O and C
[2005] FMCAfam 200
•29 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O & C | [2005] FMCAfam 200 |
| FAMILY LAW – Children – parenting orders – contact in prison – father incarcerated for killing child of another relationship – specific phobic anxiety of the primary carer and compromised capacity to care for the child – no significant contact ordered. |
Family Law Act 1975, Pt VII, VIII, ss.60B, 65E, 68F(2), 68F(2)(g)
B and B (1993) FLC 92-357
Re A (1996) FLC 92-692)
Russell & Close Appeal SA45 of 1992
Grant and Grant (1994) FLC 92-506
Briginshaw & Briginshaw (1938) 60 CLR 336
| Applicant: | J M O |
| First Respondent: | S T C |
| Second Respondent: | D C |
| Third Respondent: | J C |
| File No: | MLM 7070 of 2001 |
| Delivered on: | 29 April 2005 |
| Delivered at: | Melbourne |
| Date of last Submission: | 29 April 2005 |
| Hearing Dates: | 5, 6 July and 16 December 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Combes |
| Solicitors for the Applicant: | Margaret Donoghue |
| Counsel for the 1st Respondent: | Mr R. Allen |
| Solicitors for the 1st Respondent: | Victoria Legal Aid |
| Counsel for the 2nd Respondent: | Mr M. Pavone |
| Solicitors for the 2nd Respondent: | Tait Leishman Taylor |
| Counsel for the 3rd Respondent: | Mr M. Pavone |
| Solicitors for the 3rd Respondent: | Tait Leishman Taylor |
| Counsel for the Child Representative: | Mr D. Sweeney |
| Solicitors for the Child Representative: | Melville Orton & Lewis |
ORDERS
That all previous orders in relation to the child B M C born on 9 March 1999 be discharged.
That the mother have sole responsibility for the long term and day to day care, welfare and development of the child.
That until further order the father have no face to face or other contact with the child.
That the child have contact with the paternal grandparents as follows:-
(a)On the first weekend of every 4 week cycle, commencing on Friday 6 May 2005 from 10.00 a.m. on Saturday to 5.00 p.m. on Sunday;
(b)That on 3 occasions in the next 12 months the paternal grandparents be at liberty to extend the contact provided for in subparagraph 4(a) of this Order so that the contact commences at 4.00 p.m. on Friday (instead of 10.00 a.m. on Saturday), such liberty to be exercised by the paternal grandparents providing to the mother’s practitioners not less than 5 weeks’ notice in writing of the weekend;
(c)For not less than 2 hours on B’s birthday and on Easter Sunday, such times to be agreed and, in the absence of agreement, from 10.00 a.m. to 12.00 noon;
(d)During the celebration of Christmas, from 10.00 a.m. to 4.00 p.m. on 26 December;
(e)By telephone on the third Friday of each 4 week cycle, commencing on Friday 27 May 2005 from 6.00 p.m. to 6.30 p.m. when the paternal grandparents (or one of them) may place a telephone call to the child at the child’s home or such other land line or mobile telephone number as is advised in writing by the mother to the grandparents and the mother will ensure that the child is present and that, as far as practicable, the telephone line is free and available to receive the grandparents’ call.
That until further order the paternal grandparents be and are hereby each restrained from causing permitting or suffering B to come into contact, face to face or otherwise, with the father or receiving any communication from him.
That the child representative cause a sealed copy of this order to be served by pre-paid post on the proper officer of the prison authorities by which the father is from time to time detained AND IT IS REQUESTED that the proper officer of any prison in which the father is detained assist the Court by ensuring that B is not admitted as a visitor of the father at any time subject to further order of the Court.
That all extant applications are otherwise dismissed.
That the mother and the paternal grandparents each provide the other with not less than 5 weeks notice of any proposed change in her / their residential address.
That for the avoidance of doubt the appointment of the child representative is to continue, subject to appropriate funding until
1 April 2006, subject to further order of the court.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 7070 of 2001
| J M O |
Applicant/mother
And
| S T C |
First Respondent/father
And
| D C |
Second Respondent/paternal grandfather
And
| J C |
Third Respondent/paternal grandmother
And
| CHILD REPRESENTATIVE |
REASONS FOR JUDGMENT
Introduction – the proceedings
This matter comes before me as the final hearing of the competing applications of the various parties concerning B M C born 9 March 1999. Final parenting orders were made in relation to B on 20 February 2002 whereby B lived with the mother and the father had regular contact. However, on 11 March 2003, the father killed his newborn child of another relationship, Z, and the father is now incarcerated until approximately February 2006.
The proceedings were initiated by the mother filing an application on
1 July 2003 in which she sought that previous parenting orders made by this court on 20 February 2002 be suspended and that she have sole responsibility for making decisions about the long term and day to day care, welfare and development of B. Effectively, she sought that there be no contact between B and the father.
On 21 November 2003 a Form 3 response was filed and served on behalf of the father. Relevantly, the father sought joint responsibility for long term decisions affecting B and contact in prison for
2 hours each alternate weekend to be facilitated by the his parents, D and J C. The father sought further orders for telephone contact to be initiated by him each Wednesday evening as well a formal arrangement for him to send gifts and recorded messages to B and the mother facilitate this indirect contact. The father also sought that the mother inform him of any changes to her telephone number and residential address, that the mother authorise the B’s education providers to provide reports and information to the father, that the mother advise the father of any of B’s serious medical conditions or treatments and a mutual non-denigration order. In effect, the father sought that contact take place as comprehensively as is possible having regard to the fact that he is in gaol.
On 16 February 2004 the paternal grandparents, D and J C made application to the court in the form of a response to the mother’s application. Relevantly, they sought that they have unspecified contact to B. They also sought some orders in relation to property proceedings between the father and the mother (which are now concluded). In the property proceedings they claimed reimbursement or recovery of personalty previously operated by the father and claimed by the mother to form part of the pool of assets divisible between herself and the father.
On 18 May 2004 this court ordered that B be separately represented and in due course Mr Kennedy, solicitor, was appointed in that role.
When this matter commenced before me, at Warrnambool, on 5 and
6 July 2004, the father was linked into the proceedings by telephone between the court and Barwon Correctional facility for the duration of the hearing. The mother attended court. The paternal grandparents also attended court. As will become apparent, the matter was then adjourned to allow the child representative to arrange for a psychiatric assessment of the mother. That assessment was originally scheduled for 22 September 2004. It did not proceed. The assessment was not concluded until late in September 2004. The matter was then listed for completion in the Hamilton sittings of the Warrnambool circuit in October 2004 but, by that time, no party had made adequate arrangements for the attendance of the expert psychiatrist for cross examination. The earliest date on which the matter could recommence was 15 and 16 December 2004, at Melbourne.
On 16 December 2004, the mother attended court as did the paternal grandparents. The father did not participate personally on
16 December 2004. The father’s solicitor had notified the prison authorities that the father was not required and, by the time my preference that the father be able to listen was known, a telephone or video link could not be arranged. The father continued to be represented by counsel and no application for adjournment was made on his behalf, I find that the father was not disadvantaged, in the legal sense, by not participating personally in the resumed hearing even though as a litigant he has the right to be present in some appropriate way during the conduct of proceedings. I come to this conclusion on the basis that:
a)The situation was brought about by the father’s own lawyers; and
b)It is in the interest of the child for this matter to be expeditiously concluded.
Evidence and findings of fact
The applicant mother relied on the following evidence:-
c)Her amended application filed on 7 October 2003;
d)Her affidavit sworn on 12 June 2003;
e)Her affidavit sworn on 14 October 2003;
f)Her affidavit sworn on 13 May 2004;
g)The affidavit of S A O (the mother’s step mother) sworn on 13 May 2004;
h)Her affidavit sworn on 1 July 2004; and
i)Her oral evidence.
The respondent father relied on the following documents:-
a)His amended response filed on 30 June 2004;
b)His affidavit sworn on 12 October 2003;
c)His affidavit sworn on 1 July 2004.
The respondent paternal grandparents relied on the following documents:-
a)Their response filed on 16 February 2004;
b)The affidavit of the paternal grandfather sworn 13 May 2004;
c)His oral evidence.
On 15 October 2003 an order was made for preparation of a welfare report in this matter. Joy Slattery commenced that report in February 2004 and a preliminary report was published on 19 February 2004.
On 18 May 2004 Federal Magistrate Brown ordered that Ms Slattery continue with her reportable counselling and, for that purpose, made orders to facilitate B having a prison contact visit with the father in the company of her paternal grandparents and observed by
Ms Slattery. That prison visit took place on 17 June 2004. Ms Slattery completed an addendum report dated 24 June 2004. That document was tendered by the child representative.
Ms Slattery was cross examined by telephone. None of the parties or the child representative sought an adjournment so that Ms Slattery could attend personally for cross examination.
The mother was cross examined at length by Mr Allen of counsel for the father, Mr Pavone of counsel for the paternal grandparents and
Mr Sweeney of counsel for the child representative (who at that stage sought orders contrary to those sought by the mother). The father was cross examined by telephone. His father was cross examined by counsel for the mother, Mr Combes.
Also before the court was the report of Dr Paul Kornan, consultant psychiatrist. It is dated 28 September 2004. Dr Kornan also gave oral evidence.
I found the opportunity to observe the mother and the paternal grandfather, on their oath, to be a real benefit and a valuable means to assist me in arriving at the truth of the matter.
Findings of fact I make on the balance of probabilities having regard to the evidence and to my observations of the witnesses. I am conscious of the gravity of particular allegations including those associated with the alleged apprehensions and fears of the mother and have made appropriate allowances for the standard of proof as discussed by the High Court in Briginshaw & Briginshaw (1938) 60 CLR 336. In what follows, statements of fact constitute findings of fact.
Background
The father is nearly 34 years old. The mother is 28 years old. They commenced living together in 1995 and married on 9 December 1999. B is the only child of their relationship, born 9 March 1999. She is the father’s only living child and the only grandchild of his parents, D and J C.
The father and the mother separated on 25 March 2001 when the mother took B and left the former matrimonial home. At separation, B had just turned 2 years of age. B remained living with the mother after separation. Within a month or so the mother instituted proceedings, in the Magistrates Court at C, seeking residence of B and that the father have unspecified face to face contact. From parts of earlier affidavits of the mother, which were put to her in cross examination, it was apparent that the mother perceived her role as residence parent to be somewhat under threat by the father, at least within the first month or so after separation.
In an affidavit sworn by the mother on 23 April 2001, she deposed:-
I believe that the father genuinely cares for B and is capable of caring for her and attending to her needs on contact. If the Court grants my application for B to reside with me I propose that the father have regular and frequent overnight contact so that he and B can continue to develop their relationship.
On 23 April 2001 orders were made, by consent, which provided for the mother to have residence and day to day care of B and for the father to have very frequent contact, for 2 hours on Wednesday and Thursday and from 10am to 5pm on Saturday and Sunday.
On 7 May 2001 an application was filed on behalf of the father in the Magistrates Court at C in which the father sought residence of B. The father’s contact was increased to include overnight contact and the proceedings were adjourned.
In May 2001 the mother repartnered with A H.
In February 2002 the mother filed an amended application in this court seeking to relocate from C to W to better A H’s employment prospects. On 20 February 2002 orders were made by Connolly FM, in contested proceedings, whereby the mother was permitted to relocate to W and the father’s contact was increased to 2 nights in each alternate weekend, one mid week night per fortnight and dinner in the other week, 7 consecutive nights in each school terms holiday and 2 periods of 7 nights in the long summer school vacation. The mother did not relocate and she still resides in C.
I have regard to the history of the proceedings. No evidence was adduced before me to the effect that the father did not avail himself of the contact to which he was entitled. I conclude that the father was a keen contact parent, very interested in B’s welfare and saw B extensively.
In approximately April 2002 the father repartnered with S R who had 2 daughters then aged 12 and 8 years. In the early months of their relationship, Ms R became pregnant and Z was born on 17 February 2003. Ms R and the father were not cohabitating but were co-parenting Z until 11 March 2003 when the father killed Z.
The father was charged with the murder of Z on 21 March 2003 and was remanded in custody. The father subsequently pleaded guilty to the lesser charge of manslaughter.
These proceedings were commenced on 1 July 2003 when the mother made application to this court seeking a discharge of all contact orders.
A decree nisi of dissolution of the father and mother’s marriage became absolute on 3 July 2003.
On 13 October 2003 orders were made by CFM Bryant (as she then was) providing that the father’s contact be reserved and that the paternal grandparents have leave to intervene in the proceedings.
A conciliation conference in relation to property matters was appointed. The paternal grandparents claimed an interest in some of the property involved in the Part VIII proceedings.
Also on 13 October 2003, a family report was ordered to be prepared as follows:-
6. A Report be prepared by Joy Slattery or her nominee in relation to the following issues:
a) Whether there should be any contact between the child and the father and/or the paternal grandparents;
b) If contact is ordered, what form, duration and frequency it should take;
c) What counselling if any the child B should undertake in the event contact is ordered.
The mother’s affidavit filed in support of her application, and sworn on 14 October 2003, painted a bleak picture of her previous relationship with the father and the need for B to have any future relationship with him. The mother swore as follows:-
[4]. In light of the Respondent’s admission in pleading guilty to killing Z, I believe it is in my daughter’s best interests that she be protected from having any contact with him.
[5]. Throughout our relationship, the respondent frequently lost his temper. This usually took the form of him suddenly losing his temper and yelling and roaring at me. At other times, he also manhandled me, grabbing me by the upper arms and shaking me or even just pushing me out of his way.
[6]. Especially in the last three years of our relationship, I lived in fear of the respondent losing his temper. I was very frightened of him when it happened.
[7]. The respondent was also very controlling of me. He dictated where I went, who I’d see and make sure that I ran messages for him. If I didn’t do what he wanted, he would blow up and lose his temper with me.
[8]. He seemed not to care whether he lost his temper in front of B or not and so she was often present when he did so.
[9]. 1 believe that the respondent’s relationship with Z’s mother was similarly characterised by violence on the part of the respondent.
[10]. Although I never saw the respondent lose his temper with B, I was none the less worried that the time would come when she would do something or get into some place where he didn’t want her and that she would be on the receiving end of his temper and violence.
[11]. The fact that he has killed his child indicates to me that he is equally capable of harming B either physically or emotionally or both.
[12]. 1 also want to protect B from any awareness or understanding that her father has killed a child. In the longer term, I also want to protect her from any fear of what he could do to her.
[15]. B now doesn’t appear to miss the respondent. She never asks for him and her behaviour is completely normal.
[18]. B has had some contact with the respondent’s parents, perhaps once a month. More recently I’ve been wary of her seeing them, again because I want her to be protect (sic) from contact or even association with the respondent.
[19]. I had allowed this contact on the basis that the respondent’s parents agreed not to mention the respondent to B or to bring her into any form of contact with him. 1 then walked into their house to find B on the phone to the Respondent.
[20]. The relationship between me and the respondent’s parents has now deteriorated and I am not keen for them to have contact with her as I no longer trust them.
On 7 November 2003 the father was sentenced by the Honourable Justice Teague in the Supreme Court of Victoria at Melbourne. The father was sentenced to imprisonment for 6 years with a non-parole period of 3 years. The following is an extract from the sentencing comments of the Honourable Justice Teague delivered on 7 November 2003:-
[2] S became pregnant not long after you met. The pregnancy was not planned. The pregnancy was a troubling one for S. At times you said things that indicated that you would have preferred that she had had an abortion. She suffered at times from depression. At one stage during the pregnancy, she had to have an operation for gall stones.
[3] Z’s birth was a troublesome one. The delivering doctor had to take emergency steps at a crucial stage. In the process Z’s left arm was broken. In the three weeks that he lived, he was seen twice by doctors at W and once at the Royal Children’s Hospital in Melbourne. During that time, you were, and you were seen to be, ready to assist both S and Z to a highly commendable extent. Commendations were provided by family members and by doctors and others who saw you and S and Z.
[4] In those three weeks, Z was not an easy baby to deal with. In part, that was because of his broken arm. There were also problems at times with feeding him. He was prone to vomit. At times, there was blood in his vomit. Such problems meant there was a need to seek medical attention. He was seen only
24 hours before the fateful time. Getting him to sleep was as much a problem as feeding him. He was slow to settle. He was quick to re-waken and to grizzle. That made life difficult for you and for S. She continued to suffer from depression after the birth. You both suffered from lack of sleep. Your work was physically demanding and you needed good sleep. You and S were stressed. That was so for a variety of reasons, Z heading the list.
[5] On the night of 10 March 2003, you were sleeping at S’s home on the C-L Road at C. You went o bed around 11 p.m. You were due to get up to go to work at 6 am. S wake you not long after midnight. She asked you to take over caring for Z. S said to give Z a bottle at 1.30 am. if he did not settle. You nursed him on the couch, watching TV for a while. Around 1 am, you changed his nappy.
[6] Around 1.30 am you took him into the kitchen. You heated his bottle in the microwave. You needed to take a teaspoon from the cutlery drawer. The teaspoon was for wind drops that were kept nearby. You were holding Z in your left arm with his arms and legs dangling. You closed the drawer with your hip. It seems that you must have jammed Z’s little finger as you closed the drawer. He cried out. You turned around. In doing so, you bumped his forehead on the handle of another drawer. He appeared to settle. You gave him the wind drops. You fed him from the bottle. You burped him 3 or 4 times. He was still very grizzly. Around 2 am, your thoughts were on your lack of sleep. Z was the cause of it.
[7] Z started to grizzle really badly. You stood up. You walked around the kitchen holding him. He sat in your elbow with his face towards you. You had his head cupped in your right hand. He started screaming. That made you feel even more frustrated. You said: “For fuck’s sake, will you just be quiet.” You put your left hand around the back of your right hand. With the pressure of two hands you pushed in on his head. You are a strong man, and you knew it. Z’s skull was soft bone, and you knew it. You were angry, because you wanted to sleep. Through your fingers, you felt something go click at the back of his head. You had crushed in his skull, causing bleeding that inevitably led to his death. Not immediately, but within a short time, you alerted S. The two of you rushed to hospital, but it was to no avail. Resuscitation measures were commenced. Before long, they had to be terminated.
[8] At first, you chose to tell most, but not all, of the story of what happened in the kitchen to S and to the local police and to others. You chose not to tell anyone about your skull-crushing action initially. You did so only after the autopsy. I need not go into the detail of the autopsy results. It will suffice to say that there were skull fractures causing major bleeding. The fractures were consistent with the inward pressure on a soft skull from the fingers of a strong man. You knew that you had acted wrongly. You said so after the autopsy when questioned by members of the Homicide Squad.
As indicated, the father was sentenced in the Supreme Court of Victoria, at Melbourne, on 7 November 2003. In passing the sentence Teague J. commented:-
[10] I turn to your personal circumstances. You are 32 years of age, having been born in December 1970. You are the second of four boys, all raised in a caring family situation. It is apparent that you have, and will continue to have, the support of your family. Your schooling was not extensive. That is consistent with the IQ assessment made by Bernard Healey. His report provides more details of your background. The two occasions that brought you into court many years ago were minor. They can be ignored for present purposes. You were married for only a couple of years, before your wife took an interest in another man, and left you. You had access rights to B, and made appropriate and caring use of those rights.
[11] As to your good character, I have listened to the six witnesses at the plea. I have read the 22 references tendered on the plea. They are an impressive array of people, saying an impressive range of good things about you. Many have said that what happened was out of character. Many have spoken of the loving attention given by you to your daughter B; and of your major contribution to community activities, particularly the C Horse Trials; and of the distress and sorrow that you have shown at the death of Z. Many also refer to you as being hard working. That is clearly right, given your preparedness to run your own business as well as managing another business. There may be a downside to that capacity to work hard. Working may have been given undue priority over other matters warranting your attention.
[12] 1 take account of the fact that all the indications are that you have been grief-stricken at, and are genuinely remorseful for, Z’s death. You co-operated with the police. You have pleaded guilty to manslaughter. You did so at what was effectively the earliest possible time. You have in prison done an anger management course and achieved enhanced prisoner status. Your prospects of rehabilitation could only be rated as excellent.
[13] I have taken into account what has been said recently by a number of judges. Those judges were handing down or considering sentences imposed on young men for manslaughter for the killing of babies or young children. In a general comparative sense, your actions causing death were less troubling and the mitigating factors applicable to you are more favourable. But it is not all one way. Your remarks to others including S R as to Z reflected some ambivalence if not malevolence towards him. Your remarks to the police revealed a significant level of anger and frustration with Z at the crucial time. As I have noted, you were highly, perhaps too highly, work-focused. Moreover, you did initially choose not to disclose your action in applying pressure to his head.
[14] Your actions were seriously criminally wrong. Your conduct involved a grave breach of trust. You had in your hands a very young, vulnerable and ill child. You let your frustration get the better of you. That cost Z his life. The community and the Courts must and do place a high value on the sanctity of life.
[15] Not without reflection, given the circumstances, I have signed the order for the taking of a blood or saliva sample.
I declare, and direct it be recorded, that the period of pre-sentence detention is 231 days. I impose a sentence of 6 years imprisonment. I fix a non parole period of 3 years.
The contents of the sentencing remarks were known to the mother.
A transcript of the remarks is annexed to her affidavit sworn on
13 May 2004. I am satisfied that the mother is aware of the contents of the sentencing remarks.
In due course, Ms Joy Slattery was appointed as the appropriately qualified person to prepare the family report. She conducted assessments on 10 February 2004. She had an opportunity to observe B with the mother and the paternal grandparents. Ms Slattery prepared a report dated 19 February 2004 which is on the court file.
Ms Slattery’s conclusion in relation to the paternal grandparents included the following:-
[59]. During the preparation of this report, I was able to observe B with Mr D C and Mrs C. From my observations, B seems to have warm and comfortable relationships with each of them. B did say in her interview with me that she would feel happy having visits with Mr D C and Mrs C. In my view, B does not have the maturity to form a decision in regard to the issues in disputes, however the first words B said to Ms O after seeing Mr D C and Mrs C were, “Can I go to nanny’s house to milk the cows please”. In my view, this is a clear indication that B wishes to visit Mr D C and Mrs C.
[60]. 1 believe it is in B’s best interest to have regular contact with Mr D C and Mrs C. It does seem that B identifies Mr D C and Mrs C as her ‘nanny and poppy’ and also as people she feels safe with and wants to have contact with. In my view, it would be beneficial to B’s developmental needs including emotional needs for her to have contact with the paternal side of her family. As the circumstances stand now, B has not been given an appropriate explanation about where Mr C is. In my view, if B was to commence regular contact with Mr D C and Mrs C, this may help demystify her feelings as to why she was not seeing them. It may be that B has felt hurt and may start to suffer with feelings of rejection if she has no idea why she stopped seeing them. At no time have Mr D C or Mrs C intentionally harmed B and it is my view that regular contact with them may assist her to normalise her relationships with them again.
[62]. I recommend B commence contact with Mr D C and Mrs C one weekend a month from Friday to Sunday for the above mentioned reasons. If this contact is granted then I recommend Ms O attend counselling to assist her to deal with this issue, as it is necessary for B that she encourage and facilitate this contact. I recommend Mr D C and Mrs C give an undertaking they will not allow B to have contact with Mr C if there is no Order made for contact.
In relation to the contact between the father and B, Ms Slattery opined as follows:-
[63]. In regard to B having contact with Mr C, I believe there are a number of issues to deal with. Firstly, I was unable to observe the relationship between Mr C and B, however from accounts given, including Ms O, it would appear that at no time has Mr C harmed B in any manner. Ms O does not want contact to take place and under the circumstances of the Court making an order for contact, I believe Ms O would require counselling to assist her to deal with this. To date, B has not been given any information from Ms O as to why she has not been seeing Mr C.
Ms O said Ms R’s daughters have told B that Mr C killed Z. If this has occurred then in my view, B needs to be assisted with this in an appropriate way. For example, I recommend Ms O seek assistance from a counsellor to assist her to help B deal with this information in a supportive and caring way.
[64]. This is a difficult and emotional issue for the families in this matter. It is not surprising Ms O would be against B having contact with Mr C, however I believe her own traumatic experience as a child visiting her father in prison has added to her strong feelings about this. It is my view that if Court Ordered contact for B to see Mr C that it would be in B’s best interest for her to be taken to the prison by Mr D C and Mrs C. It is my view that they would provide the utmost care and support of B if this were to happen.
[65]. In my view, Mr C is showing a great deal of remorse for his actions in regard to the death of Z. I do not believe I am in a position to make a recommendation about B having contact with Mr C so I request a Court Order be made for an observation session of B and Mr C at the prison. It is my view that with the involvement of Mr D C and Mrs C in this process that such an observation session would be appropriate. If the Court grants an Order for an observation session at the prison, I again recommend Ms O attend counselling to assist her to deal with this. It is my view that children are able to deal with crises and emotional situations providing the adults in their life are able to deal with these matters appropriately. Given that B said she would feel good about visiting Mr C it is my view that B more than likely needs to have contact with him if this can be arranged with as little trauma to her as possible (this is dependant on how
Ms O responds and deals with it).
In relation to the father, the mother’s affidavit sworn on 13 May 2004 made reference to incidents through which the mother sought to demonstrate that B had been unsafe or inappropriately disciplined in whilst in the care of the father. On one occasion B had been allowed to climb onto a roof. Another occasion involved B falling and breaking her tooth. Another occasion involved the father advising the mother that he had smacked B “so hard that she did not know what had hit her”. Subsequently the mother was cross examined about these statements at length. The mother was not a convincing witness on this topic. She was clearly plumbing the depths of her recollections for facts that would reflect adversely on the father’s care of B. I am satisfied that, prior to February 2003, the father did care appropriately for B and that contact between B and the father presented no physical risk to B.
The mother also deposed to allowing the paternal grandparents to have contact with B and that, contrary to her wishes, they allowed B to speak by telephone to the father. The mother and the paternal grandfather were each cross examined about the preconditions and any breach of the conditions under which the mother allowed contact to take place. The upshot of the incident was that the mother deposed:-
[38]. I do not trust Mrs J C to psychologically, emotionally or even physically protect B from the consequences of the father’s actions. For example, in her evidence to the Supreme Court for the father’s Plea, she states that:
“He has written her [B] letters which I have at home .... he has drawn her pictures, he has done a beautiful picture that I just picked up from the Prison the other day of a tweety bird holding a phone and it says, “Hi B mate love daddy”.”
[39]. She further says that she had never seen any conduct in the father’s behaviour with his children that concerned her and that he “……is a very, kind and loving man. He couldn’t even hit his child...”. A copy of the transcript of that evidence is annexed hereto and marked “JM04”.
[40]. One of my great fears is D and J C have contact with B after the father is released from jail, is that he will again abduct her and will just “disappear” with her or hurt her if she annoys him.
In the mother’s affidavit sworn on 13 May 2004 the mother deposed to her childhood experience of contact exercised in prison:-
[21]. In relation to paragraph 11, when I was a little bit older than B is now, I was taken to prison to visit my own father, I think on 2 or 3 occasions. I was terrified and also scared for my father. I remember having nightmares and waking up crying because I was scared of what would happen to my dad. After the first visit, I developed a habit of not going to sleep until I knew everyone else was in bed.
[22]. I don’t believe it is fair to B to subject her to the fears and experiences that I had as a child in being taken to a prison environment.
[36]. In relation to paragraph 29, I told Ms Slattery that my father was in jail for a couple of months and not a couple of years. I believe he was in jail for property offences.
Finally, the mother deposed:-
[30] In relation to paragraph 19, 1 do not believe that it is in B’s best interests to have any contact with the man who killed her half brother.
[34]. In relation to paragraph 26 of the Report, I am trying to protect B from having to deal with the horror of what her father has done, until she is much older and able to understand what it all means. I am not sure when that will be, however I do not believe that it will be until she is into her teenage years.
[35]. At present, we are planning to move away from C so that B is not growing up in the same small country town as the father and his family and the constant reminder of Z’s death hanging over her. We intend to move closer to A’s family, who live in G.
On 18 May 2004 Brown FM ordered that each party file and serve all affidavits upon which he/she/they sought to rely at the final hearing. He also made orders, by consent, effecting a final alteration of property interests between all parties. I am advised that, as a result of those orders, the mother received a very modest, if not meagre, amount of money.
It was also ordered on 18 May 2004 that B be taken to Barwon Correctional Facility by the paternal grandparents so that Ms Slattery could observe an interaction between the father and B. The mother did not consent to this order. The mother was obliged to deliver B to the home of the paternal grandparents on the day nominated by Ms Slattery or the child representative. In due course, the counsellor nominated 16 June 2004 as the day of the observation session.
None of the parties complied with the timeline in which they were required to file affidavits. Ms Slattery’s addendum report was released on 24 June 2004. Ms Slattery’s recommendations in relation to contact between B and the paternal grandparents remained unaltered. In relation to the father’s contact, she opined:-
[20]. It is my view that Ms O’s experiences as a child visiting her father in prison have remained unresolved issues for Ms O. I recommended in the report dated 19 February 2004 that Ms O attends counselling to assist her to deal with her own unresolved issues from her childhood experiences. For Ms O to be able to accept and facilitate B having contact with Mr C in prison, Ms O will need to separate her own unresolved issues from B’s issues and not view B’s issues and experiences as she perceives her own experiences.
[21] It is my view that B has through her childhood years developed a warm and close relationship with Mr C. Given this, it is my view that B should be given an opportunity to have contact with Mr C in prison. If this contact is granted, I recommend Mr D C and Mrs J C be the only people to take B to the prison for contact.
[22]. ln my view, there is no easy answer for the future in regard to B becoming aware of the reason for Mr C’s incarceration. While Ms O said that others have told B what Mr C has done as B becomes older and her perception and awareness changes with her development it will in my view need to be handled with sensitivity and care. I recommend Ms O attend counselling for her own issues and also as a means of seeking assistance to deal with B’s emotional needs as she becomes more aware of Mr C’s circumstances. I recommend at some stage in the future (perhaps in a few years) B also attend counselling to assist her to deal with these issues.
In the mother’s affidavit sworn on 1 July 2004 the mother swore:-
[14] Since the last Court hearing, when Orders were made allowing Joy Slattery to observe B at Barwon Prison with S C and giving the grandparents contact, I have become increasingly scared and depressed.
[15]. 1 try to avoid leaving the house, in case I come across relatives of the father as happened recently to me in the supermarket, when his sister saw me in the supermarket and came up and grabbed B.
[16]. As a result of my fear of S having contact with B, I’ve been irritable and short tempered with my fiancé, less patient with B and I am aware that I don’t speak to people because I am so unhappy and I spend most of my day crying.
[17]. B sees that l am upset and gives me cuddles but that just makes things worse.
[18] I have consulted my treating doctor, Tony Brown in relation, to these matters on the 22° June 2004. He offered me anti depressant medication and counselling but I refused. I think
I wasn’t prepared to admit that I needed it.
[19] I am terrified that, if S has contact with B once he leaves prison, that he will hurt her as he hurt Z.
[20]. 1 know that he is capable of “losing it” and harming B just as he harmed Z, whom he claimed to love.
[21]. While B is on contact with the grandparents, I stay at home and watch the clock and worry that they are allowing her contact with him.
At the commencement of the hearing on 5 July 2004, I raised with the representatives that mother’s most recent affidavit may have represented a reformulation of the mother’s case. In particular, for the first time, the mother clearly alleged that contact between the father and B was having a deleterious effect on her and, inferentially, was a factor to be taken into account when assessing whether it was in B’s best interests to have contact with the father. The mother called no professional evidence in support of her contentions. There was merely her evidence and cross examination of her and my ability to draw inferences concerning human emotions and responses without any specific expert evidence about the impact on the mother of the proposed contact.
No party sought an adjournment for the purpose of having the mother examined or assessed in relation to the deleterious effect on her of contact between B and the father. The child representative supported the case of the paternal grandparents and the paternal grandparents said that they would be happy to take B to see her father in gaol if the court would sanction those visits.
At the hearing in July 2004, Ms Slattery was cross examined by all parties by telephone (because no party had made arrangements to the contrary). As I have mentioned, at this point in the proceedings, the child representative was still supportive of the grandparent’s case and supportive of the father having face to face contact with B, in prison. However, the upshot of the child representative’s cross examination of Ms Slattery is that Ms Slattery merely firmed in her view that she was uncertain about the mother’s capacity to cope with B having face to face contact with the father in prison and that:
“there should be an opportunity for Ms O to have some assistance to help her deal with this issue”.
At the conclusion of Ms Slattery’s evidence, the child representative conceded that the matter ought to be adjourned to enable the mother to be assessed by an appropriately qualified person in relation to her psychological state and any likely effect on the mother of there being face to face contact between the father and B in gaol.
On 6 July 2004 the paternal grandparents gave an undertaking to the court that during any contact visit they would ensure that B not come into contact in anyway whatsoever with the father. I then pronounced orders pursuant to which:-
[1]. THAT the Mother and (if requested by the report writer) the child B M C born 9 March 1999 attend upon a psychiatrist nominated by the Child Representative to assess the impact on the Mother’s ability to parent the said child in the event that the Court Orders contact with the father which, for the time being will be in prison.
[2] THAT to assist in the preparation of the assessment the Child Representative be entitled to provide the psychiatrist with copies of:-
[i] affidavits filed in these proceedings by the parties;
[ii] any transcript of evidence of the mother and/or Ms Slattery;
[iii] the two reports prepared by Ms Jan Slattery.
[3] THAT the cost of the assessment be borne initially by the Child Representative with liberty being granted to the Child Representative to seek a contribution from the parties or any of them after the release of the assessment.
[4] THAT the matter be adjourned to a date to be fixed and if not fixed before the call over held for the Hamilton circuit commencing 11 October 2004, to that call over.
[5] THAT the Grandparents have contact each 4 weeks from 10am Saturday to 5pm Sunday, first contact being 17 July 2004, provided that no contact take place within 3 days after the mother’s confinement and such contact take place in the following weekend.
[6] THAT the mother’s evidence and evidence of Ms Joy Slattery be transcribed.
[7] THAT the costs be reserved.
[8] THAT there be liberty to apply to mention the matter to me initiated by telephone contact to me Associate.
[9] THAT the Child Representative file the report of the expert forthwith upon receipt.
Contact proceeded in accordance with the orders. The mother gave birth to the child of her relationship with A H. Her household now comprises herself, A H, B and the baby. The mother is not employed outside the home. They continue to reside at C.
The evidence of the mother
The mother gave evidence and was cross examined at length. The cross examination of the mother included cross examination of her by the child representative, who, at that stage, sought orders which were supportive of the case of the paternal grandparents, rather than supportive of the orders sought by the mother. The effect of that was that the mother's evidence in this case was significantly tested by cross examination by the child representative.
The mother eventually conceded that prior to February 2003 the father had an appropriate relationship with B and was an appropriate contact parent. The mother conceded that B has been advised that the father killed Z and that his incarceration is a consequence of that killing. The mother conceded that, even though B has been told that the father killed Z, B does not "hold a fear of him in any way".
Cross examination of the mother was dominated by questions about whether the fears to which she deposed, including the father somehow harming B in prison or when he is released from prison, are realistic or genuine. I observed the mother to agree only reluctantly to the proposition that it was likely that B would be physically safe during prison visits. The mother then emphasised the emotional risk to B during prison visits and related that back to her own experience of having visited her own father in prison on a number of occasions.
I found the mother's evidence as to the risk of physical harm to B in face‑to‑face contact visits at prison to be objectively unreasonable. However, having had an opportunity to observe her demeanour in the witness box I find that her fears are genuine. That is, whilst I find that the fears have no reasonable basis, the manner in which the mother delivered her evidence did not lead me to conclude that she was fabricating or exaggerating her concerns in this regard. She presented as worried and overly vigilant rather than evasive. She appeared cautious rather than guarded.
The mother gave evidence that B had recently had nightmares on two occasions. The first nightmare was some weeks prior to the hearing and the mother said that she reported it to her general treating medical practitioner. The mother's evidence was that B did not refer to the father when describing her nightmare to the mother. The mother did not press B for details. She told B that she should "throw the bad dream away" or something to that effect. Nonetheless the mother was convinced that the nightmare was in some way linked to anxieties that B may have in relation to the father or the father's killing of Z.
The second nightmare came approximately one week later. The mother reported that B had woken in the night and said that the father was going to hurt her and going to "kill her". The mother gave evidence that she told B that the father was unable to kill or hurt her because he was in prison, furthermore that B was safe. The mother said that she reported the nightmare to A H, to her own sister and to her medical practitioner.
The mother was cross examined as to why she did not include details of these nightmares in any of the affidavits which she had filed in these proceedings, the most recent affidavit having been sworn on 1 July 2004. I did not find the mother's evidence in relation to the nightmares to be particularly convincing, I am not persuaded that B has had frightening dreams about her father. I do accept that B may have suffered some sleep disturbance or nightmares but not directly related to the father. I would not exclude, however, that B could be significantly affected by the mother’s tension and upset about contact. My impression of the mother is that she jumped to a conclusion that B’s sleep disturbance was attributable to the possibility of going to prison to see the father. The fact that it was a conclusion without a reasonable basis was exposed in cross examination.
When the mother was pressed in relation to the incarceration of her own father it was apparent that her father had been incarcerated at Pentridge in Coburg and at a prison farm. The mother recalled the contact visits with her father in Pentridge as feeling more safe and less frightening than the contact visits with her father in the open prison facility. However, it became apparent in cross examination that the mother's father had been jailed for a relatively short period. The mother was unable to say precisely what he had been jailed for. She could recall being taken to the prison facilities by her step‑mother, S O. Ultimately, the mother’s evidence was that she had only been to see her own father in prison on two occasions.
The mother was cross examined about the fact that Ms Slattery reported having been contacted by a medical practitioner and advised that the mother had sought a medical certificate which would excuse the attendance of B at the prison. Ms Slattery reported as follows:
On 16 June 2004, which was the day prior to the visit to the prison, I received a phone call from Dr Pauline Cundrll from the C Clinic at C. Dr Cundrll informed me that she had Mrs O with her and that Mrs O was asking for a certificate to say that B would not be able to attend at the prison on the next day as B had been upset and wetting her bed. Firstly I explained to Dr Cundrll that we had a court order for this visit to take place. Dr Cundrll then asked me how young children usually deal with these situations. At that time I explained to Dr Cundrll that in my experience children cope well with these situations, providing that their parents are coping well. I further explained that the young children I have been involved with before in these situations have coped well. Dr Cundrll then informed me that B will be attending the next day and that she would suggest to Mrs O that she sees them after the visit on the next day. I assured Dr Cundrll that I will be very mindful of how B was during the visit and I would stop the visit if at any stage B became distressed. Following this conversation with Dr Cundrll
I received a fax from her in regard to the brief conversation we had.
The mother denied having sought a medical certificate. She denied having sought to frustrate the orders pursuant to which B would see the father in gaol. Ms Slattery did not have the facsimile which she said that she had received from Dr Cundrll. The mother did not call any evidence in rebuttal of Ms Slattery’s evidence. I do not accept the mother’s evidence in this regard.
The evidence of S O (the mother’s step mother)
S O presented as a truthful witness. The most significant aspect of her evidence is that she did not provide any significant corroboration of the mother’s alleged irritability or emotional disturbance in relation contact taking place between the father and B.
No evidence was adduced from the mother’s partner
The mother’s partner, A H, was not called by the mother to give evidence. Mr H accompanied the mother to court on each occasion. Clearly he was available to participate in the proceedings.
I am mindful of the fact that the mother complained in her last affidavit that her irritability had been directed to Mr H. I infer from the fact that he was not called to give evidence in these proceedings that he could not have said anything which would have assisted the mother with her own case.
The evidence of the father
The father gave further evidence in chief orally and was cross examined by telephone link.
The father denied any inappropriate discipline of B and I accept that evidence. The father said that he understood that B had been told by some school children that he had killed Z.
The father was emphatic about loving B. His evidence was that he also loved the deceased child but that the baby and B were different. He said “you can speak to a 5 year old. You can’t speak to a 2 week old” or words to that effect.
The evidence of D C (paternal grandfather)
The paternal grandfather gave evidence and was cross examined.
Mr C Snr referred a number of times to the paternal grandmother as he searched for answers to questions. The paternal grandmother openly assisted him.
Mr C Snr denied that the mother had forbidden himself and his wife from allowing B to have any telephone contact with the father whilst B was visiting them. He denied that their contact to B was in any way conditional on B having no contact with the father. He denied that he or his wife had arranged for B to speak with the father. He said that it was a matter out of their control because the father had telephoned the house and asked to speak with her. He and/or his wife simply passed the telephone to B.
I do not accept the evidence of Mr C Snr in relation to the telephone call. I have no doubt that Mr C Snr knew that the mother wanted B to have no contact with the father by telephone or in person. If the father did initiate the telephone call, I am satisfied that he did so having been put on notice by either or both of his parents that B would be with them.
I am satisfied that Mr C Snr consciously disregarded the wishes and concerns of the mother when he permitted B to speak with the father by telephone. I am satisfied that the incident shook the mother’s confidence in the paternal grandparents’ preparedness to respect her wishes and follow her directions, over and above those of their son.
I am satisfied that the mother’s loss of confidence in the grand parents was justified in relation to this issue.
No evidence was adduced from the paternal grandmother
The grandmother, J C, attended court throughout the hearing. On a number of occasions, the grandfather referred to her for assistance with answers in his own evidence. J C was not called as a witness in her own case notwithstanding that all parties had notice that the mother relied on 6 pages of transcript of evidence which she had given on the father’s plea in mitigation in the Supreme Court (annexed to the mother’s affidavit sworn on 13 May 2004). The affidavit of the paternal grandfather starts out “I make this affidavit on my own behalf and also on behalf of my wife, J C”. However, J C in fact gave no evidence or sworn statement. Necessarily, she was not cross examined.
No one objected to the admissibility in these proceedings of the transcript of J C’s evidence at the father’s plea. There are several statements by J C as to the regard and love and affection that the father held for the child he killed. These include:-
[The father] has had a very upsetting time in prison, in the beginning he was distraught, it really upset me as a matter of fact he was broken hearted, he just couldn’t believe what happened,
I as a mother I might as well have been in there with him because it was just as bad for me because S will never get over losing his son, he adored that little boy, he was so proud of him and I just think it has been a terrible shame. (See page 38 of the transcript).
And when the paternal grandmother was asked about her son’s attitude to the newborn child, the paternal grandmother said:-
He loved him, he adored him, he was absolutely over the moon when he was born ……….(See page 38 of the transcript).
The paternal grandmother also gave evidence about father’s nature, including the following:-
“…..S is a very kind and loving man. He couldn’t even hit his child, she was at my place one day and she was being naughty and I said you should give her a smack, anyway he did give her – it was not smack, it was a tap, and she loves him so much and she thought I can play on this, so she broke her heart and the next minute he was crying, I said don’t cry, you are supposed to be reprimanding her.” (See page 40 of the transcript).
And:-
“I believe that the prison officers have a great respect for S and he has a great respect for them. He has never had any trouble, they all speak to him nicely….. (See page 41 of the transcript).
And further:-
“I say that S is as deep remorse as anybody, as S, as anybody in this court is about what happened to Z.” (See page 40 of the transcript).
I find that all of the above statements would have been cold comfort to the mother. Furthermore, the statements are likely to have caused the mother to question the extent to which the mother in law could or would say or do anything contrary to the father’s interests.
As indicated, J C was clearly available and willing to participate in the proceedings. I infer from the fact that she was not called to give evidence in these proceedings that she could not have said anything which would have assisted her own case. As the father did not call her either, I also infer that she could not have said anything which could have assisted the father in his case.
The evidence of Dr Paul Kornan
Dr Kornan was retained by the child representative to report in this matter. His report is dated 28 September 2004. In summary,
Dr Kornan reported as follows:-
[1] I note that you have been appointed by the child representative, and I interviewed J O on 22 September 2002 (sic). It is my understanding that there are access matters with the father of the child who is currently in prison for manslaughter.
[2] From the psychiatric viewpoint Ms O appears to have a specific anxiety phobia about her child going to prison.
Apart from that, she functions as someone who is quite within normal average limits, and who appears to be a good mother to now her two children. There is B from her first marriage, and currently she has just given birth to a second daughter.
[3] Mrs O is not in need of psychiatric treatment as such at this stage, in my opinion.
[4] I read with interest the reports of the psychologist Joy Slattery, dated 19 February 2004, and June 2004. Put simply, it is my understanding she felt the visit between B, and the father went well, and it is my understanding that she feels that
Ms O needs counselling (meaning psychiatric treatment) to deal with the issues.
[5] The reality is, in this case, that everyone associated with the case is a victim.
It is not that the dead child is the only victim. It can be accepted if the father is remorseful that he is a victim too. No doubt his parents are victims from what they will be blaming themselves for rationally or irrationally, and as to community responses.
But it is important to recognise that Ms O is a victim as well. This tragedy has re-lit in her previous difficulties with her own father. She is a victim of fear over what might happen to B, the child of the marriage. This is not an unreasonable fear given that her former is in goal not for biffing someone at football, having a road rage attack, but is in reality in goal for the loss of the life of a child. It will be perceived by Ms O that if she is seemingly required to have psychiatric treatment in isolation, that she is being made a victim again a third time.
[6] The realities are that these people live in the country where many people know each other. B is going to be exposed to taunts from her school mates about the fact that her father is in goal. There may well be taunts about him being a murderer.
Apart from that, Ms O has lost confidence in her former father’s parents because of, it seems, a betrayal of trust as she sees it. Thus, even if B’s grand parents take the child to prison there will be tensions in the change-overs. Ms O will be, if visits go ahead, prone to significant ongoing phobic anxiety which will undoubtedly affect her daughter. It is hardly likely that Ms O will be able to protect her daughter from taunts of school mates, and perhaps the reality of the situation of what has happened to one of her father’s children. I thus see a situation where B’s life will be affected by Ms O’s ongoing realistic, and significant phobic anxiety.
[7] I note my esteemed colleague Joy Slattery talks about
Ms O needing treatment. However, if treatment is to be undertaken it should be, in my opinion, under one of the two pathways as follows.
[8] There are two pathways which can be followed which include:
a) The treatment pathway. This would include:
(i)The former father having massive psychotherapy is goal with a psychologist so that at the end of some eighteen months or two years he can have dealt with his problems. It is not enough to merely have an anger management course in goal. He is not in for biffing someone at the football or merely breaking a leg.
(ii)His parents need treatment, they need help to overcome their difficulties.
(iii)In these circumstances Ms O, as part of everybody having treatment, could have treatment as well, as already indicated she is really another victim of this tragedy.
(iv)B needs treatment for what she will have to deal with.
(b)
The alternative pathway is to allow this man to serve his sentence, and to await the passage of time. Time is a great healer. It may even enable everybody to gain some emotional perspective with regards to the future. If the father has treatment in goal of a serious nature, than when he is released he will be in a better position to argue that having paid his debt to society, both in terms of imprisonment, and psychotherapy, that her fears are no longer justified. In these circumstances I think that
Ms O could at that stage benefit from treatment.
I favour clearly the second pathway for the realistic difficulties that are involved here. It is unlikely that all members of this family have finances, time, and will to have treatment, even leaving aside the question of what I suspect is a pattern of emotional denial in most members.
[9] To sum up, if the father has visits with B I think there is a significant down side. Mother will have ongoing problems which, even leaving aside mother, will be transmitted to B. B runs the risk if being teased at school without having anyone to reasonably appropriately defend her. I thus think there is a significant down side risk in not allowing the passage of time to take place, and for B to be able to deal with the problem when older. It may be unfortunate for the former father, but this mother has particular reason to be sensitive about prison visits, given her own specific background reality. If however everybody in the family is having massive treatment from a psychologist or psychiatrist in a meaningful ongoing way, and there was extraordinarily goodwill amongst everybody, the possibly access visits could be instituted after six or twelve months when such treatment was having an effect. Reality will not however,
I believe, indicate that that pathway will be in fact meaningfully followed or capable of being followed because of the basic reality factors involved. In those circumstances I think that the passage of time will allow the former father the chance to get really meaningful treatment in prison. He is the one who will need to take the lead, in my opinion, to have meaningful treatment before his former mother will be able to accept that eh does have in fact a capacity not to harm children regardless of whether or not he is remorseful at this stage. Remorse does not mean cure
I regarded Dr Kornan as being as witness of the court. Each party sought to cross examine Dr Kornan and sought that he attend personally for cross examination on 16 December 2004.
Dr Kornan gave evidence to the effect that, on the assumption that the father is not psychopathic, he was confident that the father would require very significant treatment to come to terms with “remorse, guilt, depression, massive personal problems” which the doctor was prepared to accept would flow to the father from the “terrible tragedy” of having killed his own son.
Dr Kornan was cross examined extensively about the basis of his opinion that the father would be suffering from “massive personal problems” in light of the fact that the doctor had not seen, much less assessed, the father. Dr Kornan reiterated that his opinion was based on an assumption that the father was within the normal range of personality and human behaviour. Based on that assumption, he was firmly of the view that appropriate treatment would have to involve more than an anger management course and have as an ingredient individual counselling and/or psychotherapy. Dr Kornan’s evidence in this regard was not shaken in cross examination. The father did not offer any alternative expert evidence. I find Dr Kornan’s evidence in this regard to be reasonable and I accept it accordingly insofar as it is relevant to the matters in issue.
Dr Kornan assessed the mother as being a fairly complex personality. Dr Kornan was asked questions about the significance of the incarceration of the mother’s father. In essence, the doctor’s evidence was that the mother’s childhood visits to gaol may be a problem in these proceedings but were not likely to be her most significant problem. When counsel for the child representative put to Dr Kornan that it was important for the doctor’s assessment of the mother to know whether the mother had really been adversely affected by those visits, as opposed to “really just making up evidence”, the Doctor stated:-
There will be the situation clearly of whether the father was in jail. There is a question in the transcript, I understand, of how long the father was in jail, whether it was a period of months or years. But this is not only the significant part in this woman’s make-up. If you look at this woman’s early life this is a situation where her own mother, seemingly for her – deserted the family or was out of the picture. This woman has had a very complicated background of which [the] father may not be the most important factor. This woman’s mother deserted the family, as she saw it, didn’t have contact afterwards and this woman has a whole lot of very significant psychopathology in her background relating to her mother and this does account for part of her anxiety about herself being a mother. Of course she has a good relationship with her step-mother. The court has quite correctly focused on the situation with her own father but the reality is that as a psychiatrist if you were treating this lady you would have a very significant group of problems in relation to maternal rejection and problems with her own mother and her own role as a mother in that situation. So treatment with her would be very complicated if you were going to actually deal with this and there may be grounds for not dealing with it all.
I accept Dr Kornan’s assessment of the mother.
Dr Kornan saw the mother for 1 hour or thereabouts and saw Mr H for about 10 minutes.
Dr Kornan was not asked to assess A H. However, Mr H accompanied the mother to Dr Kornan’s rooms and Dr Kornan took the opportunity to speak with him:
“Primarily I wanted to see what sort of person [the mother] was involved with now at this stage in her life and having had a baby …[…]…to get an idea of his personality type, why she was attracted to him, what sort of nature he had and what sort of personality he had[…]…. My prime aim was to just try and get a feel for his temperament.” (see page 5 of the transcript of
Dr Kornan’s cross examination).Doctor Kornan assessed Mr H as being an uncomplicated personality “a salt of the earth, simple sort of guy who seems what I would think of as a very sort of nice fellow…”.
Dr Kornan’s evidence was that he did not inquire of Mr H, and nor did Mr H volunteer any evidence which would have corroborated the mother’s allegation that she was emotionally disturbed by contact between B and the father and was short tempered or irritable with Mr H and/or B.
Orders sought
The mother’s position is that she seeks a discharge of all extant orders for contact between the father and B and that the father have no contact with B. Insofar as the intervenors are concerned, she proposes that they continue to have overnight contact once every 4 weeks with one hour on B’s birthday and 2 hours on Easter Sunday.
The paternal grandparents seek a continuation of the weekend contact each 4 weeks with an entitlement to increase that contact on
3 occasions between now and February 2006. By way of special day contact, they seek from 10am to 4pm on 26 December and 2 hours on B’s birthday and Easter Sunday. They seek to facilitate such contact as the court may order the B have with the father in prison and telephone contact between the father and B for 15 minutes during their weekend contact period.
The father seeks that he have face to face contact with B for
2 hours every 2 months and telephone contact on each occasion of B having contact with his parents. All of the father’s contact is to be facilitated by his parents.
At the commencement of the hearing, the child representative supported the application of the paternal grandparents. At the conclusion of the hearing, the child representative’s position was that
I ought to accept the recommendations of Dr Kornan. That is that there be no contact between the father and B. An exception to that was, if I was ultimately satisfied that Dr Kornan advocated intermittent contact between B and the father to prepare the mother for the father’s release from gaol, then that contact take place. The child representative supported the final orders being served on the prison authorities to ensure that B would not be admitted as a visitor of the father or to have telephone contact with the father.
Relevant law
Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Act”). They are subject to s.65E of the Family Law Act that in determining the outcome, the best interests of the child is the paramount consideration. This is the overriding principle.
Section 60B of the Act is important in that it provides the framework within which such of the relevant factors in s.68F(2) are to be identified and taken into account.
Subject to that, s.60B sets out the objects of Part VII and the principles that underlie those objects. The four principles are:
(1)Children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together.
(2)Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.
The second of the above factors is particularly relevant in this case. It refers to a right of contact on a regular basis. Essentially, it emphasises the desirability of contact. I accept that the concept of regular contact is predicated on contact being as frequent as is appropriate for the child and by means that most promote the child’s best interests.
In determining what contact arrangements will promote B’s best interests, I am mandated to take into account such of the factors set out in s.68F(2) as are relevant to this case. I am also required to have regard to “any other fact or circumstance that the court think is relevant”. This ensures that all of B’s circumstances can be addressed.
The child’s wishes
I am satisfied that B wants to see the father and also wants to see her paternal grandparents.
In Joy Slattery’s addendum report dated 24 June 2004, she reported on B’s visit to see her father in gaol, on 17 June 2004, as follows:-
[4] On arriving at the reception area of the prison, Mr D C, Mrs J C, B and I were held up for forty-five minutes. This meant that the observation session that was to commence at 10.30am did not commence until 11.15am. During the forty-five minutes that we were waiting in the reception area, B appeared to be very excited and kept saying to the guard at the security desk, “I want to see my daddy”. This was repeated a number of times. At one stage, B asked Mr D C to pick her up for a cuddle. B seemed to be relaxed as well as excited. At no stage did B appear to be upset or concerned about what was happening. Throughout this time, B continued to engage and interact very positively with both Mr D C and Mrs J C.
And later in the report:-
At the end of the session, I asked B how it was visiting
Mr C at this place and she said, “Good”. I then asked B if she would like to visit him here again and she said, “Again, and again and again”. As B was leaving, she gave Mr C a cuddle goodbye. Just before B left the room, she went back to Mr C to give him another cuddle and kiss goodbye.
I accept that B has a clear and unambiguous wish to see her father and to see the paternal grandparents. I am confident that her wishes reflect secure and happy relationships with all of the respondents. There is every indication that B is a happy little girl who looks at the significant people in her life with trust and affection and enjoys the care and company of all of them. However, B’s wishes and views must be balanced against other factors relevant to her welfare including, but not limited to, the need to protect B from a situation in which the parenting capacity of her primary caregiver is compromised. In the circumstances of this case, I take B’s wishes into account but do not consider them to be determinative in any sense.
The nature of the B’s relationships with the parties and others
B’s relationship with the mother is not an issue in these proceedings. It is accepted that the mother is B’s primary carer and has been since separation.
Joy Slattery observed the interaction between B and the father on 17 June 2004. She concluded:-
From my observations, B appears to have a warm and close relationship with Mr C. B has not seen Mr C since his incarceration in March 2003, however in the observation session on 17 June 2004, in no time B appeared to be comfortable and relaxed being with Mr C. During the forty-five minute delay at the prison reception area, B seemed to be looking forward ti seeing Mr C and a number of times said, “I want to see my daddy.” Following the visit when B was asked if she wanted to see Mr C again at this place she said, “Again, and again and again.” At no time during this visit did B appear to be upset. Throughout the session, B seemed to enjoy being with Mr C. Given how quickly B seemed to be so positive about being with Mr C, it is my view this indicated B and Mr C had developed a secure relationship up until Mr C was incarcerated.
Joy Slattery observed the interaction between B and the paternal grandparents on 10 February 2004 and 17 June 2004. She concluded:-
Throughout the time I was present with Mr D C, Mrs J C and B, Mr D C and Mrs J C were very appropriate and caring with B. From my observations, B appears to have warm and secure attachments with both Mr D C and Mrs J C.
In my view, B’s positive relationship with the respondents reflects their substantial and affectionate involvement in her life over a significant period. It probably also reflects a demonstrable capacity of the father and his parents to adequately care for B when she has been in their respective care.
I accept the counsellor’s conclusions that B has a secure and warm relationship with her father and with her paternal grandparents.
The likely effect of any changes in B’s circumstances
Insofar as B has had regular, but not particularly frequent, contact with the paternal grandparents. I am satisfied that she would miss seeing them if she was not able to see them at least as frequently as she has done to date.
Insofar as the father and his parents say that B should be taken to visit the father in gaol, I find that regular gaol visits would constitute a change in B’s circumstances inasmuch as the contact will be taking place in a new environment. I am satisfied that it is an environment to which the mother is very much opposed and allegedly very anxious. Later in this judgment I will deal with Dr Kornan’s evidence about the mother’s ability to cope with her anxiety and the likely effect on the B.
I am satisfied that, if I order that B be taken to prison to see her father, she will enjoy seeing her father and will benefit from the experience in that sense. However, as I later conclude, I am also satisfied that the prison visits will have a deleterious effect on the mother which will, inturn, adversely affect B. Weighing one consequence of the change in circumstance against the other, I conclude that it is not in B’s best interests to introduce contact visits with the father in gaol, save to a very limited degree.
Practical difficulties and expense associated with contact
In view of the fact that the grandparents have agreed to facilitate contact between the father and B, there are no practical difficulties or financial considerations about contact which I am of the view should be taken into account.
Capacity of the parents to meet the child’s needs
I am only asked to make orders which will operate during the father’s incarceration. I am satisfied that the father can not do much to meet B’s needs on a day to day basis whilst he is incarcerated. I am satisfied that he is available to see B on contact and that B would be happy to see him. However, the issue in this case is whether the mother’s psychological or psychiatric make up is such that she would react so adversely to B’s visits to gaol that her capacity to meet B’s needs on a day to day or other basis would be impaired. I will deal with this aspect of the evidence in the context of s.68F(2)(g).
The children’s maturity, sex, background and other characteristics
B was assessed by the counsellor as being a friendly but quiet girl who may be young for her age.
The need to protect the children from physical or psychological harm caused by abuse, ill treatment, violence or other behaviour
I am satisfied that there is no risk of physical harm or violence to B if she has contact with the father in gaol. As I assess the evidence, the risk to B is psychological and will arise from the alleged inability of the mother to cope with her personal anxieties in relation to B going to gaol. Further, that B may suffer as a consequence of the mother’s impaired capacity to parent her.
When Dr Kornan asked “what effect would you envisage [prison contact visits] having upon the daughter?” - Dr Kornan’s evidence was that:-
- - I think the fact that Ms O herself has the anxiety is something, in one sense, that she has to learn to cope with. But of course in the event this mother really has an ongoing anxiety condition which will flare up significantly, as I see it, I think that will affect the daughter, if the mother is going to have free floating anxiety which is causing her to be irritable, have sleep disturbances, get tearful. I think that this is going to impact on B.
In conclusion, the doctor’s assessment of the mother was that the mother’s anxieties were genuine that the advent of prison visits for B could result in significant psychiatric difficulties for the mother. Dr Kornan opined as follows:-
What I’m saying is that I think that this mother, for her specific background factors, which are just unique to her, does have a genuine problem with anxiety relating to her daughter going to the prison. I think this is a genuine situation. I think she has anxiety and I think that if contact takes place that the anxiety will get worse. I didn’t think she needed treatment when I saw her but she’s a rather reserved lady and there’s a lot of deep problems there and I think that if the daughter does go to prison this mother will have some significant psychiatric difficulties. That in itself is one issue but the issue is will it affect the child and my answer is I think it will affect the child. As far as the treatment goes I pointed out that if there is going to be proper treatment it should be proper treatment, as I see it. That may or may not be agreeable to everybody. But even if there was proper treatment it’s hard to organise and it’s probably not going to take place. But if there were proper treatment then I think everybody might settle down, including the mother. But if the mother alone has treatment this will not work because it will make the mother out to be – somehow it’s her fault and that’s going to mean the treatment won’t be effective if it’s only the mother having treatment, and it’s not only the mother that needs treatment. As I said I think everybody is a victim in this situation. Everybody should have proper counselling.
Doctor Kornan clarified that his diagnosis of the mother as suffering from a specific anxiety phobia was not tentative but was “the best diagnosis”. As to the origin of the mother’s specific anxiety phobia, the doctor’s evidence was:-
For some reason I think she was left with this condition because of having visited her father in jail and for some reason it stuck in her mind as being not a satisfactory experience. She’s been left with phobic anxiety about prisons due to her upbringing. That’s, as I see it, the way she grew up. In a sense were this situation not to arise it would not affect her from leading a normal life because it would be a situation where she wouldn’t be coming into contact with prisons anyway.
Under cross examination by counsel for the father, Dr Kornan elaborated as follows:-
You see, I see this woman as having more complicated problems underneath as well because of the, as I mentioned initially to another gentleman, about mothering because of her own experiences. One of the problems about counselling is that you open up a whole lot of previously buried conflicts and the question is if you do that you’ve got to be prepared to – a bit like a surgeon. You can’t just open people up and not close them up properly. You’ve also got to be able to deal with what may out because if you can’t deal with it you leave the person – there are some risks in this. So I think this is a lady who is a reserved lady who keeps a lot to herself and quiet sort of temperament. But still waters run deep in that sort of sense and I think this is because she has had in the past very unpleasant experiences as a child, which we all now understand more about, in her background, particularly in relationship to mothering. So there’s some potential personality weaknesses there of significance.
Doctor Kornan was very clear in his opinion that the mother’s specific anxiety phobia arose because the father seeks contact whilst in prison with prison being the aggravating factor. His evidence included the following:-
I think that what this mother has is a fragile situation which if this situation didn’t arise with the prison she wouldn’t have symptoms. If in fact there is going to be contact with the prison, with her daughter, I think then we’re going to have significant symptoms but that in itself is something that [the] mother will have to deal with, but the problem then comes, is this going to now affect B.
I accept the opinions expressed by Dr Kornan as being correct and particularly relevant to a determination of matters in this case.
Doctor Kornan recognised the fact that even once the father leaves gaol the mother is likely to be opposed to contact between the father and B. Doctor Kornan identified a punitive aspect to the mother’s objections to contact and that, independently of any anxieties she has, that she is angry with the father. However, I did not appreciate Dr Kornan’s opinions of the mother in this regard to lessen his primary conclusion that she has a specific anxiety phobia which, if stimulated by B going to prison will diminish her ability to care for B on a day to day basis.
In response to some questions by me, Dr Kornan saw some merit in one or two contact visits between B and the father in prison which may serve to prepare the mother for contact which will be sought by the father upon his release from prison next year. I accept that Dr Kornan thought that possibility to be not “necessarily unreasonable” when rationalised as a means of lessening the mother’s apprehension about B seeing the father. However, I am satisfied that contact which I order should enhance B’s interests now rather than a hedge against anxieties which the mother may still have after the father is released from gaol. Ultimately, I am not prepared to jeopardise the mental health of B’s sole carer now for some possible benefit later on and I will not order contact in preparation for the father’s case upon his release.
Dr Kornan was also asked to consider, in cross examination, the effect on the mother of B speaking by telephone to the father (in prison) during her contact visits with the intervenors. The doctor was not enthusiastic about the concept. He referred to the telephone calls as being tantamount to “defacto prison visits” in the mind of the mother. In response to questioning by the child representative about telephone contact, Dr Kornan said:-
“I mean, I think it’s good that the child has contact with the grandparents and I have no problems about that. I think that every time you introduce an extra connection to prison that’s the situation where we’ve got someone here who is fragile, who has shown signs of decompensating. That run risks. It may be a risk that the court will decide is worth taking and that’s the decision of court hearing the totality of the evidence. But from my point of view it would not be something that I would want to happen. But that’s just me.
I accept Dr Kornan’s opinion in relation to telephone contact being contrary to the wellbeing of the mother and, it follows in context of these proceedings, to B. I am satisfied that B would enjoy both the telephone contact and even one or two visits to the father in the next 12 months. However, taking all matters into account I am not satisfied that either form of direct contact with the father carries with it enough of a benefit for B to compensate for the detriment which unshaken expert opinion says is likely to accrue to the young child via her mother’s diminished ability to cope.
The attitude to B and to the responsibilities of parenthood demonstrated by each of B’s parents
The ability of the parents to coexist, cooperate and to deal with each other is frequently a valuable means of gauging the discharge by the parties of their parenthood responsibilities. In this case, I am satisfied that the mother has no ability at all to empathise with the father or the grandparents and that, in turn, the father and the grandparents have demonstrated next to no ability to empathise with the mother.
In considering this factor I have to assess not only the father’s attitude to B but how the father has demonstrated his attitude to the responsibilities of parenthood generally. I am satisfied that there is nothing by which a person’s parental responsibilities could be measured as low as I measure the discharge by the father of his responsibilities of parenthood having regard to the fact that he killed his own child. The fact that the father killed his infant son leads me to conclude that he is incapable of satisfactorily exercising the responsibilities of parenthood.
The fact that the father appeared, in his viva voce evidence, to draw a distinction between Z and B is further evidence of the father’s pathetically low measure. The father’s evidence was that he loved both his children but that his children were “different”. He said words being or to the effect of:-
“you can speak to a 5 year old. You can’t speak to a 2 week old.”
As indicated, I am satisfied that the mother is unable to deal with the father at all. I am satisfied that she finds him abhorrent and is horrified that B will be affected by the father’s actions, even to an indirect degree. I am satisfied that the mother’s attitude to the father is without malice and is neither wilful nor spiteful. I do not consider that the mother’s aversion to the father reflects negatively on the mother’s responsibility to parenthood.
Any family violence involving the children or any member of the children’s family and family violence orders
I do not consider that B is at risk of becoming involved in domestic or family violence or that she has previously been exposed to any such violence. B’s half-brother was a victim of violence and paid the ultimate price. This fact must have an impact upon B in the future and, as I have already found, has affected her mother deeply.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children
Orders in relation to contact are never final in the sense that the court will always revisit them given a change of circumstances. Ideally, litigation should be minimised because it is costly in financial as well as emotional terms. It is ironic that in many instances, litigation undermines the capacity of the litigants to devote themselves to the emotional and financial maintenance of the family members whose welfare is often the objective of the litigation. However, in some instances, litigation can only be conducted in stages and as and when circumstances arise. At the commencement of this matter, counsel for the father confined his case to contact between B and the father during the father’s incarceration. This was on the basis that the father will seek different contact upon his release from prison. Therefore, it is likely that further proceedings about B will be inevitable.
Any other fact or circumstance the Court thinks relevant
The factors which I am mandated to take into account largely concern dynamics between the parents. However, I also take into account the relationship between the mother and the paternal grandparents.
The mother asserted that the grandparents had previously acted contrary to her wishes and allowed B to speak by telephone to the father (in prison). The paternal grandfather gave evidence that the mother had imposed no condition of their care of B and that, in any event, he and the paternal grandmother had no control over the fact that the father just happened to telephone their residence when B was in their care. I was not impressed by the grandfather’s response in this regard. I am satisfied that the paternal grandparents have acted contrary to the mother’s wishes in relation to allowing or even facilitating telephone contact between B and the father. I am also satisfied that on that occasion they thought that they were doing something which was in the best interests of B as well as their own son and that there was, in fact, no direct harmful consequence to B.
I conclude that it is imperative that the mother’s anxieties about prisons not be excited by occasions when B has contact with the paternal grandparents. It seems to me that the mother’s anxiety will be aggravated if she is not able to trust the paternal grandparents to abide orders of the court or an agreement reached with the mother. In cross examination, Dr Kornan’s evidence on this point was as follows:-
…………I think it’s important that if there is to be ongoing contact with the paternal grandparents, which I understand will take place, that somehow the relationship between the mother and the paternal grandparents is one in which there is trust. That
I think is the crucial factor from the point of view of the paternal grandparents being involved. Rather than her perception of the paternal grandparents being only concerned with their son’s situation I think that what needs to be involved with the mother is that she can trust that the paternal grandparents will do what the court has set out that they will do.
I accept Dr Kornan’s evidence in that regard. In due course, I will also impose a safeguard to compliance by the grandparents with orders of the court. As part of these safeguards I consider it appropriate that the orders which I will make restrain the grandparents from taking the child to see the father in prison or permit any indirect form of contact (such as telephone). I will order that the child representative serve a sealed copy of the order on the officer in charge of the Barwon Prison. I will include as a notation to the order a request to the prison authorities to assist the court by giving effect to the orders. In this way the mother can be assured that all that could be done has been done.
Mother’s application for sole responsibility for long term care, welfare and development of B
The mother’s application is for sole responsibility for long term care, welfare and development of B.
At the moment, the orders made on 20 February 2002 provide long term responsibilities to be exercised jointly. As I am satisfied that the mother is unable to communicate with the father and I have already made findings in relation to the parties’ capacity to parent and attitudes to parenthood. If the current order was to continue, in actuality, the mother would take the decisions and then face potential action, including contravention proceedings, by the father in respect of unilateral decisions which she took in relation to B without consultation with, or provision of information to, the father. That is not a satisfactory arrangement for the parents or for B.
I am satisfied that it is in B’s best interests that decisions in relation to her long term care welfare and development be made with certainty and apparent ease. I will make the order sought by the mother.
Conclusions
The parties are not far apart in relation to contact between B and the paternal grandparents. The grandparents want the ability to extend the 4 weekly overnight contact from 2 to 3 nights on 3 occasions in the next 12 months or so. The mother opposes orders to that effect but does not preclude the possibility of making an agreement with them to that effect. My view is that the parties will work better with certainty. Leaving a matter to be agreed (or not) may well lead to disappointment and disappointment will likely develop into resentment which is not going to be in the best interests of B. I have already traversed the satisfactory relationship between the grandparents and B. I am satisfied that B will enjoy an extension of contact so that it starts on a Friday night. I do not see any contra indicators about extending the contact as sought by the grandparents. I will order it accordingly.
Although no specific application was made for telephone contact between the child and the grandparents, I consider that their face to face contact will be enhanced by there being the opportunity for telephone contact in the week preceding each monthly visit and I will order accordingly. If the particulars of my order are not convenient to the parties, I would entertain submissions subsequently as to variations to the time and day of telephone contact.
Insofar as the father’s contact is concerned, I am satisfied that the mother has a genuine anxiety phobia about B visiting the father in prison and that the effects of that phobia are very important factors to weigh in the balance of the factors specified in s.68F(2). In my view, it is analogous to the situation in the various authorities about genuine fears of custodial parents (see B and B (1993) FLC 92-357 and Re A (1996) FLC 92-692). In Russell & Close Appeal SA45 of 1992 an unreported decision of the Full Court comprising Fogarty, Baker and Lindenmayer JJ delivered 25 June 1993, their Honour’s said:-
“In upholding children’s rights to protection from sexual, psychological or emotional harm the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s care-giving ability.
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.”
Furthermore, in the decision of Grant & Grant (1994) FLC 92-506, cited in Re A (1996) FLC 92-692, Purdy J,
“discharged existing access orders relating to the father’s access to children aged seven to five in circumstances where there had been violence between the husband and the wife and in circumstances where there was psychiatric and counselling evidence that any access would have a deleterious effect upon the health of the wife. Purdy J said at 81,259:
“If the Court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child, then the Court must take that into account in assessing whether access is for the benefit of the child.”
In the above cases, an examination of the extent to which it could be said that the custodial parent’s belief was irrational or baseless was undertaken as a measure against which the genuineness of the subjective belief could be gauged. In this case, the unshaken and unchallenged expert evidence is that the mother’s disabling belief or phobia, vis a vis prisons, is genuine. As indicated, I accept the evidence of Dr Kornan to the effect that the mother’s care giving will be compromised to a significant degree if B is taken to see the father in prison and will also be adversely affected by telephone contact. Insofar as my orders will have the effect of B not seeing her father for an extended period, there was extensive evidence about the fact that the relationship between B and the father endured over the first year or so of his incarceration. For these and my consideration of the other factors referred to above, I will make orders that B have no contact with the father until further order – by which I mean until the court looks at the matter afresh when the husband makes application based on his release from prison as a change of circumstances.
I am satisfied that the orders identified at the start of this judgment are in B’s best interests.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R. Campbell
Date: 29 April 2005
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