MH and GB - [2004] FMCAfam 715

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MH & GB

[2004] FMCAfam 715

FAMILY LAW – Children – whether contact should be ordered with father of 12 year old girl – previous violence – father been in prison – mother opposed to any form of contact – weight to be given to wishes of child.

B & B Family Law Reform Act 1995 (1997) FLC 92-755
H v W (1995) FLC 92-598
R v R (2000) FLC 93-000

Applicant:

Respondent:

File No:

PAM 1615of 2002

Delivered on:

16 December 2004

Delivered at:

Parramatta

Hearing dates:

8, 9 & 10 December 2004

Judgment of:

Sexton FM

REPRESENTATION

Counsel for the Applicant:

Mr D Maddox

Solicitors for the Applicant:

Sarah Bevan & Associates

Counsel for the Respondent:

Mr J Heazlewood

Solicitors for the Respondent:

Ashlars Lawyers

Counsel for the Child Representative:

Ms D Harris

Solicitors for the Child Representative:

Coleman & Greig

ORDERS

That all previous parenting orders be discharged.
That the child OB, born 4 November 1992 [“OB”] reside with the mother.
That until further Order, OB have contact with her father commencing Sunday 19 December 2004 as follows:
(a)Each alternate Sunday from 11.30 a.m. until 3.30 p.m. until Sunday 27 March 2005 and thereafter;
(b)Each alternate Sunday from 10 a.m. until 5 p.m. commencing Sunday 10 April 2005.
(c)At any other time by agreement between the parties.
That for contact in accordance with Order 3 (a) changeover will occur at the Central West Contact Centre at 53 High Street, Harris Park.
That for contact in accordance with Order 3 (b) changeover will occur next to the ticket office at Westmead Railway station.
That the parties be prohibited from communicating with each other at contact changeover.
That the father purchase an exercise book to give to OB on the first contact occasion after the making of these Orders to be used as a communication book for each parent and OB to have the communication book with her on all contact occasions.
That the father and the mother attend a parenting course nominated by the Child Representative as soon as practicable after the making of these Orders and each parent to provide to the Child Representative proof of participation in accordance with the requirements of the course.
That in the event OB has a specific activity to attend which coincides with a contact period then OB shall telephone the father and advise him of her inability to attend, and the contact period missed shall be substituted on the following Sunday which will mean contact will take place on consecutive Sundays when substituted contact occurs.
That the father be prohibited from asking OB any questions about her residential address or telephone number, or from denigrating the mother or any member of the mother’s family in the presence or hearing of OB.
That the mother be prohibited from denigrating the father or any member of the father’s family in the presence or hearing of OB.
That the father spend the whole of every contact period with OB.
That both parties be restrained from discussing these proceedings with OB or from showing OB any documents or reports related to these proceedings.
That these orders be explained to OB by the Child Representative before the first contact period and the Child Representative be at liberty to read to OB any parts of these reasons for judgment.
That the mother ensure any gifts, notes, cards delivered to the home of OB’s maternal grandmother are given to OB with positive comment from her.
That the appointment of the Child Representative continue until further Order.
That a short form updated Family Report be prepared by Mr H at the Family Court, Parramatta Registry in June 2005, dates for interviews to be arranged by Registry.
That each party have liberty to restore the matter to the list on 72 hours notice.
That the proceedings be adjourned to Thursday 14 July 2005 at 9.45 a.m. before me for mention.
That pursuant to Section 65DA(2) of the Family Law Act 1975 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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1615 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Proceedings

These are proceedings for parenting orders in relation to the child of the relationship, OB, born 4 November 1992, now aged 12 years.
The mother relied on her Amended Application filed 30 November 2004 and sought orders submitted at the end of the hearing set out at paragraph 6 of these Reasons. The mother further relied on her Affidavits filed 3 May 2002 and 22 November 2004.
The father relied on his Response filed 26 November 2002 and sought orders submitted during the course of the hearing set out at paragraph 7 of these Reasons. The father relied on his Affidavits filed 26 November 2002, 26 November 2004 and 8 December 2004. He further relied on affidavits of his mother filed 2 December 2002 and 1 December 2004.
Orders were first made in relation to parenting arrangements for OB in 1998.
On 13 June 2003 interim orders were made by consent between the parties providing for the father to have contact with OB at the Children’s Contact Service at Relationships Australia at Gosford once per month for 2 hours on each contact occasion. Supervised contact did not begin, however, until the end of February 2004.
At the end of the hearing, the Applicant mother sought the following orders in relation to OB:
a)All previous orders herein be discharged;
b)The child reside with the mother.
c)That the father have contact with the child in accordance with the wishes expressed by the child or in the alternative, contact is to occur on alternate Sundays 10.00a.m. to 2.00p.m. for six (6) months and, in addition, any other contact requested by OB.
d)That the mother shall pass on to the child all gifts and correspondence received from the father and addressed care of the maternal grandmother.
e)For the purposes of contact periods the changeover is to occur at Central West Contact Service if not otherwise agreed.
f)The Child Representative remain for a further twelve (12) months.
g)The parties use a Communication Book.
h)The parties attend such courses as indicated by the Child Representative.
i)The mother will encourage the child to telephone the father on Tuesday evenings between 7 and 7.30p.m.
The Respondent father sought the following orders in relation to the child:
(a)The father have contact with the child as follows:
(i)For four hours each Sunday on the first four successive Sundays immediately following these Orders from 10.00a.m. until 2.00p.m.
(ii)Thereafter for the next two alternate Sundays from 9.00a.m. until 5.00p.m.
(iii)Thereafter for the next two alternate weekends from 12 noon Saturday until 2.00p.m. Sunday.
(iv)Thereafter from 6.00p.m. Friday until 6.00p.m. Sunday and one half of all school holidays, including Christmas holidays being the first half in odd years and the second half in even years.
b)The mother shall deliver the child at the commencement of contact periods to Westmead Railway Station and collect her from there at the conclusion of contact periods.
c)If Fathers Day does not fall on a contact weekend then the Fathers Day weekend shall be substituted for the weekend preceding such Fathers Day weekend.
d)If Mothers Day falls on a contact weekend then the weekend before the Mothers Day weekend shall be substituted for contact so that there shall be no contact on the Mothers Day weekend.
e)If the child’s birthday falls on a contact weekend then contact shall cease at 12 noon on that day if the birthday falls on a Sunday and contact shall not commence until 12 noon on Saturday if the birthday falls on a Saturday which is a contact weekend.
f)If the child’s birthday does not fall on a contact day the father shall have contact for two hours from 6.00p.m. until 8.00p.m. on the child’s birthday.
g)The Mother shall cause the said child to telephone the Father on Tuesday and Thursday evenings between 5.30p.m. and 6.00p.m.
h)The Father shall attend such parenting course and the Mother shall attend such Parenting After Separation course as recommended by the Child’s Representative and each of the recommended by the Child’s Representative and each of the Mother and Father shall provide to the Child’s Representative as soon as practicable with confirmation of attendance at and the completion of such course.
i)The mother shall cause the child to attend and the Father shall also attend upon such Psychiatrist as may be nominated by the Mother and her advisors and failing such nomination within 14 days as nominated by the Child’s Representative, on such occasions as may be recommended or required by such Psychiatrist for the purpose of assisting the child and the father to deal with, or confront any issues or problems they may have in dealing with their relationship, communication with each other, or the regularity, quality or form of contact.
At the end of the hearing the Child Representative proposed the following Orders:
a) That all previous Orders be discharged.
b)That the child, OB born 4 November 1992 reside with the mother.
c)That the father have contact with the child commencing 12 December 2004 as follows:
(i)Each alternate Sunday for three (3) months from 10a.m. to 2.00p.m. and thereafter;
(ii)Each alternate Sunday from 9.00a.m. to 6.00p.m.
(iii)And at other times as agreed between the father and the child.
d)That the father undertake a parenting course nominated by the Child Representative and provide proof of attendance to the Child Representative.
e)That in the event the child has a specific activity to attend that coincides with contact the child shall call the father and advise him of her inability to have contact that weekend and arrange an alternative time.
f)That these Orders be explained by the Child Representative to the child prior to 12 December 2004.
g)That both parties be restrained from:
(i)Discussing these proceedings;
(ii)Denigrating the other party or family members of the other party;
(iii)Showing any documents or reports related to these proceedings;
to the child, with the child or in the presence or hearing of the child.
h)That the appointment of the Child Representative continue for 12 months from the date of these Orders.
i)That liberty to restore on 72 hours notice be granted to all of the parties.

Background Facts

The parties started a relationship in approximately 1983. The mother had her son from a previous relationship, living with her. M, born 27 February 1977, was then aged 6 years.
The parties started living together in 1990 when M was about 13.
OB, the only child of the relationship was born on 4 November 1992. She is now 12 years old.
The parties’ relationship broke down between 1998 and 2000 and they separated finally in 2000 when the mother and OB left the family home at Merrylands.
The mother is now 54 years old and the father is 43 years old.
OB has lived alone with the mother since separation. They live in a two bedroom apartment. OB is in Year 6 at CW Primary School.
The mother supports herself and OB on Centrelink payments and child support from the father.
OB has not seen her father in an unsupervised setting since October 2001.
The father has served periods in gaol since 1997.
OB has had 10 supervised contact periods of 2 hours with her father since February 2004, the last contact occurring on 20 November 2004.

The issues

The question for the Court is whether OB’s interests are best served by her having any mandated contact with her father in the future, and if so, what level of contact she should have.
Matters relevant to this issue are:
·OB’s wishes.
·The nature of her relationship with her mother
·The nature of her relationship with her father.
·The capacity of each of her parents to provide for her needs.
·The need to protect OB from physical or psychological harm.
·The attitude of each parent to the responsibilities of parenthood.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the child as the paramount consideration. Section 60B(2)(a) of the Act emphasises the rights of a child to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering what parenting arrangements should be ordered, the court must make the order which it considers to be in the best interests of the child.
In deciding the parenting arrangements that will promote the best interests of OB in this case, I must have regard to the factors in Section 68F(2) of the Act to the extent each subsection is relevant to this particular case. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by the child;
b)the nature of the relationship between the child and each parent;
c)the likely effect of any change in the child’s circumstances;
d)the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude of the parties to the responsibilities of being a parent;
i)any family violence that may involve the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(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;
(l)any other fact or circumstance that the court thinks is relevant. This subsection ensures that the individual child’s circumstances in a particular case can be properly taken into account.
In B & B Family Law Reform Act 1995 (1997) FLC 92-755 the Full Court said:
9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
9.52The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s60B.
9.53The wording of s 68F(2) makes that clear – the Court “must consider” the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and no children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to Section 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in subsection (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court’s consideration of the matters in S68F(2) and to the overall requirement of S65E. The matters in S 68F(2) are to be considered in the context of the matters in S 60B which are relevant in that case. But S 65E defines the essential issue.
9.55Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.”
Section 68F(2)(a) is a factor in this case, to which I must give consideration.The Full Court in H v W (1995) FLC 92-598 said:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.
The court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.”

Evidence and findings

The documents relied on by each party are set out above.
Mr H, Court Counsellor, prepared Family Reports dated 5 May 2003 and 19 November 2004. Both reports were in evidence [Ex C1 and C2].Mr H gave oral evidence and was cross examined by all parties.
All parties tendered additional documents that became exhibits in the proceedings.

The relationship between the mother and the father

The parties’ relationship has completely broken down. They do not communicate. The mother will not allow the father to know her address or telephone number. She says she is fearful of him ‘to a degree’. She says though he has not done anything to harm her, he has threatened to. She wants nothing to do with him and cannot think of anything positive to say about him. The mother’s position is rigid. When she made a concession under cross examination to a remote possibility that OB could benefit from a relationship with her father, she very quickly defaulted to her original position. I am satisfied that if the mother had her way, the father and his family would play no part in her life or in OB’s life forever.

The mother’s anger towards the father has also been directed to the father’s mother, Mrs JB and I accept Mrs JB’s evidence on this issue. During contact changeovers between the end of 1998 and the end of 2001 Mrs JB was the person nominated to collect and deliver OB between the parties for contact. She said she stopped driving herself after a time because of the mother’s abuse of her in front of OB at changeover. At Christmas 2001, Mrs JB, accompanied by her cousin took presents for OB from the father and his family to the maternal grandmother’s home. The door was opened by the mother’s brother and Mrs JB said “please give these presents to OB from us.” The brother laughed and slammed the door in her face. At Christmas 2003 Mrs JB took cards to OB’s school to be given to her. The mother saw Mrs JB, became angry and called her “bitch” and other names. The mother then involved OB by taking her from assembly.
The mother and father started a relationship about 20 years ago and commenced full time cohabitation in 1990. Both admitted to positive elements in their relationship at some point, but agreed there were serious problems between them by 1998 from which the relationship never recovered. The mother had an apprehended violence order against the father by that time. From the police reports tendered in evidence I accept that the parties were involving police in their domestic problems from the time OB was 2 years old. The father’s relationship with the mother’s son, M was one of the many factors about which the parties disagreed. The parties did not live under the same roof after the year 2000. The relationship has deteriorated even further since separation.
I am satisfied that OB has witnessed a great deal of abuse between her parents and has been aware of the continuing conflict between them. The police have been involved in their disputes on many occasions. Since 1998 the mother has taken out apprehended violence orders and the father has been interviewed many times in relation to alleged breaches of those orders. The father has been convicted of breaches of apprehended violence orders. In addition M has had an apprehended violence order against the father. On 23 May 1999 the father assaulted M for which he received a gaol sentence of several months.
The father has a criminal record dating back to his adolescence. He has served time in gaol between 1997 and September 2003, the last time from March 2002 until September 2003. OB had no contact with her father when he was in gaol. The father has served time for property offences and crimes of violence. He has been disqualified from driving and been convicted of driving whilst disqualified. Although the father says he has changed since leaving gaol and now has respect for authority and the law, the mother is convinced he will never change.
The father’s mother, Mrs JB said in evidence that both parties have been quick tempered and prone to abuse and violence during the course of their relationship. She said the parties brought out the worst in each other. Mrs JB described an incident when she went to their home for dinner and the mother became extremely angry with the father for wiping his hands on a hand-towel. OB was present during the angry exchange. Mrs JB said in her affidavit filed 2 December 2002 that she was present on at least a dozen occasions after the parties’ separation when the mother has said to the father words to this effect: “I will make sure you go to jail” and “you will go to jail”.
It is clear to me on the evidence that the parties have had little regard to the impact of their conduct towards each other on OB, and that OB as a consequence has been placed in a vulnerable and unenviable position.
I agree with Mr H’s view set out in his report of November 2004 at paragraph 22:
One factor that seems to be impeding any change in the family is the parents’ unwillingness or incapacity to let go of the past. Mr GB has displayed what is akin to an obsession with Ms MH’s son. This has understandably contributed to OB’s wish to avoid her father. Ms MH has hung on to her painful experiences at the hands of Mr GB and has drawn OB into an alliance as victims of his behaviour.

OB’s wishes

OB told Mr H at interview in November 2004 that she did not want to see her father. She said the same when interviewed by Mr H in May 2003. OB told her father by telephone and letter from September 2001 until December 2001 that her mother did not want her to see him, and that she did not want to see him. OB’s expressed wishes are clear.
The question for the Court is how those expressed wishes should be interpreted and what weight should be given to them. In R v R (2000) FLC 93-000 the Full Court said appropriate and careful consideration must be given to children’s wishes. The Full Court said at paragraph 54:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them...
Mr H in his May 2003 report said at paragraph 20:
The fact that OB’s main complaint against her father refers to the same behaviour to which Ms MH attributed the breakdown of the interparental relationship raises some concerns. It is possible that Ms MH has drawn OB into her own hostility towards Mr GB, perhaps in an attempt to gain some reassurance from her daughter that she is a good enough mother.”
He concludes at paragraph 21 of that report that OB deserves the opportunity to have both her parents in her life. She also deserves to be protected from the interparental conflict which creates loyalty tensions for her.
Mr H reiterated his same concerns in his November 2004 report after interviewing the parents and OB again. OB again told Mr H she did not want to see her father. During the session, according to the report, OB displayed no warmth in her interaction with her father. She resisted any physical contact with the father.
At the last supervised contact visit on 20 November 2004, the father says in his affidavit filed 8 December 2004 that OB was initially cold and did not make eye contact with him. After about 20 minutes the father said to her “Darling would you like Dad to go home or can we work through this?” OB said “yes, Dad, can we play a game?” They then had a conversation about Christmas, about her room at his home and about the dog, called DJ. The father said “Hopefully you will see him soon.” OB said “I can’t wait to see him.” Although it is not possible to test this evidence objectively (the report from the Contact Centre of this meeting was not part of the material produced on subpoena) if true, it suggests there may be some improvement in the father’s sensitivity to OB.
At hearing the mother said she does not see any benefit in having any communication with the father or in OB having any communication with the father. She strongly believes that OB should decide what contact she has with her father, and that will mean she has no contact.
I am satisfied OB is well aware of the mother’s views and is aligned with her. Her loyalty to her mother makes it very difficult to assess whether she has any residual attachment to her father.

OB’s relationship with her mother and the mother’s capacity to provide for OB’s needs

OB is strongly attached to her mother, who has loved and cared for her all her life. I am satisfied the mother’s attitude to the father has had considerable influence on OB’s relationship with the father. OB is aligned with the mother and OB knows that to care for her father means disloyalty to her mother.
A child has a right to a relationship with both her parents. Unfortunately for OB, the mother does not accept there can be any benefit for OB in a relationship with her father. She is not open to any other view. A question therefore arises as to the mother’s capacity to provide for OB’s emotional needs.
The mother agreed to interim orders in December 1998 which provided for OB to see her father, and in April 1999 to orders providing for regular contact between OB and her father. The mother says on every contact occasion from about the end of 2000 OB complained about having to have contact with her father. She complained of the father’s threats towards M and his father, GR and denigration of the mother during contact visits. In 2001 the mother took OB to counselling at Centacare to help her deal with the problems she was having in relation to contact.
There seems no doubt that OB’s contact with the father was affected and disrupted by the conflict between the parties. In their affidavits filed in 2002 both parties depose to incidents between them which show OB caught in the cross fire of threats, reports of blackmail, reports of assault, abuse and hostility between her parents. According to the father, the mother said to him about 21 September 2001 “Mum doesn’t want me to see you anymore because we are moving and GR [the mother’s ex husband] and M are moving in with us, and Mum says that because you don’t like them, I’m not allowed to see you.” On 5 October 2001 when OB was collected by the father for contact she cried as she said “Mum doesn’t want me to see you again. She doesn’t want you to have anything to do with me.” In October 2001 OB stopped having any contact with her father.
The mother in her oral evidence at hearing said she had always been reluctant to allow contact between OB and her father after separation. She said “in my heart, I know it is not good for OB to see her father.”
At paragraph 34 of her affidavit affirmed 1 May 2002, the mother said:
I am concerned for OB’s emotional well being as a result of the father’s behaviour towards her. I believe that in better circumstances it would be preferable for OB to enjoy a close relationship with her father
The mother put a different position in oral evidence. She said she did not, at the time of her 2002 affidavit, believe it was in OB’s interests to have a close relationship with the father.
The mother now firmly believed it was not in OB’s interests to have any kind of relationship with her father. However, she says it is OB’s business, not hers and she would not stop her having a relationship. She said OB would know she did not support her having a relationship with her father, but would nevertheless tell her if she wanted to see him. Mr H said at Paragraph 24 of his November 2004 report [Ex C1] “In effect, Ms MH is proposing there be no contact, and seems unable to realise that OB is in no position to voice a wish to see her father without seriously risking being disloyal to her.” I have decided the mother will do everything in her power to ensure OB does not develop a relationship with her father. That is the central problem in this case and a critical problem for OB.
The mother told the Court counsellor at interview in November 2004 [paragraph 6 of Exhibit C1] that she was opposed to OB seeing her father for these reasons:
·this is in accord with OB’s wishes
·Mr GB has been in gaol, is aggressive and domineering
·Mr GB has no parenting skills.
·Mr GB constantly lies (‘boy, oh boy does he tell lies’).
·Mr GB is probably still a drug dealer.
In cross examination the mother conceded she had no current evidence that the father is a drug dealer and agreed that other people also tell lies. In relation to his aggression, she said the father belittled OB and intimidated her by asking questions she didn’t want to answer or didn’t know how to answer. He made her uncomfortable and OB felt scared. The mother conceded she was referring to the father’s parenting skills in 2001 when OB last had unsupervised contact with the father.
The mother says OB has not wanted to go on supervised contact visits to her father during 2004. She has only attended because the Court ordered her to attend. All her comments after each contact visit have been negative. On the last visit on 20 November 2004 she reported OB as saying “this is my last visit, and I’m glad.”
I am satisfied the mother has no understanding of the potential impact on OB of her attitude to OB having contact with her father. When asked if she understood Mr H’s comment at paragraph 27 of his report that no contact between OB and her father “may have considerable consequences for OB’s socio-psychological development, particularly throughout adolescence” the mother said she was not at all concerned. She was opposed to OB having any counselling with the father. She said “there is nothing wrong with OB; if anyone needs to see a psychiatrist, he [the father] does.”

OB’s relationship with her father and the father’s capacity to provide for OB’s needs.

As submitted by counsel for the Child Representative, Mr H noted the father has impediments to his parenting capacity in that he is not skilled in containing his own issues and displaying empathy for OB. The father has had significant involvement in the mother’s son’s life but otherwise has had no experience of parenting except with OB. He has a poor relationship with M. I have decided the father would benefit from a parenting skills course.
There was very little evidence before me as to the relationship between OB and her father in OB’s early years. The father said “we were mates” and used to do lots of different activities together. The father’s mother said the father and OB had a good relationship and OB interacted with her, her aunts and uncles and cousins, regularly. She was known as ‘L’ by the father’s family. OB did not comment on her early relationship with her father in either interview with Mr H.
OB told Mr H in her interview in May 2003 that she had been close to her father but ‘not very close’. OB must have been referring to the period after separation. She said that she used to come home from weekends with him and vomit or get sick, but since the contact stopped, she has no longer been getting sick. [Ex C2]. She objected strongly to the father asking her lots of questions and getting angry when she gave the wrong answers. In the same report, Mr H reported OB as saying she would like the magistrate to know that she does not want to see her father and that she is happy living with her mother. Mr H concluded that OB’s relationship with her father “is very tenuous and obviously a lot more distant than it previously had been…It is difficult to predict whether mandated resumption of contact between OB and her father will improve or further jeopardise the current fragile relationship.”
OB has had little opportunity to build a strong and meaningful relationship with her father. In 1997 when OB was only 5, the father was sentenced to gaol. He remained in gaol in Perth until May of OB’s first year at school. At her 6^th birthday party on 8 November 1998 the police were called as a result of a dispute between the parties. Between 1998 and 2000 the father lived away from the mother and OB for much of the time. Although the mother says the father had regular contact from 1999 until October 2001 I have concluded that the contact was not always a positive experience for OB. In a letter from OB’s counsellor to the Department of Community Services dated 15 December 2001, the counsellor records OB complaining of her father yelling, making abusive comments about M and the mother and of having drugs in his house. She told the counsellor she was having nightmares and her sleep was affected. The father was unable to explain OB’s reactions as reported by the counsellor. He denied that he had done the things he was accused of, apart from denigrating M and his father Graeme. I have decided the father has little insight into the effects on OB of his behaviour, his absences or his criminal activity in the last 7 years.
In October 2001 contact between OB and her father stopped altogether. On 15 November 2001 the mother says OB sent this letter to the father:
Hello Dad
I did not ring because I did not want to. I made my own mind up. The reason is you ask me things. I do not know the answer to you make me feel uncomfortable with your equestions you ask. I do not want to stay at your place because you make me feel scared and you yell at me. When I cannot answer the questions you ask me. I wrote this letter to you because I did not feel comfortable saying this on the phone. Goodbye OB.
On 26 November 2001 the mother says OB wrote a further letter to the father which I quote in part:
You can think that mum made me write this letter but she didn’t. I wanted to write to you … you can … rip this letter I don’t care but at least you get the message.”
“goodbye”
In May 2002 the father was sentenced to gaol where he remained until September 2003. OB did not see him during this period. OB has had 10 contact visits between February and November 2004 for two hours each time, supervised.
It is very difficult to assess the quality of the relationship which currently exists between OB and her father or to assess the father’s capacity to provide for OB’s needs. OB is only just 12 years old and since she was 5, her father has been in and out of her life. Since she was 9 her parents have not lived under the same roof. She has had no contact with the father’s extended family in the last 3 years. She has had no unsupervised contact with the father for the last 3 years.
The relationship between OB and her father broke down at some point. The question is whether, in circumstances where she is living with and dependent on her mother who has communicated to her so strongly she should not see her father again, it is of benefit to OB to try to develop a relationship with her father.
There is nothing negative in the Contact Centre reports of the supervised contact which has taken place during this year. There are reports of laughter and communication between the father and OB. The mother gives only negative reports of OB’s reaction to the contact. The mother says OB reported feeling sick when she was with him. The father reports OB being at times distant, but at others relaxed and smiling. She accepted gifts from him. He reported gentle and positive interaction. He does not report intimate communication between them. The father’s reports of the visits are not inconsistent with the Centre reports in any material way.
The father is working as a self employed concreter and landscaper. He is living with his brother in his own home at Merrylands where the parties once lived together. OB has her own room there. He has a dog, DJ, an Alsatian once regarded as OB’s dog. The father has been in a serious relationship with NG since early 2002. The father said they are spending some time apart at present but are hopeful they can make a future life together. NG has two sons, one of whom is OB’s age. The father is not living with NG. Unfortunately, Ms NG is not on affidavit in these proceedings and nothing is known about her. The father says she is caring and gentle and they have together discussed the need for OB’s careful introduction to her, if contact is to be permitted by the Court.
The father has an extended family who want OB to be part of their lives. His mother gave evidence in the proceedings. His mother lives with his sister C who is married with two daughters aged 11 and 7 years.

The need to protect OB from physical or psychological harm

I have decided neither party has made proper efforts to protect OB from psychological harm. I have outlined some of what OB has heard and witnessed in these reasons. On the evidence of the mother and the paternal grandmother I find that contact changeover has been used by both parties to aggravate and inflame the dispute between them. There have been times when the police have been involved. I am not satisfied either party appreciates the extent of harm likely to have been caused to OB by their behaviour towards each other in front of her or in her hearing. There is a risk that OB will be exposed to abuse and inappropriate behaviour at contact changeover in the future. If that occurs it is highly likely OB will refuse to see her father.

Attitude of mother to the responsibilities of parenthood.

The mother cares for OB on a day to day basis and there is no evidence to suggest the mother does not care for OB’s needs day to day in a loving and appropriate way. Both the father and his mother described the mother as a good mother. The father mentioned the mother and OB listening to music together and dancing. To his credit, he was complimentary about the mother’s parenting skills.
The mother on the other hand said in evidence the father had no parenting skills and she had told OB the father had no parenting skills. She recalled an incident when OB was a very young child when the father left her seat belt undone and OB fell out of the car onto the road. She says OB remembers that incident, and otherwise only remembers material things the father has done for her. The mother could not acknowledge anything emotionally positive OB might remember of her father in her early years. I have decided the mother is unwilling to give OB permission to have anything but wholly negative feelings for her father. The mother says OB is strong willed and can make up her own mind. I do not accept that. OB loves and trusts her mother. She is the rock in her life. It would be extraordinary if OB could withstand the pressure on her to think only negatively of the father. It is of considerable concern to me that the mother cannot or will not see that for herself.
The mother has been unable to talk to OB in positive terms about her father. When recalling conversations between them, the mother’s tone was always negative and the content always negative. For example, when explaining the supervised contact order, the mother recalled saying to OB “you only have to go for 6 months.” When discussing the recent supervised contact visits in her November 2004 affidavit the mother selects only negative comments from OB. It may be of course that OB only makes negative comments to her mother about contact, because to do otherwise might incur her displeasure. It may also be that OB has found the whole experience negative. However, given the content of the reports from the contact supervisors, I have decided the latter explanation is less likely. The father in his affidavit filed 8 December 2004 deposed to his interaction with OB on the last contact visit on 20 November 2004. If the contents of the affidavit are true, there seemed to be some basis, albeit limited, for further efforts to be made to try to develop the relationship between the father and OB. The mother would not concede this. She was not prepared to entertain any possibility that any part of the contents of that affidavit was accurate.
Counsel for the child representative asked the mother a series of questions about her feelings when taking OB to Gosford for supervised contact on 10 occasions during this year. The mother said she found it very stressful as it forced her to recall the sadness and distress caused her by the relationship. It was clear to me that the mother finds it impossible to separate her own feelings for the father from the contact issue for OB.
I am concerned the mother is not interested in any attempts to assist OB to resolve issues between her and her father or to work on improving that relationship. This will mean it will be very hard indeed for OB to do so. I have decided to order the mother to attend a programme in the hope she will better understand the importance of at least trying to help OB develop some kind of relationship with her father. The mother told me she has given no thought to the possible longer term consequences of OB never knowing her father.
There are examples in the evidence of the mother handling incidents in a manner detrimental to OB’s interests. During one of the contact visits at Gosford, the father gave OB a battery operated scooter. The father said it was in working order when he gave it to her. When asked about it on the next occasion, the father says OB said the mother had thrown it away. He said he took her comment with a grain of salt. Perhaps she was testing him. The mother in her evidence said she had not thrown the scooter away. She said it was too heavy for OB to handle and would not work. She brought the scooter to the Court on the last day of hearing to prove she had not thrown it away. That in my view was not the point. The point was the mother rejected the gift in front of OB because it was from the father and that is how OB saw it. It mattered not whether the mother had thrown it away. She might as well have. The mother could have asked OB to ask her father to have another look at it to see if it could be repaired. A further example was the mother’s evidence about the $100 cash the father gave OB as a gift. The mother was quick to say OB hadn’t spent it. She implied that OB would not want to spend money given to her by the father; that it was tainted in some way. She reluctantly conceded that the money was held by OB in a purse at home and that OB was saving up for an Ipod. I find the mother had difficulty conceding OB might want to buy something with the father’s money. An earlier example was the way the mother dealt with OB’s 6^th birthday party on 8 November 1998. The police report the mother ripping up a card the father had given OB. The report states “upon seeing the card the victim has ripped it up as she was angry that he was being so nice to his daughter. The victim believed that he was being fake.”
I am satisfied that the mother has involved OB in these proceedings. Considerable time was spent at hearing by all counsel in an attempt to establish the extent to which mother had shown documents in these proceedings to OB. The evidence was inconclusive. The mother agreed, under some pressure from counsel, that she showed OB one part of the latest Family Report, one part of one of father’s affidavits concerning Christmas presents, one part of the paternal grandmother’s affidavit and the aunt’s affidavit. I do not accept that was the extent of it. I have decided the mother has involved OB extensively in the proceedings and that OB has been given a lot more information than the mother was prepared to acknowledge. I am critical of the mother for engaging in such destructive and inappropriate behaviour. I am concerned that her reasons for involving OB stem from a complete inability to accept that OB can find anything positive in any aspect of her relationship with her father. I am concerned at the mother’s evidence that OB then denied any evidence which was controversial in the mother’s eyes.
The mother could not think of any way she could help OB if the Court ordered contact. She had no idea at all how to help OB. She could not contemplate such an order being made and said it was ‘unthinkable’. It was therefore impossible to seek assistance from the mother as to how best changeovers could be managed. She seemed to favour supervision for contact changeovers if there had to be any contact.

Attitude of father to the responsibilities of parenthood

The father has behaved irresponsibly for much of OB’s life and probably for the whole of the life within OB’s memory. He has engaged in drug dealing, violence and other kinds of criminal activity. OB has reason not to respect him and not to trust him. He has denigrated, threatened and been aggressive towards her mother. He has assaulted and denigrated her half-brother. He has involved her inappropriately in his disputes with her mother. In a police reports [Ex M1] dated 5 November 2001 OB is quoted by the mother as saying after a phone call from her father “Dad said the legals have been notified, the sheriff will be paying you a visit, and tell your son [Mitchell] to watch out for himself.” At the time, OB had just turned 9 years. In her interview with Mr H, the Court counsellor in May 2003, OB reported that her father had hit her mother when they lived together and had constantly fought with members of his own family. She spoke disparagingly of her paternal grandmother. I accept her observations.
In her interview with the Court Counsellor in November 2004 Mr H reported OB having a litany of complaints about her father. She was concerned if left unsupervised with her father, he would ask her questions about M and M’s father. She said she felt uncomfortable with her father and did not want to see him at all.
The father says he has changed. He completed a number of courses in gaol which have helped him manage his behaviour, including anger management, self-development. He has completed an anger management course outside gaol. He says he can control his emotions more easily and is less subject to outbursts of anger. He says he can express his feelings without becoming frustrated.
The father acknowledged that his denigration of M to OB in the past has been destructive and painful for her, and he accepts that he cannot repeat that behaviour if he is to have any hope of a relationship in the future with OB. The father accepted that he would have to rebuild his relationship gradually and gently and would need to remain child-focussed in any contact periods.
I believe the father has unrealistic expectations of OB’s future relationship with him. He appears to have little understanding of the damage he has done and for which he must take full responsibility. I agree with counsel for the mother that the father wants others to bear the responsibility for the present situation. I find the father is the architect of his own misfortune in this regard.
I do accept however, that the father has given up asking questions of OB about M and now accepts that his insistence on asking these questions has been hurtful to OB in the past. He said “I will lose my daughter if I can’t control this.”
The father is working hard since his release from gaol and I accept his evidence that he is endeavouring and succeeding in managing his financial commitments. I accept his evidence that he very much wants to succeed. He is meeting his child support commitments; though still has arrears of $1,818.00 having been incorrectly assessed by the Agency during his period in gaol. [Ex F2]. He has repaid the Crime Commission $135,000.00.
The father says he understands that he has a long way to go to regain his daughter’s trust and to rebuild some kind of relationship with her. He says he is prepared to be patient. Time will tell. He uses words like “love, participation, gentleness, communication, can’t be rushed…” when describing the approach he will take. He says he agrees lots of damage has been done. He says he will let go if contact is not working for OB. He says he can see the sadness in the situation that has developed. He says he has listened to Mr H and found him fair and sensible when giving oral evidence. He concedes he felt very differently when interviewed a month ago.
The father responded to questions about what he would do with OB on contact. He responded appropriately: walk the dog, visit the zoo, visit Luna park, arrange picnics, visit family. He said there would be no problem with boredom.
That this is a difficult case was acknowledged by counsel for all parties, including counsel for the Child Representative. It is a fine balancing act between the right of OB to see and know her father and be loved by both parents against OB’s expressed wishes not to have any contact. I have taken careful note of Mr H’s comments in looking behind the wishes as expressed by OB to see whether they are have been influenced by other factors.
Counsel for the Child Representative recommended OB have the chance to explore the possibility of a relationship with her father, but with controls. The Child Representative submitted it was impossible for OB to express any other wishes in present circumstances. She believed it was against OB’s best interests to leave decisions about contact in OB’s hands and I agree.
I also agree with counsel for the Child Representative that the father is untested. I agree the father has understated the seriousness of his criminal and other conduct. I agree the father has difficulty accepting responsibility. I am satisfied the father needs to learn parenting skills and that his approach to the contact periods I have ordered will have a significant impact on their ultimate success or otherwise. I am satisfied there is some evidence the father has made some positive changes. Counsel for the father says there is an onus on the mother to show why overnight contact should not occur. I do not accept that submission. Overnight contact cannot be contemplated until there is clear evidence of the relationship between OB and her father having some value to OB. It will be hard enough for OB to manage unsupervised contact, at least initially. I will not cause her unnecessary apprehension by ordering overnight contact without further evidence of its likely benefits for her.
I have given serious consideration to making orders in the terms sought by the mother as her first alternative. That is, that OB should be left to decide when she sees her father. To make those orders would mean OB would not have to struggle with her mother’s apprehension about a relationship developing between OB and her father. The Court Counsellor thinks every effort should be made rebuild some kind of relationship despite the mother’s attitude. Mr H recommends the contact be graduated, limited in time and around a structured setting. I found his evidence persuasive and I have decided to make orders requiring OB to have unsupervised contact. I am satisfied the father understood the importance of engaging in activities during contact periods which OB will enjoy. OB needs to test her father and see if he can measure up. Mr H said that unless the family dynamics change, OB will not be motivated to put in the effort which will be required of her to re-build the relationship with her father in the face of strong opposition from her mother. It is up to both parents to change those dynamics for OB’s sake.
Mr H supported the Court remaining involved and the Child Representative remaining in the matter while OB works on the issues she has with her father and assesses for herself whether her father is worth learning to know better. I have made those Orders.
I am satisfied the Orders I have made are in the best interests of OB.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Sexton FM

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