regarding the mother’s mental health. He has alleged that the mother is mentally unstable. The mother had counselling with the local women’s counselling service. She stated that this was to “help her with the stress of the litigation and issues dealing with allegations in relation to [SHK].” The father forwarded a letter to the child representative stating that the mother had undertaken counselling at the service and that they have been concerned regarding her mental health. He reports that on the basis of her current behaviour he was planning to seek residency of [SHK] or to have her placed with a third party agency with supervised contact for the mother.

113 At trial, I had no concerns about the mother’s mental health. It is hardly surprising she would seek professional advice and support during such a stressful time.
114 I have grave concerns regarding the father’s capacity to provide for [SHK]’s physical needs. At best, the standard of the father’s physical care has been variable in ensuring she is dressed appropriately, or providing a suitable home environment.

115 Evidence regarding the state of the father’s home consistently described it as being extremely cluttered, with the possibility of safety hazards for young children. There were mouse droppings and, at times, problems with cleanliness. In 1994 the father was investigated by the Department for Community Development regarding allegations of having neglected his two sons, [DH] and [SH]. In January 2003, departmental officers visited the home and advised him to tidy up the house to make it more appropriate for the children, and not to leave the computer in an area where children would be. The court expert reported the external grounds of the property as being “well cluttered with items stacked or

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dumped indiscriminately”, and described it as being potentially
hazardous to the children.
116 Whilst the condition of the home was improved before Ms Cull’s visit, she concluded that this was done either because of advice given from DCD or on the return of the father’s current wife. A video, taken by the respondent, was shown during the trial to demonstrate the home’s clean and tidy state. Obviously, the home would have been tidied up prior to the video being filmed.
117 The father’s ability to properly care for his sons in the past was also of some concern. His son [DH] gave evidence that the father cut him off from food and water and turned off the utilities to the caravan in which he lived when he misbehaved. This was verified by [Ms BN], who stated that when she lived with the father she would sneak food out to [DH] and allow him to come into the house to shower when the father was at work. [DH] has had some problems with the law, a Juvenile Justice Team being involved.
118 The boys were also left to fend for themselves when quite young as the respondent spent quite a lot of time in Perth. The father points out that he had the care of [SH] and [DH] as teenagers and that they survived without starving, requiring medical treatment as a result of anything he did, or getting into serious trouble. Both the boys gave evidence in support of their father’s case, but, frankly, neither presented as good advertisements for their father’s parenting skills.
119 I am also not satisfied that the father can provide for the emotional needs of [SHK]. The father has displayed a lack of insight into the likely impact the protracted litigation has had on the mother and, as a result, [SHK]’s welfare. He has pursued the litigation on the basis that he believes it was in [SHK]’s best interests, while this belief was obviously misguided.
120 I am therefore not satisfied the father could adequately provide for [SHK]’s physical or emotional needs.
121 There is no question that the father is a very intelligent man who would be able to provide for the child’s intellectual needs.

Any special characteristics of the child

122 It was not suggested that the child had any special characteristics to be taken into account. She has attended counselling for several sessions after the allegations were made.

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The need to protect the child from physical or psychological harm caused, or that may be caused -

(i) by being subjected or exposed to abuse, ill treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill treatment, violence or other behaviour that is directed towards or may affect another person;

123 This was a significant factor in this case.
124 In section 5 of the Family Court Act 1997, abuse is defined as being:-

(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first- mentioned person or the other person, and
where there is unequal power in the relationship
between the child and the first-mentioned person …"

125 In M and M (1988) FLC 91-979, the High Court said, at pp 77,080 - 77,081:-
"Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. …
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No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well- founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm". … To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse."

126 The mother’s evidence is she became concerned before September 2002, and her concern became worse when overnight contact commenced. She stated that [SHK] would go on contact visits happy and return home angry. She “would become very upset and
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start screaming and throw herself on the floor and if I went near her she would lash out kicking me, hitting and even biting me. She would then come to me for a cuddle, fall asleep and wake up her normal self.” The mother states at this point she “was obviously concerned but thought that perhaps this was just a passing phase and not because anything untoward was happening at contact.”
127 She also found that [SHK] would say very little about her father or anything that she did on contact visits and would “clam up.” The mother gave evidence that “[SHK] has never been happy to go on contact and I have really had to encourage her to go. She would come back overtired, dirty, with very matted hair and wearing dirty, sometimes torn, clothes.”

128 The mother reports that [SHK] began to display sexualised behaviour. The mother stated that:

“For example, on one occasion when [SHK] was lying on the bed after a bath, with no clothes on, she had taken hold of her ankles, tipped herself backwards, and then told me to “kiss my OO” (which is the word she used for her genitals). [SHK] also seemed to be obsessed with her genital area towards the end of 2002, and always seemed to have her hand in her pants.”

129 She also wanted to sleep in the mother’s bed. The mother stated that the sexualised behaviours stopped after the supervised contact commenced.
130 [SHK]’s maternal grandmother, [Mrs K], also gave evidence that on an occasion when [SHK] was about to get into the bath she had allegedly turned to her and said “you won’t hurt me will you Gran?” She had asked, “why would I do that” to which [SHK] had not responded. [SHK]’s maternal grandfather, who had been present at handovers stated that “on one occasion [SHK] had been returned wearing hardly any clothing. The father was always late and [SHK]’s hair was a mess”. The maternal grandfather had also noticed [SHK] “playing with herself.”
131 The situation improved when [Ms LL] came to Australia. From the middle of November 2002 the mother stated “the angry behaviour ceased. [SHK] was returned in a clean and tidy state and was happy to go on contact.”
132 Only a few weeks later, [Ms LL] had left the father and gone to America. On three occasions, until the middle of January 2003, [SHK] returned each time with no underwear on, even when the
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contact was only between 9:00 am and 2:00 pm on Wednesday. The father even states in his log book that he “had all [SHK]’s knickers.”
133 The father reported [Ms LL] as a missing person, although he maintained it was always planned she would return to the United States because of visa requirements.
134 As previously mentioned, in early January 2003, it is alleged the mother received an email from Alison Jose, who said she had forwarded on an email for [Ms LL].
135 [Ms LL] has consistently denied writing the emails. The father denied almost all of the allegations made in the emails and has accused, particularly, [Ms BN], or perhaps, the mother, of deliberately and maliciously fabricating the emails so as to deny him contact with the girls.
136 In support of his contention that [Ms LL] did not write the emails, the father pointed out that they were timed in the early hours of the morning at a time when [Ms LL], who did not then have personal email access, would have been unable to have the use of public library email facilities. He said that the email was not in [Ms LL]’s usual style, for example, including Australian colloquialisms.
137 In early March 2003, [Ms LL] was contacted by DCD and did not then deny sending the emails. She was asked by a case worker, Pamela Adams, whether she had seen [SHK] put her crotch in Mr [H]’s face. [Ms LL] appeared to respond:
“No I was not present when this occurred. Briefly, the situation is this: [Mr H] asked me why I never allowed him to stay alone with my daughter (age 5). I stated to him that I did not feel comfortable leaving her in his care based on my observances 1) of his mental health 2) his inability to care for himself and his home environment and 3) his interactions with his children. He asked in what way was I uncomfortable with his behaviour toward his children and I reiterated what I had seen: Making the girls take a bath/sleeping naked with him despite their refusal/statements of uncomfortableness with doing so, telling them that they are “so sexy”, repeated talk to the children about his and their genitalia. [Mr H] stated that this was “normal in Australian culture”, and that I was overreacting because of my “American uptightness”. He further stated that he could “understand why men abuse/have sex with children because of a situation that had recently
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occurred with his daughter [SHK]”. He stated further that “[SHK] was testing his limits by putting her crotch in his face.”

138 The father and [Ms LL] then reconciled and [Ms LL] returned with her daughter to Australia in April 2003 because she says “they were married and she had made a promise.” On her return, she denied writing the emails and the allegations against the father contained in them.
139 At trial, [Ms LL] continued to deny that she was the author of the emails however, accepted large parts of the contents were true.
140 She stated that she had no contact with [Ms AJ] once she left Australia or with [Ms BN], but had discussed nearly all of the contents in the emails with [Ms AJ] prior to returning to America.
141 I am satisfied that the mother and [Ms BN] were largely credible witnesses and it is highly unlikely that they deliberately concocted these two emails. [Ms K] and [Ms BN] were far from close, and at that time were not on good terms and had not been in regular contact with each other.
142 Having considered all the evidence, I am satisfied that it is probable that [Ms LL] did write the emails. As to the content of her claims, obviously, once I found against her on the issue of the authorship of the emails, doubt is placed on her credibility generally. It is extraordinary that a woman who was said to be a child protection worker in the Untied States was prepared to stand by, even for a short time, and watch what was happening if she was so concerned. However, more extraordinary was the fact she returned for several months to live with Mr [H] in these circumstances.
143 The court expert’s conclusions were at page 49 of her report were that “although the children’s ages prevented reasonable interview, I am far from satisfied that they are not in danger or at risk of emotional and/or sexual abuse by the father.” She then cited her reasoning for this was the responses displayed by [SHK] and [KBN] when asked about their father. When [KBN] was asked, “had her father ever hurt her” she responded by lowering her trousers, placing her fingers somewhere in her genital region inside of her clothing and then stretching the labia to the top of her clothing so this was exposed. She commented that [KBN] is of an age when coaching is not considered possible. She stated that this behaviour appeared to replicate and therefore potentially validate the concerns described by the mother. Furthermore [SHK] clearly

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indicated a feeling of safety with her mother but of feeling not so
with her father.

144

She then went on to say that:-
"given the nature of information contained within the
emails...the concerns raised therein provide further supportive
cause for concern. From my investigation and to the degree
possible, I am far from satisfied that the father’s wife was not
the author of those emails."

145 Ms Cull then cited the father’s extensive involvement in a range of activities including volunteering to care for young children, boy scouts, the Parents without Partners organisation and of being involved with a friend to act as a photographer or new mothers with their babies as suggestive that the father preferred association with young children. She then went on to say:
“Given his apparently disturbed mental health and dysfunctional personality style, some possible cause for concern is indicated by this ... Although the allegations of sexual abuse cannot be verified, there is sufficient cause for concern to suggest these should not be too readily discounted.”

146 The Department for Community Development file was closed in August 2003, it being said that no sexual abuse of the child can be identified – “There is no actual evidence of harm to corroborate what [Ms LL] and the mothers have said”.
147 The court expert concluded that [SHK] is also at risk of psychological harm should she have unsupervised contact with the father. The court expert advised ‘given the father’s notable history of mental heath issues, personality style and variously dysfunctional attitudes and beliefs, it is my view that these children could not be raised by or have significant contact with him without negative implications upon their own healthy development.’ I am satisfied that if [SHK] spent any length of time with her father he would project his personality traits onto her as well as issues relating to his poor mental health. At such a young age [SHK] is susceptible to being influenced by the father and “picking up” these attributes.
148 Ms Cull and Ms Yom-Tov both said the father has serious problems with boundaries. The father struggles to distinguish what is and what is not appropriate sexual behaviour. Further, he did not see that there was a problem with calling the girls ‘sexy’ when they
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were being dried after a bath. The father appear to (and it was the evidence of [Ms LL]) believe that exposing the girls to this type of behaviour “is preparing them for life and how they view their own sexuality”, and encouraging a good self image. No one who was present in court could forget the feeling of disquiet when the father gave his evidence about these issues as, at best, he so clearly had inappropriate ideas about how to treat young girls.
149 I am satisfied that it is likely the father has acted, at the least, in a sexually inappropriate manner towards [SHK] and [KBN], not for his own sexual gratification, but because he worships the girls as young females, and by doing so has allowed, and undertaken, behaviour which goes beyond appropriate boundaries.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

150 The father’s case was that the mother’s actions showed excessive over-protectiveness and a desire to control, and be the dominant and only person in [SHK]’s life. I do not accept this is the case.
151 If contact is ordered, I am satisfied the mother will promote [SHK]'s relationship with her father, so long as appropriate arrangements are made for her safety and supervision. She was shattered by the allegations, and the fact she had allowed contact to continue, but accepts [SHK] should know who, and where, her father is.
152 There have been occasions when the father’s unrelenting attitude has put additional pressure on the mother and [SHK]. The principal of [SHK]’s school, [CN] , gave evidence that the father inappropriately attended the school on several occasions including waiting for [SHK] outside the school in his car, engaging children in conversation over the school fence and attending [SHK]’s classroom uninvited (this was in 2003, after the sexual abuse allegations had been raised). This had resulted in escorts being provided for [SHK] and her mother to and from class. [SHK] had said that she did not want her father attending the school, or phoning her. When [Ms CN] had told [SHK] that her father was going to be put on the school roster (due to his insistence) [SHK] had allegedly responded by physically shaking with a look of terror on her face saying “no, no no. Not here. I don’t want Daddy to come here.” The father’s attendance at the school obviously embarrassed and intimidated [SHK].

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153	The father’s actions also put [Ms CN], teachers and some parents under additional stress.
154	The respondent took the issue of his contact at school to the principal’s superiors. [Ms CN], needed considerable support in dealing with the situation. She gave evidence before me that she felt intimidated by Mr [H] and in giving her evidence, she had difficulty in looking at him.
155	The father gave evidence that he considered his attendance at the school to be ‘in the best interests of [SHK].’ When cross- examined about his behaviour in relation to parking his car outside [SHK]’s school he replied that he did so because he wanted to see [SHK]. When it was put to him that this was a very stressful thing for the mother and child he said that he did not think that it was stressful and thought that it was quite reasonable. The father clearly has no insight into the emotional impact of this inappropriate behaviour on [SHK].

Any family violence involving the child, or a member of the child’s family, or any family violence order

156 The father has a conviction for malicious damage, which relates to an occasion in 1999 when he kicked in a window at the mother’s house. The mother obtained a misconduct restraining order against the father in relation to this incident.
157 There were several applications for restraining orders. At the time of trial, a misconduct restraining order of 6 September 2002, was in force against the respondent. The father, although not normally a violent man, can become aggressive if he does not get his own way.

Whether it would be preferable to make the order least likely to lead to the institution of further proceedings

158 It is important, as far as possible, that there not be ongoing litigation over [SHK]. It is obvious that the father will pursue further litigation if he has the opportunity to do so.

Conclusion – parenting orders

159 The court expert’s recommendation was that “contact between the children and their father be supervised within the structured environment of an agency … and that such supervision should be continued until the children are of an age when they can adequately protect themselves which is typically middle childhood, i.e. approximately 9-10 years of age”.

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160	At the conclusion of the trial, the child representative’s submission was that the father have contact with [SHK] on each fourth weekend on a Saturday or Sunday for three hours, at the Supervision Centre on the condition that one of both of the paternal grandparents also attend the contact, and the father also attend the contact, and the father be at liberty to send cards and presents to the child.
161	On 28 October 2004, I published the following summary of my conclusions:

“I have determined that although I accept Mr [H] genuinely cares deeply for the children and would never intentionally do anything to harm them, his psychological and psychiatric condition, the risk of abuse in the form of at least inappropriate behaviour, his inability in all the circumstances to appropriately parent the children and the effect of his involvement in the children’s lives to date, including the extensive legal proceedings, is such that, at least in the medium term, on the evidence before me, it is not in the best interests of the children to have unsupervised contact with him. I am not able to give
Mr [H] a timetable for the reintroduction of unsupervised is in the children’s interests to have knowledge of their father and receive presents, cards and letters from him. However,
contact, but it would not be for several years.
I have given very serious consideration to the proposal for
very occasional supervised contact and have determined it is
not in the best interests of the children for such contact to
occur for the time being, in what would be highly charged
emotional circumstances, given that unsupervised contact is
not to take place for some years. Nor do I consider such
contact would be in the interests of Mr [H]’ mental health. It
would also put considerable stress on the mothers of the
children and their families. However, the children should
have the opportunity to have some contact with each other and
with other members of the father’s immediate family,
including their paternal grandparents. In the absence of
applications in this regard from family members I do not
propose to make orders, however I have provided liberty to
apply in the event that they appropriately seek reasonable
contact and it is denied.
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the mothers of the children are to have the right, if an inappropriate item is provided, not go give it to the children or, for example, delete any inappropriate material from a card or letter.”

162 The issue to be determined was whether it is in [SHK]'s best interests to have direct contact with her father, and, if so, on what terms. There was no doubt [SHK] should reside with her mother.
163 To enlarge on the reasons for there to be no direct contact:

•

The father has shown little respect for either of the mothers of the girls, although during the trial, he appeared to accept that [Ms K] was an excellent mother and [Ms BN] was also a good mother. An example of this was his suggestion that the children be placed in foster care.

•

At the time of trial, his mental health was very poor and he was not able to care for himself, let alone a young child. Not only does he suffer from depression, but also has a personality disorder. While the evidence is that he was quite normal until the relationship with [Ms K], since then, he has become totally obsessed with the two girls, the subject of the proceedings, and his warfare with their mothers.

•

The father has an unusually keen interest in forming friendships and relationships with young girls. In addition to the children, the subject of these proceedings. He has befriended other young girls, for example, [C], who was aged seven years at the time of trial, and [J], aged 15 years. The father has shown an interest in having more children and, extraordinarily, in the circumstances, advertised for a surrogate mother. The father has generally had a number of women friends, some with whom he has had relationships. Several of his friends gave evidence – overall, there were concerns that the father had become more obsessive over the years and his condition had markedly deteriorated.

•

The father has not readily accepted the responsibilities of parenthood in contributing towards the financial support of the children. While he has been on a disability pension for some time, he has had assets which he has hotly fought to retain, his explanation being that the properties may be needed if the children go to university.

•

The father has shown no ability to properly care for the children’s needs. While he is an enthusiastic and interested
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parent, his involvement with the children particularly [SHK], was always pushed beyond the boundaries of what was reasonable and desirable. For example, the father’s use of the contact log, and extent of detail therein, including his approach to “mummy”.

• There is also the father’s pursuance of legal proceedings to an extreme extent, and the nature of the orders sought in those proceedings, which were far beyond those likely to be granted, thus showing an extraordinary lack of insight. The fact that he had commenced proceedings in relation to [SHK] even before she was born is an indication of the extent of his focus on legal proceedings. While he claims that this is necessary, because he has had to fight for any contact he has had, I do not accept that if he had not been unreasonable from the outset, that the mothers would also have been unreasonable.
• I am not satisfied that the quality of his accommodation for the children is suitable, having regard to the overwhelming evidence as to the dirty and untidy condition of the father’s home.
• When thwarted in his desires in relation to the children, the father, while usually a fairly mild mannered person, can become quite aggressive, and under extreme stress, has been violent.
• I am satisfied that there is an unacceptable risk to the children’s physical and emotional welfare if they have direct contact with their father.
164 On the positive side, I accept that the children have often enjoyed playing with their father in the past and that he genuinely cares for them. The children have also enjoyed seeing their paternal grandparents. Generally, supervised contact proceeded quite satisfactorily.
165 I also accept that the father believes he has conducted himself in the best interests of the children, and it is not his intention to hurt or cause distress to the children.
166 As to the possibility of supervised contact, the father has stated that he is not interested in an order for long term supervision, although he would be prepared to put up with supervision for six months. At trial, he was thinking of moving interstate. It is the
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case he has had psychiatric advice that it could be in his best
interests to have no involvement with [KBN] and [SHK].
167 It is likely that if supervised contact is ordered the father will continue to push for this contact to be extended, or for it to become unsupervised.
168 An order for long term supervision should not be entered into lightly, and any ongoing possibility of direct communication between the father and the child is likely to place additional stress on the mothers.
169 [Ms LL] gave evidence that the father told her that “if the children don’t see the other parent for a period of time and he forms a close bond with them, the Court will allow him to have residency of the girls because of the ‘status quo’.” His plan was to take the girls to the Eastern States where he could ‘hop around underground’ for a number of years and then return to Western Australia. He further mentioned that when he was having supervised visits he could ‘always hop the fence.’ The father denied that these conversations took place, but in cross- examination admitted that if he thought that it was in [SHK]’s or [KBN]’s best interests, he would “take the girls.”
170 In his “notice of withdrawal of cooperation” to the child representative, the father said:
"I will be placing [SHK]’s best interests first...Thus I will not commit myself to obey the current court orders and I will take all actions as necessary to protect [SHK]. Should it be seen as necessary, this will include removing her to a location of safety."

171 [SHK]’s school principal also reported that on an occasion when she and a police officer had been speaking with the father about his persistent presence at the school he had responded “Well, I suppose I could jump the school fence and grab her.”
172 While I consider it unlikely, there is a possibility of abduction.

Restraining orders

173 In closing, the child representative sought orders that the father be restrained by injunction from attending within 100 metres of any school attended by the child, and within 100 metres of the residential address of the respondent mother and the maternal grandparents.
174 On 28 October 2004, I said:-

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“As to the restraining orders, although they may not be required, depending on the father’s response to these orders, I am satisfied that orders pursuant to the Restraining Orders Act are warranted, having regard to the evidence in the proceedings overall and partly because I cannot be sure of the father’s response to this decision. However, they should extend only for a further approximately six months. Thereafter, unless an application for extension is made, there will be an injunction under the Family Court Act in similar terms.”

175 I am satisfied that these orders were necessary for the personal protection of [SHK], and her mother, not because of risk of injury, but because of risk of harassment by the father.
176 It is clearly in [SHK]’s interests for the father to be restrained by injunction from coming near her until it is established she is not at risk, of any kind, including any threat to her emotional stability, from the father.

Injunction re filing proceedings

177 In closing, the child representative sought an order that the father require leave before instituting further proceedings.

178

On 28 October 2004, I said:
“As to the application for an injunction regarding
commencing further proceedings, I have determined that it is
essential, in the children’s best interests, for legal proceedings
to cease or be very strictly limited. It is not only the number
of the applications which are of concern, but their nature and
content in which many unrealistic orders have been sought.
The father will not be permitted to file any further applications
without prior leave of the court.”

179 The mother had sought for the father not to be permitted to file any more applications in relation to [KBN] without leave of the Court. Section 242 of the Family Court Act 1997 provides:

(1)

In proceedings under this Act the court hearing the proceedings may at any stage of the proceedings if it is satisfied that the proceedings are frivolous or vexatious —

(a) dismiss the proceedings;

(b)

make such order as to costs as the court thinks just; and
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(c)

if the court thinks fit, on the application of a party to the proceedings, order that the person who instituted the proceedings cannot, without leave of the court or another court, institute proceedings under this Act of the kind or kinds specified in the order, and
an order made by the court under paragraph (c) has
effect despite any other provision of this Act.

180 Persistent litigation instigated by the father has exhausted the mother financially and emotionally and this is likely to impact on her ability to care for [SHK]. The court expert said:
“Both of the mothers presented as if highly wearied by the necessity to persist with court activity on a very regular basis over the last several years. I have serious cause for concern for the psychological and emotional impact upon each of the mothers given their experience of these persistent court proceedings and which will inevitably impinge eventually, if not already, upon the welfare of the children. There is no known evidence...to suggest the perpetuation of the proceedings to be welcomed by either mother however on which, conversely, the father would appear to thrive. The potential impact upon the mothers’ respective health, welfare and parenting of the children given their need to persist in defending or seeking the protection of the court, cannot be understated.”

181 To my knowledge, the extent of applications to this Court, in relation to both this, and the other related case of [H] v [BN], are unprecedented. There has been extensive litigation, not only in relation to parenting orders, but child support and restraining orders.
182 While the mothers have been responsible for some applications, without doubt the father was the driving force behind the litigation.

183 I am satisfied that, to a considerable extent, the proceedings instituted by the father have been frivolous or vexatious and that, until further order, he should be restrained from instituting further proceedings without leave.

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I certify that the preceding 183 paragraphs are a true copy of the reasons

for judgment delivered by this Honourable Court

Associate

(2)	Provide to the father a minimum of three photographs of the child each six months, and a brief summary of her activities and progress.
(3)	Ensure the child has knowledge of her father, including provision of a photograph.
(4)	Ensure the father is informed if the child requires hospitalisation or serious medical treatment.

(a)	an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b)	a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first- mentioned person or the other person, and
where there is unequal power in the relationship between the child and the first-mentioned person …"

•	The father has shown little respect for either of the mothers of the girls, although during the trial, he appeared to accept that [Ms K] was an excellent mother and [Ms BN] was also a good mother. An example of this was his suggestion that the children be placed in foster care.
•	At the time of trial, his mental health was very poor and he was not able to care for himself, let alone a young child. Not only does he suffer from depression, but also has a personality disorder. While the evidence is that he was quite normal until the relationship with [Ms K], since then, he has become totally obsessed with the two girls, the subject of the proceedings, and his warfare with their mothers.
•	The father has an unusually keen interest in forming friendships and relationships with young girls. In addition to the children, the subject of these proceedings. He has befriended other young girls, for example, [C], who was aged seven years at the time of trial, and [J], aged 15 years. The father has shown an interest in having more children and, extraordinarily, in the circumstances, advertised for a surrogate mother. The father has generally had a number of women friends, some with whom he has had relationships. Several of his friends gave evidence – overall, there were concerns that the father had become more obsessive over the years and his condition had markedly deteriorated.
•	The father has not readily accepted the responsibilities of parenthood in contributing towards the financial support of the children. While he has been on a disability pension for some time, he has had assets which he has hotly fought to retain, his explanation being that the properties may be needed if the children go to university.
•	The father has shown no ability to properly care for the children’s needs. While he is an enthusiastic and interested

•	There is also the father’s pursuance of legal proceedings to an extreme extent, and the nature of the orders sought in those proceedings, which were far beyond those likely to be granted, thus showing an extraordinary lack of insight. The fact that he had commenced proceedings in relation to [SHK] even before she was born is an indication of the extent of his focus on legal proceedings. While he claims that this is necessary, because he has had to fight for any contact he has had, I do not accept that if he had not been unreasonable from the outset, that the mothers would also have been unreasonable.
•	I am not satisfied that the quality of his accommodation for the children is suitable, having regard to the overwhelming evidence as to the dirty and untidy condition of the father’s home.
•	When thwarted in his desires in relation to the children, the father, while usually a fairly mild mannered person, can become quite aggressive, and under extreme stress, has been violent.
•	I am satisfied that there is an unacceptable risk to the children’s physical and emotional welfare if they have direct contact with their father.

[2006] FCWA 52

28 OCTOBER 2004