K and R - [2002] FMCAfam 120

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & R

[2002] FMCAfam 120

CHILDREN – Contact – restraining orders re: extended family members.

Applicant:

C J K

Respondent:

L M R

File No:

ZM 2879 of 2001

Delivered on:

9 May 2002

Delivered at:

Melbourne (sitting at Bendigo)

Hearing Date:

28 February 2002

Judgment of:

Hartnett FM

REPRESENTATION

Counsel for the Applicant:

Mr Wylde

Counsel for the Respondent:

Mr Middlemis

Child representative

Mr O’Donnell

ORDERS

That all previous orders restraining the father and/or his servants and/or agents from allowing the child A J K born 10 November 1992 to come into contact with J C and/or C C and/or S C be and are hereby discharged.
That the father be at liberty to allow the said child to come into contact with J C and/or C C and/or S C, providing that at all times during which the father has contact with the said child, the father be in substantial attendance.
That the order appointing the separate representative be discharged on 9 August 2002.
That each of the mother and father be and are hereby restrained from removing their place of residence from the general Bendigo area without first providing to the other sixty (60) days notice in writing of their intention to relocate. The mother and father to each keep the other informed at all times of their residential address and a landline phone number at which they can be contacted.
Certify.
Otherwise all extant applications are dismissed and removed from the active Pending Cases list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE
(Sitting at Bendigo)

ZM 2879 of 2001

C J K

Applicant

And

L M R

Respondent

REASONS FOR JUDGMENT

Transfer

Pursuant to section 33B of the Family Law Act 1975, these proceedings were transferred to the Federal Magistrates Court for hearing by order of the Hon. Justice Brown on 27 November 2000 in the Family Court of Australia sitting at Bendigo. The extant applications transferred which were first listed in this court on 19 February 2001 were an application for final orders filed by the applicant father on 20 March 1998 in the Magistrates Court of Victoria at Bendigo and a response filed on behalf of the respondent mother on 7 April 1998.
On 1 April 1998 in the Magistrates Court of Victoria at Bendigo, all extant applications were transferred to the Family Court of Australia at Bendigo for sittings commencing on 13 July 1998. At that time and pending further hearing the applicant father was ordered to have contact with the child – the subject of the application – A J K born

10 November 1992 from 12.00 noon until 5.00 pm each alternate Sunday commencing on 5 April 1998. Of note was Order No. 3 of those orders made that day before Mr Tobin, magistrate, and being:
“That the father not bring the said child into contact with his sister (J C) or her family.”
It is obvious that this application has had a long and protracted history, to which I shall return. On 13 July 2001 at Bendigo, Chief Federal Magistrate Bryant delivered an ex tempore judgment and adjourned the matter further to the November sittings of the Federal Magistrates Court at Bendigo. In addition, she made final orders as to the residence of A and made detailed orders as to questions of contact. The crux of the dispute between the parties continues to be whether the father is able or to be restrained from bringing A J K into contact with C C and J C. In the running of these proceedings, the mother again sought that the applications be adjourned to the next sittings in Bendigo commencing in May. I took the view that that was entirely inappropriate, these proceedings having been on foot since 1998 and it now being the year 2002. It is in the child’s best interests that a determination be made at this point in his life.

Applications

The applicant father relies upon the following documents:
a)His amended application filed 10 July 2001;
b)Order 30 affidavit of evidence-in-chief filed 10 July 2001.
The respondent mother relies upon the following documents:
a)Her response filed 22 September 2000 which was a response to the initiating application rather than the amended application – but the parties have agreed that the singular and significant application outstanding before the court is that of A’s contact with the C’s;
b)Affidavit of the mother filed 13 July 2001;
c)Affidavit of the mother filed 19 February 2002.
There were orders to which I have earlier referred made by the Chief Federal Magistrate on 13 July 2001 being final orders as to A’s residence and long-term and day-to-day care, welfare and development. On that occasion there were interim orders with respect to the father’s contact which subsisted until 14 November 2001 when orders were made by consent as to the father’s ongoing and future contact with A. In opening, the mother sought to again revisit the question of the father’s periodic contact without reference to the making of those orders on 14 November by consent. This was set out in a Minute of final orders sought by the mother and appeared to entirely disregard the orders made in the proceedings to date. She did however resile from this position and submitted to the court that the outstanding issue as between the parties was the bringing of A into contact with either C or J C. Both the father and the child representative agree that this is the remaining issue to be determined in these proceedings.
The child representative relied upon a report of Neville Evans dated

8 May 1998 for a historical perspective of the case and reference was also made to a report prepared by Judith Baldacchino, also a registered psychologist, which report was accepted into evidence in the proceedings on 13 July 2001. I was urged to read both of those reports and both of those reports were admitted into evidence in the proceedings.
At the conclusion of the proceedings, the child representative sought an order that he be discharged from a date some three months post the making of my orders. In addition, in light of the evidence given by the mother in the proceedings, he sought an order that the mother be restrained from removing the place of residence of the child from the Bendigo area.

History

The father in these proceedings was born on 20 December 1967 and is now aged 34 years. The mother, L R (formerly B at the commencement of these proceedings) was born on 3 October 1971 and she is aged 30 years. The mother and father of the child had a relationship with each other from approximately 1990 until late 1992 as asserted by the father, or from approximately 1987 until late 1992 as asserted by the mother, but they did not reside at any time in a de facto relationship.
The father’s original application dated 19 March 1998 sought contact with A each weekend from Friday until Sunday and for one half of school holidays. In addition he sought time on special occasions.
The time delay in the father’s application for regular contact with his child in the face of there being no regular contact between late 1992 and the filing of his application in 1998 was occasioned as a result of the following circumstances:
i)Immediately following A’s birth until he was approximately 12 months old, the father had regular contact on a weekly basis. This included some overnight contact. The mother’s evidence, which I accept, is that for the first eight weeks of the child’s life, the father had contact in her presence.
ii)Between November 1993 (approximately) and January 1997 the father resided in Cairns where he was gainfully employed. During that period the father would spend up to six weeks annual leave in Bendigo. The mother provided him with contact generally as he requested.
iii)In or about February 1997 the father accepted employment as a chef in Greece and in March 1997 left Australia for Greece. His expectation was that he would be absent for a period for up to two years.
iv)During the February/March 1997 period and whilst living in Bendigo, the father endeavoured to have contact with his son prior to his departure. He alleges that at this time the mother made it difficult for him to exercise contact. At that time he was staying with his sister J C and her husband C C at their home at 77 V Street, B. The C’s are A’s godparents and it was at this point that the father says he became aware that the mother would not encourage future contact with his family and in particular his sister and brother-in-law.
v)The father departed Australia and J C, A’s aunt, instituted an application for contact with A in the Magistrates Court at Bendigo on 2 April 1997.
In those proceedings (between J E C and L B [as the mother was then known] ):
(a)Orders were made by consent for confidential counselling, with the matter again returning to Court on 23 April 1997. Orders were made that J C have monthly contact with A from 9.00 am until 6.00 pm on a Saturday commencing on 17 May 1997. The respondent mother filed a notice of appeal to the Family Court and there was an agreement between the parties as to a stay of the operation of the order until the matter was determined by the Family Court.
(b)The matter proceeded as a hearing de novo before Mushin J at Bendigo on 24 July 1997. Before Mushin J, Ms B asserted that she had two reasons for resistance to the orders that A should come into contact with Ms C. The first was an assertion at that time that when in Ms C’s home A was exposed to unacceptable language and behaviour, particularly language like swearing and such matters. Mushin J did not think that a sufficient reason to support Ms B’s opposition to contact. The second and more important reason given was that Ms B had an emotional block to the concept of contact. Although there was no supporting evidence, it was put on behalf of Ms B that she felt by allowing contact she was suffering yet another loss in addition to losses sustained by her in her earlier years. Those losses were that at the age of about five years, Ms B was viciously raped by a young man then aged about 17 or 18 years and further at the commencement of the relationship of Ms B with A’s father, Ms B became pregnant and had an abortion. A was conceived after that time. None of this was on affidavit nor was evidence given by Ms B as to these matters. These facts were conveyed in submissions made on behalf of Ms B from the Bar Table. Mushin J accepted that Ms B was profoundly upset and disturbed by these events. His Honour felt it inappropriate for him to make an order as to contact at that time but he desired the Court to remain seized of the matter. Accordingly, he adjourned the further hearing and required the mother to file an affidavit by an appropriately qualified expert containing an assessment of all relevant emotional and psychological matters pertaining, amongst other relevant facts, to facts relevant to the mother’s resistance to an order for contact. He said in the course of his judgment that he:
“… made it abundantly clear that in (his) view that ultimately you must proceed toward contact between A and his auntie, because in my view it is overwhelmingly in his best interest that that should occur. In saying what I have just said, I make it abundantly clear also that I do nothing whatsoever to bind any future persons considering this matter judicially.”
(c)On 19 January 1998 the Hon. Justice Morgan ordered an oral circuit report to be undertaken by Mr Neville Evans, court counsellor. On 21 January 1998 Mr Evans reported that the mother had refused to bring A to the interview and indicated to the counsellor that in the event that the court ordered contact between A and J C, she would not comply with any such order. Justice Morgan discharged the interim contact orders of the Magistrates Court at Bendigo made on 23 April 1997 and adjourned Ms C’s application for contact to the next judicial sittings of the Court at Bendigo commencing 13 July 1998. A welfare report was ordered and the mother was ordered to comply with all directions of the counsellor and present A for interview.
(d)In the course of delivering her reasons she said, and I quote:
“I am satisfied that in the event that an order for contact were to be made, then at this stage A would be exposed to an entirely unacceptable risk arising out of the inability of his mother to cope with contact and the stress that it would place upon his mother in the particular circumstances of her situation and the impacting of that stress upon the child, particularly as he is about to commence his critical first year of schooling.”
(e)The mother was at that time found to be in a most fragile emotional state. She was engaged to be married to her fiance M R, who is now her husband, and they had a six-month-old baby. They now have two children aged 4 and 2 years. At the time they did not reside together – they now do – and A was due to start school very shortly. He has now been at school for some years. He is settled and progressing well. Reference was made to the mother’s feelings of loss when A commenced school. Those feelings are now not present.
(f)When the matter came on for final hearing in the July 1998 sittings of the Family Court of Australia at Bendigo, the mother had not taken A to a counsellor for the preparation of a report dealing in part with his observed interaction with his aunt, and Ms C withdrew her application.
On 17 December 1997 orders were made in the Magistrates Court of Victoria at Bendigo providing for A to reside with his mother and the mother to have sole responsibility for A’s day-to-day and long-term care, welfare and development. Contact with the father was reserved (these orders arose out of an application initiated by the mother on 10/12/1997).
On 26 January 1998 after an absence of approximately ten months, the father returned to reside in Bendigo. On the day following his return he telephoned the respondent mother to arrange contact with A. Contact was arranged by an agreement between the mother and father on 31 January 1998 for a period of 1½ hours. Thereafter the father was unable to obtain contact with his son by agreement with the mother and he ultimately instituted his proceedings in March of 1998. He had, prior to the institution of those proceedings, given the respondent mother an undertaking that if he were to have unsupervised contact, he would not allow A to come into contact with his sister J C. Nevertheless, he was refused unsupervised contact and he deposed in March 1998 that there was no basis upon which A should not be permitted to come into contact with his sister. He was at the time residing with his sister J C and her husband C C.
The mother married Mr R on 7 March 1998. They had a son who was approximately six months old at that time.
The mother and Mr R commenced to reside at 5 V Court, K which is the home in which they still reside. Mrs R’s evidence is that the property is in the sole name of her husband. Her husband is aged 33 years, in receipt of income and the father of the parties’ two sons, T J R born 14 June 1997 and B E R born 2 January 2000.
In her affidavit sworn 31/3/1998, and which was put to the mother, the mother refers to the litigation with the father’s sister as follows:
“I say that it is exceptionally provocative of the father to propose (as I imagine he is doing by the nature of his application) that contact should occur at the home of the person who I am bitterly involved with in litigation.”
Following the making of the order on 1 April 1998 in the Magistrates Court at Bendigo, the father exercised regular contact to A from 12.00 noon until 5.00 pm each alternate Sunday. The father did not bring A into contact with his sister pursuant to court order.
In July 1998 the father accepted a position as a chef with ANARE. He left for Tasmania in 10 August 1998 and sailed for the Antarctic in October 1998. The expedition was to remain in the Antarctic for a period of at least eleven months. During that period, his contact with A was by email, letters and phone. Regular weekly contact was maintained in this fashion. In early December 1999 the father returned to reside in the Bendigo area.
In his absence, Registrar Edney struck out the father’s application for contact with a right of reinstatement. As a consequence of a letter applying to reinstate the application, the matter was again placed in the court lists on 21 January 2000.
By response filed 22 September 2000 the mother sought that the father have defined contact as set out in the final orders sought by her and in particular, and continuing, that the father be restrained from bringing the child into contact with C C and J C. She further sought that the father be restrained from relocating his residence more than 50 kms from Bendigo and that he be in substantial attendance during contact. She also sought that the father keep the mother appraised at all times of the address at which contact was to take place, and further and other orders.

Mother’s relationship with J and C C

In July 2001 the mother swore in affidavit material and I quote:
“I despise J and C C. I cannot stand them. Whenever I think about them I have sleepless nights and nightmares. I am extremely angry with them and I never want to speak to them again and I never want A to have any contact with them.” (paragraph 20)
and further (in paragraph 21):
“A is aware of my dislike for J and C C. He is aware that I do not want him to see them. A has told me that he also does not wish to see J or C C and their daughter S.”
In evidence given in these proceedings, it is apparent that the mother’s very strong negative feelings for the C’s continues to persist. She is firmly of the view that there is absolutely no benefit at all to A in having a relationship with J and C C and their daughter S.
The mother gave evidence that she has maintained her intense opposition to the C’s. The father’s evidence is that he sees his sister, J C, twice a week on average and his brother-in-law less frequently. His sister, J, is in her early forties and he has in total five sisters and two brothers. His evidence is that he is probably closest to his sister, J. He certainly sees more of her than he does of his other brothers and sisters.
The father’s evidence, which I accept and which is confirmed in part by the mother, is that his son actively looks for the C’s on the street when he is a passenger in his father’s motor vehicle. His father’s evidence is that A knows the C’s logos, as they own a light freight business and he sees them driving around. He exhibits curiosity rather than abhorrence.
Throughout the father has been extremely mindful of his obligations pursuant to existing court orders. He has not brought A into contact with the C’s nor sought to do so at any time. His life is made more difficult by this restriction because, as he says in evidence, if he travels with A to visit one sister and the C’s car is parked outside, then he does not stop and proceeds on to undertake another activity. Recently, the family had to determine whether it was the applicant father and A who attended a family wedding, or the C’s.
The father’s belief is that the mother’s opposition will not lessen. When asked by counsel for the mother, “She is not going to change her irrational behaviour?” he replied, “No.”
The mother re-stated her opposition to the C’s in affidavit sworn by her on 14 February 2002. In particular she included paragraph 20 and 21 as referred to above.
In addition, the mother deposed as follows (on page 11, paragraph 22):
“The thought of J and C C coming into contact with A fills me with fear and dread.”
“I have become extremely fearful and anxious.”
“I find that my anxiety override most of my rational thoughts about this matter.”
“I cannot control these feelings or my reaction.”
“It is of the most extreme importance to me that J and C C do not come into contact with A. I vehemently oppose that ever occurring and is something I oppose for our son.”

And further at paragraph 25, page 12:
“I say that it is not in A’s best interest that he should be brought into contact with the C’s by the father.”
“I say that the harm done to me in my capacity to parent will be far outweighed by any benefit to the father in him being allowed to bring A into contact with the C’s.”
The mother’s evidence is that A has expressed a wish to her not to see C or J C or their daughter S.
The mother was cross-examined in these proceedings by both counsel for the father and the child representative. Her opinions with respect to the C’s remain extreme. Her objections are based upon her own perceptions and concerns and not upon any objective defects in the C’s themselves, as found by Chief Federal Bryant and Justice Morgan before me. She said in evidence of the C’s that she hated them for what they are doing to A, herself and her family and that she did not trust them at all. Her evidence was that she did not care whether this was sensible or not. For the first time in the long and protracted history of this case, she made an allegation against C C such that he had observed her lying on her bed in her bedroom in her underpants on one occasion. She did not like the way he looked at her. She then quickly followed that with evidence – not in response to any question asked of her – that the applicant father in the proceedings couldn’t keep his penis in his pants. As a witness she presented as petulant and her demeanour was to the effect that she would not comply with orders of the Court if they did not suit her. Her allegation about C C smacked of recent invention and extreme hostility. I do not accept her evidence.
In answer to what it was the C’s had done to produce such an extreme reaction in her, her evidence was that all three (this referred to J and C C and the applicant father) had lied to her; that they had told her twenty different stories as to A’s bedtime; what he ate; and where he slept on an occasion when he stayed overnight with his father, who was then residing in the household of his sister and brother-in-law. Indeed, the mother and A had resided in a home provided to them by the C’s in A’s early years, at a subsidised rental, for between two and three years.
When cross-examined by the child representative, the mother conceded that generally A enjoyed his periods of contact with his father. She also conceded that it probably upset A that his father and she could not communicate. She reiterated that she did not want the C’s to be part of A’s life.
The mother’s evidence, which I accept, is that she is now in a stable and happy relationship with her husband, A and the two children of her husband and herself. They are financially secure and A has regular contact with his father. His father’s absence from his life for many years meant that A formed a close bond with his mother, especially during his infancy. The father’s ongoing lack of significant financial support for A causes some difficulty in the parents’ relationship, but it is not a matter of relevance to the discrete determination that I must make in these reasons.
The mother’s oppositional attitude to the C’s resulted, I find, in her deliberately breaching court orders made by Chief Federal Magistrate Bryant on 13 July 2001 which the husband sought to prosecute in the November 2001 sittings of this Court in Castlemaine. Ultimately he resiled from proceeding with a breach application in order to ensure regular contact with his son. The circumstances as to the making of the orders on 13 July 2001 and what occurred consequentially were as follows:
a)The matter proceeded before CFM Bryant who delivered an ex tempore judgment. She also dealt with the discrete issue of the father bringing A into contact with J C and/or C C and/or their daughter S C. She referred to Mr Evans’ report and the judgments of Morgan J and Mushin J. She also referred to a report by Ms Baldacchino, counsellor, which was admitted into evidence and in relation to which Ms Baldacchino was cross-examined. I do not propose here to go into the detail that CFM Bryant went into as to the evidence of Ms Baldacchino. That detail is apparent from a reading of her judgment.
b)The child representative submitted in those proceedings that there should be some contact between A and the C’s, but that it should be once a month and it should be supervised. The child representative submitted that although there was likely to be some distress to the mother, in all the circumstances some lessening of the then restriction on the father would overall be of benefit to A.
c)CFM Bryant concluded, having heard the evidence of Ms Baldacchino, that some contact with the C’s would not be so traumatic to the mother that she would not be able to cope with it. She ordered counselling with a view to having the mother gain some assistance in coping with contact. She ordered in paragraph 7:
“… that both parties attend counselling at CentreCare or with such other counsellors as may be agreed between them in consultation with the child representative to discuss issues relating to the said child generally and such other matters as the counsellor thinks appropriate.”
d)Between July 2001 and the hearing before me, the mother failed to comply with this order. I accept the evidence of the father that he indicated to the child representative his willingness to go to counselling and to cooperate with any arrangements that the child representative may have made and any directions which the child representative subsequently gave. The child representative arranged two sessions with CentreCare, but the mother was not cooperative. The mother was at Court on 13 July 2001 and heard the orders made by Chief Federal Magistrate Bryant. Her evidence was initially that she could not recall receiving communication concerning a requirement that she attend at CentreCare. However, she then subsequently gave evidence conceding that she had done nothing about seeing a counsellor as ordered by the Court. She failed to cooperate with the child representative and was determined that she would not comply with that order.
e)In Order No. 8 of the orders made on 13 July 2001, the father was restrained from allowing A to come into contact with J C and/or C C and/or S C, save on the following basis:
(8)(a) If the father wishes on one occasion per month of not more than two hours duration the presence of the father and to occur, if at all, on the first Sunday in the month in which daily contact takes place…
The mother did not make the child available on the first occasion on which the father could have brought A into contact with the C’s pursuant to that order. She claimed the child refused to go on contact.
f)I accept the father’s evidence that when he attended to collect A on the first occasion when it was possible for him to bring A into contact with the C’s, he was met at the front door by the mother who told him that the child was not coming and thereupon she shut the door in his face. He was denied three weekends of contact and the mother filed an appeal against the decision of CFM Bryant. The mother withdrew her appeal as the matter was then almost to be heard in this Court in the November 2001 sittings in Castlemaine, and effectively the purpose of not bringing A into contact with the C’s had been achieved. In November 2001 the father’s evidence is that he consented to a further restraint with respect to the C’s because he was of the view that if he did not consent, he would be denied contact with his son. Given that the mother concedes that that would have been the case, and indeed was the case immediately prior to his giving his consent in November 2001, I accept that he adopted a pragmatic approach in order to have ongoing contact with his son.
g)The mother’s demeanour in the witness box when asked about her blatant breach of earlier court orders was quite surprising. Regardless of the promoting of A’s best interests as determined by a judicial officer, she was and would appear to be continuing completely unwilling to countenance any opposition to her thoughts and feelings in the matter. Her lack of regard for the authority of a court order was breathtaking.
h)The mother’s evidence concluded with her stating that she and her husband had put their house on the market in Bendigo and that their next place of residence could be Bendigo or it could be Tasmania. They were holidaying in Tasmania for twenty days commencing March 25^th 2002. She resiled from that evidence indicating that it was likely that she and her husband would remain in Bendigo, but I formed the opinion that it was said to the Court for the Court to reflect upon in relation to the application before it. That was if the restraint was lifted with respect to the C’s, the mother might consider a relocation away from the Bendigo area. The mother’s wishes have prevailed for many years with respect to this discrete issue. A consideration of A’s best interests requires a consideration of other inputs. It is clear that the mother will jeopardise the relationship between A and his father (as she did following the orders made 13 July 2001) by denying contact, if the Court does not accede to her wishes.

Conclusion

Section 65E of the Family Law Act 1975 requires that I regard the best interests of the child as paramount. In determining what are those best interests, I have to take into account the matters referred to in s.68F(2) of the said Act. Ordinarily, there would not be any restriction on a parent who is having contact from bringing that child into contact with members of his extended family. The only issue with respect to the C’s is the mother’s continued opposition to them. The question of the mother’s attitude is an important matter and I must take it into account. However, Mr Evans’ report was prepared in 1998. Significant changes have occurred in the mother’s life since then to which I have referred to earlier in these reasons. The position is very different from that which existed at around the time the C’s brought their own application for contact, and any contact they may now have with A would remain in the context of a visit to them with his father. Ms Baldacchino more recently expressed the view that the mother may now be less influenced by her own psychological distress and more able to make judgments about A’s needs based on more realistic evidence. The child representative urged the Court to return the child to a normal relationship with each of his mother and father, which included the allowing of each of them to bring the child into contact with their various family members. The child representative argued strongly, both at the commencement of the case and at the conclusion, that all restraints with respect to whom the child comes into contact with should be removed. The child representative expressed the view that the pressure the mother places upon the child with respect to him not coming into contact with the C’s could be damaging to the child in the long term. The child representative referred to the mother’s behaviour consequent upon the making of Chief Federal Magistrate Bryant’s orders on 13 July 2001 wherein she refused to cooperate and attend CentreCare and failed to provide the child for contact with his father once the father was able to bring A into contact with the C’s. A wishes to make both his parents happy and his period of no contact with his father I find was not as a result of A’s refusal to attend contact, but rather as a result of the mother’s intense opposition to A coming into contact with the C’s, and her refusal to comply with any court order which may produce that result.
Mr Neville Evans saw A for the preparation of his report in May 1998. At that time, A was five years of age. At that time, Mr Evans interviewed A whom he described as an attractive and well-mannered child. At that time, A spoke positively about his mother, his stepfather, his brother T and his dog. A himself said it was OK if he was to see the C’s and indeed that he wanted to see them to ask them “why they are doing this because they are doing the wrong thing.” That report referred to the mother telling A that she was afraid the C’s would take him from her and to the mother telling A that the C’s sought greater time than they did in fact seek with respect to their contact to A.
Mr Evans was clear that the mother’s attributing to A of anxiety about seeing his aunt were the views and feeling which she herself was experiencing as opposed to those directly experienced by her son. Mr Evans did not perceive that A was himself afraid of or anxious about seeing his aunt or uncle. Mr and Mrs C appeared to Mr Evans to be reasonable people whose requests were not unreasonable. Mr Evans was concerned about the mother’s behaviours and how those behaviours were then, and may in the future, impact upon A. Although the mother refused to bring A for interview with his aunt, Mr Evans expressed the view that given the nature of A’s early involvement with Mr and Mrs C, Mr Evans would expect that they would have played a significant role in his early formative years and that they therefore would have developed an important attachment with him. It was clear then as it was following the making of the orders in July last year that the mother would not cooperate with any order made by the Court for A to have contact with his paternal aunt and uncle. I take that matter into account but the overriding factor for me is the promotion of the best interests of A and not that enforcement applications may arise as a result of the orders which I make.
Mr Evans had some serious reservations back in 1998 about whether contact with the C’s would be in A’s best interests. I stress here that that report dealt with contact between A and Mr and Mrs C, not contact with his father who may come into contact with Mr and/or Mrs C and/or their daughter S. Mr Evans was dealing with a very different matter then, namely an application for contact in their own right by Mr and Mrs C. He concluded that if it was to occur, it would have a significantly detrimental impact on Mrs R’s functioning, possibly to the extent that she may not be able to continue as an effective caregiver for A. On the other hand, he acknowledged that if contact was not to occur, A would be excluded from a significant portion of his life history. This has occurred with respect to the C’s as they have not seen A since March 1997, a period in excess of five years now.
A is 9½ years of age and has regular contact with his biological father. He is in a happy and stable home environment with his mother, stepfather and two half-siblings. He is well settled at school.
Judith Baldacchino prepared a report in these proceedings and she was cross-examined before Chief Federal Magistrate Bryant in July last year. Her report dealt specifically with the question of the father’s contact and the restraint upon him bringing A into contact with Mr and Mrs C.
Ms Baldacchino found A to be an intelligent, thoughtful and considerate child when she met him for the purposes of the preparation of her report. She noted that he did not want either of his parents to be hurt or offended and he wished to be fair to everybody. Her report dealt mostly with a contact regime for A with his father, but included in that was the question of the C’s. Ms Baldacchino concluded that a ruling of no access to the extended family of Mr K would cause the dispute to continue or resentment to fester and that was detrimental to A. On the other hand, a ruling of unrestricted contact would almost certainly cause significant psychological distress to Mrs R and consequently impact negatively on A. She suggested that contact with any member of Mr K’s extended family be initially limited to a couple of hours and that both the mother and father seek counselling. The Chief Federal Magistrate’s judgment followed on from that report but the mother, as I say, failed to comply with those orders.
I turn to a consideration of s.68F(2) factors pertinent to this case.

Section 68F(2)(a) – any wishes expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s wishes

A in 1998 was not concerned about seeing Mr and Mrs C, indeed he desired to do so. A in 2001 had a strong desire to be fair to all parties and had given substantial thought to the issue of contact with his father. He had developed ideas which he felt would suit everybody. He did not specifically exclude contact with the C’s in his proposals. His mother’s evidence is that A did not desire to go on contact with his father (following the making of orders in July last year) at the point in time when his father might have brought him into contact with the C’s. I do not accept the mother’s evidence in relation to this matter. The mother was quite clear that she had no regard for the court orders made in July and that she had no intention of allowing A to come into contact with the C’s. She was evasive in response to questioning as to this matter. If indeed A expressed any wish to her, then I give it little weight in the context of the entire factual history of this case. He has not expressed any such wishes to either of the expert witnesses in these proceedings in the last five years and he has not expressed to his father a wish not to come into contact with the C’s. Indeed, his father’s evidence is, and I accept it, that A is curious about them and keeps an eye out for them when travelling the streets of Bendigo.

Section 68F(2)(b) – the nature of the relationship of the child with each of the child’s parents and with other persons

A has a good and stable relationship with his mother, stepfather and their family constellation. He has a good and ongoing relationship with his father. The mother conceded that A for the most part enjoys his contact time with his father. He resides with his mother and has relied on her to a far greater extent than his father in his lifetime, given the absences of his father whilst he was younger. He had a relationship with the C’s when he was an infant and would have formed an attachment to them at that time. They are his aunt and uncle and by virtue of his mother’s antagonism and vehement opposition, they have had no relationship with him for five years. The mother’s emotional state is far stronger than it was in 1998 and she has considerable family support. The father is exercising regular contact and is now a participant in his child’s life. The C’s are not bringing an application in their own right. The father simply seeks that A be entitled to enjoy the benefits of an extended family and the normality of contact with an aunt and uncle who reside in the geographical vicinity. Occasional contact with the C’s is unlikely to affect A’s relationship with his mother and with his father, although it may affect his mother by causing her to be angry and/or distressed. It is in A’s best interests that his mother seek assistance to deal with her distress and psychological response so that it does not impact negatively on A.

Section 68F(2)(e) – the capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs

The mother has very clearly provided for the emotional and intellectual needs of A since his birth. She has been supported in this by her husband and together they have provided a warm and stable home environment for A. The father, since 1999, has been an integral part of A’s life and has slowly developed his relationship with him so that regular contact is now occurring which is of benefit to A and which A enjoys. His father is also capable of providing for A’s emotional and intellectual needs and does so during contact periods. The father impressed as a witness and is clearly capable of approaching the re-acquainting of A with his aunt and uncle and their daughter with a degree of sensitivity. A is now 9½ years and the capacity of his mother to parent him will not be significantly diminished. A himself has input into his own arrangements and is able to be a little more independent of his mother than he was in 1998.

Section 68F(2)(f) – the child’s maturity, sex and background and any other characteristics of the child which the Court thinks are relevant

A is age-appropriately mature. He is curious about the C’s and he has not exhibited any anxiety and/or fear with respect to them. They are a part of his father’s family and thereby a part of his own. A is aware of his mother’s feelings in the matter but he has not adopted them. He is capable of reasoned input and must be given an opportunity to mature unimpeded by his mother’s “irrational” (as put by her counsel) views.

Section 68F(2)(k) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It is obvious that the father may be in a position where he institutes enforcement proceedings with respect to the orders that I make. Furthermore, as has happened in the past, the mother may appeal this decision. I do not believe, because of those matters, that it would be preferable to make an order which is so very clearly not in A’s best interests. The mother had no regard for A’s best interests when she blatantly ignored the orders made by Chief Federal Magistrate Bryant in July last year and filed an appeal which she later withdrew. The father was put in a position which he felt was the only one open to him to secure ongoing contact with A, which was to accede to the mother’s demands. This was an untenable position for him. The child representative, I am mindful, has throughout very strongly expressed the view that A should be able to be brought into contact with the C’s.
I otherwise do not specifically refer to s.68F(2) factors in these reasons as I have above highlighted those most pertinent to this discrete decision.
I shall accordingly accede to the application of the father and the child representative and remove all restraints with respect to the father bringing A into contact with either J and/or C C and/or their daughter S.
Finally, I am of the view that each parent should notify the other of any proposed change to their residence. I refer to paragraph 35 (h) of these reasons for why the mother should be so restrained. The father’s history of relocation requires a mutual order.
Accordingly, I order as follows:
(1)That all previous orders restraining the father and/or his servants and/or agents from allowing the child A J K born 10 November 1992 to come into contact with J C and/or C C and/or S C be and are hereby discharged.
(2)That the father be at liberty to allow the said child to come into contact with J C and/or C C and/or S C, providing that at all times during which the father has contact with the said child, the father be in substantial attendance.
(3)That the order appointing the separate representative be discharged on 9 August 2002.
(4)That each of the mother and father be and are hereby restrained from removing their place of residence from the general Bendigo area without first providing to the other sixty (60) days notice in writing of their intention to relocate. The mother and father to each keep the other informed at all times of their residential address and a landline phone number at which they can be contacted.
(5)Certify.
(6)Otherwise all extant applications are dismissed and removed from the active Pending Cases list.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date: