Knight and Eddy
[2007] FamCA 166
•8 March 2007
FAMILY COURT OF AUSTRALIA
| KNIGHT & EDDY | [2007] FamCA 166 |
| FAMILY LAW - CHILDREN - With whom a child lives - Best interests of child |
| Family Law Act 1975 (Cth) |
Rice v Asplund (1979) FLC 90-725
Griffiths v Griffiths (1981) FLC 91-064
Bennett v Bennett (1991) FLC 92-191
N v R (1991) FLC 92-252
D v Y (1995) FLC 92-581
King v Finneran (2001) FLC 93-079
Bolitho v Cohen (2005) FLC 93-244
F & C and the Child’s Representative [2004] FamCA 568
| APPLICANT: | Ms Knight |
| RESPONDENT: | Mr Eddy |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Cumming |
| FILE NUMBER: | SYF | 103 | of | 2001 |
| DATE DELIVERED: | 8 March 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 20-23.2.2006; 22.6.2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Self represented |
| COUNSEL FOR THE RESPONDENT: | Ms Falloon |
| SOLICITOR FOR THE RESPONDENT: | LAC Lawyers |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Ms O'Connor |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Hamish Cumming Family Lawyers |
Orders
That all previous orders be discharged.
That the child D born in April 1995 (“the child”) shall live with the father.
That the child shall have contact with the mother as follows:-
3.1.For the first three months after the making of these orders on the second Saturday in each month to commence at 11am and conclude at 4pm; and then
3.2.On the second weekend of each month commencing at 11am and concluding at 4pm on Sunday, except that if the second weekend of the month falls in a school holiday when the child would otherwise be with his father then contact shall not take place on that weekend;
3.3.From 11am on 26 December 2006 until 4pm 2 January 2007 and from 11am on 16 January 2007 until 4pm on 23 January 2007;
3.4.For school holidays in 2007 and for subsequent school holiday periods (excluding Christmas school holiday periods) for the first half of those school holiday periods to commence at 11am on the first day after school ceases and to end at 4pm on the last day of the first half of those school holidays;
3.5.For the first half of Christmas school holidays in 2007/2008 (and for the first half of Christmas school holidays in alternate Christmas school holidays thereafter) and for the second half of Christmas school holidays in 2008/2009 (and for the second half of Christmas school holidays in alternate years thereafter) provided that when the mother has the child for the second half of Christmas school holidays she return the child to his father two clear days before school is to recommence.
That during periods of time that the child is with his mother for a period in excess of two days, the child shall telephone his father no less than twice a week and in that regard the mother will do everything that she can to facilitate that telephone contact at times that are convenient to the father.
That until 23 January 2007 for the purpose of contact changeover the parties shall use the R Contact Service at B whenever available and that the parties do all acts and things necessary to ensure that they make those arrangements with the Centre and both parties shall contribute equally to any costs of the contact service.
That after 23 January 2007 the parties shall use McDonalds at B for the purposes of contact changeover.
That both parties forthwith provide the other an emergency telephone contact number.
That in the event that the mother is unable to exercise face to face contact in accordance with these orders then she shall telephone the father’s emergency telephone number and inform him of her inability to attend as soon as she is aware that she will be unable to attend.
That the child have telephone contact with his mother between 5.30pm and 6.00pm each Wednesday and for that purpose:
9.1.The father is to ensure that the child telephones his mother; and
9.2.The mother is to inform the father from time to time of her telephone contact number; and
9.3.The mother is to make herself available to take the call; and
9.4.If the mother is unable to take the call she is to inform the father of her unavailability with as much notice as she can give.
That the father shall provide the mother with copies of all the child’s school reports, school photos and newsletters.
That the father shall notify the mother of any change of address or telephone number at any place that the child resides.
That neither parent shall denigrate the other parent to the child or in the presence of the child and will discourage any other person from denigrating the other parent.
That the parties not discuss any matter that relates to or arises out of these proceedings with the child or in his presence.
That the mother not allow the child to engage in a feminine activity during contact and the mother not buy any feminine or predominately pink clothing or gift for the child.
That except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child and that until further order that Judge be Justice Watts, if he is reasonably available.
That pursuant to Rule 1.12 Family Law Rules 2004 (“FLR”) the time for starting an appeal from these orders under Rule 22.03 FLR not commence until the publication of the reasons for making these orders.
That pursuant to s.65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 103 of 2001
| Ms Knight |
Applicant
And
| Mr Eddy |
Respondent
REASONS FOR JUDGMENT
On 27 June 2006 I made orders as set out above. I now provide the reasons for doing so.
INTRODUCTION
This application is about where the child born in April 1985 and now aged 11 will live. The applicant mother seeks an order that the child live with her and she proposes defined contact between the father and the child.
In the alternative, she proposes defined contact between the child and herself on an unsupervised basis.
The father currently has a residence order in his favour. In final submissions the father seeks that the current order that the child reside with him not be varied. He asks that the child have contact with the mother supervised at the R Contact Centre for six months and that supervised changeover take place at that centre for another six months. The father originally proposed that further unsupervised contact be conditional upon an assessment of Dr M (who is the child’s psychiatrist). That condition was not pressed. Originally the father sought that all contact would be conditional on the mother undergoing tests prior to any contact producing a nil result for illicit drugs but that order was not pressed in final submissions. The father had also asked for an order that the mother not give the child feminine clothes or allow the child to engage in feminine activity during contact. The father didn’t specifically press this order in final submissions, but it is an order which I find is appropriate.
THE APPLICATIONS
Mother
The mother’s Amended Application was filed on 2 August 2005.
It is in the following terms:-
1.That the child [D] born [in] April 1995 reside with the Applicant Mother.
2.That the Respondent Father have defined contact with the child as follows:-
(a) Each alternate weekend from 5.00pm on Friday to 5.00pm on Sunday.
(b) In the event that any access weekend falls on a long weekend including a Monday then access to the Respondent shall be extended to 5.00pm on Monday; if it falls on a long weekend including Friday, then access shall commence on 5.00pm Thursday.
(c) For the second half of all NSW school holidays.
(f) The father shall not have the child on the weekend which include Mother’s Day but in substitution the father will have the child with him on the following weekend at the same time as set out in 2(a) above.
(g) The mother shall not have the child on the weekend which includeds the Father’s Day but in substitution the mother will have the child with her on the following weekend at the same times as set out in 1(a) above.
(h) Such further times as the parties may mutually agree.
3.The Respondent Father is to collect the child from the Applicant Mother at the commencement of contact and to redeliver the child to the Applicant Mother at the cessation of the contact.
4.That the Applicant Father not denigrate the Respondent Mother or members of the Respondent’s family to the child or in the presence of the child or at all.
5.That each party have the sole responsibility for making decisions about the day to day care, welfare and development of the child while the child is with them.
During final submissions the mother still maintained she sought residence of the child.
Father
The father filed an Amended Response on 20 June 2005. The applications that the father makes are in the following terms:-
1.That the father have the sole responsibility for the long term care welfare and development of the child.
2.That the mother have contact with the child as agreed in writing but in the absence of agreement then as follows:-
2.1 For a period of six months from the date of these orders:
(a)One mid term Sunday in each New South Wales gazetted school term from 12.00 noon to 2.00pm.
(b)On the first Sunday in each New South Wales gazetted school holiday from 12.00 noon to 2.00pm.
(c)On the Sunday nearest to Christmas Day from 12.00 noon to 2.00pm.
2.2 Thereafter and for a period of six months:
(a)One mid term Sunday in each New South Wales gazetted school term from 12.00 noon to 4.00pm.
(b)On the first Sunday in each New South Wales gazetted school holiday from 10.00am to 4.00pm.
(c)On the Sunday nearest to Christmas Day, the mother’s birthday and the child’s birthday and on Mother’s Day from 10.00am to 4.00pm.
2.3 Thereafter for a period of six months:
(a)One mid term weekend from 1.00am Saturday to 4.00pm Sunday;
(b)On the first weekend in each New South Wales gazetted school holiday from 10.00am Saturday to 4.00pm Sunday;
(c)On the weekend nearest to Christmas Day, the mother’s birthday and the child’s birthday and on the Mother’s Day weekend from 10.00am Saturday to 4.00pm Sunday.
2.4 Thereafter continuing:
(a)One mid term weekend from 10.00am Saturday to 4.00pm Sunday;
(b)For the first half of each gazetted New South Wales school holiday excluding the December/January school holiday from 10.00am on the first Saturday of the school holiday to 4.00pm on the middle Saturday of that school holiday;
(c)For the first twenty one days of the gazetted New South Wales December/January school holiday in each year from 10.00am on the first Saturday of the school holiday to 4.00pm on the twenty first day.
(d)For the balance of the gazetted New South Wales December/January school holiday in each year from 10.00am on the last day of the first twenty one days to 4.00pm on the last Saturday before the end of that school holiday.
2.5 That prior to any contact occurring, the mother will undergo, at the father’s expense, a blood test to determine the presence or otherwise of any illicit substances and if any should be present then contact will not commence until the mother provides a blood test without the presence of those substances.
3.(a) That for the purpose of implementing contact in 2.1, 2.2, 2.3 and 2.4 the father will deliver the child to the [R] Contact Centre, [B] at the commencement of contact and will collect the child from the {R} Contact Centre at the conclusion of contact.
(b) That either party will notify the [R] Contact Centre no later than 24 hours before contact is to commence, if they are unable to attend.
4.That if the [R] Contact Centre ceases operation, then the contact changeover may be conducted at a similar centre in or near Newcastle.
5.That the conclusion of each six month period referred to in 2.1, 2.2 and 2.3 the father will obtain from the [R] Contact Centre and at such expense to be shared by both parties, a report in relation to the contact and submit that report to [Dr M] who will consider the contact arrangements and if necessary, make recommendations to the father and the mother, which the father and the mother will implement, and [Dr M’s] fees (if any) to be borne equally by the parties.
6.If the mother fails to comply with the orders in relation to contact or any part thereof or fails to implement the recommendations of [Dr M], then the contact exercised by the mother will continue as or revert to the contact in 2.1 for a period of six months following the failure after which time the contact regime in 2.2, 2.3 and 2.4 will apply unless there is a failure on the part of the mother.
7.That the mother is restrained from giving the child feminine clothing or allowing the child to engage in feminine activities whether dressing up or not while he is having contact with the mother.
The short minutes of order proposed by the father in final submissions were in the following terms:
1.The child [D] born [in] April 1995 (“[the child]”) shall reside with the father.
2.For six months [the child] shall have contact with the mother once in each month, at the [R] Contact Centre, [B] New South Wales, the first such contact to be on Sunday 3 July 2006, and on every fourth Sunday thereafter.
3.For a further period of six months, [the child] shall have contact with the mother on the first weekend of each month, from 9am on Saturday until 5pm Sunday, changeovers to be at the [R] Contact Centre.
4.Thereafter as follows:
a. For the first week of all school holidays that commence in odd numbered years;
b. For the second week of all school holidays that commence in even numbered years;
c. From 9am until 5pm on each Mother’s Day.
5.Changeovers for Order 4 above shall be at McDonalds at [B].
Child’s Representative
The application made by the Child’s Representative during final submissions was in the following terms:-
1. That all previous orders be discharged.
2. That the child [D] born [in] April 1995 (“[the child]”) shall live with the father.
3. That [the child] shall have contact with the mother as follows:-
(a) For the first three months after the making of these orders on the first Saturday in each month to commence at 11am and concluding at 4pm; and then
(b) For the following three months and thereafter on the first weekend of each month commencing at 11am Saturday and concluding at 4pm on Sunday;
(c) To commence from six months after the making of these orders for the next school holidays thereafter for a period of one week from the first Saturday after school finishes commencing at 11am until Sunday one week later at 4pm; and then for all subsequent school holiday periods (excluding the end of year school holiday periods) for the first half of those school holiday periods;
(d) For the end of year school holiday periods to take place for the first half in each even numbered year and the second half in each odd numbered year;
(e) On Mother’s Day from 11am until 4pm;
(f) That the mother shall not have the child on the weekend which includes Father’s Day but in substitution the mother shall have the child with her the following weekend.
4. That for the purpose of contact changeover the parties shall use the [R] Contact Service at [B] whenever available and that the parties do all acts and things necessary to ensure that they make those arrangements with the Centre.
5. That the father shall provide the mother with copies of all [the child’s] school reports, school photos and newsletters.
6. That the father shall notify the mother of any change of address or telephone number at any place where [the child] resides.
7. That neither parent shall denigrate the other parent to the child or in the presence of the child nor cause the other person to denigrate the other parent.
8. That the parties not discuss to/or in the presence of the child any matter that relates to or arises out of these proceedings.
SHORT HISTORY
The mother was born in February 1971 and was aged 35 at the time of the hearing.
The father was born in May 1972 and is currently aged 34.
The father lives with his mother and father the paternal grandparents. The paternal grandmother plays a significant role in the family dynamics.
The parties commenced living together in 1994. The child was born in May 1995. The parties separated in October 1995.
The mother has two other children, J and S, who are not the subject of these proceedings. These children reside with the mother. The father of these children, Mr H, does not live under the one roof with the mother. He lives in close proximity. He visits the mother’s home every day and the mother and Mr H love one another and have an intimate relationship. The mother is on a supporting parent’s benefit. It is for that reason that Mr H and the mother are not currently living in a formal defacto relationship which would affect the mother’s entitlement to a pension. Mr H and the mother have had a relationship for ten years. The mother has had to call the police because of Mr H’s behaviour on about five occasions during that ten year period. The mother admits there has been domestic violence between Mr H and herself. Mr H did not give evidence in these proceedings nor did the mother call any other witness in her case. She said that she did not want to rely on any other person when making her application. The lack of evidence from Mr H creates a significant problem in her application for residence of the child.
The father also has a child O not the subject of these proceedings. This child lives with her mother. She is currently aged about 6. The father has not seen this child since she was 1 ½.
CHRONOLOGY
The mother was born in February 1971.
The father was born in May 1972.
In mid 1994 the parties commenced a relationship.
In May 1995 the child was born.
The parties separated in October 1995 and the mother re-partnered with Mr H.
In 1998 the father re-partnered.
The father separated from his partner in early 2002.
On 28 January 1998 orders were made by Justice Renaud in the Family Court at Newcastle. They provided for the child to continue living with the mother and having contact with the father each alternate weekend from Friday to Sunday, and for one half of all school holiday periods.
On 3 February 1999 the Department of Community Services (“DoCS”) took the child into care. The child was placed in the care of his paternal grandparents.
On 10 May 1999 DoCS case for care established. The child remained in care. The mother had supervised contact.
In July 1999 the child was returned to his mother.
On 19 August 2002 a family report was prepared by Ms M.
On 29 November 2002 a report was prepared by Dr W.
On 2 December 2002 previous orders were discharged. Consent orders were made by Justice Le Poer Trench resulting in a change in residence. An order was made that the mother have contact each alternate weekend from Friday to Sunday. The mother was also to have contact for the whole of the school term holidays and three weeks in the December/January holidays. The parties were ordered to arrange for the child to attend counselling and therapy. The DoCS withdrew as intervenor in the proceedings.
On 26 March 2003 the child commenced seeing psychiatrist Dr M pursuant to orders dated 2 December 2002.
On 8 October 2003 the mother failed to return the child following contact. He missed about five days of school.
On 2 December 2003 the mother filed an application for contravention. She alleged that the father had not delivered the child for contact on at least four occasions in 2003 and had not provided telephone contact on numerous occasions during 2003. She also complained that the father hadn’t provided school reports, notified the mother of school presentation nights and parent/teacher interviews and details of treating medical practitioners and medical treatment.
On 23 January 2004 Judicial Registrar Johnston issued a warrant for the arrest of the father for his failure to attend Court on the return date of the mother’s contravention application.
The mother filed an Application for Final Orders on 12 February 2004.
The matter came before Judicial Registrar Johnston on 3 March 2004. By consent orders were made to vary the order made on 2 December 2002 to provide for contact between the child and his mother on 13 and 14 March 2004. It was a condition that the child not be removed from the T area. The mother, her family and her partner were not to discuss proceedings with the child.
On 17 March 2004 the father was found to have breached the orders made on 2 December 2002 by not providing the child for contact on 12 April 2003. No sanction was imposed.
On 26 March 2004 orders were made by consent appointing Dr W as an order 30A expert.
On 18 May 2004 Dr W prepared a further report.
On 9 July 2004 the matter came before Senior Registrar Messner. Orders were made to the following effect:
40.1.Orders 1 (contact to mother) and 2 (contact changeover) of 2 December 2002 discharged (that is, all contact orders originally made by Le Poer Trench by consent on that day are discharged);
40.2.Weekend contact with mother 6-8 August 2004;
40.3.One week contact with mother in September/October 2004 school holidays provided mother has consulted with Dr M; if mother has not consulted with Dr M, contact 25-27 September 2004;
40.4.Contact with mother 12-14 November 2004;
40.5.Telephone contact with mother each Tuesday and Thursday 6.30pm – 7pm. Father to initiate calls;
40.6.Mother to forthwith arrange consultation with Dr M;
40.7.Mother to have unlimited contact with the child by letter;
40.8.Mother restrained from giving the child feminine clothing (without admissions);
40.9.Mother to forward copy of current driver’s licence to father’s solicitors and child representative;
40.10.Parties restrained from consuming illegal substances while the child in their care (without admissions).
The matter was allocated a pre trial conference for 5 April 2005.
The matter was again listed before Senior Registrar Messner on 10 December 2004 in relation to Christmas school holiday contact. Orders were made to the following effect:
41.1.The orders of 9 July 2004 were discharged.
41.2.Mother to have contact with the child:
41.2.1.31.12.04 to 8.1.05;
41.2.2.22.1.05 to 29.1.05;
41.2.3.1st half of mid-year school holidays;
41.2.4.By telephone each Tuesday and Thursday between 7pm & 7.30pm;
41.2.5.By post provided all letters to be sent via child representative who shall vet them.
41.3.Contact changeover to be at R Contact Centre.
41.4.Mother not to give the child feminine clothing.
41.5.When the child is with his mother, he is to have telephone contact with father.
41.6.List date 19 January 2005 for contravention application vacated; contravention application listed 7 February 2005.
41.7.Father to send mother copies of school reports, photographs, certificates and other material re the child.
The mother filed an application on 19 November 2004 that the father be dealt with for breach of court orders. On 7 February 2005 the matter was listed before a Judicial Registrar in relation to the mother’s Contravention Application. The mother’s application was struck out for want of prosecution.
On 8 April 2005 the matter came before Senior Registrar Messner in relation to mother’s application for school holiday contact. Order were made that the mother have holiday contact with the child from 9 April 2005 until 16 April 2005. Procedural orders made vacating prior listing in Defaulters List. Matter listed for final hearing commencing 22 June 2005 for three days. Directions made that both parties are to file and serve any further material by 13 May 2005.
On 16 April 2005 the mother failed to return the child from holiday contact. The chld missed school. Father applied for recovery order.
On 29 April 2005 the child was returned to L Police Station.
On 3 May 2005 the matter was listed before Judicial Registrar Loughnan in relation to father’s application for a recovery order: Orders were made as follows:
46.1.Mother to return the child to paternal grandmother at L Police Station 4 May 2005.
46.2.Order for recovery and delivery of the child to father.
46.3.Pending further order, father restrained from leaving the child unsupervised for any significant period.
46.4.Return date of contravention application against mother amended to 24 May 2005.
On 24 May 2005 Judicial Registrar Loughnan made the following orders:
47.1.Contravention application against mother dismissed.
47.2.Leave to father to restore (contravention) application on 14 days notice.
47.3.It was noted that there has been no hearing of the merit of that [contravention] application but that there is no current order for the mother to have contact prior to the final hearing.
The matter was listed for final hearing on 22 June 2005 however it was not reached. New hearing dates were allocated for 5 September 2005.
On 2 August 2005 the mother filed Amended Application seeking residence.
On 17 August 2005 the hearing vacated due to unavailability of Dr W during hearing for cross examination. Court advises of further hearing dates for 20 February 2006.
On 29 August 2005 the mother files Application in a Case seeking holiday contact pending final hearing.
On 27 September 2005 the mother’s application was returnable before Registrar Messner. The application was dismissed.
The mother files an Application for Review on 27 September 2005.
On 11 November 2005 the mother’s Application for Review was returnable. There was no appearance by the mother. The matter was stood over until 2 December 2005.
On 2 December 2005 the matter was not in the court list. A Judicial Officer was unavailable to hear the review. The listing co-ordinator allocated a date on 20 December 2005.
The review was listed before Le Poer Trench J on 20 December 2005. The review was dismissed and an order was made for one two hour contact period at C Contact Centre pending the final hearing.
On 9 February 2006 the child and his mother had contact at C Contact centre.
As can be seen from the chronology, the mother failed to return the child on 8 October 2003. The child missed five days school on that occasion. The mother again failed to return the child on 23 January 2005 and again in April 2005.
THE HONESTY OF THE PARENTS AND PATERNAL GRANDMOTHER
Dr M in his first report made observations about the mother’s honesty.
He concluded in strong terms that she lied to Dr W when she told him that she had attempted to contact Dr M. In cross examination Dr M was asked why he was so positive that no such contact had been attempted. He reiterated that he employed two secretaries in his office and had a 24 hour answering machine and a pager to take calls. Dr M also in the second last paragraph of his first report warns that care should be taken about accepting the mother’s explanation for things and that her behaviour must be looked at objectively. He says:-
“There is more than enough evidence in both of [Dr W’s] reports to doubt the honesty of [the mother] in her explanations about her behaviours and those behaviours alone should be taken as evidence as they are”.
I accept the mother was untruthful when she told Dr W that she had attempted to telephone Dr M.
The mother served a gaol sentence for armed robbery in 1992.
Exhibit 5 indicates that the father was convicted in January 1995 for possessing heroin. The father says that he took the rap for the mother and that it was the mother’s heroin. The mother denies this and says it was the father’s heroin. If the father’s evidence is to be accepted by me, he is saying to me that he lied to the Local Court at F in 1995.
I find that the father and his mother were not totally candid in their evidence about the history of compliance with the contact orders after 2002.
I had difficulty at times with the credibility of both parents and the paternal grandmother.
Where there are discrepancies in their evidence I will attempt to decide matters based on objective evidence or choose the version which is more inherently credible.
As I comment later however, it is not necessary in reaching an assessment as to what is in the child’s best interest to disentangle many of the historical facts.
RICE & ASPLUND
Previous orders
The parenting dispute about the child was subject of an original hearing by Justice Renaud in 1996. In that case her Honour ordered that the child remain in his mother’s primary care with orders in relation to him spending time with his father. These orders were made in the context of a family report which raised concerns regarding the mother’s poor parenting capacities and a recommendation in the report that the child’s developmental needs would better be served in his father’s household.
On 12 December 2002 by consent, orders were made by Justice Le Poer Trench. This resulted in a change of residence. I set out earlier in the chronology the effect of those orders.
Those final orders were varied by Senior Registrar Messner on 9 July 2004, 10 December 2004 and 8 April 2005.
So, there were a set of final orders in place at the time of the commencement of this hearing (which were a combination of the original orders made by Justice Le Poer Trench by consent on 2 December 2002 and subsequent orders modifying those orders).
Litigation in relation to the child has been going on now for over nine years.
None of the parties or the child representative submitted that the consideration of Rice v Asplund matters should be dealt with as a discrete preliminary point. None of the parties in fact made a submission that Rice & Asplund had any application in this case.
In order for the mother to succeed in her application for change of residence, the Court must find that there has been a significant or substantial change to justify such a serious step. There needs to be strong grounds (see Rice & Asplund (1979); Griffiths (1981); Bennett (1991); N & R (1991); D & Y (1995); King & Finneran (2001); Bolitho v Cohen (2005) FLC 93-244; Falls & Carew and the Child’s Representative (2004)). There has to be more than time that has passed in order for the Court to re-look at the matter.
As these reasons for judgment demonstrate, a number of things have happened to the child since the orders were originally made in 2002. The most significant of those is his treatment by Dr M.
The mother’s arguments are that the main change that has happened since she originally consented to the orders before Justice Le Poer Trench is that she has not received the level of time with the child that she had expected to receive under those orders.
She also says that she has proven since the orders have been made that she can fulfil the role of parent better than she could in 2002. This assertion is supported, to some degree, by Dr W’s evidence. The child is also significantly more mature.
Given that the parties have argued this matter, based on the merits of the current situation, I will deal with the matter on that basis. Had the father argued that there hasn’t been a substantial change since 2002 to reconsider residence, I would have thought that that argument may have had some merit.
All parties agreed however that the history since 2002 in relation to the child spending time with his mother is such that the issue of contact certainly needs to be looked at again.
THE REPORTS
There have been a number of reports in this matter. There was a family report done by Ms L on 22 February 2002. A further family report was done by Ms M on 19 August 2002. Dr W, the Chapter 15 expert, provided his first report on 29 November 2002 and a further report on 14 May 2004. Dr M, the child’s treating psychiatrist, has provided two reports.
At the time Dr W gave his evidence, his report of May 2004 was quite old and I don’t have the benefit of the doctor seeing the child in 2006.
Report of Ms L (22.2.02)
This report records that there was a previous 30A family report prepared by Ms S when the matter was in the Newcastle Registry in 1997.
Ms L only interviewed the father.
The Department of Community Services originally intervened and took the child away from his mother in 1999 and placed him in the temporary care of his father for eleven weeks. The father alleged a history of non compliance with contact orders and in fact made a contravention application in February 2001. In 2002 the father made allegations against the mother that she was a serious drug abuser using heroin, speed and marijuana. He also alleged that Mr H (the mother’s close friend) was abusive and violent. At this time the father said that the mother led a transient lifestyle. The child had been to four schools in two years in 2000 and 2001 and had had to repeat a year. The details of the child’s schooling is set out in paragraph 81 of Ms M’s report. The father expressed a fear that the child had stepped on a needle that the mother had used which particularly concerned him given the risk of him contracting the mother’s hepatitis. The father also alleged that the child had suffered physical injuries during domestic violence incidents involving the mother and Mr H.
Ms L’s conclusion was that what the father alleged was serious but she was unable to draw any conclusions as to the truth of the allegations without the participation of all the parties concerned.
Report of Ms M (19.8.2002)
The mother denied to this counsellor that there had ever been incidents of domestic violence between her and Mr H. There were conflicting reports from DoCS in relation to this issue (she cited as an example an assessment report dated 29.1.1999 and information provided by Mr P). The mother has had a history of drug use and has served a gaol sentence for armed robbery in 1992. In 2002 she told the counsellor that she hadn’t used drugs since the child was three months of age. She also told the counsellor that she did not use alcohol. The father’s assertion in 2002 was that she was still using heroin. The DoCS records did not substantiate allegations of continued drug use by the mother in 2002. The counsellor notes that in other reports comment is made about the unreliability of information provided by the mother in relation to her drug and alcohol use. As I later observe, it is probable the mother was using heroin in 2002.
The father and his mother are profoundly mistrustful of DoCS. There has been a long history of conflict between the father’s family and DoCS. As I have said elsewhere in these reasons, the father’s family’s campaign to have the child live with them has been vindicated by Dr W’s opinion that DoCS fundamentally failed the child at an earlier time.
There has been a long history of contact difficulties. When the child was living with his mother she moved a lot. I accept that contact was difficult for the father when the child was living with his mother. It has also been difficult for the mother after the 2002 orders.
When Ms M saw the child with both his parents in August 2002 she assessed that he was attached to both his parents and enjoyed a warm relationship with his paternal grandparents. At that time the counsellor assessed that his primary attachment was to his mother but said that the attachment to his father was also strong. The child was aware in 2002 that his parents “never get along”.
Ms M reported that her observations of the parents in August 2002 were that they were in a relationship characterised by quite intense conflict. Paragraph 30 of Ms M’s report describes a volatile incident which took place in the vicinity of the child. Both parties give different versions of the incident but clearly it is an example of very volatile behaviour by the parties in front of the child at that time.
Ms M expressed concerns about the mother’s parenting capacity. She said for example the mother was aware that the child’s reading was poor in 2002 but she did not act on that awareness. She also had problems getting the child to do something that was unpleasant but necessary in terms of treatment.
The mother referred to comments by the paternal grandmother that they shouldn’t fight in front of the child and saw that more in terms of the grandmother telling her what to do rather than focusing on the impact that fighting in front of the child would have on him.
Ms M concluded that the mother’s oppositional responses to the paternal grandmother get in the way of her attending to the child’s needs.
Ms M’s assessment of the father was that he was consistently appropriate and focused on the child’s needs. She had no concerns about his parenting capacity. He was however very angry with the mother and even the grandmother told Ms M that on one occasion the father had made an inappropriate comment to the child about his mother.
The child was relaxed in his father’s company after his mother had gone out of sight. They had an easy relationship with one another. Throughout Ms M’s observation of the child and his father, the father was responsive, offering assistance and encouraging the child’s participation in activities and decision making. The child also interacted with his grandmother warmly, cuddling her.
Ms M found the grandmother’s comments were appropriate and focused on the child’s needs. She had the impression that there was considerable warmth between the grandmother and child.
Ms M said it is quite clear that the grandmother was anxious about the child’s future.
The paternal grandmother told Ms M that “DoCS made it very clear how they felt about me. I challenged them every step of the way and will continue. They decided I was the grandmother from hell and they wouldn’t take on board anything I said. They decided they didn’t like me”.
As will be discussed in more detail later, Ms M was concerned that the child had a gender identity confusion disorder and recommended that a child psychiatrist further assess him for the purpose of clarifying his emotional functioning. That assessment was carried out by Dr W.
Reports of Dr W
First report
The mother was late for her first appointment with Dr W and her other two children were somewhat grubby in their presentation (I refer to the mother’s questioning of Dr W about that observation later). The mother’s lack of punctuality is a recurring theme.
Dr W agreed with the conclusions about parenting as drawn by Ms S and Ms M. He said overall his observation of the mother’s parenting was that it was disorganised, somewhat unresponsive, and somewhat unemphatic and that all three children’s behaviour (the child’s, and two other children) was consistent with this being her habitual pattern of parenting.
In 2002 Dr W observed a hopelessness in the child which he opined partly reflected the chronic dispute between the parents but also reflected a state of demoralisation about feeling valueless and not worthwhile in his mother’s home.
He commented that the mother also had a superficial and at times flippant attitude about important issues such as the child’s visual acuity, learning and feminised behaviour.
Dr W was of the view that on observation the child seemed happier, more expressive and more confident in the presence of his father and his father’s family. He said they in turn seemed to have a more sensitive and more responsive manner with him.
I deal elsewhere with what Dr W says about the child’s feminised behaviour and his mother’s drug use. Dr W thought the child’s behaviour was indicative of “evolving gender dysphoria”.
Dr W concluded that the child had significant learning problems and also significant emotional problems and a very poor sense of self worth and a fragile sense of identity. He concluded that there was a serious risk that without attention being given to the child’s more basic cognitive and emotional needs he would become increasingly alienated and dysfunctional.
After Dr W’s first report, consent orders were made on 2 December 2002 to the effect that the child reside with his father and have contact with his mother on alternate weekends; for half Christmas school vacation and for the entirety of other school vacations as well as telephone contact twice a week.
The mother on a number of occasions said she would have never agreed to a change in residence in 2002 if she knew the problems she was going to have with contact. The fact is that based on Ms M’s reports and Dr W’s first report, the orders she agreed to seemed a likely result.
On 31 January 2003 the paternal grandmother contacted Dr W and sought a referral to a counsellor locally for the child. Dr W referred the child to Dr M, a child psychiatrist who runs a clinic at F.
Second report
In the second lot of interviews for the 2004 report by Dr W for this hearing, the child was not observed with his mother because his mother failed to attend the scheduled appointment. She said that she had been away from Sydney and had not got the correspondence indicating when the appointment was.
When Dr W saw the child with his father, the child was not anxious or insecure.
After the order changing residence was made in 2002 there were problems in relation to compliance with contact orders. Dr W’s second report makes it clear that the father said he withheld the child from contact on the basis of things he said the mother was saying to the child during contact visits.
The history of contact in 2003 was not good. As at 3 May 2004 the mother had last seen the child in October 2003 in the holidays. She had seen him for the last week of the April 2003 vacation but not all the July vacation. She said that at the end of the July 2003 vacation the child did not want to go back to his father’s household. She had only had a couple of alternate weekends in first school term (2003).
By May 2004 she had only seen the child on one occasion that year. She said she had not regularly gone to contact because of transport difficulties.
The mother told Dr W in 2004 that she had had no communication whatsoever with Dr M. She said that she had tried telephoning him on one occasion without success. Dr M’s evidence, which I accept, is that that is an untruthful statement.
In 2004 the mother admitted to Dr W that she still occasionally smoked marijuana on weekends but not as much as she used to (she said she might have one joint on the weekend).
Although Mr H didn’t give evidence in the case on behalf of the mother, he did speak to Dr W in 2004. The doctor observed no evidence of him being affected by drugs or alcohol. The doctor also commented that he did not appear to be restless, distractible or irritable in his temperament.
In 2004 the mother presented to Dr W as being agitated and distressed. Her voice was often breaking with emotion. The doctor concluded that during his interview with her in 2004 she did not appear to be affected by any substance. She presented in much the same way during the hearing before me.
The child’s school reports have improved since he has been with his father.
The mother told Dr W in 2004 that she did not think it was a good thing to brain wash out of the child his feminine thoughts.
The child only missed one day of school due to illness in 2004. He started soccer in 2003 and when seeing Dr W in 2004 had started his second season of soccer. He had had intensive swimming lessons starting January 2003 and had been in the swimming squad. The paternal grandmother brought to the second interview with Dr W a large album containing the child’s various awards from school and sport. The child had also been enrolled in a reading recovery program and learning the recorder.
The child had obtained glasses since being in his father’s household (there was prior to December 2002 a dispute between the parties in relation to the child’s treatment for eye dysfunction).
The child reported to Dr W that the paternal grandmother listens into telephone conversations between his mother and himself and writes things on a piece of paper.
The child recounted to Dr W at least one occasion when the mother had gone to the father’s home and banged on the door. His grandmother called the police.
Although she didn’t turn up, the child was obviously apprehensive when he expected to meet his mother on the occasion that Dr W saw him in May 2004.
During the interviews for the second report the child spoke to Dr W in an excited way about some of his “girlish interests” such as P, dressing up, drama, things with pink colours etc.
In 2004 Dr W found the child to be a more settled and mature boy to a greater extent than one would have expected simply on the basis of the passage of 18 months.
That improved maturity is reflected in his school reports (see exhibit 4).
The doctor commented that whilst he had not lost a number of his feminised interests and behaviours, they seemed to be less in evidence and he seemed to be making more appropriate social judgments about them. The doctor was satisfied that the father’s family had handled these matters in a reasonably sensitive way, at least in relation to the child directly.
As previously mentioned, Dr W didn’t see the mother with the child in 2004. He commented however that the mother’s overall presentation to him was more coherent and appropriate than it had been in 2002. The mother had contacted Dr W on a number of occasions during 2003. The doctor commented that whilst she was upset during those communications there was nothing in those communications which was intrinsically inappropriate.
Dr W noted that the child was uncomfortable about letting the father’s family know about his feelings towards his mother and his wishes in respect of seeing her more regularly.
The mother admitted to Dr W that she had said something akin to many of the statements attributed to her by the father’s family in telephone calls between herself and the child.
Dr W formed the impression that the father’s family have been more at fault than the mother in relation to events that have led to the child not seeing his mother regularly over the past sixteen months. Dr W noted that contravention began very early (even before Dr M was involved at all) and while he acknowledged that the mother’s reactions to the situation probably have become more unruly with the passage of time, the extent of the contravention has become quite extreme and particularly galling to someone who like the mother does not deal with frustration very well.
Dr W said that the mother had improved in her emotional state. She did not show the evident flippancy and superficiality which he had observed in his first report.
Reports of Dr M
Dr Mr’s affidavit is exhibit 3. Dr M gave evidence by audio link. Dr M has been the child’s treating psychiatrist. He has prepared two reports. The first dated 2 July 2004, the second dated 17 June 2005.
First report
The child was referred to Dr M by Dr W. He had read both reports of Dr W dated 29 November 2002 and 14 May 2004.
The doctor said that the paternal grandmother (and on a couple of occasions the child’s father) was involved in bringing the child to his rooms, originally on a monthly basis and then on a two monthly basis. This involved some effort given that it involved an hour and a half drive both ways. The doctor recorded that those appointments were kept punctually and appropriate payments were made for this private psychiatric care.
Dr M commented that the child initially presented to him with a significant psychiatric disturbance.
Dr M recorded in his first report that the child had progressed significantly, more than would be expected from just time alone. In particular, he had taken on masculine interests through his involvement in scouts and soccer and in particular his development of peer relationships. There had been a significant lessening of his anxiety, a significant improvement in his socialisation skills. Dr M was of the view that the child’s father has been his primary figure of attachment in the household in which the child lives, notwithstanding the involvement of the paternal grandmother in the logistics of his day to day caring.
Dr M said that whilst he was initially concerned that there may have been an attempt by the paternal grandmother to occupy a role of mothering, he had been unable to elicit any evidence of that occurring, either in the child’s response to this grandmother or in interactions with the child.
It seems clear from the third paragraph on page 2 of Dr M’s report that the child’s father and his grandmother found it difficult not to talk about Family Court arrangements and issues about his mother in the child’s presence.
Dr M said that in discussions with the child’s father and grandmother he was unable to elicit any motive of retribution, revenge or ill feeling towards the child’s mother. He said there had been a consistent pattern of concern though about the mothering experience that the child was exposed to on contact visits. Dr M said that the father and the grandmother’s main concerns about the child’s contact with his mother were based on:-
142.1.Evidence of her behaviours with regards to compliance with Family Court contact orders; and
142.2.Discussions that they believe the mother was having with the child about parental issues and Family Court issues.
Dr M in his first report said that the child was yearning for a positive and healthy experience from a mother figure. He believed that the paternal grandmother had drawn clear boundaries in relation to her role as a grandmother.
Dr M said that he had observed that when contact visits to the mother had been less frequent, the child’s developmental progress had been more marked and there had been a significant improvement in his reading, schooling and peer relationships, as well as his self-esteem, lessening of anxiety and masculine development. There had been evidence of regressive behaviours, increased anxiety and behaving in a more withdrawn manner in consultation with Dr M at times when he had had contact with his mother.
Dr M concluded correctly that Dr W’s report suggests that there are significant areas of concern about the mother’s capacity to provide the child with the appropriate consistent care and positive experiences that he requires.
In his first report in July 2004, Dr M concluded that significant progress had been made with the child’s mental health and that it would be irresponsible to return him to his mother for regular contact without supervision by an experienced person as there was evidence of deterioration in the child’s development which appeared to be at times of unsupervised contact over the preceding twelve months (that is the period July 2003 – July 2004). Dr M warned “resuming regular access with his mother to give it a try would be negligent”.
Second report
Dr M saw the child on 5 May 2005 after his mother had delayed returning him from access during school holidays.
The child had developed a throat infection and had been taken to a doctor by his mother. There was a medical certificate that indicated that the child shouldn’t do much for a couple of days but didn’t indicate that he couldn’t travel. I find that the child’s sickness was not sufficient to prevent him from travelling back at the end of contact at the scheduled time. His mother used it as a pretext to keep the child. The child during this period was actually taken to H School and an attempt was made to enrol him in there. The child reported to his father that his mother had told the child that school had not yet gone back at F (even though the children across the road were going to school in Sydney). The father’s evidence was that the child reacted very badly when he went to school and found out that he had missed out on a number of opportunities to participate in sporting activities as a result of him not be there at the start of the school term.
Dr M in his second report noted that there continues to be friction between the child’s parents. That friction is quite palpable. Dr M recorded in his second report that the child’s progress at school is good, as is his personal development. Dr M recorded that the child seemed confused about conflicting messages about his future education plans, place of accommodation, despite there being clear court orders.
Dr M made the obvious point that at the child’s age, stability is important in his development. Given the history that the child has had, it is especially important to create a sense of security and safety for the child.
The mother gave evidence that she only had one meeting with Dr M and that was on 9 March 2005 (that is, after the first report where Dr M calls her credit into question).
PARAMOUNT CONSIDERATION
Section 65E Family Law Act requires that, in deciding whether to make a particular parenting order, my paramount consideration be the best interests of the child. I am further required by Section 68F(1) Family Law Act, when determining what is in the best interests of the child, to consider the matters set out in Section 68F(2) Family Law Act.
MATTERS THE LAW REQUIRES ME TO TAKE INTO ACCOUNT (s.68F(2) FACTORS)
(a) Wishes
The child is now 11 years old. He is an only child. The child has had limited contact with his mother since the orders of December 2002 were made.
When Ms M spoke to the child in August 2002, at a time the child was living with his mother, he made it clear that he loved both parents and said that it was “hard for him to choose” who to live with and that “both parents loved me best”. He was worried that if he stayed with his father his mother might get upset and think that he loved his dad more than her.
In his second report, after the child had been living with his father since the 2002 orders, Dr W said the following in relation to the child’s wishes:-
“[The child] expressed a clear wish to continue to have contact with his mother on a fortnightly basis. I think that his selection of fortnightly contact reflects his mother’s wishes but that he has a genuine overall wish to maintain and that he has been quite distressed by lack of contact. I also form the view that he is under a lot of pressure from the [father’s family], both directly and implied, to the point that he was fearful of being alone with his mother during my assessment out of concern over how [his grandmother] in particular might react and what she might ask him afterwards or say to him if in his mind she perceived that he had failed to follow their direct or implied instructions.”
Also in the 2004 report Dr W indicated that the child said “he would like to stay where he is and see his mother every second weekend”.
The child saw his mother during a supervised contact session at C Contact Centre on 10 February 2006. A substantial part of the first of those supervised contact visits was inadvertently captured on a digital video recorder (see exhibit 7). The child on two occasions without any apparent prompting from his mother told his mother on tape that he loved her.
Logistically that expressed wish is not feasible but it is a clear expression by the child as to his wish to see his mother and some considerable weight needs to be placed upon that wish.
(b) Relationships
The child has a close relationship with his father and maternal grandmother.
The child reports that the child has “a genuine overall wish to maintain contact with his mother and has been quite distressed by the lack of contact”.
It is clear that there has been a long and bitter history between the three main adults involved in this case. The mother has had problems over the years. These have caused the father and his mother considerable difficulties. Ms M comments that the relationship between the mother and paternal grandmother is a very complex one. At times it has been characterised by need as well as hatred. It was a continuing theme throughout the hearing that the mother blamed the paternal grandmother for a lot of the problems to do with the child. But I find the conflict between the adults in this case is a two way thing. Dr W was of the view that the Department of Community Services had taken their eye off the child’s best interests when the paternal grandmother involved herself in a protracted and ultimately successful campaign against the mother and against what she saw as the Department’s inaction. Dr W conceded that the orders that were made in 2002 moving the child from his mother to his father should have been made a lot earlier. The substance of the mother’s case is that she has improved her performance over the years. She claims that she is now successfully raising her other two children and that the time has come again for her to be given a chance to be the primary carer of the child.
It is fairly clear that the father and his mother do not recognise the improvement in the mother that I accept has taken place. During evidence the paternal grandmother referred to the mother as a “pathological liar”. On the last day of the hearing the father asserted that the mother had driven from Sydney to F and had placed a card in his letterbox (which became exhibit CR2). When giving that evidence he said “it was probably on one of her drug runs”.
The high conflict between the adults in this case will continue to create significant problems for the child in the future.
(c) The effect of change
In August 2002 Ms M commented that the mother’s apparently transient lifestyle was impacting upon the child. Three or four schools by the age of 7 ½. This added to the child’s learning difficulties at that time. It also impacted upon his sense of belonging and his emerging identity.
If an order is made that the child live with his mother this will involve a change in his school. I find that that will have a destabilising effect on the progress that the child has made at his current school.
(d) Contact
The logistics of contact are difficult.
The father lives in the T area. The mother lives in the south west of Sydney. Contact involves significant travel.
Contact changeovers will present a practical difficulty. In the past contact has been supervised and facilitated by the R Contact Centre. I will for a six month period continue to use that service to facilitate contact changeover, but as I explain later, I will not require supervision.
There has previously been an AVO prohibiting the mother from entering the T area but that AVO no longer is current.
(e) Capacity of each party to meet the child’s needs and (h) Attitude to the child
Ms M was of the opinion that unless the mother received a considerable amount of support it was likely that the father’s household was better able to provide for the child’s educational, medical and emotional needs.
I agree with Ms M’s assessment that the relevant issues here are not whether or not the child loves his mother or father or he/she loves him. It is about parenting capacity and its impact upon the child.
Whilst I have no reservations about the parenting the child will receive in his father’s household, I do have reservations about the mother’s parenting capacity. Whilst there may be some merit in the mother’s assertion that her parenting capacity has improved since 2002, my overall assessment is that it has not improved to such a degree as to be comparable to what is offered in the father’s household.
The paternal grandmother
The paternal grandmother has been very involved in the child’s care on a day to day basis in the father’s household. Dr W commented that “it was also apparent that the grandmother is probably the most consistent figure in the child’s life at the moment”. I accept that this is so.
It is quite clear that the paternal grandmother is the person who primarily attends to the child’s day to day physical needs. His father and his grandfather are away for very long hours working. When the fish are running they can be away from before dawn until after sunset.
The paternal grandmother has a very strong personality. She claims that she and her family and her extended family are well respected in the T area and I have got no reason to doubt that that is the case.
She has persistently carried out a course of action which achieved what Dr W indicated was a result that was in the child’s best interest, namely that he live with his father and in the household of his father’s family.
There is no doubt however that when carrying out that campaign the paternal grandmother has consistently made complaints about the mother’s ability as a parent. A perusal of the tabbed parts of exhibit CR3 (pink tags) indicates approximately 34 complaints made by the father’s family against the mother to the NSW Police Service.
The paternal grandmother herself told me that she had had about 100 phone calls from people complaining about the Department of Community Services and she had organised a public meeting.
The mother had organised for somebody from the Department to give evidence but on the final day of the hearing that arrangement had fallen through. She sought to subpoena the entirety of the Departmental file since 1996 without isolating material in that file that she thought might be relevant to an issue that I had to determine. The tender on that basis was objected to and I did not allow that tender.
Dr W indicated his concern that the grandmother has “not acted in good faith in respect of the mother and that this represents a failing in parenting” and I accept his opinion that the weight of blame for contact breaking down after the 2002 orders rests with the father’s family.
The mother’s disorganised lifestyle
The child had lived with the mother prior to December 2002. As mentioned above, Dr W indicated in his 2002 report that:-
“[The mother’s] parenting….was disorganised, somewhat unresponsive, somewhat unemphatic, and that all three children’s behaviour was consistent with this being her habitual pattern of parenting”.
There is no doubt that the mother has a serious problem in being able to organise herself in a way that would enable her to turn up on time.
The mother was 40 minutes late for her first appointment with Ms M and came without supplies for the baby S who was with her. She was 55 minutes late for her second appointment with Ms M. Ms S in her first report noted that the mother had an issue with timeliness. The mother conceded to Ms M that she was not the most organised person.
the mother was late for her first appointment with Dr W. The mother questioned Dr W about the appropriateness of Dr W’s written comment that the children were grubby at their interview. She explained she had travelled a long distance, they had had pancakes with syrup at McDonalds and they had got themselves in a mess. The doctor explained to the mother that he regularly saw a parent with children who had travelled a long way to be at a 9am appointment at his rooms and it was fair enough to comment on her ability to organise.
During the course of this case the mother regularly was not able to get to court by the scheduled commencement time.
On one occasion, 19 April 2006, when the mother had made an application to the court in the time where the matter remained part heard, to attempt to sort out a problem with the lack of availability of the R Contact Service’s ability to supervise, she simply did not turn up. The hearing proceeded with her on the telephone. She indicated that a child had got sick overnight. She provided no evidence in that regard.
On the day scheduled for the last supervised contact before the commencement of this part heard matter, the mother rang the R Contact Service at B at approximately 12.40pm to indicate to them that she was not going to be able to make it for the contact. Her story was that at about 3am in the morning there was a noise that she heard outside. On inspecting her motor vehicle at 8am that morning she found that somebody had smashed its windscreen. She attempted to drive the motor vehicle to B but along the way found that it was too dangerous for her to do so. She then attempted to hitchhike but ran out of time to get to B. There was no explanation as to why her partner could not assist with the transport. There was no explanation as to why a train could not have been caught.
Her explanation as to why she left it so late to ring was that she thought she was going to get there on time and she didn’t want to cancel it.
The consequence of the mother’s inability to organise herself on this day to at least alert the father to what the problem was in a timely way is symptomatic of the mother’s behaviour and the frustration that is generated in the father and grandmother as a result of that behaviour. The consequence for the child was that he travelled 2 ½ hours to the contact centre, fondly anticipating a meeting with his mother and when he got there he was very disappointed.
An occasion when the father did not turn up
As set out in the chronology above a warrant for the father’s arrest for failure to appear on 23 January 2004 was issued. He made comment about this in his evidence. The comment was that he only failed to turn up “1 out of 100 times” and on that occasion a warrant got issued for his arrest. He expressed his frustration and said that on the one occasion he was late a warrant got issued whereas the mother is habitually late.
On the first four mornings of the trial the mother was late for the start of proceedings on three of those occasions.
The long term effects of the conflict on the child
Dr W said that unless the father’s family are able to find some worth in the mother and to nurture the child’s relationship with the mother’s family then the rebound effects upon the father’s family may be very unhappy for both the child and the father’s family. The risk is that he will blame the father’s family for the destruction of the relationship that he has with his mother. At the current time the child is old enough to remember his relationship with his mother. He currently has one foot in both camps. He needs to be nurtured by both families and to have both families recognise that need. The consequence in his adolescence may be that if the father’s family are unable to foster contact with the mother then the child might eventually vote with his feet.
The mother conceded that she attempted to have a heart to heart talk with the paternal grandmother in an attempt to resolve the matter and move forward. In that discussion with the grandmother, the mother conceded that it would be a very difficult thing for the child to take him out of the settled environment in which he finds himself and in which he is currently thriving. She at that point was prepared to concede that she would not press her residence application.
In paragraph 9 of the paternal grandmother’s affidavit sworn 22 June 2006 she records the mother saying to her words to the effect:
“I really don’t want [the child] to come and live with me. I know he is happy and you guys give him everything he needs. I think it would be cruel to take him away from all of that.”
However the incident at the R Contact Service in June 2006 reignited the bitterness between the two women. The mother’s perception of what happened on that day was that she arrived at the contact centre with her two younger children. Because those children were not mentioned in the contact orders the provider of the service telephoned the paternal grandmother to seek her instruction as to what she wanted done. Both women say different things about what then happened. The mother says that the supervisor told her that the instruction that she had received was that the two younger children could spend some short time with their older brother but then they would have to be taken away by the mother’s partner. The paternal grandmother said that she gave no such instruction to the supervisor. She says that when asked by the supervisor whether or not the contact should be cancelled she said definitely not, it would greatly disappoint the child if that happened. She said she did suggest that the mother’s partner was available to take the younger children away but denies she gave any instruction to the supervisor in that regard. She however said she was strongly of the view that the contact should be between the mother and the child alone so that the mother could focus her attention on the child in the limited time that they had available together.
The mother was obviously offended and upset by what she perceived to be the grandmother’s attitude and direction to the supervisor. She says that after that she resolved that the olive branch that she had extended had not been accepted by the grandmother. Consequently she resolved to pursue her residence application.
In final submissions the mother emotionally said that she would consider moving to the F area should she be unsuccessful in obtaining residence.
It is an unfortunate feature of this case that the two women most dear to the child are in high conflict and the child knows it and is adversely affected by it.
(f) Characteristics of the child and his liking for feminine things
Dr W describes the child as “a gentle, sensitive boy”.
The child told Ms M that he wanted to be a girl and she identified the possibility of a gender identity confusion disorder.
In his conversations with Ms M, the child indicated that he would like to wallpaper his father’s place pink and “in relation to wanting to be a girl, the child was unable to clarify this beyond that he wanted to wear earrings in both ears”. The counsellor noted that throughout the time she spent with him in the interviews, the child showed a preoccupation with the colour pink that went beyond it being his favourite colour.
The mother told Ms M that for his fifth birthday she brought him a Barbie doll because that was the only thing he wanted. The mother also said that the child continued to like to dress up in girls’ clothes and has to be dissuaded from going outside in them. In August 2002 the mother reported that the child liked dressing up in her clothes.
Dr W in his first report reaches the following conclusions in relation to the child’s feminised behaviour:
“[The child] has a history since the age of about two of an attraction to, and participation in, conventional feminine activities. It essentially started with a preference for playing dress up in female clothing, which is a not uncommon transient stage with boys. However, since then, his interest has continued and has expanded to include a preference for pink girl dolls, playing girlish games with girls, and sewing dresses for his dolls. He is also starting to show some more flamboyant mannerisms and affectations, particularly when engaged in these activities. He does have male friends with whom he plays, but his inclinations are away from the more rough and tumble boyish activities. He has also expressed a preference to be a girl.
He also has a developing interest in music, performance and drama in general. He is developing some melodramatic traits in his personality as well.
This pattern is a characteristic of an evolving gender dysphoria, and at the age of 7, it is probably quite entrenched. Indeed it is probable that these traits will persist, although there is a significant possibility that they may not. If they do, they may lead to homosexual orientation in adulthood or into a sustained gender dysphoria with either cross-dressing or a desire for a sex change in adulthood.
The origins of this behaviour are poorly understood. It is commonly observed that this behaviour can develop in young boys who live in almost exclusively female households or who are aggressively feminised by a female member of the household with whom the child has a very close attachment. However there is also intriguing evidence that in some cases there may be a genetic factor. I was not able to obtain a family history of any similar or related behaviour on either side of his family. Moreover, although both families have thought that he might have been feminised by other children, the extent of this did not appear to be as great as one usually finds. For this reason it is my view that there is probably an additional social factor at play.
Another possibly [sic], and one which I favour, is although the company and play of girls in his early life has been an important factor, the important driving force has been flight into fantasy and make believe to deal with feelings of emotional distress and neglect.”
In 2002 Dr W indicated the child’s behaviour was indicative of “evolving gender dysphoria”. As a result of a referral being given by Dr W, the father and the grandmother (mainly the grandmother) facilitated the child seeing Dr M, psychiatrist, since early 2003. I have dealt with Dr M’s evidence above.
Dr M said that initially he too had concerns that the child may have had gender dysphoria. He has concluded, as a result of his contact with the child over time, that that is not the case. Any dysfunction in the child’s gender identification, according to Dr M, has been managed well by the father and grandmother. This has involved them in gentling re-directing the child towards what is seen as more masculine activities.
The father complained about the fact that a violin that was purchased by the mother for the child was pink. The instrument was tendered as an exhibit in the hearing (exhibit 6). The mother described the colour of the violin as mahogany. The violin came in a purple case. Although a small part of it might be described as mahogany, the overall colour of the violin is very pink. I find that the violin is one that you would normally buy a girl not a boy.
Both the father and grandmother were critical of the mother in relation to her feminisation of the child. The father complained that the mother gave a Barbie doll to the child as the only Christmas present that she gave him in 2003.
The mother said that she was only giving the child what he wanted and what made him feel happy. The father countered that by saying that the mother would dress the child up in feminine clothing when he was 3 years old and had no ability to express a wish one way or the other.
Everybody agrees that the child likes the colour pink. However, the adults in this case have been advised by Dr M that it is in the child’s best interest to discourage him from his preference for feminine things. It is unlikely that the child will follow in the footsteps of his father and grandfather by becoming a fisherman. The paternal grandmother conceded that the child did not like fishing much and he didn’t eat fish (unless it was disguised in fish cakes).
The grandmother complained that in a telephone conversation with his mother at the end of 2004, the child got off the telephone and said words to the effect “Mum has asked me to design her wedding dress with cleavage. I am also going to design pink bridesmaid dresses and a pink wedding cake. Mum has asked me to be best man and to give her away”.
The grandmother found this conversation disturbing. She saw it as again encouraging the child in feminine activities (but it wasn’t the cleavage she was objecting to, it was the actual designing of dresses).
On the other hand the grandmother conceded that the child has a natural flair for doing so. She described as incredible his talent for pattern making.
The mother asked the father in the witness box whether or not he would still love the child if the child turned out to be a homosexual. The father clearly had a great deal of difficulty dealing with that concept.
Order 14 is aimed at putting some continuing restrictions on the mother’s behaviour, consistent with the advice of Dr M.
(g) The need to protect the child from harm
In August 2002 Ms M concluded that the child did not feel safe in his mother’s home.
The father seeks to protect the child from the behaviour of the mother. The allegations against the mother are:-
216.1.Both the father and the paternal grandmother believe the mother is involved in drug use to the present day;
216.2.The mother has failed to return the child from contact visits in October 2003 and May 2005;
216.3.The mother discusses these proceedings with the child and gives him a false expectation as to what is to happen;
216.4.The mother is not consistent in turning up on time and sometimes she hasn’t turned up at all to see the child at a scheduled time.
Does the mother use drugs?
Both the father and paternal grandmother are firmly of the view that the mother uses drugs.
Dr W in his 2002 report makes the following comments about his discussion with the mother about her drug use:-
“[The mother] gives a history of episodic polydrug abuse with a period of several months of moderate use of amphetamines by injection and at a different time, several months of moderate use of heroin by injection. She said that she has used a number of other drugs, but not at an abusive level. Since her release from jail she has predominantly used marijuana although she has occasionally used methadone, and she described procuring methadone from a local doctor for stress.
I formed the view that it was unlikely that [the mother] gave me an accurate account of her drug use. Of particularly [sic] concern was her description of her use of methadone periodically in the last few years which she has obtained from doctors or friends, and the manner in which she obtained the methadone from a local doctor recently. Recreational use of methadone is not characteristic of a pattern of light use of drugs. It is a feature of people who have close ties to the community of intravenous drug users and people on narcotic rehabilitation programs from whom methadone is casually available through legal and illegal sources. Moreover, I am satisfied on her own admission that she procured methadone from a local doctor by passing herself off as a narcotic addict, possibly claiming that she had lost her methadone supply or some other common misrepresentation.
....
In my view, the account given by [the mother] represents not just a discrepancy from the history that she has given to other people, but gives a strong indicator that she continues to use narcotic and related drugs of addiction, at least on a casual basis. She also admits to recreational marijuana use, and to have tried just about everything else. It is probable that her account of drug use is unreliable at the moment and that it has been for many years.”
These observations by Dr W in 2002 are part of exhibit CR3 as a COPS record dated 4 September 2002. That record discloses that the mother was interviewed by police when she was seen in the company of a known supplier of prohibited drugs. She had a $50 note in her right pant’s pocket (as opposed to her handbag) and the police on inspecting her arms saw old track marks. At the time she had her two other children (in a pram) with her.
Whilst Dr W couldn’t exclude the use of drugs by the mother in the period between his first and second report, he said that his contacts with her over that period did not seem to be consistent with intoxication at those particular times.
The last time there was any evidence that that was happening was 2002. There is nothing after 2002 that lead me to make any positive finding in that regard.
It has been emphasised on behalf of the father that the mother having been invited to undergo urinalysis, did not accept that invitation. That’s not strictly so. Dr W, when giving evidence, conceded that when he interviewed the mother he suggested that she go and get a urinalysis test (primarily for the purposes of allaying the fears of the father and his mother). She immediately attempted to do that but the referral service that the doctor had sent her to was closed. Dr W confirmed that that was the case. She said that she attempted to make another appointment but in the end did not organise it.
Dr W expressed the view that the mother was the type of personality that would refuse to have a urinalysis test if she thought it was a totally inappropriate test (that is, it shouldn’t be seen in any way as some type of admission that she was still using drugs). No order was made for urinalysis in this case. The mother on a number of occasions pointed out it’s the father who has the serious drug conviction not her. The father of course for his part says that “he took the wrap” for the mother.
There is no evidence upon which I could conclude that the mother is currently taking drugs.
Any family violence
There are numerous instances of alleged violence between the parties themselves and between the paternal grandmother and the mother.
(j) Family violence order
An apprehended violence order was made in the F Local Court on 24 April 2004 against the mother for the protection of the paternal grandmother, her husband the grandfather and the father. The order was made for a five year period and is due to expire on 24 April 2009.
The matter was listed in respect of alleged breaches on various occasions in late 2004.
Conclusion
The child’s life has had a chaotic history with a complex tangle of dynamics between various parties.
I have not embarked upon the process of disentangling that history in any detailed way. Detailed findings of whose version of historical fact is to be accepted is not necessary to reach an assessment as to what is in the child’s best interests in the future. The relevance of the history is the light that it sheds upon the current conflict between the significant adults in the child’s life. That conflict limits and defines what orders can be made in the child’s best interests for the future.
The child clearly expressed to Dr W that he would like to stay where he is. He however also expressed a clear wish that he wanted to maintain contact with his mother and had been quite distressed by the lack of contact.
An order that the child ordinarily live with his mother is not one that is in his best interests. As I have commented above it would involve a change of school. This would have a destabilising effect on the child’s academic progress. A move to his mother’s home on a full time basis is also likely to lead to a risk of recurrence of dysfunction in the child’s gender identification. According to Dr M that is currently being managed well in the father’s household.
So, I find that the child is likely to be unsettled in his mother’s household if he goes there on a full time basis. Although the mother has improved her capacity to provide for the child’s educational, medical and emotional needs it is not as good as it is in the father’s household.
It is important however that, so far as is possible given the tyranny of distance in this case, the child spend as much contact time as is feasible for his mother. It is also very important that the mother not find any excuses not to return the child at the end of the contact time which I order.
PROPOSED ORDERS
Supervised contact
The father wants another six months of supervised contact at the R Contact Centre. The Child Representative, whilst agreeing that that Centre would be useful in the short term to provide the service of being the contact changeover point, submitted that the continuation of supervised contact is not something that can be objectively hoped to provide any further improvement.
The father and his mother say that further supervision is necessary in order to ensure that contact is taking place without the mother making inappropriate remarks that might relate to the child’s masculinity or might be derogatory of the father and his family.
There have now been three occasions where contact has taken place at a contact centre.
Dr W recommended that the child spend half of all school holidays with his mother and one weekend during school term which was clearly defined. He does so based on the history to date of cooperation between the parties in relation to contact and the distances involved in travel.
Dr W did not support a period of supervised contact. He thought in 2004 that it was in the child’s best interests for him to be able to have a more normative type of contact with his mother and her family if that was possible. He was of the view that the mother’s behaviour should not be seen in isolation and that when it is seen in conjunction with the conduct of the father’s family the argument for supervision falls away.
I accept that opinion but in my view there is still merit in having the R Contact Centre at B as the contact changeover point for a period of six months given the difficulties that continued to happen in contact over the last couple of years. A regime on the child seeing his mother once a month is appropriate.
I don’t intend to make any further order for supervised contact. I agree the contact centre should be used in the short term as the changeover point because it has the advantages of:-
240.1.Being a place which provides some level of structure that will initially keep the waring adults apart;
240.2.That given the mother’s track record in relation to turning up late, sometimes not turning up at all and sometimes retaining the child, the centre will initially provide some focus for the mother in making sure she does everything possible to keep on time. I have evidence that in the event that she fails to bring the child back within a specified time after the due time then automatically the police will be involved. Whilst that is not necessarily a desirable thing it will in the circumstances of this case provide some motivation for the mother to try and keep on time.
Should the child’s siblings be at contact changeover?
On the last contact two supervised visits prior to the hearing there was an issue as to whether or not the child’s step brother and sister should be present. Both the father and his mother are of the view that they shouldn’t be there because it took the mother’s focus away from her attention to the child during the limited number of hours that she would have with the child at the supervised contact centre. Given the orders that I intend to make (that is that there be no supervision) I should make it clear that there will be no reason why the other children can’t be with their mother when the child is being picked up and taken back at the beginning and conclusion of contact.
Future management of the case
This matter has had a long and complex history and this is the third time it has come to trial in the Family Court (the proceedings before Le Poer Trench J were settled at the door of the court). It is likely that there are going to be further applications made arising out of non compliance with orders, the mother not returning the child at the conclusion of contact or there being other problems with the facilitation of contact. In addition I expect that the adults in this case will abide by any advice and direction made by the child’s treating specialist from time to time. Again there might be applications that one of the adults wishes to make in that regard.
In those circumstances I believe it would be useful to make an order that further applications can be made to me if I am reasonably available.
I certify that the preceding Two hundred and forty-three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts
Associate:
Date:
IT IS NOTED that this judgment for all publication and reporting purposes be referred to as Knight & Eddy.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Appeal
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Costs
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Judicial Review
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Procedural Fairness
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Standing
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