P & D

[2001] FamCA 1197

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA

AT BRISBANE No. BR6845 OF 1996

IN THE MATTER OF: P.

Father

AND: D.

Mother

BEFORE THE HONOURABLE JUSTICE LINDENMAYER

DATESOF HEARING: 18-22 JANUARY, 1999 13-16 SEPTEMBER, 1999, 17 MARCH, 2000, 28MARCH, 2000 & 22-25 MAY, 2000

DATE OF JUDGMENT: 29 AUGUST, 2001

REASONS FOR JUDGMENT

Appearances: Mr Smith of Counsel (instructed by Kelly & Agerholm, Solicitors, Arana Legal Centre) for the Father

Mr McGregor of Counsel (instructed by Bennett Carroll & Gibbons until 17 March, 2000 and then by Frank Carroll, Solicitor) until 16 September, 1999, and thereafter Mr Long of Counsel (instructed by Frank Carroll Solicitor) for the Mother
Mr Waterman of Counsel (instructed by Legal Aid Office) for the Child Representative

CHILDREN – Parenting Orders – Residence – ss60B; 68F(2); 65E Family Law Act – B and B: Family Law Reform Act 1995 (1997) FLC 92-755; Re David (1997) FLC 92-776

CHILDREN – Parenting Orders – child, aged 9, resided with the mother for his whole life – mother made unfounded allegations against father of ill-treatment and sexual abuse of child – mother’s continuous efforts to thwart contact and alienate child from father – change of residence – status quo – Raby and Raby (1976) FLC 90-104; Jones v Jones (1960) 77 W.N. (NSW) 682; P v P (1964) 5 F.L.R. 452

CHILDREN – Contact – Dr Gardner’s “ Parental Alienation Syndrome”

EVIDENCE – Failure to object to hearsay – ss59, 190(1)and 190(3) Evidence Act

EVIDENCE – Credibility Rule s102 Evidence Act – s108(3)(b) Evidence Act – Court grants leave to adduce evidence of a prior inconsistent statement nunc pro tunc

INTRODUCTION

This is an application for final orders, under Part VII of the Family Law Act 1975 ("the Act") with respect to, firstly, the residence of and, secondly, in the event that that application is unsuccessful, defined contact with “the child”. The application concerning contact was originally filed by “the father”) on 2 July, 1996 and then, in an application filed 17 March, 2000, he changed his position and sought residence of the said child. The orders currently sought by the father make provision for the child to reside with him, in conjunction with complementing contact arrangements in favour of the current resident parent, who is “the mother”.

On 28 March, 2000, pursuant to my orders, the hearing of the application for residence was joined with the father’s initial and longstanding application for defined contact, which has been amended on a number of occasions throughout the lengthy and unfortunate history of this matter. In a Response filed on 24 March, 2000, the mother sought an order dismissing the father’s application for residence, with costs. Over the course of the proceedings, the mother has consistently contested the father’s applications for physical contact with the child.

The father has not had unsupervised contact with the child since 1996, and such attempts as have been made to re-establish the relationship through supervised contact have been singularly unsuccessful. The child has resided with his mother, step-brother and step-sister throughout the entirety of his life.

BACKGROUND FACTS

The mother was born in 1959, and is currently aged 42. The father was born in 1962 and is therefore currently aged 39. The parties commenced what became a rather stormy relationship in June, 1990. Essentially the association was marred by numerous separations and confrontations, until the parties ultimately ceased their relationship in early 1995.

The child of the relationship, S., was conceived, according to the mother, on Melbourne Cup Day, namely 5 November, 1991, when the father allegedly had sexual intercourse with the mother, without her consent. The father denied this allegation of rape. He further contended that conception actually occurred as a result of sexual intercourse between the parties which occurred on or about 21 November, 1991, which was unprotected because the mother falsely and deceptively informed him that she was already pregnant, as a result of their act of intercourse on 5 November, 1991.

S. was born in August, 1992, and is currently aged 8 and was, at the time of the trial, in grade 3 at a Christian School. After S.’s birth, the parties commenced cohabitation proper on 15 September, 1992, but this arrangement only lasted a few weeks before the father moved out of the home. The mother subsequently re-partnered, in late 1995, commencing a relationship with Mr. A.. As at 19 April, 2000, the father had a girlfriend who is a nurse. I shall say more about both of these people later in these reasons.

Throughout the history of these proceedings the father has been employed as a tradesman and in the arts. However, as at 19 April, 2000, the father claimed that he had not worked for a period of 18 months and was on long service leave, but was undergoing a training course to become a tour guide. However, the father did stipulate that he was a full time artist. The mother, at the time of a psychiatrist’s updated report for the proceedings, worked as a pay roll manager and was studying to be a counsellor.

In an affidavit filed 19 May, 2000, the mother claimed that the father had opposed and evaded paying child support for S. all along and that review hearings had taken place in 1993, 1996 and in April, 2000. It was the mother’s evidence, in an affidavit filed 20 July, 1998, that the father had threatened that she had better co-operate in decreasing the amount of child support payable by him in the 1993 review, or he would put a bullet in her. In addition to denying that specific allegation, the father, in paragraph 30 of his affidavit filed 24 December, 1998, stated that throughout the whole of this period he had paid substantial child support to the mother. There is no independent evidence of the level of child support paid by the father from S.’s birth, in August, 1992, up to March, 1996, when his contact with the child ceased. However, exhibit 30 is a Child Support system Transaction Statement, provided by the Child Support Agency, for the period 29 February, 1996 to 14 July, 1999 which shows that during that period (which is approximately 175 weeks) the father paid total child support for S. of $30,413.43 (or an average of $173.80 per week) against a total liability for that period of $30,393.93.

On 25 October, 1993, after both parties received independent advice as to its consequences, content and effect, they executed a Child Agreement which was registered the next day. The Child Agreement provided, inter alia:

·     for the mother to have sole custody;
·     for the mother and the father to have joint guardianship; and
·     for the father to have access (as it then was) to the child on each alternate Saturday for a period of 2 hours.

The father subsequently enjoyed regular contact with S. until about March, 1996. According to the father’s evidence, from about the time S. was two and a half years old, the parties had agreed to extend the hours of contact so that they were from 8am Saturday until 5:30pm Sunday, on alternate weekends, and for one full day midweek every seven weeks, coinciding with the father’s work schedule.

However, the mother’s evidence was that, from at least 1994 to 1996, contact had occurred against a background of constant arguments and dissension between the parties, and harassment of her by the father, to all of which S. was often exposed.

In an affidavit filed 20 July, 1998, the mother stated that she was concerned about the father’s interaction with S. as early as December, 1993. She deposed that when the family was at the beach together, the father had dragged S., who was then 18 months old, through the water on a “boogie” board at running speed until he was flung off. The mother claimed, but the father denied, that the father laughed when this occurred, and that the parties then argued about the incident. The mother further stated that it was not until December, 1995, that S. would go to the beach and swim again. The father claimed that the mother had greatly exaggerated the nature of this minor incident and its effect upon S..

In the same affidavit, the mother recounted arguments that she and the father had engaged in over pornographic material allegedly being left around his unit for the children to read. The father denied this allegation. The mother further claimed that from early 1994, after S. returned home from contact, he would be exhausted and bad tempered, throwing himself on the floor, biting his older brother, or banging his head on the walls or floor if he did not get his own way. The mother claimed that it was from that time that S. commenced stuttering. The father and his parents, who often saw S. during contact weekends, denied observing any such conduct by S. at any time, and said that he stuttered only for a brief period about the time he was being toilet trained.

The mother claimed that on 5 April, 1994, she was assaulted by the father. The father denied this, and said that it was the mother who assaulted him, including by hitting him in the eye with a vase, and he sought only to protect himself from her assault. Neither of the parties’ applications for protection orders, which were made following this incident, was pursued.

The mother alleged that numerous abusive and vulgar telephone calls were made by the father to her residence from about October, 1994 through to August, 1996. The mother further claimed that these abusive phone calls sometimes amounted to as many as 10 in one day. She produced tape recordings of some of these calls which were recorded on her telephone answering machine, and included transcripts of them in her affidavits. Whilst the father did not deny making a number of these calls, and accepted that they were extremely abusive, vulgar and belittling of the mother, he claimed that they were confined to a much shorter period than the mother claimed and were provoked by her deceptive and manipulative behaviour towards him in relation to, firstly, her relationship with him, secondly her relationship with Mr A., and thirdly his (the father’s) contact and relationship with S..

The mother has 2 children, named M. and Sc., from a previous marriage to a Mr D.. The mother explained in her affidavit that, in an attempt to maintain amicable relations with the father for S.’s sake, as she had been able to achieve with her former partner for the sake of the children of that marriage, she agreed to see the father once a week. On one such occasion, the mother maintained that when the father arrived at her home to take her to the movies, he tried to force himself sexually upon her. This was alleged to have occurred on 9 June, 1995, in S.’s presence. The mother asserted that during the assault, S. ran to his room screaming and crying and that he refused to come out whilst the father was still there. The father denied the mother’s account of this incident, and denied any assault of her except that he admitted squeezing her leg (which she had stretched across him whilst they were seated together on a couch talking) when she made a suggestion that she could keep company with him and Mr A. at the same time. At about this time, the mother claimed that she made it clear to the father that their relationship was terminated and that, following this declaration, he then started monitoring her behaviour and seriously harassing her by breaking into her apartment and leaving notes throughout her home, tearing pages from her diary and listening to her answering machine. The father, on the other hand, contended that the mother continued to give him mixed messages about their relationship, at times encouraging and at other times discouraging him, and that she manipulated him to suit her own purposes. He claimed that the parties remained engaged to be married throughout this period (having become engaged in late 1993) and continued to engage in consensual sexual behaviour up until early December, 1995, including one “sexual romp for four days” in late October, 1995. The mother denied this, and said that the last occasion when there was any type of sexual contact between the parties was in late October, 1995. She said that on this occasion the father arrived at her home, distraught, at 4.30am, threatening suicide, so she let him in, and he eventually fell asleep downstairs, following which she went back to her bed, where she fell asleep, only to awaken to find the father in her bed attempting to engage in cunnilingus with her. She said that she stopped him and asked him to leave, which he did.

It is the mother’s evidence that on 22 October, 1995, whilst returning S. from a contact visit to her home, the father became violent and abusive, smashing pot plants and banging on doors. It was asserted that the Police attended that night and that all 3 children who reside with the mother were terrified and upset as a result of the incident. The father gave a different account of that occasion, claiming that after being provoked by the mother’s conduct, in snatching S. from his arms, falsely accusing him of being late with his child support payments, and reneging on an earlier agreement for him to take S. to a basketball game, he became angry and broke some hanging garden baskets which he had previously given to the mother. He denied all other allegations of violence or abuse by him on that occasion.

In an earlier incident on 12 June, 1995, the mother alleged that sometime after midnight the father arrived at her home intoxicated and proceeded to gain entry into her home through a closed window. She further stated that the father told her he had attempted to slash his wrists. Even though the police arrived that night and took details, the mother deposed that the father spent the night at her home in a spare bed. The father did not deny this incident, except that he denied breaking into the mother's residence and claimed that she let him in, and he denied having slashed his wrists.

When M., the mother’s daughter from a previous marriage, approached the mother with concerns regarding S.’s behaviour on 28 March, 1996, a statement was made by the then 15 year old girl to the Queensland Police Service on 2 April, 1996. In that statement M. delineated, in effect, that she had caught S. masturbating in his bedroom and when she confronted him about it he had told her “Daddy does this.” Whereupon M. asked him “Where does Daddy do that?,” to which S. replied “at his place.”

Following this conversation with M., the mother ceased the father’s contact with S.. It is the mother’s evidence that about the same time, S. masturbated in front of her friend Mr A. and, in the same period, made the following disclosures:

·     “daddy put a big gun to daddy’s head”;
·     “daddy called mummy a fucking moll”;
·     “daddy talks rudely”;
·     “daddy kissed my wee wee” and “daddy smelled my wee wee”; and
·     “daddy says to stick my finger in my bum and smell it”.

The father denied each of those allegations (except that he admitted S. may have heard him call the mother a “fucking moll”) and denied ever having masturbated in front of S. or touched, or encouraged the child to touch, his own penis except in the course of instructing him about proper male urinating practices. He was deeply offended by the allegations, which he described as “disgusting”.

The mother then listed numerous other occasions on which S. allegedly displayed similar sexualised behaviour, including his refusal to wear clothes to bed, as he said his daddy did not wear clothes to bed, and his suggestion that his brother should touch his “wee wee”. In conjunction with his use of foul language and bed-wetting, the mother stated that S. also stuttered at this time. The father and his parents, denied any such behaviour in his household, or theirs, and said the child’s mild stuttering occurred only during his period of toilet training.

On 8 May, 1996, the Magistrates Court of Queensland at Beenleigh granted a protection order in favour of the mother, with respect to the father, which was to continue in force for 2 years up to and including 7 May, 1998.

The mother’s cessation of contact in March, 1996, led to the father initiating proceedings on 2 July, 1996 for final orders regarding contact, in conjunction with orders providing for contact to occur in the interim period between then and the final hearing of the proceedings.

In the foregoing outline I have touched briefly on a few of the major points of conflict between the parties as to the relevant history of their relationship. A more detailed and informative summary of their differing accounts and/or perceptions of that history, up to early 1997, is contained in paragraphs 9-28 of the report dated 5 March, 1997 of Ms H, Social Worker, which is annexure A to her affidavit filed by S.’s Child Representative on 7 March, 1997. I shall have occasion to refer to other aspects of Ms H’s report later in this judgment, but for present purposes I think it is useful to set out that historical summary in full, since it is based upon what the parties then told her and is generally consistent with their evidence in the proceedings. That summary is as follows:-

“C.     RELATIONSHIP BETWEEN THE PARTIES
9.        [The mother] stated that she and [the father] met in 1990, 6 months after she separated from [Mr D.] who is the father of her older two children, M. and Sc.. [The mother] advised that [the father] broke off the relationship three times in the first 12 months because he wanted ‘space’ and disliked sharing the weekends with her two children. Having broken off contact, [the father] would then pursue [the mother] for a reconciliation yet was frequently unfaithful throughout the relationship. [The mother] stated there was only one occasion when she initiated contact with [the father] after a period of separation. [The mother] believed they would have terminated their unsatisfactory relationship much sooner but for S.’s birth.
10.      [The mother] alleged that [the father] assaulted her on a number of occasions throughout the relationship and boasted of assaults on other people. She alleged that S. was conceived after she was raped by [the father]. [The mother] said that she was shocked and confused and avoided contact with [the father] for some time. When informed of her pregnancy with S., [the father] was allegedly threatening and later became antagonistic over Child Support payments. [The mother]’s detailed affidavit sets out her concerns about [the father]’s behaviour.
11.      [The mother] recognised that the relationship was destructive but alleged that when she tried to set some limits, [the father] would not accept the situation and harassed her. [The mother] said that she persisted in trying to establish a friendship for S.’s sake but regarded the closer relationship as having finished by April 1994. Around that time, police applied for a Protection Orders on [the mother]’s behalf and [the father] made a cross application. [The father] advised that on 26.4.94 both parties agreed that the respective applications be discharged.
12.      [The mother] alleged that [the father] was extremely jealous and that his harassment of her and unstable behaviour escalated after she formed a new relationship with Mr A. in 1995. [The mother] alleged that Mr A. was also victimised by [the father] and she applied for another Protection Order in April 1996. [The mother] advised that [the father] was subsequently convicted of two breaches of the Order because of abusive phone calls.
13.      Currently, the parties do not have contact and [the mother] has stated that she is frightened of [the father]. She has alleged that there have been further abusive phone calls to her home, and other suspicious incidents (including a Break and Enter of her home) have occurred since Family Court proceedings commenced. [The mother] believes that [the father] is responsible. She has submitted letters from [the father] to S. which imply criticism of her.

14.      [The father] has largely rejected [the mother]’s account of their relationship and stated that she was possessive and controlling throughout the relationship and pursued him in bizarre ways after temporary separations. [The father] alleged that [the mother] badgered his neighbours and ex-girlfriend for information about him, stole his address book, stalked him, assaulted him and publicly humiliated him with displays of her jealousy.
15.      [The father] acknowledged that he had other relationships and alleged that after catching him out, [the mother] had retaliated by returning the other woman’s jewellery in a dismembered state, and assaulting him with a trophy. He further alleged that during a later period of estrangement, he had suffered a bout of severe food poisoning and believed that [the mother] may have been responsible.
16.      [The father] stated that they had separated prior to [the mother] falling pregnant with S. but she ‘tracked (him) down’ to a Hotel on Melbourne Cup Day 1991 and they returned to his residence and had consensual sex. He denied any sexual assault and believed that [the mother] tried to entrap him with the pregnancy. He agreed that child Support payments were a contentious issue and believed that [the mother] was both greedy and unreasonable in rejecting a private agreement with him, particularly as they continued in a relationship, (albeit a stormy one), over a few years. [The father] believed that [the mother]’s lack of agreement contributed to an undermining of trust in the relationship.
17.      [The father] denied that he was violent to [the mother]. He stated that conflict was consistently provoked by [the mother], and he had acted to physically restrain her from assaulting him or damaging property. [The father] stated that after S.’s birth, their relationship continued to be volatile and [the mother] used S. as an emotional weapon against him. He alleged that [the mother] was capable of irresponsible behaviour towards S. (and M. and Sc.) and could be excessive in her use of physical discipline. When confronted, [the mother] would justify her behaviour with quotations/references to her religious beliefs. [The father] said that [the mother] tended to give priority to her relationships with male partners over the needs of the children.
18.      [The father] rejected [the mother]’s account of the relationship ending in 1994 and stated there were subsequent periods of reconciliation, and sexual contact, after [the mother] commenced a relationship with Mr A.. [The father] stated that [the mother] had never declared their relationship over and had always conveyed a sense of hope about the future as long as he attended counselling. [The father] said that while continuing to interrogate him about his movements and contact with other women, [the mother] lied about the nature of her relationship with Mr A.. [The father] acknowledged investigating (and confirming) his suspicions and said he felt humiliated and betrayed by their hypocrisy.
19.      [The father] indicated that the whole situation became overwhelming and he acknowledged feeling angry, distressed and depressed. He was prescribed sleeping tablets but denied threatening suicide, or threatening to shoot anyone else, [the father] also denied specific allegations of harassment made by [the mother] but acknowledged that on one occasion after returning S. home, he entered [the mother]’s house in her absence (Sc. was there), read her diary and tore pages from it. [The father] said he knew it was wrong but was angered by the negative and allegedly self serving portrayal of past events in [the mother]’s diary.
20.      [The father] stated that he regretted making the abusive telephone calls to [the mother] after contact was suspended but was enraged by the allegations of sexual misconduct and [the mother]’s actions in suspending contact.
21.      [The father] believes that [the mother] is motivated by a desire to punish him by denying his contact with S., and wants him ‘off the scene’ to please Mr A.. [The father] described [the mother] as an accomplished schemer and believed she was capable of staging malicious incidents such as the Break and Enter of her own home to incriminate him and create further mischief in Family Court proceedings prior to the interim hearing. [The father] alleged that contrary to her stated fears of him, [the mother] and associates had been seen by himself and a neighbour congregating and drawing attention to themselves outside his residence.
D.       HISTORY OF CONTACT ARRANGEMENTS
22.      [The mother] stated that despite relationship problems, she wanted [the father] involved in S.’s life and hoped for the type of cooperative relationship she had been able to establish with [Mr D.]. While S. was under 12 months, contact was exercised at her home. [The mother] stated that she needed to remain vigilant as [the father] could be irresponsible with S. e.g. throw him in the air while he was still very young. She said that [the father] constantly pushed for more contact believing that he was entitled to more because of the amount of Child Support he paid. She said that his parents encouraged him to approach a solicitor and Consent Orders were filed in October 1993.
23.      By early 1994 [the father] was exercising day contact with S. and [the mother] was concerned that S. was coming home exhausted and cranky, and the ‘head banging’ behaviour commenced. [The mother] alleged that she felt threatened by [the father] and was ignorant of legal matters. She was encouraged to believe that he was entitled to a standard regime of contact irrespective of her concerns. [The mother] allowed overnight contact to commence when S. was 2 years old and acceded to [the father]’s demands for day contact during the week. However she stopped week day contact following an incident when [the father] allegedly ignored S.’s ill health and took him to a park in windy weather. [The mother] stated that she always had to be careful of how she offered advise to [the father] about S.’s care because of his potentially volatile reaction.
24.      [The mother] alleged that over this period of contact S. was often sick, aggressive, and developed a nerve rash and a stutter. He had disturbed nights and wet the bed until mid 1996. Added to this were [the mother]’s concerns about [the father]’s harassment of her and his uncontrolled behaviour which was witnessed by S.. She believed that [the father] denigrated and threatened her (and Mr A.) to S., and interrogated him about her movements. The final straw was [the mother]’s belief that [the father] had modelled inappropriate sexual behaviour to S..
25.      After suspending contact, [the mother] took S. to a psychologist […] for advise on how to manage his behaviour. She said that prior to that she had sought the advise of […] a doctor when concerns about S.’s post-contact behaviour had arisen.
26.      [The father] stated that when his relationship with [the mother] was ‘good’, he had liberal contact with S., and [the mother] had used him as a babysitter for all three children. He said, however, that [the mother] was always very controlling and had initially refused to allow him to take S. to visit his parents thereby prompting him to seek Consent Orders. [The father] said that contact visits went very well and he complied with [the mother]’s demands about S.’s routine for S.’s sake and to avoid potential conflict with her. He said that neither he nor his parents had observed any disturbed behaviour in S., and had only noticed a temporary stutter around the time he was being toilet trained.
27.      [The father] rejected [the mother]’s allegations of inappropriate behaviour towards S. and although he acknowledged that S. was exposed to parental conflict at contact handovers, he alleged that conflict was instigated by [the mother]. He said that [the mother] often prevented him from leaving the property by locking the gates or putting her foot behind the car tyre while she continued to berate him and dramatise events for the benefit of the neighbours.
28.      [The father] denied refusing contact with S., or with holding S. unless he and [the mother] reunited. He said that because he was angry with [the mother] and Mr A., he discouraged S. from talking about them but acknowledged that he had asked S. on at least one occasion whether Mr A. had stayed at [the mother]’s place overnight.”

THE HISTORY OF THE PROCEEDINGS:

As a result of the institution of these proceedings, orders made by Warnick J on 24 September, 1996 made provision for:
·     the appointment of a Separate Representative for S.;
·     the father to write letters to the child;
·     the mother to read those letters to S.; and
·     the application for interim contact orders to be adjourned to 7 November, 1996, in the Judicial Duty list.

Consequently, all forms of physical contact between the father and S. were suspended in the interim period between that day and November, 1996, when the matter would be dealt with in the Judicial Duty List.

The Family Report previously referred to was then prepared by Ms H on 5 March, 1997, and was filed 2 days later. At the time of the interviews conducted for the report, S. was aged 4 and had not had physical contact with the father since March, 1996. During the interviews it was recorded that S. referred to his mother as happy and his father as grumpy or angry all the time.

In paragraphs 47 and 48 of the report Ms H noted that, after waiting with his mother whilst his older siblings were being interviewed, S. had informed her that “Daddy pulls his pants down when he went to bed…..Daddy left me alone and went to the shops…..and Daddy said he would kill [J] (ie Mr. A.’s dog) with a stick and shoot P. (ie Mr A.).” Ms H reported that S. appeared nervous whilst disclosing this information, and that he had then laughed and said “I can’t remember everything.” Following this disclosure, upon rejoining his mother, S. repeated the statement “I couldn’t remember everything.”

In a further interview with S., Ms H asked him how everyone at home felt about his father, to which S. responded “no one likes Dad except me.” Upon being asked if he would like to see his father in the presence of Ms H, S. replied that he would not like that to happen, as the father may break the toys.

Earlier in that interview S. had told Ms H that his father was “naughty” because he had called his mother a “fucking moll”, had pulled his own (i.e. the father’s) pants down while lying on the bed, and played with his “wee wee” (and, when asked in relation to that matter whether anything else happened, S. responded “that’s it”). He had also told her the following:
“Daddy said put my finger in my bottom and smell it”.
“Daddy left me at his place during the day and went to the shops”.
“Daddy woke me at night and scared me (with loud noises while the lights were off)”.
In response to a question whether anything sacred him at his mother’s house, that “sometimes she smacked (him) for nothing”, but that “his father did not smack him or yell at him when he was naughty and had not hurt him”.
In response to a question about how his parents felt about each other, that they “don’t like each other”.
In response to a question about whether his parents asked questions about each other, that his mother did, “but only about the naughty things that happened”.
That his father “called his mother a ‘fucking moll’ on the answering machine”, and when asked how he knew this he first responded “I saw him” but later said “someone told me”.

The father then met with S. in the presence of Ms H on 28 February, 1997, and at the request of the mother (who had been “reluctant to allow S. to attend the meeting because of his stated feelings towards contact”), M., S.’s older sister, was also present. Ms H noted that M.’s dislike of the father was obvious on occasions and would have been apparent to S.. However, she further noted that even though S. was less inclined to initiate the activities himself, he was quietly responsive to the father. She stated that their interaction was quite good given the period of time that had elapsed since they last had contact and the intervening events.

After referring to S.’s siblings’ opinions (i.e. M. and Sc.) that the household was more peaceful without contact; the mother’s ex-husband’s (ie Mr. D.) evidence that S. had been aggressive and would stutter following contact, but that behaviour had ceased in the past 12 months; the father’s former neighbour’s evidence (ie Mrs G.) that the mother was often at the father’s residence when he was not home and had requested the neighbour to inform her of any silly things done by the father; the evidence of the father’s then current neighbour (ie Mrs B.) and of the paternal grandparents that S. had not ever behaved in their presence in a manner to indicate the problems alluded to by the mother; and the report of the Director of the pre-school which S. had attended since February, 1996 that she had not observed any aggressive, sexual or crude behaviour or language in S. and that he was a “gentle and placid child” who is “co-operative, listens and follows instructions, speaks well and has a good understanding and vocabulary”, but who had “made significant gains this year” [i.e. 1997], Ms H stated that S.’s improvement in recent times was probably due to normal development and the absence of parental conflict at handovers.

Ms H noted that it was difficult to determine “whether S.’s attitude to contact is based mainly on his independent memories of events, and his perception of his father’s behaviour, or whether the lapse of time and anxiety/hostility of other family members has significantly coloured his perceptions”. However, she further noted that S. did not appear to have become alienated from his father at that stage.

In paragraphs 98 and following of her report, Ms H first identified the “two types of concerns raised about [the father’s] behaviour which could impact on S.’s physical and emotional well being”, namely “abusive behaviour directed towards [the mother], and indirectly S.”, and “irresponsible and sexually inappropriate behaviour directed towards S.”. In relation to the latter, after noting that some of the behaviour described by the mother “appears to be crude rather than sexually abusive while other behaviour suggests an inability to observe appropriate boundaries”, and that the father “denied all allegations of sexually inappropriate behaviour and alleged that [the mother] coached S., and influenced others, into making statements about what they heard and saw”, Ms H said that she could not take that matter any further but was “more concerned about” the former type of behaviour.

In relation to that, Ms H expressed the opinion that there was “evidence to suggest that [the father] has acted inappropriately towards [the mother] and S.”, but that the degree of inappropriateness and whether it was continuing were both points disputed by the parties. After referring briefly to the parties’ conflicting accounts in relation to those points, she expressed the opinion that it was “a positive sign that [the father] has formed a new relationship and feels himself less vulnerable than when contact with S. ceased last year”.

In conclusion, Ms H recommended that should the re-introduction of contact be found to be appropriate, then it should commence with short periods of supervised contact with handovers taking place at a neutral location. She further recommended that the arrangements should preclude direct contact between the parties and that should any doubts exist as to the father’s stability, a psychiatric assessment may be helpful.

On 10 March, 1997, before Smith JR, the parties consented to orders providing for them to attend a psychiatrist selected by the Separate Representative for assessment. Furthermore, the application for interim contact was adjourned, once again, to a date to be fixed by the Court.

Accordingly, the parties then attended upon psychiatrist Professor N. The Professor’s report was signed on 17 September, 1997 and subsequently filed, as an annexure to his affidavit, on 2 October, 1997. In the introductory paragraphs of the report, Professor N explained that the purpose of the assessment was to evaluate both parties and advise whether either party suffered from a psychiatric disorder and, specifically, whether the father could be dangerous. He recorded that the sources of data upon which he relied were: Warnick J’s order of 24 September, 1996; various applications, responses and affidavits of the parties; affidavits of other witnesses in the proceedings (which he identified) including that of Ms H with her annexed report to which I have already referred; copies of some letters from the father to S.; and interviews of about three hours total duration with the mother and about three and a half hours with the father.

After outlining the history of the proceedings and the various allegations and concerns raised by both parties, gleaned from a review of the documentation and from his interviews with them, Professor N concluded his report with the following discussion and summary of his opinion:-

“VI Discussion
Despite their apparent differences, the stories told to me by [the mother] and [the father] complement each other. They represent polarized viewpoints concerning the meaning of the particular events. In essence, after the initial meeting, [the mother] became infatuated with [the father]. She pursued him, energetically. [The father] was reluctant to have more than a casual relationship, initially, because he was concerned about assuming responsibility for [the mother]'s two children by a previous marriage. However, he was flattered by her persistence, and an "on‑again, off‑again" relationship evolved. [The mother] proved intensely jealous of his relationships with other women.
After the relationshop had apparently been called off, [the mother] pursued [the father] and fell pregnant to him. Whether the pregnancy is the result of rape or a consensual relationship is a point of difference. [The mother] apparently continued to hope that a more permanent relationship would eventuate. [The father], for his part, remained hesitant, to say the least. After suggesting an abortion, which [the mother] hotly refused, [the father] attempted to beat down the price of maintenance, and was reluctant to pay more than half the cost of S.'s delivery.
The couple attempted to live together after the child was born, but the relationship broke up in disarray. Nevertheless, unable to stay apart, the couple continued to see each other. Matters took a decided turn for the worse, however, when [the father] had his suspicions confirmed that [the mother] was having a sexual relationship with another man. He was particularly concerned because, at [the mother]'s behest, he had entered counselling at a Christian counselling centre. It was at this point, that [the father], in his own words, "lost the plot." He felt humiliated, belittled, deceived, and manipulated. Seeking retribution, he telephoned [the mother] incessantly, using profane and threatening language. He also entered her apartment, interfered with her personal possessions, and, in effect, "stalked" her and Mr A.. There is a quality of "tit‑for‑tat" in this behaviour, as some of [the father]'s misbehaviour apparently echoed [the mother]'s behaviour toward him on a previous occasion. The disintegration in their relationship culminated in allegations against him of sexually inappropriate behaviour toward his son. These allegations of sexual abuse were never substantiated; nevertheless, they continue to becloud the current situation.
1 think it most likely that, without sexual intent, [the father] has made innocent and, at times, vulgar comments to his son. [The mother]'s tendency to regard these comments as indicative of sexual abuse may be affected by her own experience of abuse as a child, presuming that [the father]'s account of this is accurate.

There is no evidence that [the mother] is psychiatrically abnormal. She was certainly infatuated with [the father], and behaved toward him in an intrusive, manipulative, and partially deceptive way, She ultimately came to fear [the father], and her expressions of this fear to me appeared genuine.
[The father] exhibits no evidence, at present, of psychiatric disorder. An egocentric man, accustomed to being the cynosure of feminine attention, he allowed a relationship about which he had mixed feelings to result in a pregnancy he did not want. However, after his son was born, he became intensely attached to the boy. It was when he became aware that [the mother] was developing a relationship with another man, and that he might lose the affection of his son to another man, he was precipitated into an emotional crisis. In this crisis, he behaved in a threatening, invasive, and retributive manner which led to his parental access being barred. Over the subsequent year, he has recovered from this emotional crisis. Before and during the crisis, [the father] received counselling at a Christian counselling centre associated with [the mother]'s church. However, from his description, the counselling had a fundamentalist, pentecostal quality that was unacceptable to him
VII Opinion
Therefore, with reasonable medical certainty, my opinion is as follows:
1. [The mother] does not suffer from a psychiatric disorder.
2. [The father] does not currently suffer from a psychiatric disorder.
3.From 1995 to 1996, [the father] suffered from a stress‑induced emotional crisis as a result of which he behaved in an unseemly, threatening manner toward [the mother].

4.[The father] has now recovered from that emotional crisis and is aware of the inappropriate nature of his behaviour at that time. At no time did he receive effective professional therapy.

5.There is no convincing evidence that [the father] was sexually abusive toward his son, S.."

After a conciliation conference with Bowler DR failed to reach a resolution on 6 March, 1998, further directions for hearing were made providing for the Child's Representative to file any expert reports that she intended to rely on by 5 May, 1998.

On 3 June, 1998 further directions were made by Smith JR with respect to the filing of affidavit material and the inspection of subpoenaed documents.

In the meantime, due to the following two reasons:
that the child had recently allegedly made statements to the mother which were said to confirm allegations of parental sexual impropriety and violence by the father; and
that the mother reported that the police would be taking action against the father due to a number of anonymous telephone calls to her and her partner, Mr A.,

the Child's Representative referred the case back to the psychiatrist, Professor N, for the purpose of giving an opinion as to the advisability of contact between the father and the child. At that time, the last contact visit between the father and the child had been in March, 1996.

Accordingly, Professor N prepared a further report dated 2 June, 1998, which was filed on 22 June, 1998 as an annexure to an affidavit by him sworn on 17 June, 1998. After reviewing the relevant affidavit and other material provided to him, the report summarised some of the evidence contained therein. He referred to the affidavit of Mr E., a neighbour of the father, who deposed that the mother and her friend, Mr. A., had been seen wind-surfing on a beach directly outside the father’s residence on 20 October, 1996, whilst a domestic violence order was in place. Mr E. stated that he was concerned that they were trying to “set up” the father for a breach of the said order. Professor N also referred to the evidence of Ms S. and Ms B., who deposed that they saw the mother verbally abuse the father and seize S. from him whilst they were in the park on 12 July, 1995.

In the interviews conducted for the purpose of the report, it was recorded that the mother complained that since September, 1996, people, including both men and women, had continually harassed her on the telephone, apparently berating her for not being a good Christian and the like. The mother stated that numerous calls had been traced by Telstra to public phones in the area where the father resided and to his place of employment. She further complained that in March, 1997, her friend, Mr A., had found sugar in the fuel line of his truck. When asked if she truly believed that the father was a homosexual paedophile, the mother replied that she could not rule it out.

Whilst the father admitted that he had made abusive phone calls to the mother in the past, which he agreed was unacceptable, he claimed that more recently he had not placed “silent” calls to her home. He further stated that some of his friends had done it to do him a favour, however he maintained that upon discovering this he had told them to stop. The father stated the belief that if the mother was really scared of him, she would arrange a silent phone number and that, in fact, she pretended to be scared of him for dramatic effect.

At the commencement of his interview with S., Professor N asked him why he had come to see him, to which the child responded:

"'Cause my Daddy is naughty. He sleeps with nothing on and plays with his wee-wee. He says, 'Fucking Moll'. He smashed Mum's window and Mum's pot-plants a bit long ago."

The child also said that he and his father do not speak on the telephone. He said his mother had gone to the police station to tell the police "things about Daddy" which were "naughty", and when asked to draw his father he said he could not, but eventually "depicted a figure with a large head". In respect of his father he also said: "He put handprints on Mum's things, the cookie jar". When asked if he missed his father he said "I don't know" and then changed the subject.

Professor N concluded, in his report, that the manner of S.’s "recitation of the bad things his father had done" was "strongly suggestive of priming or coaching" and that whilst he was unable to assess the veracity of the mother’s allegations regarding harassment with phone calls and other incidents, if they were true even in part only, they represented "serious misbehaviour" by the father.

The doctor further concluded that the father was "clearly obsessed with what he sees as the injustices done to him" and resentful of the fact that another man should have such a significant influence in his son’s upbringing. He stated that the father accurately perceives the mother "as trying to expunge him from his son's life" and that whilst supervised contact would not, itself, be harmful to S., it would receive a hostile reaction from the mother, and it was "from this that harm, if any, might be sustained by the child".

Ultimately, it was the doctor’s conclusion and recommendation that S. would not be harmed by having supervised contact with his father for two hours every second week, but that as the mother's allegations of harassment of herself and Mr A. were serious a decision regarding supervised contact could reasonably be delayed until the police investigations regarding those allegations were concluded.

When the original protection order, granted in 1996, expired in 1998, the mother made a further application to the Magistrates Court for another protection order, which was settled by both parties providing undertakings to the Court that they would not contact each other, other than in accordance with the orders of the Court and, in the case of the father, he undertook not to contact Mr A. as well.

On 29 July, 1998, the mother brought an application for leave to enable the child’s step-sister, M., to swear an affidavit for the purpose of the proceedings. A supporting affidavit sworn by the mother’s solicitor was filed on the same day, generally indicating the nature and contents of M.’s evidence. This affidavit was eventually filed on 18 December, 1998, after M. had turned 18, and essentially it described the disclosures made by S. to the daughter and recounted by her to the mother about S. masturbating, and corroborated the mother’s evidence about certain other events.

On 30 July, 1998, at the request of the father, which was agreed to by the mother, Warnick J ordered the adjournment of the final hearing of the contact matter back to the Pending Cases List and vacated the trial dates of 3–7 of August, 1998 which had been previously fixed. His Honour further granted the father leave to file an application for interim contact on the same day.

Accordingly, the father filed an application on the following day, 31 July, 1998, for supervised contact to occur at a Contact Centre each alternate Saturday for a period of 2 hours, in conjunction with weekly telephone communication and continued written contact until the final hearing.

On 5 August, 1998, after dismissing the father’s application for interim supervised contact, Warnick J ordered, firstly, that the mother cause S. to respond to each of the father’s letters and, secondly, that she make the child available for telephone contact by the father at a specified time, each week, and by the father and his parents at specified times on the child's birthday. In coming to this conclusion his Honour stated that, given that physical contact had not occurred since 1996, he felt that should the Court, upon finally determining the matter, refuse to order a regime of contact between the father and the child, the re-institution of contact in the interim would potentially be emotionally confusing for the child.

On 2 September, 1998, the father filed an application complaining of the mother’s contravention of Warnick J's order through, firstly, failing to make S. available for telephone contact on six different occasions and, secondly, through failing to cause S. to respond to three of his letters. The mother's case, as it has subsequently emerged is that although she has tried to encourage S. to speak to his father on the telephone, when he calls, the child has steadfastly declined to do so.

The affidavit of Ms. C, which was sworn on 9 October, 1998, but not filed until 18 January, 1999, disclosed that she was a counsellor who knew both the mother and the son. Indeed, she had previously been involved in counselling the mother and father about their relationship, about which I shall say more later. Ms. C stated that on 5 August, 1998, she had received a phone call from the mother who claimed that she was having difficulties with S. who was upset and did not want to speak to his father on the telephone. Ms C maintained that she spoke with the child who allegedly cried and protested that he did not want to speak to his father.

On 22 September, 1998, the father filed an amended application for final orders regarding contact, seeking alternate weekends and half of the school holidays as periods throughout which he be entitled to have contact with S..

On 12 October, 1998, consent orders were entered into between the parties, which suspended telephone contact by the father with S. on an interim basis. Furthermore, it was agreed that the contravention proceedings instituted by the father pursuant to s112AD of the Act, should be adjourned to a date to be fixed, and that an updated Family Report and psychiatric assessment should be prepared for the final proceedings. The order further provided that the father be at liberty to send to S. a birthday and Christmas present, provided that he did so by registered post to the mother's address, and obliged the mother to advise the child of the source of the gift.

The final proceedings between the parties then commenced before me on 18 January, 1999, and proceeded over the next four days to January 22, 1999.

Preparatory to that hearing, the Child's Representative arranged for the preparation of a further social worker's report, to update that of Ms H of 5 March, 1997, to which I have already referred. However, as Ms H was to be overseas on leave at the time of the hearing, the Child's Representative arranged for the updated report to be prepared by another social worker at the Legal Aid Office, Queensland, Ms ME. That report, dated 24 December, 1998, based upon interviews conducted and observations made by Ms ME during December, 1998, was before me as an annexure to an affidavit of Ms ME filed on 11 January, 1999.

In the introduction to that report, Ms ME noted that she was "unable to persuade [the mother] to avail S. of being observed and interviewed with [the father]". Accordingly, that report, and any conclusions reached in it by Ms ME, need to be evaluated with an awareness that one potentially important source of relevant data was denied to the report writer.

The report of Ms ME recorded that she had not read any of the parties' affidavits filed in these proceedings, but had been "made aware generally of their contents from [sic.] the child representative". The report indicates the sources of Ms ME’s information, which consisted of several telephone conversations with both parties, a two hour office interview with the father, and two home visits to the mother's residence. The first of those home visits was of three hours duration, during which Ms ME interviewed and observed the mother, S. and Sc., in various contexts. The second home visit was of two hours duration, during which Ms ME interviewed and/or observed S., Sc., M., M.'s boyfriend (unnamed) and the mother.

In section C of her report, under the heading "Current Situation and Nature of Dispute", Ms ME noted the following matters of significance arising from her interviews:-
62.1     M., who started university that year (1998) had moved out of the wife's house "related to some conflict of ideas" and was living with the mother's parents. However, she kept regular contact with her mother, her brothers, Sc. and S..
62.2     The mother and Mr A. had become engaged, and were planning to marry "into 1999" but were still living separately, and Mr A. stayed overnight with the mother "on rare occasions, and usually because of convenience when they have been out late". Both were continuing "to actively pursue their respective studies etc with their church", and S. had completed grade 1 at his religious school.
62.3     The father was continuing to reside in the Brisbane coastal area, was "not pursuing" and "not seeking" any "partnership relationship". He was then on long service leave from his employment as a tradesman, but continuing his periodic work in the arts.
62.4     The mother was continuing to resist face to face or telephone contact between the father and S., her stated reasons being:
(a)the father's "continued harassment of her and her fiance for many years (abusive phone calls, early morning hang-up calls, break-ins in which her photo had been defaced, deliberately kicking and breaking plant pots on her verandah, reporting her to Centrelink and the local City Council, getting bogus women to leave messages on Mr A.'s answering machine to inflame jealousy) …", of some of which the mother claimed "direct knowledge" that the father was the perpetrator, and as to the balance she was "convinced in her own mind that he committed";
(b)the father's violence since her pregnancy with S., which, although "less physical and more intimidatory since the litigation began", left her "fearing for her safety" if the father (who had "talked about plotting to kill her") did not "secure what he wants at the trial";
(c)her "failure to believe that [the father] is interested in S." and her belief that he "is even inclined to be cruel (malicious, teasing) and possibly sexually abusive to S.";
(d)her "belief that S. had been adversely affected by having [the father] in his life"; and
(e)the father's "flouting the limits imposed by the orders" of the Court (for example, by "sending gifts to S. outside the set times") which she said "reflects his destructive motivation to antagonise".
62.5     The father only accepted having left "very offensive messages" on the mother's answering machine "about two years ago", which he regretted, but refuted "ever committing any of the other offences of [sic.] forms of harassment as alleged" although he admitted "ripping the plant pots off the wall and reporting [the mother] to Centrelink once". He apparently emphasised that the mother "does not have proof".
62.6     The father said that he expected S. would "readily adjust to him as before" and that "any sign of resistance will be short-lived". He was "prepared for contact to recommence for a number of months at the Contact Service" if that was some reassurance, but was "not expecting S. will have to be forced". Ms ME said that the father had "little appreciation that S. may feel stuck regarding loyalties and is likely to feel stressed, in the least, by the conflict", and that he was "unable to nominate a time or age upon which S.'s wishes ought to be respected if they were adverse to contact".
After identifying the "salient issues", which she saw as:

(a) whether the father "is as deviant and destructively motivated as alleged";

(b)whether S. is "capable of independently relating with [the father] knowing the extreme mistrust and negativity his household feels" toward him; and
(c)"S.'s coping and views",

Ms ME proceeded, in section E of her report to record her understanding of events which had occurred since the previous report of Ms H.

In paragraph 13 of her report, Ms ME recorded that the father "has not seen S. since March, 1997". It is not clear whether the reference to 1997 is a typographical error or indicates a misunderstanding by Ms ME of the history recounted to her by the parties, because it is clear from all the evidence that at that time the father had not seen S. since March, 1996.

In relation to the father's attempts to maintain contact with S. through telephone calls (in accordance with Warnick J's order of 5 August, 1998) Ms ME reported that he was unsuccessful in making contact with S. from 5 August, 1998 to 7 October, 1998 despite telephoning weekly. She said: "Everyone agrees the usual scenario involved someone else answering the telephone and enquiring of S. if he wanted to speak to [the father], whereupon S. always refused". As I recall the father's evidence, I do not think that he accepted that S. was always asked whether he wanted to speak to him, but only that he (the father) was always told that he did not want to do so.

In relation to the father's sending of birthday and Christmas gifts to S., in accordance with the consent orders of 12 October, 1998, Ms ME reported that this too had "proved contentious", the father claiming that some of his gifts had been refused, and the mother claiming that he sent gifts at times other than those stipulated in the relevant order. For example, the mother said that "despite S.'s birthday being in August, presents came this year in September, October and November" and that she accordingly "refused some". The father said that he bought a number of birthday presents (a watch and books) for S. and parcelled them together, but the mother kept the watch but returned the rest. However, Ms ME further reported that the mother said, "and some document by [the father] reveals", that he sent these items separately and some time apart. She further reported that the father's view was that his weekly correspondence with S. (pursuant to Warnick J's order of 24 September, 1996) could be written on anything, "thus some of these gifts were meant to be viewed as correspondence".

Ms ME next recorded, in section F of her report, her assessment of the father. The following relevant matters are included in that assessment:-
67.1     The father presented as "talkative, friendly and persuasive" and "determined in respect of securing contact with S." to whose wellbeing he believes "he poses no threat". He maintained that the mother was "acting out of malice or so she can secure Mr A.'s fathering role in S.'s life". He strenuously refuted the allegations of sexual abuse in respect of which he felt "set-up", and "the victim".
67.2     The father claimed "no further interest in reconciling with [the mother] or feeling embittered and out-of-control as he had when he made the offensive telephone calls", and said that "he just wants the past to be forgotten". Ms ME commented that, having read excerpts from the transcript of his offensive telephone calls, she considered that he "seemed overly preoccupied with matters sexual" and that "he minimises the impact of such … verbal abuse, given its highly offensive nature to anybody".
67.3     The father refuted being violent to the mother in any form, claimed she had initiated violence to him, and was never scared of him. Ms ME considered that his "attitude reflects, at least, great insensitivity to the real potential for fear arising from what he revealed about himself in the incidents of abuse he acknowledges".
67.4     The father was "confident in his abilities to adapt in the face of any resistance expressed by S.", by "deflecting the conversation away from any confrontation of him" and "keeping him well occupied". Ms ME observed the father's presentation as being "calm, smiley and fun" and that he conveyed he would respond to S. "in kind" (which, in the context, I take to mean in the manner described).
67.5     The father said that his having contact with S. was important so that S. "is not cheated from his father's influence, without which [he] could become wayward in later life". He also said that he considered the mother had been "physically abusive" and that he would therefore "like to monitor S.'s well being during contact … and report [the mother] to the Department of Families, Youth and Community Care if need be". Ms ME expressed the view that such comments by the father suggest "some motivation for control and a real likelihood of there being ongoing conflict which will be apparent to S.".

Ms ME then recorded, in section G of her report, her assessment of the mother. The following matters of relevance appear in that section:-
68.1     The mother presented as "capable, independent, talkative and worried" and as "very determined to protect her son from exposure" to the father, seeing "no value in S. forming a relationship with him". She refuted being motivated by revenge or by "any desire to exclude [the father] so that Mr A. can assume the fathering role" in her household. However, she expressed the hope that Mr A. will be more significant to S. than the father.
68.2     In relation to the suggestion, in Ms H’s report, that she may have "influenced S. to raise concerns" with her, the mother was "adamant that she was not coaching S." but rather had explained to him "that he had her permission to say the things that he had previously said for which she had taught him not to repeat in their house". However, Ms ME recorded that she became aware in the mother's household that the mother's concerns about the father "would be well known to S." because the mother "was not vigilant" in relation to S.'s proximity when discussing these issues with her and because "any expression from a sibling" about the father would, in Ms ME’s opinion, "convey, in the least, as adverse inference".
68.3     Ms ME assessed that, for the mother, the "biggest issue" is "her inability to hold trust" in the father in any way, so that she "would find it hard to accept any view that he had changed". She further expressed the view that the mother's concerns about protecting S.'s wellbeing were "so profound" that it was "hard to envisage contact working, let alone contact ever being promoted".
In the next section of her report, Ms ME described S.'s presentation, and expressed views about his coping capacity and his needs. The following relevant matters are included in that section:-
69.1     S. presented as "a gentle, somewhat shy, and well-behaved boy" who looked for and received guidance from his mother (his "primary carer") which was consistent with Ms ME’s observation of her care for him and "appropriate to S.'s age". S. offered no information about his father or the dispute. Whilst he was receptive to Ms ME’s interaction while they played a game together, he "answered minimally" once she broached the subject of his father and, "after 20 minutes in total, said 'I've had enough now'" and started "edging away", whereupon Ms ME terminated the interview. He indicated to her that the only aspect of contact with his father he could accept was receiving gifts.
69.2     Ms ME observed "a warm and involving relationship" between S. and his siblings and that he and they "interacted comfortably" in a game.
69.3     Ms ME assessed S. as "a sensitive and young boy who appeared inward in his coping", was not "particularly emotionally robust", but "exhibited reasonable assertiveness in extracting himself from our interview".

Ms ME concluded her report with the following "Conclusions and Recommendations":-

"33.     I consider this is a very difficult matter in which the outcome for contact hinges on the view the court makes of [the father]'s motivation, and thus potential for acting maliciously to [the mother] or (directly or indirectly) to S..
34.      If the court considers that [the father] has maintained harassment, then I consider there is little positive for S. to gain and more to lose by having [the father] more prominent in his life. In this contingency, [the father]'s correspondence ought to reduce and be limited to 2 occasions of gift giving each year.
35.      If the court considers that [the father] has not perpetrated any such a campaign of harassment, then the question arises as to S.'s capacity to independently and comfortably relate to [the father] in the face of knowing that his household views [the father] quite negatively.
36.      In my view, the scope for S. to feel extreme stress is a given, despite [the father]'s known capacity to interact in a fun‑loving way. In my view, [the father] underestimates what it takes to really permit S. to experience peace of mind.
37.      I consider the contact options in this second contingency are to introduce short and supervised contact indefinitely where the parents have absolutely no contact (e.g at [the] Contact Centre), or to limit contact to no more frequently than monthly correspondence until such time that S. can feel sufficiently independent to access the type of relationship he wants with [the father].
38.      In any scenario, I consider there is little value to S. in compelling him to reply to any correspondence."

On 21 January, 1999, in the course of the hearing before me, in consideration for the father agreeing not to pursue his contravention application against the mother, the mother agreed not to pursue proceedings against the father under the Domestic Violence (Family Protection) Act 1989 (Qld). On 28 January, 1999, the father was provided with a certificate under s128 of the Evidence Act with respect to the evidence that he gave in the proceedings on 21 and 22 January, 1999.

On 22 January, 1999, the matter was only part-heard and, given the absence of an appropriate period of time, in the then current Judicial calendar, during which the hearing could be concluded before me, the proceedings were adjourned to a date to be fixed for further hearing. Accordingly, on 25 May, 1999, the parties were advised that the hearing would recommence on 13 September, 1999, the dates allotted being from 13 to 20 September, 1999.

During this period of time, after the hearing of the proceedings had recommenced, and after Professor N had given oral evidence, on 16 September, 1999, the parties entered into consent orders. In summary these orders provided:
·     for S. to have supervised contact with the father, at a contact centre or at such other place as the Child Representative might approve, on each alternate Sunday, with the period of contact progressively increasing;
·     for the father to have weekly contact with S. in the form of written correspondence and be permitted to forward to him Christmas and birthday presents;
·     for the mother and the father to attend counselling;
·     for the father, the mother and the child to attend Professor N for the preparation of a further report in advance of the adjourned mention date;
·     for the mother to be restrained from changing S.’s surname; and
·     for the mother to permit S. to telephone his father as he might wish, and in particular on Christmas day and the father's birthday.

After making these orders by consent, I adjourned the part-heard matter until 17 March, 2000 for mention, it being the expressed hope of both parties, the Child's Representative and the Court that by that time the conflict between the parties may have been sufficiently resolved to enable final consent orders to be made which would determine the proceedings.

When the matter was then mentioned on 17 March, 2000, unhappily it had not been resolved and the father filed the application for final orders to which I have already referred, which sought an order for residence of the child in his favour with the mother having contact with S.. In adjourning this application to 28 March, 2000 for a directions hearing, I also adjourned the father’s application for defined contact pending the final determination of the proceedings to the same date and made other directions regarding the filing of material. On 24 March, 2000, the mother filed a response to the father's application for residence seeking that it be dismissed with costs.

DEVELOPMENTS SINCE THE CONSENT ORDERS OF 16 SEPTEMBER, 1999

The father’s affidavit filed on 17 March, 2000, disclosed that in accordance with the consent orders made on 16 September, 1999, he had had supervised contact with S. at the Contact Centre on four occasions without any major difficulties.

It is the father’s evidence that on the fifth visit, which was on 16 January, 2000, his contact with S. was shortened by half an hour because the mother and Ms. C (the counsellor to whom I have already referred) wasted time explaining to the supervisor that he was a very violent man. The father deposed that he was later informed by the staff, including Ms. U, that the purpose of the meeting was to try and stop the visit. Ms. U, the manager of the centre, filed an affidavit on 16 March, 2000, deposing that the purpose of that meeting was to discuss the management of S.’s contact with the father.

In an affidavit filed 19 May, 2000, it was the evidence of Ms. C, that at this meeting S.’s concerns about contact were being discussed with the staff and that the staff were there to listen to both her and the mother encourage S. and make him feel comfortable with the supervised contact arrangements. She further deposed that on 29 October, 1999, and again on 2 January, 2000, she had met with S. and observed that he had been distressed, fearful and anxious, on the first occasion, by the prospect of having to spend time with the father in close quarters, and, on the second occasion, because he had been “tricked” by the staff at the contact centre into seeing his father.

The subsequent contact visit was to be on 30 January, 2000. However, the mother aborted contact on that day as the child was allegedly unwell. The father claimed that he drove past the mother’s residence later on the same day and witnessed S. playing in the front yard with his brother.

It was Ms. U’s evidence that on 6 February, 2000, she received a phone call from the mother stating that all future contact was going to be suspended. This message was relayed to the father on 11 February, 2000.

Following this, on 14 February, 2000, Ms. U faxed a letter to the father that she had received from a Doctor P, dated 30 January, 2000. A copy was annexed to the father’s affidavit and essentially it stipulated the following:

“In view of the degree of anxiety and psychological distress S. seems to be going through in the lead up to his access visits, I feel it would be advisable to suspend them for the next few weeks – at least until the situation has been reviewed by the supervising Psychiatrist later this month.”

Essentially, when the matter was then mentioned before the Court on 17 March, 2000, the father had not had contact with S. since the shortened visit on 16 January, 2000, and, furthermore, the father claimed that he had not received a phone call from the child either since 16 September, 2000.

On 28 March, 2000 I then resolved the issue of whether the father, as sought by him, could have contact with the child, in the presence of the paternal grandparents, in the intervening period between that day and the final determination of the proceedings. I rejected that application, for reasons which I then gave. On the same day, I suspended the operation of those parts of the orders of 16 September, 1999, as provided for personal contact by the father with S. and also made an order joining the final hearing of the contact matter with the father’s recently filed application for residence of the said child. I then adjourned the proceedings for further hearing in May, 2000.

The hearing of these proceedings then recommenced on 22 May, 2000 and concluded on 25 May, 2000, whereupon judgment was reserved.

FURTHER EVIDENCE AT THE RESUMED HEARING

In an affidavit filed 19 May, 2000, the mother deposed that since the last substantive hearing before the Court, she had continued to suffer nuisance behaviour at her residence, including vandalism and telephone calls in which the caller did not identify himself or herself, but merely "hung up" the phone after the call was answered. She further stated that Mr A.’s residence had been broken into and damaged on several occasions. The inference was that the father was responsible for this further harassment of the mother and her family, but there was no direct evidence linking him to it and he steadfastly denied any knowledge of or responsibility for such events, if, indeed they did occur.

Consequently, another Protection Order was sought against the father in favour of Mr A., the mother and the 3 children. At the interim hearing of that application on 27 March, 2000 the matter was listed for a full hearing on 16 June, 2000. However, an interim order until the June hearing was not granted.

In his further report dated 8 April, 2000, which is annexure "A" to his affidavit filed by the Child's Representative on 3 May, 2000, Professor N identified the focus of the evaluation which he had undertaken on 6 April, 2000 to be:
·     the long-term effects upon S. of continuing a contact regime concerning which he is reluctant, when the residential mother is not supportive of that contact;
·     the long-term effects of S.’s not having any contact with his father; and
·     the impact upon S. of a change of residence.

He then identified the sources of data for that report, which included medical reports from a Dr P and a Dr L, reports from the Contact Centre about the father's contact with S. there over the period from 7 November, 1999 to 30 January, 2000, further affidavits of the father, mother and Ms C, a document relating to a meeting on 16 February, 1998, of the Parents and Friends Association of the school attended by S., and interviews of one hour's duration with each of the parties and two interviews with S., each of half an hour's duration.

That report then contains, under the heading "A. Review of Documents", a useful summary of the Contact Centre Reports and of the more significant parts of the affidavits of the mother, the father and Ms C. That summary is as follows:-

"1.       Notes from [the] Contact Centre indicate that S. was consistently reluctant to interact with his father. He kept himself at a distance from his father and was unwilling to speak with him. He was reluctant to take gifts from his father. ('Mum told me not to take anything from him.') On 5/12/99 he said, 'Mum said not to talk to him (his father) at all. Not one bit.' On 10/12/99, S. said, 'Mum said the court said I don't have to see him if I don't want to.' Interestingly, after his father had left on 10/12/99, he said, about his father, 'He likes me doesn't he?' On 2/1/00 S. repeated, 'Mum said the court said I don't have to see him if I don't want to ... Mum said that you have to phone her when I was ready to go.'
2.        On 30/1/00, S. said that he had a sore stomach and was feeling sick. He said repeatedly that he wanted to go home. He was taken home. Subsequently, his doctor provided a certificate. There has been no further contact since that time.
3.        In her affidavit (28/3/00), [the mother] gives reasons for her opposition to [the father]'s mother having anything to do with S. or supervising contact between the father and S., on the grounds that the paternal grandmother and her household were hostile toward S. and [the mother], [the father’s mother] is a deliberately violent person, [the father’s mother] has been cruel to S., [the father’s mother] is manipulative and dictatorial, and S. has no relationship whatsoever with his paternal grandmother. [The mother] goes on to assert that S. has become emotionally disturbed since the contact visits with his father began, and that he has manifested bed‑wetting, anger, and fear. S. has apparently complained to his mother that his father calls him to look at 'pooh' in the toilet, is always sitting on the toilet with no clothes on, was often lying on the bed playing with his 'wee wee', and on one occasion put him into a taped cardboard box which was placed in a cupboard. Furthermore, S. is said to recall his father having thrown a toy at his head, and being hit in the face and knocked to the ground.
4.        In her affidavit, [Ms C], who describes herself as an 'acredited (sic) counsellor' stated that she was asked by [the mother] to assist her in calming S. on 29/10/99. Ms [C] apparently encouraged S. to realize that he had a choice as to whether or not he wished to stay at visits with his father. On 2/1/00 Ms [C] reassured S. that he would not be coerced into doing things he did not want to do. On 12/1/00, Ms [C] encouraged S. to 'speak of his own views in regard to why he was scared.' S. told Ms [C] how his father had smashed his mother's potplants and sought to get into their house. On 16/1/00, Ms [C] attended [the Contact Centre] with the mother and S..
5.        In his deposition of 27/3/00, [the father], amongst other matters, points out that he was in Sydney on the date when Mr A. alleges he attempted to break and enter Mr A.'s garage. Furthermore, on 30/12/99, when a second breaking and entering of the garage door was alleged, he arrived at Pottsville Beach from Sydney in the company of friends, staying late in the constant company of his parents until lunchtime on 30/12/99. He asserts that the allegations concerning Mr A.'s doors have been maliciously concocted."

In referring, next, to his interview with the mother, Professor N described it as "a tense interview" during which the mother "was stressed, concerned about the amount of information she wished to transmit to me, and worried that she might come into contact with" the father. He described how the mother "planned to play a number of tapes for me in order to demonstrate to me [the father's] malignancy", but that as the tape she actually played, of the father "using profanity and threats in reviling" the mother, "dated from 1996", was one of which he was already aware (having previously read a transcript of it) he told her that "they added little to what I already know".

He then recorded how the mother, after referring back to events which had occurred prior to the consent orders, responded to his request to “move on to what had happened since” then, as follows:-

“She said that Mr A.’s garage door had been jimmied [sic.] open on two occasions (27/12/99 and 30/12/99). On 31/12/99, his front security screen door was damaged. No property was stolen on any of these three occasions. In January, 2000, a post next to the garage door was removed from Mr A.’s home. [The mother] said that her home had been ‘egged’ on two occasions. The daughter of one of [the father]’s friends is said to have acknowledged to [the mother]’s daughter, M., that she had ‘egged’ [the mother]’s house. Her mother is said subsequently to have telephoned in order to apologize. [The mother] said that her hot water system had been interfered with, S.’s window had been banged on at night, and her sprinkler was missing. (It was subsequently found on the roof of her garage.) A patio light was damaged, and live wires exposed. [The mother] showed me a photograph of the damaged light and produced the bill for its repair ($76.50, dated 13/3/00).”

Professor N then recorded (in paragraphs 12 and 14 of the report) what the mother told him of S.'s reactions to his recent contact with his father, in the following terms:

"12. On 10/12/99, S. is said to have complained that he did not want to go back to visit his father's house [in the Brisbane bayside area] because 'bad things' would happen again. For example, his father had put him in a taped up box and placed the box in a cupboard. His father had left him in the unit alone. His father had smacked him in the face and knocked him to the ground. His father had thrown a toy at his head."
"14. Reportedly, since recommencing contact with his father, S. has manifested bed-wetting, crying, sleepwalking, stuttering, screaming, and violence. He throws toys at his brother and overreacts emotionally if things do not go his way. He has complained of abdominal pains, diarrahoea and lack of appetite. He has become unresponsive to discipline, displaying no remorse or repentance. He is currently attending a psychologist for play therapy. He was referred to the psychologist through the school counsellor because other children were referring to him as 'psycho'."

In relation to his interviews with S., Professor N reported, inter alia, as follows:-

504.5 Under paragraph (g) of s.68F(2), counsel submitted:-
“S. has been subjected to very serious and deliberate alienation by the respondent from the applicant. [Professor N] has said that the methodology involved especially the cross-questioning fuels his anxieties and that this is ‘extremely harmful’ to S.. The real key to unlock the child from this abuse is contact with the father. To cut off the child from his father would be a complete negative.”

Whilst this is substantially correct, I have earlier found that the mother’s alienation of S. from the father was based, in large measure at least, upon her belief that he had sexually abused the child, and that in those circumstances her alienation could not be categorised as “abuse” of the child. However, I have also expressed the view that for the mother now to continue the alienation, in light of my findings, could be categorised as abusive of the child, and that there is therefore a need to protect him from that abuse, but only if the cure is not worse than the disease. Again, that brings me back to the nub of the problem in this case to which I have previously referred.
504.6 Under paragraph (k) of s.68F(2), counsel submitted that a change of residence “would lead to a cessation of further proceedings”. However, that seems to be as opposed to Professor N’s “modified option 2”, rather than as opposed to permanent cessation of direct contact between the father and S.. I re-iterate the view expressed earlier that of the two options now being considered, that less likely to lead to the institution of further proceedings is the “no further contact” option rather than the “change of residence” option.
504.7 Under paragraph (l) of s.68F(2), in some rather colourful and emotive language which I need not repeat, counsel submitted that the mother has used delay as a means of further alienating S. and that it “could amount to an abuse of the processes of this court for her to be able to point to lapse of time as a factor militating against a change of residence”. It was submitted, correctly, that ultimately “the paramount interests of the child must always be at the forefront” of the Court’s considerations. However, the issue of delay and its consequences is a matter to which I shall refer further below.

Counsel next turned his attention to what he described as “Over-riding principles – s.60B”, in the course of which he referred to and relied upon the case of Re David (1997-98) 22 FamLR 489; (1997) FLC 92-776. In that case the Full Court upheld the decision of a trial Judge to order a change of residence from the primary care-giver mother to the father of a six year old child in respect of whom the mother had made, what the trial Judge found were either false or unfounded allegations of sexual abuse, as a result of which the father had not seen the child for a period which appears to have been between 12 and 15 months prior to trial. Counsel directed my attention, first to that part of the Full Court’s judgment (at FamLR 503-6) in which it extracted a passage from B and B: Family Law Reform Act (supra) about the operation of s.60B, and then to passages (at FamLR 506-507) where the Full Court said this:-

“In the present case, it is quite clear that any order which had the effect of preserving the status quo as to residence would have run contrary to the best interests of this child and to the spirit of the law as it is now stated in the Family Law Act .
While it is obviously a very serious step to alter a Residence Order in respect of a young child which has the effect of removing him from his principal caregiver, there are some situations, and we think that this is one of them, where the Court has no option but to do so.
Where a parent is the residence parent pursuant to a Residence Order, they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order. All too often, such parents behave as this mother has done, and rely upon a child's purported refusal or stated lack of desire to see the other parent, as a justification for denying contact.
However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she thinks will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.
The first difficulty is to identify that this really is the situation and that there is not some more significant basis for the child's attitude, such as a genuine complaint of ill treatment or abuse. In the present case, this process has been undertaken and the trial Judge has concluded that there is no such basis. Moreover, as mentioned earlier in this judgment, the mother through her counsel effectively conceded that the sexual abuse allegations were ill-founded.
The second difficulty is to achieve a positive solution. In the present case there were exhaustive attempts to bring about a situation where a previously satisfactory contact regime could be resumed, all of which were thwarted by the mother and her husband.
It is sometimes said that this sort of behaviour can be overcome by a more rigorous attitude on the part of the Court to the enforcement of its orders. There are however a number of difficulties about this proposition.
In the first place, this is a civil court and cannot enforce an order unless someone asks it to do so.
Second, when it is asked, the material upon which it is expected to act is often deficient and having regard to the potentially serious consequences of making a finding that an order has been breached, it is apparent that the court cannot make orders based upon defective material.
Third, in high conflict situations such as the one exemplified in this case, the motives of the person alleging a breach of the order may be questionable and the application may have been brought for tactical reasons in order to achieve some other advantage.
Fourth and most importantly, the enforcement options open to the Court are extremely limited. In substance, they consist of imprisonment or fine, the making of a community service order and make-up contact. Where there is implacable opposition by the residence parent, the making of any one of these orders may, in many cases, have a most destructive effect upon the welfare of the child in question and achieve little or nothing in relation to bringing about meaningful contact. If compliance does result, the manner in which contact thereafter occurs and the attitude of the residence parent to it may, in some cases, be more damaging to the child than if it does not occur.
The option of a change of residence must therefore be seriously considered in cases such as this one as being the only way in which contact with the other parent can be preserved.
In the present case, his Honour found that there was a loving home for the child with his father and grandparents and in these circumstances, as we have said, we think that the order that he made was correct.
We are accordingly, of the view that the appeal against the Residence Order must be dismissed.”

Counsel then submitted that in this case the position adopted by S., in relation to contact with his father, is the position that he thinks is desired by his mother, not that which he would adopt independently were he a free agent. Assuming the correctness of that submission (with which, in essence, I agree) then the dictum in the above quoted passage from Re David, that “[t]o permit such a situation to continue is extremely damaging to such a child and should not be countenanced”, becomes directly relevant to and persuasive in this case.

Finally, after reference to some dicta of L’Heureaux-Dubé J and of Pugsley JA in some Canadian authorities, to which I need not refer, and some further submissions, including that “[t]here is not such an effluxion of time since the last contact nor is the age of the child such as would render a change of residence prohibitive” [sic.], counsel summarized his submissions in the following “Conclusion”:-

“The options in respect of S.’s future are limited and clear.
On the one hand, S. can stay with his mother. It is uncontested that if this happens, S. will not know his father. He will thus grow suffering a deprivation that no child should have to bear. The long term effect of such deprivation is unknown but may be serious.
On the other hand, S. can reside with his father and have contact with his mother. He will thus know both parents. [Professor N’s] last report clearly asserts that this is the preferred option, subject to the applicant’s ability to be an effective full-time parent.
The report of Ms [Q] and her evidence suggests that the father should be able to fulfil this role. Such an observation never comes with a written guarantee, but this material was sufficiently impressive to satisfy Professor [N’s] query. The applicant has everything to gain from repaying the trust of the court by providing a happy and stable future for S..
It is submitted, quite simply, that it is in the best interests of S. that he be allowed to have both a mother and a father.”

I indicated earlier that I would come back to the issue of delay, touched on in the submissions for the father which I have referred to in paragraphs 504.7 and 507 hereof. I think it appropriate that I address that issue, not the least because of the inordinate delay, for which I alone am responsible, which has occurred between the conclusion of the hearing and the delivery of this judgment. However, that delay (now of almost 14 months, if measured from the date of the last of the parties’ written submissions, namely 4 July, 2000) has to be measured against and in the context of the delay which occurred between the institution of these proceedings, on 2 July, 1996, and the conclusion of the hearing, on 4 July, 2000 (a period of four years). Much of that delay was attributable to the actions of one or other or both of the parties or their legal representatives in relation to the conduct of the litigation, or to the need perceived by the Child’s Representative (and indorsed by the court, often with the consent of the parties) to constantly obtain further expert evidence. One of the unfortunate consequences of that has been the continual proliferation of material from both sides, with an ever-widening range of issues that ultimately needed to be considered and dealt with.

Having said all that, however, the facts that S. is now five years older than when all this started, and 15 months older than when the parties last gave evidence before the Court, and that during all of that time, save for the failed attempt at supervised contact between 7 November, 1999 and 30 January, 2000, he has had no direct contact with his father, are relevant to the determination of these proceedings. At the same time, however, in the absence of any evidence of significantly changed circumstances since the end of the hearing on 25 May, 2000 (an opportunity to adduce which I propose to give to the parties before publishing this judgment and making final orders in this case), it seems clear from Professor N’s evidence that S.’s alienation from his father was complete, by the time of his final report on 8 April, 2000, and is unlikely to have become any worse, or any less susceptible of redress by a change of residence, over the ensuing period. Indeed, one would hope that the intervening period of freedom from the conflict and tension surrounding these proceedings and associated attempts to restore contact between S. and his father, would have enabled S. to settle and mature further, and thus achieve a more robust emotional state more capable of coping with the traumas which a change of residence will undoubtedly cause him, if that is the result which I conclude is in his overall best interests.

CONCLUSION

It will be apparent from all that I have written, above, that I regard this as a very finely balanced case which is very difficult of resolution. Regrettably, there is no perfect solution for S., and whichever of the two stark options I ultimately choose, he will suffer some adverse consequences. The adverse consequences of a change of residence will be immediate and are fairly predictable, but they may be relatively short-term. That will depend to a significant degree upon the father’s capacity to deal adequately and sensitively with those consequences. Failure to do so may result in long-term psychological damage to S.. The adverse consequences of a maintenance of the status quo are likely to be less immediate, and perhaps more subtle in onset and appearance, but they are also likely to be very long-lasting, if not permanent. The mother’s capacity or otherwise, to cope with those consequences would seem to be irrelevant to their development, as they will have their roots firmly planted in the soil of the parental alienation which has already occurred, and will continue to be nurtured by the mother’s totally negative perception of the father which she will undoubtedly constantly re-affirm to the child in her daily dealings with him.

As long ago as 1976, in the case of Raby and Raby (1976) FLC 90-104, the Full Court (Watson SJ, Fogarty and Lindenmayer JJ) said, two things which I think are of some relevance to the decision I am called upon to make in this case. The first related to what is often referred to as “the status quo argument”, in which it is frequently argued that an existing custodial (now residential) arrangement in relation to a child should not be disturbed. The second related to what the Court there categorised as the “long term verses short term effects of a custody order”.

In relation to the first of those matters the Court, after referring to and quoting passages from the judgment of Lord McDermott in J v C (1969) 2 W.L.R. 540 at 568, and of the Full Court of New South Wales in Jones v Jones (1960) 77 W.N. (NSW) 682 at 688, said this (at 75,483):-

“The statement by Lord McDermott in J. v. C. (supra) states the position neutrally. If the status quo is to be changed, the change itself and the reasons for change require examination. In our opinion the statement in Jones v. Jones (supra) goes too far. It appears to assume that a change in the status quo is automatically a serious inroad into a child's sense of stability and security. This may or may not be so in a particular case. Several matters may be relevant - the age of the child, the length of the status quo, its quality and, in particular, the nature of the child - adult relationships developed within it. It is the welfare of the child including his happiness which is paramount. If the status quo is predictably more detrimental to the child's welfare than proposed alternatives, a change may not only be desirable, it may be necessary.”

In relation to the second matter (long-term versus short-term effects), the Court (at 75,483) said this:-

“There will be cases where the extreme youth of the child gives immediacy to the parental bond, particularly the maternal one. The majority in Sanders and Sanders (1976) FLC ¶90-078 considered it to be one such case. There will be other cases where illness or temporary separation require an order geared to a short term.
Where, however, the child is beyond the stage of babyhood and is capable of forming those relationships which will give it ‘a good start in life’ , the court is obliged to attempt predictions in the longer term.”

However, in the same case, the Full Court, after citing a passage from the judgment of Barry J (of the Supreme Court of Victoria) in P v P (1964) 5 F.L.R. 452 at 456, added the following words of caution (at 75,484):-

“Predicting the future is an inexact science. Predicting the outcome of human relationships is fraught with uncertainty. Neither legal nor psychological skills and insights are as yet sufficiently developed to enable predictions to be made with reasonable certainty.”

In all of the circumstances of this case, and in the light of my above findings, I have come to the conclusion (somewhat reluctantly, and not without some misgivings) that it is predictably more in S.’s long-term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than that he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation to which I have referred. That means, for reasons which I have given, as was really accepted by all parties, that there must be a change of residence for S., painful and all as that may be for him. Accordingly, I propose (subject to any evidence of significantly changed circumstances since 25 May, 2000, which I may ultimately permit either party to adduce prior to the publication of this judgment) to make orders directed to achieving that change of residence. I do not intend that that change should necessarily be permanent. My primary intention is that S. have the opportunity to re-establish a reality-based relationship with his father free of the mother’s malign influence. It may be that, once that has been achieved, and the relationship is perceived as being strong enough to withstand any renewed attempts by the mother at alienation, it would be adjudged to be in S.’s best interests to return to reside with his mother, and have regular contact with his father. But that remains to be seen. The orders I propose will broadly follow the form proposed by counsel for the Child’s Representative for this eventuality, as set out in paragraph 495 hereof, subject to the following changes and additions:-
As I consider that S. will have enough to cope with in a change from his mother’s to his father’s residence, and having noted the father’s statement of his preparedness, if necessary, to even change his place of residence to be nearer the mother’s residence, I propose to make the order for residence and day to day care welfare and development in his favour subject to the condition that the father ensure and facilitate S.’s continued attendance at his current school until at least the end of this school year.
I consider that it would be in S.’s best interests that the change of residence occur as soon as possible. However, I think that before that occurs the mother should have sufficient time to consider and take advice in relation to my judgment, and to consider, with the benefit of that advice, whether she wishes to appeal from my orders, and if so whether a stay of my orders should be sought pending appeal. Given the length of my judgment, that process could not reasonably be achieved over-night. At the same time, I am concerned that the mother not use any time which I might consider appropriate to allow her for that purpose to prime S., intentionally or otherwise, to react in a more negative way to the change than might otherwise be expected. Accordingly, I propose to order that the change-over occur, unless my orders are sooner stayed, three weeks from the date of the orders, and that the changeover be facilitated by the mother’s production of the child on that date at a time and place to be nominated by the Child’s Representative in advance of that date. I have in mind that the change-over should be monitored by a suitable professional person, preferably one with at least some background knowledge of the case (such as, but not specifically or exclusively, Professor N) nominated by the Child’s Representative. I also propose to order that until the date of the changeover the mother, her servants and/or agents, be restrained from informing S. of or discussing with him the proposed change, except pursuant to and in accordance with the written advice of a qualified mental health care professional approved in advance by the Child’s Representative, a copy of any such advice to be provided forthwith to the father and the Child’s Representative.

Whilst I agree with the intent of paragraph (3) of the Child’s Representative’s proposed order, I think that the form of the order is not quite in accordance with s.65L of the Act, and I shall amend it to better conform with that statutory provision.
I agree with the main concept of paragraph (4) of the orders proposed by the Child’s Representative, namely that the issue of the mother’s direct contact with S. following the change-over of residence should await a report by the supervising counsellor or welfare officer to be provided about three months after the change-over. However, the orders ultimately sought by the father (as set out in paragraph 500 hereof) include weekly telephone contact by the mother during that three month period (a proposal consistent with Professor N’s evidence referred to in paragraph 439 hereof) and I consider it would be too harsh to deprive S. of all contact with his mother during that period. Accordingly, I propose to include provision for that contact in the orders, and to provide a mechanism for the parties or the Child’s Representative to come back to the Court before the expiration of the three months to seek an expansion or contraction of that contact if circumstances indicate the necessity for a change.

For all of the foregoing reasons, the orders which I propose to make (subject to any further submissions of the parties or the Child’s Representative on matters of form) are as follows:-
The child S., born … August, 1992 is to live with the father, who shall have sole responsibility for the day to day care, welfare and development of the child subject, however, to the condition that unless otherwise agreed between the parties and approved by the Child’s Representative, or ordered by the Court, the father shall ensure and facilitate the child’s continued attendance at the Christian School, Brisbane, until at least the end of the 2001 school year.
Unless the operation of these orders is sooner stayed, or this Court in the meantime otherwise orders, the change-over of the residence of the child from the mother to the father is to take place on 20 September, 2001.
In order to facilitate the change-over of residence, the mother is to produce the child for that purpose at a time and place to be nominated in advance by the Child’s Representative, and the change-over shall be monitored by a suitable mental health professional nominated by the Child’s Representative.
Until the date of the change-over of the child’s residence, the mother, and all persons acting or purporting to act on her behalf, (other than the approved mental health professional referred to below) are hereby restrained from informing the child of or discussing with him the proposed change-over except pursuant to and in accordance with the written advice of a qualified mental health professional approved in advance by the Child’s Representative, and in such case a copy of that written advice shall be provided to the father and the Child’s Representative at least 48 hours before the mother, or any servant or agent of hers (other than the approved mental health professional) discusses those matters with the child.
Following the change-over of the child’s residence pursuant to paragraphs 1 to 3 of these orders, until further order the mother is to have contact with the child only by telephone, once per week (or more often if the parties agree) at a time (or times) agreed between the parties, and failing agreement at a time (or times) nominated by the Child’s Representative, and the father is to make the child available to receive a call from the mother at the agreed or nominated time (or times), and do all things necessary to facilitate open oral communication between the mother and child for a reasonable period of up to 30 minutes on each such occasion.
Pursuant to s.65L(1) of the Family Law Act 1975, compliance with paragraph 1 to 5 of these orders shall, as far as practicable, be supervised by a family and child counsellor or welfare officer nominated by the Manager, Mediation, of the Family Court of Australia, Brisbane Registry, in consultation with the Child’s Representative, and such family and child counsellor or welfare officer shall give to the father and mother such assistance as is reasonably requested by either of them in relation to compliance with, and the carrying out of those orders.
Pursuant to s.62G of the Family Law Act 1975, the family and child counsellor or welfare officer appointed pursuant to paragraph 6 of these orders shall give the Court, not later than four months from the date of the change-over of the child’s residence under these orders, and earlier if he or she considers it necessary or appropriate so to do, a report in relation to the compliance by the parties with paragraphs 1 to 5 of these orders and in relation to the following matters:-
(a)S.’s adjustment to and coping with the change of residence to his father’s household;
(b)S.’s reaction to and coping with separation from his mother and her family;
(c)whether any, and if so what further orders for contact between S. and his mother should be made in the child’s best interests; and
(d)such other matters relevant to the welfare and best interests of S. as he or she sees fit.
The question of the mother’s further contact with the child is stood over for further consideration by the Court on a date to be fixed by the Registrar at the direction of the Honourable Justice Lindenmayer upon receipt of the report referred to in paragraph 7 of these orders, or earlier at the request of either party or the Child’s Representative, upon 7 days notice in writing to the others.
The Child’s Representative is not discharged from the proceeding until further order of the Court.
Pursuant to s.65AD(2) of the Family Law Act 1975, the particulars of the obligations that paragraphs 1 to 5 of these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A, and those particulars are included in these orders.

I certify that the preceding 516
paragraphs are a true copy of the reasons for judgment delivered by The Honourable Justice Lindenmayer

Associate

ANNEXURE A

Specific Issues Order

1.1.These orders include a specific issues order made under the Family Law Act 1975. That order deals with an aspect of parental responsibility for a child, other than the person or persons with whom the child is to live, contact between the child and another person or other persons, and maintenance of the child.

1.2.While the specific issues order is in force, and if the specific issues order confers responsibility on a person (the carer) for the child’s long-term or day-to-day care, welfare and development, a person bound by the order must not hinder the carer in, or prevent the carer from discharging that responsibility.

Residence Order

2.1.These orders include a residence order made under the Family Law Act 1975. The residence order deals with the person or persons with whom a child may live.

2.2.
A person bound by the order must not, contrary to the order:

2.2.1.
remove the child from the care of a person; or

2.2.2.
refuse or fail to deliver or return the child to a person; or

2.2.3.interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

Contact Order

3.1 These orders include a contact order made under the Family Law Act 1975. That order deals with contact between a child and another person or other persons.

3.2
A person bound by the order must not, contrary to the order:

3.2.1
hinder or prevent a person and a child from having contact in accordance with the order; or

3.2.2
interfere with the contact that a person and the child are supposed to have with each other under the order.

If a person contravenes the order without reasonable excuse, a court may, on application:

4.1 issue a recovery order authorising police officers to recover the child and to deliver the child:
4.1.1in the case of a specific issues order, to a person who has a specific issues order in relation to the child; or
4.1.2in the case of a residence order, to a person with whom the child lives; or
4.1.3in the case of a contact order, to a person with whom the child is to have contact.
4.2
order the person to attend a post-separation parenting program;

4.3
in the case of a contact order, make a compensatory contact order;

4.4
require the person to enter into a bond;

4.5
fine the person up to a maximum of $6,600;

4.6
make a community service order against the person;

4.7
imprison the person for a maximum of 12 months;

4.8 vary the order that was contravened.

[2001] FamCA 1197

29 AUGUST, 2001

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Appeal

Natural Justice

Procedural Fairness