Porter & Stevens
[2008] FamCA 630
•8 August 2008
FAMILY COURT OF AUSTRALIA
| PORTER & STEVENS | [2008] FamCA 630 |
| FAMILY LAW - CHILDREN - With whom a child lives – With whom a child spends time - Best interests of child |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Porter |
| RESPONDENT: | Mr Stevens |
| FILE NUMBER: | SYF | 7900 | of | 2000 |
| DATE DELIVERED: | 8 August 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Cohen J |
| HEARING DATE: | 7 – 9 November 2005 and 14 November 2005 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Thomas |
| SOLICITOR FOR THE APPLICANT: | Mr L Stubbs, Turner Freeman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Reynolds |
| SOLICITOR FOR THE RESPONDENT: | Mr R Friesen, Dibbs Abbott Stillman |
| COUNSEL FOR THE INDEPENDENT CHILD’S REPRESENTATIVE | Mr Harper |
| SOLICITOR FOR THE INDEPENDENT CHILD’S REPRESENTATIVE | Mr E Eggleston, Slade Manwaring Solicitors |
IT IS NOTED that publication of this judgment under the pseudonym Porter & Stevens is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 7900 of 2000
| Ms Porter |
Applicant
And
| Mr Stevens |
Respondent
REASONS FOR JUDGMENT
In this matter I made Final Orders some time ago. The Orders are:
IT IS ORDERED:
(1)That [the child] born […] December 1995, shall reside with the wife;
(2)That the wife shall have sole responsibility for the said child’s long-term care, welfare and development;
(3)That there shall be no orders for contact with the husband but the husband is not by this order prohibited from having contact with the said child by agreement with the wife;
(4)That the separate representative and a court counsellor shall, within seven days, explain to the said child the effect of these orders and for that purpose the separate representative and the court counsellor shall appoint a time for the explanation and the wife shall do all things necessary for the said child to attend the counselling section of this registry at the appointed time for that purpose;
(5)That the wife shall do all things necessary to entitle the husband to obtain copies of the said child’s school reports from any school he attends including his current school;
(6)That the wife shall in any instance forthwith inform the husband of any accident, medical emergency or non-routine medical treatment the said child has had or is due to have;
(7)That any further orders which may be appropriate are reserved to the time judgment is published;
(8)That the reasons for judgment are reserved to a date to be fixed;
(9)That time for appeal is hereby extended to one month after judgment is published;
(10)That costs are reserved.
There has been no urgency in delivery of the reasons for my orders because of the father’s eventual attitude to his claim for parenting orders and its effect of the determination of the orders which would meet the best interests of the parties’ son, who was born in December 1995 and who is the subject of these parenting proceedings.
The hearing commenced on 13 September 2004 and continued from time to time until 14 November 2005 when it concluded. On its conclusion, I immediately made the final orders. In all, the hearing occupied 14 days. The mother, who was the applicant, originally asked that residence and contact between the child and the father be suspended until further order. In the same application, which was filed in a local court on 3 January 2003, she also sought that the father’s mother, Ms V, be denied contact until further order. As the mother was seeking these orders as final orders, she was really asking that contact between the child and his father and paternal grandmother be denied.
During the course of the proceedings the mother’s stance changed. She was, by 8 November 2005 when a minute of the orders proposed by her counsel was emailed to my associate, prepared to permit the father to have contact with the child for one week in each of the four major school holiday periods. She continued to oppose any contact with Ms V.
The restriction to school holidays seemed to me, at the time, to fail to truly meet the child’s needs. Although the father lived in Newcastle, the mother did not live so far from him to warrant a complete absence of face-to-face contact during school term. The mother lives in B on the Central Coast. It is less than 100 km, or 1 ½ hours drive, between Newcastle and B. It would have been practical for the father to collect the child on Friday after school, or a little later, and return him on Sunday evening. The only reason, a reason relied on by Ms T, the psychologist qualified to provide an opinion, that such a regime might be unacceptable, was to lower the stress on the child brought about by the mother’s attitude to contact with the father. There seems to have been a significant element of meeting her own needs rather than the child’s in retaining the restrictions on contact she sought to continue.
If there is such an element in the orders the mother sought, this is relatively unremarkable and modest when it is compared to the dramatic and wholly inappropriate stance the father adopted late in the hearing. He slightly modified it even later in a relatively unimportant way. The implications and inappropriateness of his unfortunate stance played a very large part in reaching my decision.
Initially, in his response filed 27 June 2003, the father sought final orders that the child reside with him and have contact with the mother as decided by the Court. In this application, he did not specify what, if any, final orders as to contact he wished to be made in the event that the Court would find that the child should live primarily with the mother. However, he also applied for interim orders which recognised the reality of the situation which then existed, which was that the child was living with the mother, and asked that he have alternate weekend and half school holiday contact. In her opening address, Counsel for the father emphasised that the mother had, since separation, attempted to eliminate the father from the child’s life. It was inferred that the father was fighting to ensure the child could maintain or improve the relationship between them by living together or, if not, by having frequent and substantial contact with him. Yet, after expert evidence from Ms B and two other expert witnesses to the effect that seemed to favour contact with both parents, the father decided that, if he was not granted residence, he would not avail himself of any contact orders in his favour. He then also asked that, if he was granted residence, the mother should have no contact.
He later changed this stance for what appeared to me to be tactical purposes and accepted that the mother should have some contact after a lengthy period of non contact. I was not informed of the father’s decision to refuse contact if he was not granted residence or of his final attitudes to contact with the mother if he gained residence until his counsel told me during her closing address. It is relevant that immediately before I was informed, having already heard the closing addresses of counsel for the mother and the child’s representative, my tentative inclination was to order that the child continue to live with the mother and have contact with the father each alternate weekend during school terms and for half the school holidays. I held the impression that both parents are self-indulgent people who would place the child’s needs below their own, whilst generally being insensitive to these needs anyway, but that the child should live with his mother and siblings because he had not lived with the father during his conscious life and was most attached to the mother.
It had been the separate representative’s submissions in closing that the child have weekend contact with his father starting in each school term; about 1 weekend in 4, for half of each of the 3 short school holiday periods and 2 weeks during each Christmas holiday period. The separate representative supported the mother’s attitude to contact between the child and the paternal grandmother.
The mother and father met as a result of their interest in ballroom dancing competitions. They became dancing partners. They commenced living together in 1992 and married in December 1994. They separated in early May 1997, when the child was about 18 months old. They are now divorced.
The mother, who was born in 1968, had been married previously. She already had 3 children when the parties commenced living together. They lived with her and saw their father regularly and frequently. They are S born 1987, M born 1989 and J born 1991. In December 2002, the mother married Mr P, who was born in 1965. He has no children and lives with the mother and her four children. Before she commenced her relationship with Mr P she lived with a Mr H. Her relationship with him started in early 1998. The mother was a manager at a small company when the proceedings commenced, but by the time it concluded she was working as the administrator of her current husband’s business.
Before separation the parties lived on the Central Coast. When they separated the mother moved with the children to Canberra. In August 1997; that is, about 3 months after separation, the father also moved to Canberra, where he remained until March 2003. He then moved to Newcastle. The mother and children moved back to the Central Coast in early 1998.
The father was born in 1973. At the time of the hearing he was employed at an advisory service. While living in Canberra he formed a homosexual relationship with Mr L. They have lived together since mid February 2000. Mr L has professional qualifications but does not work in the corresponding field. In February 2003 he obtained a position in Newcastle. He and the father moved from Canberra to live in a self-contained residence in Newcastle soon afterwards. They have lived there ever since. They describe their relationship as involving a commitment to permanency. I accept that this is the situation. Mr L was born in 1967. He supported the father in his claims for residency of the child.
The litigation between the parties commenced almost immediately after separation. Only a few days after separation the mother commenced proceedings seeking residence and to deny the father any contact. The father responded by seeking residence. On 31 July 1997, Finn J. made orders giving the father supervised contact. The mother then alleged that, as she was leaving Court that day, the father deliberately attempted to run her down with his car. She claims that an employee of the NRMA witnessed this. There was an Apprehended Violence Order (AVO) in her favour against the father already in force. The father had consented to it without making any admissions in May 1997. The father was arrested and charged with breaching the AVO and was held in custody for 10 days before he could raise bail. The charge was defended and dismissed. However, on 4 August 1997, Finn J. had suspended contact.
It was not until April 1998 that the father attempted to obtain an order for resumption of interim contact. He managed to recommence supervised contact on 12 May 1998. This contact continued at the rate of about once each month for an hour at a time until Guest J. heard and determined the matter in April 1999. His final orders, made on 9 April, provided the child with contact with the father for gradually increasing periods on Saturday and on Sunday, on one weekend each fortnight, until October 1999. Overnight contact was then to commence on Saturday morning and end on Sunday afternoon of each 3rd weekend until the child was to start school in 2001. There was no order for supervision, except one which involved a court counsellor monitoring progress. There was an order for weekly telephone contact between the child and the father.
In the proceedings before Guest J. the mother had resisted any contact without direct supervision. Until the beginning of the hearing she had opposed all contact. She gave evidence that she wished to shut the father out of the child’s life permanently because she “was trying to keep [the child] safe”. His Honour found that the mother’s stance “at the commencement of the proceedings lacked insight and understanding, particularly given the several reports of expert witnesses.” Her reasons for her opposition to contact were, to me, important. She claimed the father had a psychological condition, had perpetrated domestic violence on her, and that she was so anxious about the child’s safety it undermined her ability to parent the child properly. She also claimed that the stress she suffered adversely affected her epilepsy which was otherwise, she said, well controlled. When, during the course of the hearing, it became clear to her that two experts who were to be called by the separate representative were going to give evidence recommending supervised contact, she accepted that orders for supervised contact should be made.
It is no coincidence that my own observations of the mother lead me to feel, much as Guest J. initially did, that she has a lack of insight and understanding about The child’s needs and about the conflict between these and her own. It is also remarkable that the course of proceedings, for the mother’s part, has also been similar before me to that which evolved before Guest J. It is binding and could not really be in dispute that the mother had, until the hearing before his Honour, been the child’s primary caregiver. His Honour found that the relationship between the father and the child was positive and their interaction appropriate in the circumstances. He held that it was such that he could be optimistic about its future development and value for the child. Sadly, he was mistaken in his belief that the mother would nurture it after the proceedings ended.
By the orders made by Guest J., the first weekend the child was to have overnight contact with the father was on Saturday 2 October and Sunday 3 October. When the child was on contact with the father that weekend he told the father that Mr H had hit him and the mother and had threatened the mother with a knife. The father did not return the child and waited until 5 October to inform the police. According to the father’s statement to police, the mother had agreed to the child remaining with him on the Monday because it was a long weekend. By Tuesday he had obtained legal advice. The mother was quite offhand with the police when they telephoned her to check the story on Tuesday, 5 October. It is likely that the mother had agreed to the additional day of contact. The father did not know at the time he made his report to the police that, on 11 September 1999, the mother had complained to the police that Mr H had assaulted her. She did not wish them to take any action against him. On 2 September the mother had also telephoned the police after an altercation with Mr H. It is highly likely that the father accurately reported the child’s report and that the child had told the father the truth. This incident is quite significant in view of some of the mother’s subsequent actions.
The mother initiated proceedings for the return of the child on the same day the father reported the incident to the police. The incident report about the father’s complaint was written at 9:14am. The police then telephoned the mother, who told them she would initiate proceedings to recover the child that day. On 7 October 1999, the mother telephoned the police to tell them that the child was being returned that day. Later that day, for the first time, the mother complained that the child had been sexually abused by the father. After that the police received a fax from a local GP which informed them that the mother had brought the child to his surgery claiming he had been sexually assaulted when in the father’s care. The police spoke to the doctor. He told them he had undertaken a cursory superficial examination which disclosed no visible evidence of abuse. The inference in the fax from the failure to say that he did is that the child made no such claim to him. The father denied any abuse.
The W branch of the NSW Department of Community Services (DoCS) spoke to the mother on 11 October. She claimed that on the child’s return she noticed, when he was in the shower, that his penis was red. He complained it was sore. For the GP to have seen the child on the 7th, the mother must have taken him shortly after this shower, yet the GP says nothing to indicate he noticed anything unusual and did not report any suggestion by the child that his penis was sore. This allegation of sexual abuse may have been fabricated by the mother for tactical reasons, in part to counteract the allegations of violence in the mother’s home. It should be considered with the other related evidence.
There is no real doubt that the child had been exposed to violence in the mother’s home. The child had told his pre-school teacher of it. This was the first, but not the last time the mother, in my assessment, may have fabricated sexual abuse allegations in an attempt to bolster her case to limit contact between the child and the father and the paternal grandmother. In this instance, her intention could have been to improperly influence the Court when the proceedings she instituted for recovery were decided.
On 6 October recovery orders had been made. However, the mother had also applied to suspend contact. This case was adjourned, eventually until 28 April 2000. A Family Report made in December 1999 had recommended contact between the child and the father continue on one weekend in 4, although commencing on Friday afternoon, and weekly telephone contact. I can understand why the father accepted less frequent contact than Guest J. had given him. Overall, he would have more time with the child. I cannot understand why he did not insist on Friday pickups and contact every 3rd week. I cannot understand why, if the mother has been truthful in her affidavit evidence before me, she agreed to even one weekend each month. In her affidavit, sworn 15 January 2004, she said that when the child was returned to her after being kept by the father for the 2 or 3 additional days, not only were his genitals swollen, he was “visibly stressed” and he began to have nightmares and started masturbating frequently.
In oral evidence she said that the child was so stressed on the first night back with her that he needed to sleep with her in her bed. In the middle of that night she said he “demonstrated unusual sexual behaviour”. She used this phrase in paragraphs 48 and 73 of her affidavit, which refer to the same incident, though she seems to have originally claimed two incidents occurred. In each paragraph, on objection being taken to the above quoted phrase, I upheld it. Although the phrase was eliminated from the affidavit evidence, the mother was given leave to give admissible oral evidence about this incident. When asked what she was referring to by the phrase, she said the child woke her in the middle of the night kneeling beside her, with his penis near her head, urinating on her head. I do not know why she would suggest that this was sexualised behaviour. If it happened, I would have expected her to describe his behaviour as being part of a nightmare. The mother claims she felt that this behaviour was alarming. Some mothers would regard it so, whether it was seen as a nightmare or as sexualised behaviour. However, the mother related this incident in her oral evidence as though she was speaking about some unimportant and mundane event. Some mothers could well reasonably see it in this light; as the manifestation of a child’s dream. The mother, however, presented it in her case as a serious matter.
A very significant part of the proceedings before me was devoted to the fact that the child has encopresis; that is, he soils himself. The mother relates, in paragraph 73 of her affidavit sworn 15 January 2004, the situation after she recovered the child. She correctly said this was in October 1999 “after the first unsupervised contact”. In the next paragraph of her affidavit she said:
Since commencement of unsupervised contact, [the child] has soiled
himself at least once a month. [The child]’s behaviour has not improved and has been dramatically affected by his soiling. [The child] often hits out, is visibly distressed, acts secretive [sic] and masturbates inappropriately.
Yet, on 22 October 1999 and 11 December 1999, the court counsellor who made the report on 15 December 1999 interviewed the mother. She told the court counsellor she was not opposed to the father having regular contact with the child. The court counsellor was reticent about the complaints the mother expressed about the father because settlement negotiations were taking place, but the most prominent issue between the parties seemed to be about changeovers. There is not a word in his report of any of the behaviour which the mother alleges in her affidavit and oral evidence before me. Nothing about encopresis, masturbation, nightmares or any sexual behaviour, including the alleged urination incident. One would expect the court counsellor to mention these if the mother told him of them. Instead, the counsellor said “….it is important that contact between the child and his father remain a constant feature of his life as no particular benefit will result in its termination.” He could not have said that if he had known of the allegations the mother had made to the GP and to DoCS and subsequently in these proceedings. For the purpose of the report, the court counsellor had seen the child and the father together twice; once in the father’s house where he noticed an improvement in their relationship when compared with what he saw when he earlier interviewed them for the hearing before Guest J.
It is also remarkable that the mother was clearly at pains to say she believed that when the father had the child overnight in October 1999 [She said 1998 at this point in her affidavit, but it was 1999] the child spent 4 days with the paternal grandmother. Her case before me was that both had sexually abused the child. Even after she agreed before me to contact with the father, she persisted in seeking an order restraining him from allowing his mother to have contact on the ground that she must have been the sexual abuser. Yet, in the April 2000 consent orders, there is nothing about any restraint preventing the paternal grandmother from seeing the child. The inference from these consent orders is virtually inescapable. It is clear that the factual claims of the mother which are intended to infer sexual abuse by the father or his mother or both have been fabricated by the mother or, if any are true, the mother knows they are not due to abuse by the father or his mother. Because it is likely that these were not mentioned to the Court Counsellor, it is quite possible that they are a product of the mother’s need to end contact between the child and the father and his mother.
In July 2001, the parties had agreed, without ever committing the agreement to writing or varying the extant orders, to increase contact between the child and the father by adding half of all 4 main school holidays to the arrangements. At Easter 2002 the mother was temporarily homeless. She requested that the child stay with the father for 5 weeks, which he did. He also stayed with the father for 3 weeks from 13 December 2002 until 5 January 2003. The inference is that between mid 2003 and October 1999 little which might be significant and substantially adverse to the father’s case occurred.
The father claims the Christmas holiday contact in 2002/3 was unremarkable and went well. It took place in Canberra where the father still lived and included involvement with the father’s family. His mother and 2 married brothers, their wives and their children lived in Z. The father had another brother, aged about 25 at the time, who lived in Sydney. the child and the father stayed at the father’s mother’s home from Christmas Eve until the afternoon of Christmas Day. Most of the father’s family were there on Christmas Day, from the time the child woke, to enjoy his Christmas gifts.
The mother’s assertion about the child’s Christmas holiday contact with the father is dramatically different from the father’s version. She originally claimed that the child was sexually abused by the father and or his mother. However, by the end of the hearing the only conclusion the Court could draw from her stance is that the paternal grandmother, but not the father, abused the child. There is an inherent inconsistency created by her change of heart. It is that the evidence she relies on did not change and could, if accepted, only result in a finding that, if what allegedly happened was sexual abuse, it was committed by the father’s mother in the presence of and with the collaboration of the father who should, therefore, also be regarded as having sexually abused the child. Although this is not the only reason why the mother’s credit about the sexual abuse allegations must be questioned seriously, it is certainly a very good reason to be sceptical about them.
According to the father, he first became aware of any problem which involved the child soiling himself from a conversation the mother had with him when he believed the conflict between the parties over the child was either resolved or resolving. This was in November 2001. The father says he then noticed nothing untoward in this respect until June 2002 when he saw that the child’s underpants were occasionally marked. He felt that the child had not been wiping himself efficiently and, during the Spring school holiday period when they had contact in 2002, the father taught the child how to wipe himself properly. The father informed the mother that he had taught the child this and, according to the father, the mother’s response was unexceptional. Then, in late December 2002, the evening after he had had his birthday party, the father discovered that the child had soiled himself. He asked the child if he was having toilet problems, but the child said he was not. A few days later, on 2 January, the father’s mother noticed that the child had again soiled himself. She says he cleaned himself without her help. The child had been in her care at the time because the father was not present, but another of her sons was staying with her at the time and was present. Both the father and his mother deny any relevant inappropriate behaviour at this or any other time.
The mother’s evidence of soiling is that it first occurred when the child returned home after being with the father in November 1999. In her affidavit evidence there is no mention of soiling after that until January 2003. Nevertheless, in her oral evidence, the mother said it had really started in July 2001 after the length of weekend contact had been slightly increased but it had decreased in frequency. She said that, originally she noticed marking on his underpants, but the extent of soiling increased. She said it was at first only intermittent and that she was not alarmed. She felt there must be a cause but did not attribute it to abuse. She said she felt that the child suffered these incidents because he was too occupied with playing.
It is noteworthy that the first time the mother took the child to a doctor for his soiling problem was in January 2003 when Dr G was consulted. However, she told Dr G that soiling had been an ongoing problem for the previous 12 months, rather than the previous 6 months. In Court, she explained her failure to consult a specialist earlier by the fact that the soiling was only intermittent and it did not alarm her. The mother’s demeanour and the inconsistencies in her actions and claims made me feel she was not being candid with the Court when she gave her oral and affidavit evidence on this aspect of her claims.
Soiling immediately after Christmas 2002/3 contact with the father and continuing was much relied on to support the mother’s allegation that the child had been sexually abused during it. Her affidavit evidence was to the effect that there was a dramatic increase in the soiling after this contact. Yet, in the same affidavit, she said that since the institution of supervised contact in October 1999, the child had soiled himself “at least once a month” and that he “soiled himself on numerous occasions after telephone contact” with the father. The claim in the affidavit about the effect of telephone contact is unclear and may or may not be limited to the child’s behaviour after January 2003. The mother says that the child’s behaviour has been difficult and somewhat disturbed since he commenced soiling himself.
The mother claims that, when she collected the child on 5 January 2003 after the block contact with the father, he was quite upset. He was angry, screamed and cried and hid in a corner of his bedroom. He would not say what had upset him. He soiled his pants twice that evening. He was 7 years old at this time. The next day the mother took him to vacation care. When she collected him that afternoon he had soiled himself. The next day he was faecally incontinent on 9 separate occasions. According to the mother, he eventually told her, at about 8:00 that evening, “My bottom is really sore inside Mummy. It hurts when Nanny touches it.” In response to the mother’s question about where the paternal grandmother touches it, he said “The back and front bottom Mum”. He then is said to have informed the mother that this incident occurred in the father’s presence.
The mother then told Mr P, her third husband, and asked the child with a little leading to repeat what she had been told to Mr P. The child repeated what he had told her in much the same manner. When asked whether the paternal grandmother touches his penis, the child agreed. It is said that the child then volunteered additional information by saying: “Nanny covers her hand with toilet paper and pushes it into my bottom and then makes her hand go like this (demonstrates by narrowing his fingers to a point) and then wriggles her fingers into my bottom and it really hurts.” Mr P’s affidavit on this aspect is identical to that of the mother. At 9:30pm that evening the mother telephoned the police who visited the home and advised that the child should be taken to the casualty section of the hospital the next morning.
The main affidavit relied on by the mother was sworn by her on 15 January 2004. She had sworn a much more contemporaneous affidavit in these proceedings on 4 March 2003. This was tendered by the father. There are some differences in the version of the incident in this affidavit. I do not regard them as significant. They are variations which might be expected from a witness who is doing her best to relay precisely what occurred from memory.
The next day the mother took the child to F Hospital. He was examined by Dr E. Dr E noted that the history he was given was that the child had been “defecating without warning” for the prior 4 days but not at night. He found no evidence of injury and no identifiable cause for the problem. He considered that the cause was likely to be “behavioural/emotional”. The history provided by the mother was that the child had been complaining of anal pain and was suffering from “bowel incontinence” in a context of long term domestic violence, the “kidnapping” of the child by the father, the paternal grandmother having penetrated his anus with her fingers wrapped in toilet paper and having touched his penis with the father watching. The mother said the soiling had been occurring for the previous 13 months.
A Joint Investigative Response Team (JIRT) consisting of a police woman and Ms Y, who was then a DoCS Casework Manager who had completed the degree of Bachelor of Community Welfare at James Cook University, interviewed the child on 17 January 2003. The interview was video recorded. the child disclosed that the mother usually wipes his bottom because he asks her to and that the paternal grandmother does too, by wrapping toilet paper around her hand but without penetrating his anus. He said she had not touched his penis. He was quite emphatic about this and also said he had told the mother that the paternal grandmother had never touched his penis. He was asked and told the interviewer that the father had “sometimes” seen the paternal grandmother wipe his bottom. There is a suggestion from the child that the mother would reward him for speaking to the investigation team, but it is not sufficiently strong for any finding that she had tried to bribe him to say anything in particular.
Unsurprisingly, the JIRT team decided to take no further action against the father or his mother. The mother was said to be most unhappy about this and asked that the child be interviewed “until he disclosed abuse”. In attempting to convince the investigators, the mother told them she “had been concerned for years that her son had been sexually assaulted for years as he had displayed sexualised behaviour such as masturbating and has had difficulties with his bowels.” She also told the investigators that the father had told her that his mother had sexually assaulted him as a child.
The JIRT team contacted the father after the child had been interviewed. He told them that the child had not been wiping himself properly and that his mother had not sexually assaulted him when he was a child.
A JIRT report contains an entry about the mother’s contact with the team on 9 January 2003. The mother seems to have exaggerated and changed her story to JIRT by comparison to what she told the Hospital only a few hours earlier that day. Among other things, she said the child told her the paternal grandmother “pulls me” meaning pulls his penis. If her affidavit evidence is true, this statement is a lie. I shall elaborate on this later. She also said the faecal incontinency problem had started 15 months ago, which would place it before unsupervised contact had first occurred. She said the grandmother “puts 2 fingers into his bottom” which is quite inconsistent with the claim that the child demonstrated what she had done by forming a point with his fingers. He would have had to use more than 2 fingers for such a demonstration. Significantly, the mother said something which is not contained in her affidavit evidence but which could explain the child’s complaint of being sore and would be consistent with the father’s assertion that he had not been wiping himself properly. She said the child is red and sore and does not want anyone to touch “it”. “It” could mean, in its context, his anus or his penis. All moderately competent parents know that if children are not cleaned properly after defaecation they develop itching, redness and soreness at the anal sphincter. However, no such finding was made when he was examined by Dr E. Nor did Dr E apparently notice any redness in the child’s penis.
For some years the mother had attended a psychologist, Mr N, at a clinic in F. She took the child to see Mr N on 27 January 2003 despite having earlier been warned by the JIRT team that to have the child interviewed further would, in itself, be abusive. Mr N provided a report dated 4 March 2004. It says little of importance. Mr N seems to have skirted the issue which he must have been retained by the mother to provide an opinion on; sexual abuse. He does give an opinion, but it is not specifically about the child. He said “soiling and exposure behaviours are specifically common indicators of emotional distress and frequently accompany sexual abuse”. However, his concern about the child does not seem to be a consequence of any conclusion that he may have been so abused. His concern is about the effects on the child’s social development created by the soiling and an incident in May 2000 when the child exposed himself at school. It is significant that Mr N said the child disclosed that the paternal grandmother had “put her fingers in my bottom” and that it hurt. He said that his grandmother had wrapped toilet paper around her palm first and demonstrated how she did it. This is quite inconsistent with anal penetration. Mr N ineptly attempted to discover whether there had been penetration by asking the child whether he meant whether the grandmother’s “fingers were inside” his bottom. The child agreed. Of course, this question and answer were quite consistent with the grandmother reaching between the child’s buttocks to clean around his anus. The JIRT record of interview strongly suggests that this is what the child meant by “inside his bottom” when he was interviewed by Ms Y.
Mr N’s report reads as though it has been carefully composed to placate the mother. He probably knew she was someone who might complain when authorities do not do as she wants. Mr N made another report which was finalised in early June 2005. It purports to review a great deal of material, much of which is not in evidence before me. It appears to be an attempt to meet the mother’s needs without saying much. Nevertheless, Mr N says it might be better for the child’s emotional health to cease contact with the father. Without really saying what they might be, apart from the fact that he accepts the mother’s claims that the child’s behavioural problems are temporally associated with contact with the father, Mr N says “there are significant risk factors in [the child’s] contact visits with his father”.
I do not accept this opinion. He was clearly engaged to argue the mother’s case and appears to have been content to do that to some extent. He certainly accepted her claims without demur. It is quite significant that he saw both the mother and father in joint counselling sessions relating to problems not associated with the child and before their marital breakdown. Yet, Mr N was not only content to then provide supportive evidence for the mother in the proceedings without being compelled to do so, probably without obtaining the fathers’ permission, but in doing so has been quite condemnatory of the father’s behaviour during the earlier counselling while not critically examining the mother’s behaviour and motives. Mr N’s evidence is totally compromised by his bias in favour of the mother.
The child has seen two other experts, Ms T and Dr R. Both seem to have done their best to enlighten the Court. I shall refer to their evidence in due course.
The mother applied to suspend contact on 13 January 2003. On 16 January 2003, a Local Court Magistrate, by ex parte orders, suspended contact between the father and the child. On 5 March 2003, despite the conclusions of the JIRT team and the obvious tenor of the record of interviews, which may not have been available to the Court, a Registrar of the Family Court continued the suspension. When the matter was finally listed for a contested interim hearing before a Judicial Registrar, the parties agreed that the father should have contact, to be supervised “at such time and at such place as agreed between the parties and the supervisor” and to twice weekly telephone contact. The Orders were made on 11 July 2003. It is a characteristic of these proceedings that the mother has often obtained supposedly urgent orders and taken stances which she cannot justify when she must substantiate them by evidence, usually ultimately resulting in consent orders which infer that she recognises that fact. The usual result is that the mother awaits her next opportunity to repeat the same pattern of systems abuse.
As should have been expected, the face-to-face contact orders were unenforceable. Both parties immediately applied to review them. The mother again wanted contact to be suspended and the father sought that it be defined. On 18 September 2003 Rose J. made consent and interim orders giving the father contact provided it was in the presence of his partner, Mr L, for 3 hours each alternate Saturday and twice weekly telephone contact. After the first contact, the mother evaded further contact until 2 December 2003 when the review applications were listed for hearing. The parties then agreed that the father should have interim contact for a block of 2 weeks in January 2004 and once school started in 2004 each alternate weekend from Friday after school to Monday morning and for half of each subsequent school holiday period. There was no requirement of supervision, but the father was not to bring the child into contact with his mother. It was noted in the consent orders that the mother agreed to contact reluctantly because of Ms T’s recommendations.
It is not surprising that the mother says she was reluctant to permit contact. As I have just noted, there has been an entrenched pattern of reluctance both before and soon after agreeing to contact. The mother claims that the child’s soiling and other behaviour was much worse from 7 October 2003 after he had telephone contact with the father and again on 11 October 2003 when he had contact with the father for 3 hours. It does not appear to have occurred to the mother that the child’s behaviour, to the extent that she has not exaggerated it, might be more to do with her reaction to his contact with the father than with contact itself.
She states that she fears for the child’s safety when he is on contact visits. If this is true, the child would appreciate and be affected by her fears. If it is not true that the mother has the fears she claims, her opposition to contact must be based upon her own motives. Her reaction to the prospect or fact of contact would be well understood by the child. The mother even objected to and resisted Ms T observing and speaking to the child in the father’s presence. Yet only a few days before 2 December, when the mother agreed to 2 weeks block contact in January 2004, the child had contact with the father and, according to the mother, on the next day, 27 November 2003, soiled himself when he was at after school care. The mother claims the child next soiled himself on 9 December 2003 when for 2 days he was unable to attend school because of faecal incontinence. Despite the soiling problems which are said to have occurred in 2003, in early 2004 contact largely continued in accordance with the December 2003 orders until 10 May 2004.
In early April 2004, there was a significant incident. The child was due to stay with the father from Friday 2 April to Monday 5 April. He soiled himself on the night of Thursday 1 April. Then, on 5 April, when he came home from school he hid under the dining table and remained for about 5 hours, if the mother is to be believed. He was crying during this time and again soiled himself. If the mother’s account is true, I would expect her, if she was really concerned, to try to obtain psychiatric help for the child. It is relevant that the mother did not do this. Even more remarkable is that, the next morning, the child, according to the mother, came downstairs from his bedroom and said to her “I just want you to keep it down, okay.” This, she would have the Court believe, surprised the mother because she felt it was a very adult statement for the child to make. I regard this claim that the statement was too adult as being tactical. It does not seem to have occurred to the mother that the child was attempting to give her a clear understanding that he felt that she had much to do with his problems and should restrain her usual reaction to contact.
There have been few further claims by the mother of episodes of encopresis. It should be made clear that in the second half of 2001 and in 2002 the mother did not take the child to any doctor for it, although the mother said it occurred about once each month. Even in 2003, for much of the year when the mother says it occurred with alarming frequency, a psychologist, Mr N seems to have been the expert the mother resorted to for this problem. It was not until August 2003 that the child was taken to a medical specialist, Dr K. He could not find any medical reason for the soiling and advised it was due to anxiety. He recommended counselling. Obviously the counselling the child had received from Mr N was ineffective if the mother is to be believed. However, it may be that the child had begun to realise his problems were the result of the mother’s attitudes and that this realisation was manifested in his request to her to “keep it down”.
The mother’s concerns seem to have taken a different direction after early April 2004. Following 10 days with the father in the 2004 Easter school holidays, the mother says the child, on his return home, remarked, “I’m not happy being at Dad’s because [Mr L] makes me call him ‘Dad’. They are gay and want to have sex and touch boys.” Then, on 10 May 2004, after the child spent the weekend with the father, he said “Dad and [Mr L] tried to get me into their bed all the time. Dad scares me, he leaves me with strangers.” He also complained that he had hurt his head and eye while at the father’s house that weekend.
The mother decided, as a result of the child’s claims, to suspend contact immediately. The two statements I have related plus an incident which has no significance apart from it being a benign example of the mother’s tendency to attempt to use any excuse, no matter how weak, to evade contact, were relied on to cease contact. There was no contact between the child and the father until I made consent orders for contact to resume. The father was, by these, to have contact each alternate week from Friday afternoon to Monday morning during school term and each weekend from Friday evening to Sunday evening during school holidays.
I regard the mother’s excuse for suspending contact as baseless. The child was 8 years old in May 2003. If his father had repartnered with a woman and suggested he get into bed with them, even “all the time”, meaning frequently, it would be regarded by many ordinary members of the community, and by the Court, as a natural, normal and healthy occurrence within a family. That is what loving parents and grandparents do with children of that age. The mother has been at pains to claim that she is not against contact because the father is homosexual and in a homosexual relationship and that she is not prejudiced against homosexuals. This excuse for ending contact reeks of the opposite attitude. It is not as though she is now claiming the father or Mr L have directly sexually abused the child. Her claim, at its highest, has been that it is the father’s mother who was the perpetrator and that the father passively allowed the child to be sexually abused. There is a great deal of inconsistency between this claim, her various actions and her statement in paragraph 27 of her affidavit sworn 15 January 2004 that she fears for the child’s safety when he is on contact with the father. It is difficult to avoid the conclusion, because of the inconsistencies, that the mother’s claims are not genuine and that much of her evidence is the product of exaggeration and fabrication. In oral evidence, she impressed me as a witness who could not be relied on to be truthful. The father gave me the impression that he was, in many aspects of his oral and written evidence, telling the truth. I am satisfied he is generally more truthful than the mother. However, the father denied having the child in bed with him. His denial may be true because the child might have refused to get into his bed. It is one area where I am not satisfied the father was truthful. Equally, I am not satisfied he was untruthful about this matter, I simply cannot say where the truth lies, but I do not think it matters much.
I believe the father’s evidence that the child has enjoyed his contact with the father, and that the child told him, in September 2003 during a telephone conversation, that he had asked the mother when he could visit the father, that he had called the father ‘Dad’ since June 2002, while before he had referred to him by “[his first name]-Dad” and started calling Mr L “Dad” rather than by his first name at an early stage.
Ms T’s first report was made on 28 November 2003. It was based on interviews in early October. The mother’s manipulative, wilful and obstructive behaviour in relation to Ms T’s engagement is illustrative of the likelihood that the mother has exaggerated or frankly lied about her fears for the child’s safety when with the father. At her first interview with the mother on 2 October 2003, Ms T told her she would observe the child with the father. Before this could be done, the mother took the child to a GP who irresponsibly, if the mother had been truthful to him about the circumstances, provided a medical certificate dated 10 October 2003. It was to the effect that the child should not have contact with the father until the cause of his encopresis was determined. This was remarkably cynical behaviour by either the mother or the GP, or both. By this time it was known to the mother there was no medical or physical cause of his encopresis. Ms T was the psychologist employed by the Court to investigate the child’s psychological status. Contact pursuant to my orders was to take place on 11 October 2003, but the mother used this certificate as an excuse to deny that contact and obstruct Ms T’s observation of interaction between the father and the child.
Eventually, Ms T was able to see the child and the father together. When she did she formed the conclusion that the child had, at the time, “a close attachment to his father, which he needs to feel emotionally free to resume. The behaviour I have observed suggests that he does not have this freedom.” Ms T felt that the mother in “not pursuing contact” or, as I find, in obstructing contact, was meeting her own selfish needs rather than being “child focussed”. Ms T was “not confident she has the capacity to reliably support regular contact”. She felt that, if the mother did not start supporting contact, a viable option which would further the child’s best interests would be for him to live with the father. She recommended immediate resumption of contact between the father and the child. It does not seem to me to have been a coincidence that Ms T remarked that the mother’s relevant attitudes were inconsistent and that considering the seriousness of the sexual abuse allegations her presentation was at odds with her claims and alleged fears. At the hearing when she gave evidence, her demeanour was much as Ms T described in these terms when she interviewed her; “…given the seriousness of her concerns, she showed noticeably little emotion consistent with the events she was describing, not seeming appropriately worried, and inconsistent about whether she wanted there to be contact or not.”
The mother was dissatisfied with Ms T’s opinion. This is clear from the notation to the December 2003 consent orders. She then attempted to avoid any updating of the report by Ms T. She relied on an illusory claim that Ms T was insufficiently qualified to provide an expert opinion because she could not know the relationship between the child’s encopresis and his emotional condition and needs and could not know the cause of the encopresis. This was another cynical exercise by her and those advising her. In the first report Ms T had said virtually the same as Mr N, who the mother relied on. Mr N said in his report:
…soiling and exposure behaviours are common indicators of emotional distress and frequently accompany sexual abuse. [The child’s] presentation at interview and the stated school concerns about social difficulty add weight to her concern about emotional distress….there is cause to consider that [the child’s] social development….is at risk. It is appropriate to consider methods to assist him in this regard.
Ms T said in her first report:
it is fairly well established that encopresis is an emotional disorder that
is stress related and sometimes linked with sexual abuse and or
dysfunctional toilet-training. I have not assessed the pattern, volume and
frequency of soiling, as this is more properly addressed by a paediatric
psychiatrist…his proper treatment is a priority.
The school concerns Mr N mentioned relates to some attention-seeking and quite inappropriate behaviour that the child had engaged in at school. Ms T mentioned this too; immediately before giving her above opinion. There was also some similar behaviour at home which the child directed towards his siblings. Both Mr N and Ms T also referred to it in much the same way for the same purpose.
I accept that Ms T is adequately qualified, especially because the paediatrician who had seen the child in August 2003, Dr K, had eliminated any medical cause for his soiling. I regard Mr N’s relevant evidence on this aspect as equally valid, despite not being able to accept his evidence generally.
It is not difficult to understand the mother’s motive for attempting to eliminate Ms T’s involvement in these proceedings. She was able to report the child’s expressed wish about contact with the father. He said to her that it would make him happy “to see Dad more” and he then said he wanted “to sleep-over with Dad again and again and again.” This is quite at variance with the mother’s evidence that the child is afraid of his father, unwilling to see him and disturbed by contact with him. It is much more likely that his disturbance is caused by his mother’s reaction to contact.
Ms T’s second report is dated 11 September 2004. It was made because the continuation of the hearing was set for 13 September. The mother, again, frustrated the Court’s intention in appointing Ms T. She managed to avoid Ms T seeing the child with or without the father for the purpose of the updating report. Ms T noted that nothing had been done to obtain the psychological assistance the child needed and that the mother had failed to support continuing contact between the child and the father.
By the time the final report from Ms T was made on 3 June 2005, the child had been having regular contact with the father since October 2004. On 17 September 2004, I made a consent Order that Dr R see the child and the parties and provide a report. He is not only a psychiatrist who is qualified to give an expert opinion on matters related to the emotional needs and psychiatric or psychological condition of children, he is also a paediatrician. His report is dated 7 October 2004 and was made Exhibit “I” on 11 October 2004. On that day I restored contact between the child and the father. It was to be on alternate weekends from Friday afternoon to Monday morning during school term and during school holidays each weekend from Friday afternoon to Sunday afternoon.
In 2005 the mother changed the child’s school from a local public primary school to a local Christian school. She neither consulted nor informed the father.
Ms T had difficulties making arrangements to see the mother and the child for the purpose of the final report. The father informed Ms T that he had noticed no evidence of soiling since contact had been resumed. This is to be contrasted to the situation in late 2003 when he recognised that soiling had been a significant problem for the child. The father told Ms T that he thought it would be a good result for the child if he came to live with him and ceased having contact with the mother “at least for a settling down period”. Ms T was concerned that the child was being interviewed too much so she decided not to see him with the father. She did see the child alone, but I regard it as an unfortunate omission that she did not interview and observe the child in the father’s presence.
The mother told Ms T she thought there should be no contact. She seems to have abandoned her claims about the father being a frank danger to the child, but adopted a new tack. She said the child was too distressed by contact; so distressed that his teachers had noticed the effects which were at times associated with contact. Somewhat bizarrely, she did not claim to have experienced any soiling by the child, but said the child had informed her he soils himself when he arrives at his father’s house. The mother made many petty and baseless complaints about the father’s parenting and behaviour, but made one complaint of a serious nature. It is that the father and Mr L took the child to a party where, the child told her, he had “witnessed homosexual acts of indecency.”
On 7 November 2005 the mother gave oral evidence which was consistent with what she told Ms T. The father, in evidence, denied the allegations of wrongdoing the mother had made. However, a significant witness was called by the child’s representative; Mr U, the child’s class teacher at F Christian School. He gave telephone evidence near the end of the hearing in late 2005. There is no reason not to accept his evidence. It refuted the mother’s case to a very considerable extent. He said that when the child had come to the school and into his class at the beginning of 2005 he would take time to settle down after some weekends, but over the course of the year he improved to the point that by the time he gave his evidence he could not tell which parent he had been with at the weekend. The child’s general behaviour and performance at school also improved. There was no mention of encopresis. Thus, after a year or more of frequent and regular contact, the child was improving, not getting worse. This indicates to me that contact with the father has not been the cause of his problems. It also illustrates the mother’s lack of credit. By the time the mother gave evidence in November 2005, she must have known of the improvement in the child since June 2005 when she spoke to Ms T, yet attempted to manipulate the Court into believing what suited her tactically.
When Ms T interviewed the mother for the June report she told her that the child had recently visited the father’s mother with the father and that the child was distressed by the visit. When the child spoke to Ms T he produced a note he had written. It is Exhibit “U”. In it the child says he is afraid when he goes to his paternal grandmother’s house because she “pot [sic] her hand up my bum.” Originally “down” was used rather than “up”. This change may be significant. “Down” may not involve any inference of penetration. “Up” probably does. The note also purports to assert that the father, in taking the child to visit his grandmother, had breached his trust. Ms T formed the view that this note was not written spontaneously. I agree. I think the mother manipulated the child to create it and influenced its contents. I do not accept that it reflects the child’s thoughts or feelings. Ms T found the child to be caught in a conflict of loyalty in responding to her enquiries. She felt that the child feared the consequences of any candid disclosures he might make because his mother would discover what he had said. I think that this analysis is likely to be accurate.
It emerged from Ms T’s final report that Mr N had been seeing the child about once every 3 weeks over the prior 6 months or so (from late 2004 or early 2005). Contrary to what the mother told Ms T, Mr N told Ms T that although the child was tense before and after contact he was not now soiling “every time he saw is father.” He said the child had told him he was uncomfortable about seeing his father who frightened and intimidated him. It is likely that the child realised that Mr N was supporting his mother so he told him what he knew his mother wanted him to say.
Ms T did not change any of her previously expressed opinions and recommendations in this report. In oral evidence, she canvassed various alternative residential scenarios and concluded that among these alternatives each would be, potentially, about as harmful as any other. It was her opinion that what the child really needed was a reduction in conflict which was also free of any implications that reduction was in itself a manifestation and, therefore, a continuation of the conflict. Of course, achievement of lessened conflict was no more than a vain hope. I do not think Ms T did not realise this. She said that the conflict seems to be entrenched. I think she must have believed it to be her duty to say what ought to be done despite knowing it was not realistic to believe that saying anything will really help.
Ms T also said that the damage had been done and that it was too late to overcome it. It had lasted 8 of the child’s 10 years. Nevertheless, she said she felt that efforts should be made to prevent the damage being increased by continuing conflict. The problems she said the child is likely to have as a result of the conflict and continuing conflict are; reduced self-esteem, depression, heightened feelings of anger and anti-authoritarianism directed at parents or general authority. She clearly said that the child had been alienated from the father and discouraged from an emotionally free relationship with him by the mother. I have felt much the same about this case. I agree that the parties’ conflict is entrenched, but would add that the mother has done more to create and maintain it. I do not agree with Ms T’s belief that the child has been alienated from the father. It is patently the case that the mother has attempted the alienation, but her attempt has so far failed. The evidence which I accept is virtually unequivocal about it. I nevertheless regard Ms T as an expert whose opinions have much weight in most instances. This is my assessment despite the impression I developed during her oral evidence that she did not like the mother. On more mature consideration, I think that what I really discerned was Ms T’s warranted disapproval of the mother as a parent.
I should add at this point that the mother’s Counsel submitted that I should disregard Ms T’s evidence because had she read quite a lot of material which did not get into evidence and said she could not recall whether and to what extent she relied on it in forming her opinion. I accept that this undermined the weight of her evidence, but not its admissibility. However, its weight is not, in this instance, undermined much. I have independently assessed the mother. My independently formed lay opinion is much the same as Ms T’s opinion of her. I unreservedly accept her observations of the parties and their inconsistencies or consistencies in their stories and observations of the child. In forming her opinions on psychological matters, these do not seem to have been affected by other than the interviews and reliance on her own expertise. She did not attempt to, and specifically disavowed, having the expertise to prognosticate on the cause of the child’s encopresis. But she did give an opinion, as she was entitled to do, based on her knowledge of the relationship between encopresis and the child’s emotional welfare and on the factors which are associated with encopresis. I accept these opinions. This acceptance is despite my disappointment at her failure to observe and interview the child in the father’s presence and in the presence of his siblings.
Ms T offered the four alternatives for residential arrangements which she felt were the best alternatives to further the child’s welfare. In doing so, she made her attitude perfectly clear. She did not recommend any of these alternatives because she believes each involves more negatives for the child than positives. The four prospects she referred to were regarded merely as the best of a bad lot if the mother did not change her attitude to support for the child’s relationship with the father. She really recommended what I regard as beyond realistic expectation; that the mother will change her attitude to support for contact.
The four alternatives Ms T preferred are:
a. Residence with the mother, alternate weekend contact with perhaps some school holiday block contact;
b. Residence with the mother, no contact with the father;
c. Residence with the mother, no contact with the father during school term but with school holiday contact; and,
d. Residence with the father.
What Ms T said about these alternatives is of importance in these proceedings because the father would have heard it and should have understood it, but must have failed to do so or did not care enough.
Of option (a), Ms T said that the risks with this scenario would be a continuation of the current stress upon the child created by the mother’s opposition to contact. Among other things, school term contact was said to be disruptive to his schooling if the mother is to be believed. This evidence was given before the school teacher gave evidence. His evidence was that the child had moved to the stage that contact did not seem to be adversely affecting his schooling. Ms T said the value of regular contact with the father should also be balanced against the other disruptions to the child’s life associated with contact.
Ms T’s view of the disadvantage of option (b) is the most important when seen in the light of the father’s decision that he would refuse contact if the child continued to live with the mother. Of this option, Ms T said the one advantage would be that the child would be protected from the parties’ differing and competing versions of events. This would be at the expense of “a relationship with his father” because he would be likely to develop a view that the father is an unsuitable person for him to have a relationship with. She went on to say that not seeing his father would also have adverse consequences on his self-image and would cause him stress. She said ending contact is no more than a manifestation of the parental conflict. The implication from this evidence is that such a course would really be a continuation of the conflict for the child and it would simply reinforce “a lot of pathology which he’s got to then come to grips with”. It is not a method which should be used to end the conflict for the child because it would not achieve what was intended.
After this evidence was given some questions and answers followed which I regard as sufficiently important to repeat verbatim. They are transcribed on page 6 of the transcript for 8 November 2005 and are:
MR HARPER: Before I move off that alternative, if [the child] were not to see his father again in the foreseeable future one would expect that he would go through the sort of process that people go through in a death; that it would be a bereavement?---Yes.
[The child] might think that his father is a bad person if he’s not seeing his father and therefore [the child] is a bad person, that type of mechanism?---Yes, he’s coming towards the years in his development where typically a sense of self is starting to develop. In the early teenage years who my father is and what of him am I is a very important issue in terms of an emerging separate identity.
Is it the case that in some circumstances where a child in [the child]’s circumstances is cut off from a parent they idealise the missing parent?---Yes, and the – and another factor is that he might not understand the legal system sufficiently to be able to conceive of it other than his father possibly having abandoned him or, as we said earlier, his mother being deemed a superior parent in his life.
Is it fair to say that if all contact were cut off there are likely to be serious psychological consequences for [the child]?---Unpredictable, but yes, in terms of what I’ve just been saying I’d be very concerned about how he would construe that after all these years. I would predict it to be pretty troubling.
All of these outcomes I’m putting to you, the four categories, have potential pitfalls, don’t they?---They do, and I suspect that’s probably why we’re still here. We haven’t found the ideal solution.
HIS HONOUR: That’s not right either. We know the ideal solution?---Stop the conflict.
The third option, (c), might have the benefit, according to Ms T, of reducing conflict during school term and helping the child’s school performance. I have already dealt with this for option (a). However, it is also Ms T’s opinion that this option would only be helpful if the mother handled it “in a responsible way”, by explaining it to the child appropriately. She felt the mother would not do this. I agree. She said, and my view independently reached is the same, that the mother really wanted the child to have no contact with the father so, even with reduced contact, would react badly to it. There would be little achieved by reducing contact.
A change of residence to the father, option (d), would disrupt the child’s relationship with the mother, his siblings and Mr P. It was accepted as likely to invoke an “upheaval” for the child. Ms T said that for this change to be viable the child ought not see his mother and her family for between 6 and 12 months and that this option involves all the same problems that deprival of all contact with the father would have. Ms T was, however, of the opinion that the father would deal with the introduction of this regime more responsibly than she expected the mother to deal with a regimen which was not in her favour. Subsequent events, namely the father’s attitude to contact if residence was to be granted to the mother, has convinced me that this is not the case. He is as irresponsible as the mother and equally as uncompromising about doing anything to end the conflict which had been so damaging to the child.
Ms T was not prepared to regard option (d) as one which could be finally determined in these proceedings. She said that after the period of absence from his life of the mother and her family, reassessment of the child’s relationship with the parties should be undertaken to determine if contact with the mother could be reinstituted, or even whether there ought to be some other regime including returning to residence with the mother. I think there is a real and grave risk that, even then, the Court would be in no better position to decide the child’s fate than it is now. It could even be in a worse position due to the emotional upheaval the child would probably have suffered by being removed from the only immediate family he had known. Ms T accepted there would be “severe risks” for the child in living with either parent and being deprived of contact with the other.
There was a suggestion that a possibility might be to give residence to the mother and give no contact to the father for 12 months. Apart from that having, in effect, already happened to a large degree with no benefits to the child, there would be a problem with restoration of contact. Any order giving no contact to the father for 12 months should be no more than an interim order. There would have to be a reassessment of the situation at the end of the 12 month period with a realistic possibility, which would be raised to probability in my opinion, that the Court’s ability to determine what order to then make to further the child’s best interests would not be enhanced.
It is to be noted that Ms T said that the child “would have a significant attachment” to the mother. When she spoke to S, the child’s half brother, despite the mother’s claim that the father has been violent to S, S said the father was “not normal”. She asked the child what he meant by that. He did not mention violence, but simply referred to his homosexuality.
Ultimately, Ms T said that school holiday contact with the father would be better for the child than alternate weekend contact. That does not mean she regarded this regime as a preferred option and, in any event, such preference would be irrelevant in the light of the father’s refusal of contact if residence is granted to the mother.
Dr R should be regarded as a expert on encopresis. He specialises in it. He was a consultant paediatrician and is now a consultant child and family psychiatrist of wide-ranging and impressive experience. Appointments to eminent medical establishments attest to his standing. His report is commendably measured and sensible. It is a manifestation of balance, realism and absence of political correctness. I accept the opinions and observations in it.
Dr R’s views about the child’s encopresis do not involve much uncertainty or complexity. He said it occurs in about three per cent of children but is twice as common in boys as it is in girls. This would make its occurrence at the rate of four per cent in boys. It is not a long term condition, especially if the parents are supportive and encourage the child to overcome the problem. Its genesis usually occurs when a child is between 1 and 2 years of age at the time independent bodily control is being achieved. It seems to be a subconscious reaction to the child feeling unsettled or dissatisfied with its circumstances. It is often associated with maternal depression and involves unwillingness to expel bowel motions, resulting in a full rectum and inability to stop faecal leakage or expulsion. Dr R was told by the mother that she was not depressed at the relevant time. Dr R seems to have accepted this with a degree of scepticism. I can say that it is not likely to be a coincidence that the parties separated when the child was 18 months old and that the mother was probably attending Mr N with the father for marital counselling in the child’s second year.
Dr R accepted the mother’s account of the development of the soiling problem and said, consistently with the history he was given, that soiling at first might not have been a significant problem with the child although he had developed encopresis, but that it became such that it was identified as other than a minor problem when the child was four or five. Of this, he said that it is possible, but not certain with the child, that the encopresis developed at the same age as it does with children who manifest it earlier, despite its delayed emergence as a problem. He said the physical and psychological causes would be the same irrespective of when the problem was identified as a serious one.
Dr R quite positively stated:
It is…likely that the emotional tension associated with the difficulties
between his parents made it harder for [the child] to overcome encopresis.
I do not think that it is likely that it results from any maltreatment or
sexually inappropriate behaviour by his father.
Dr R specifically disagreed with the opinion that encopresis is a common manifestation of sexual abuse, although he agreed it might be indicative of emotional distress. In the few cases he has seen where encopresis was associated with sexual abuse, the situation these children were in was quite unlike that which affects the child. The child, it was noted, had not been suffering from symptoms since April 2004 when Dr R saw him in September of that year. Dr R’s prognosis was that his bowel habits would be normal in future. In fact the mother claims there was one later episode, but I do not regard this claim, whether it is true or not, as undermining the weight of Dr R’s opinions. He knew of it.
An important consequence of Dr R’s involvement in these proceedings is that he obtained some pertinent information in speaking to the child. At first, the child told him he did not wish to see his father again. As the interview progressed, he modified his expressed wish, next to see his father once again and later to continue to spend each second weekend with his father. He told Dr R he enjoys being with his father and gets on well with Mr L.
A significant aspect of the child’s interview with Dr R is that he spoke positively about his paternal grandmother and said he misses her. Critically, he described the incident in which it is alleged that the paternal grandmother anally penetrated the child in an act of sexual abuse. The way the child described it; and he said he could recall it, it was no more than a grandmother’s effort to wipe the child’s bottom with toilet paper after he had been to the toilet. She did it vigorously and it hurt his anus. I accept that the child’s description to Dr R is quite accurate and that there is no element of abuse involved in the incident.
Dr R recommended that, in the child’s interest, he should “maintain a relationship with both parents.” Dr R gave oral evidence. In my assessment it did not alter anything in his report or add anything of significance.
In deciding what residence and/or contact orders to make, the child’s welfare is the matter which must be given paramount importance, although other matters such as the needs and wishes of the parties can be weighed. In this instance, each party purported to conduct his or her case on the basis that I should decide all parental issues solely according to the child’s best interests. However, it is clear to me that much of the motivation behind their claims and attitudes was the effort of each to meet his or her needs irrespective of the child’s welfare.
Mr Harper, who addressed the Court for the Children’s Representative, ultimately submitted, in effect, that there should be no change of residence but that there should be reduced contact with the father; one weekend each month, because reduced contact would increase the stability in the mother’s household, reduce the child’s stress levels and still provide enough contact with the father to maintain a relationship. Reliance was placed on Ms T’s opinion to support this stance. In my opinion, Ms T did not herself advocate it.
It was the Children’s Representatives submission that there would be no unacceptable risk of the child being abused by the paternal grandmother if the child was permitted to have contact with her. Yet it was his contention that there should be no contact with the paternal grandmother during school term and, in school holidays, there should only be contact with her in Mr L’s presence.
This was said to be to protect the child from the adverse effects of any further allegations by the mother that the father’s mother had abused the child. I do not accept that this could be a means of protection because the mother’s original allegation was that the abuse had occurred in the father’s presence, and by implication, with his consent. It would not involve much of a leap for the mother to implicate Mr L in addition to the father as a willing cohort in the alleged sexual perversions of the paternal grandmother. I regard her as being sufficiently conscienceless to take that leap if it suits her purpose.
In relation to the proposal that the father be granted residence, it was Mr Harper’s submission that this was full of uncertainty about the child’s reaction to it. He said the risks to the child’s welfare of taking such a step would be too great to warrant it, particularly because, by the end of 2005 when these submissions were made, the child’s performance at school had improved, his teacher could not discern the weekends when he had seen his father and his encopresis had been all but cured. Mr Harper characterised the mother’s relevant behaviour which was assumed to have caused the child’s problems as a relatively unsuccessful attempt at alienating the child from the father. He opposed any suggestion that, if the child was to live with the father, he not see his mother and her family for six to twelve months. It was submitted, and I agree, that to move from residence with the mother to such a situation would be extraordinarily serious, was not supported by any expert evidence and involved grave risk. It was said, and I also agree, that the level of conflict over the child between the parties which was essentially caused by the mother, would not be decreased in its effect on the child by a change in residence if he would eventually have contact with the mother. There would merely be a break in the effect of contact for the period that he was denied contact with the mother. Mr Harper submitted that it would be virtually unconscionable that the Court might conclude that to deny contact between the child and the mother for more than a short period would, on balance, advance the child’s welfare, so there would be no effective reduction in the child’s involvement in the parental conflict by granting residence to the father.
The above submissions on behalf of the children’s representative were made before the father’s final attitude was known. Once it was known that he did not wish to have contact if the child was allowed to continue to live with the mother, Mr Harper made the point that the child was in a situation in which he was about to lose his relationship with one parent in any event. This was not quite accurate, because the father had moved to the position that, if he gained residence, he accepted there might be some contact between the child and the mother, although he preferred there to be none.
Mr Harper also asked for an order that a court counsellor explain to the child the orders made by the Court, especially if residence was granted to the mother, because the child would need to understand why he would not be seeing his father and, hopefully, not be led to believe that the father had abandoned him. Unfortunately, I think that the father did abandon the child by refusing contact. He must have realised it was a realistic possibility that the child would continue to live with the mother. I am by no means convinced it is in the child’s interest to be led to believe a more palatable lie until he discovers the truth. Such a discovery would be likely to be sooner rather than later. The mother is unlikely to be able to resist telling him the truth because it would suit her purpose to do so. Nevertheless, I think failure to explain whatever orders are made will do even more harm to the child’s emotional health.
The mother’s case before she learnt of the father’s decision to abandon contact was that the orders she sought should be made because, in addition to the positive aspects of the mother’s case which have already been referred to:
a. The father and his mother had, in effect, jointly sexually abused the child or if only his mother had done wrong in this way, the father could not be trusted to protect the child from his mother.
b. The father is unsuited to have contact with the child or to have other than very limited or supervised contact because:
i.he was deceptive with the child in that he broke promises he made to him;
ii.he failed to explain to the child and the mother’s other children his actions in separating;
iii.he had been violent to the mother and her children;
iv.he favoured some of the mother’s children over others;
v.he had been self indulgent and unreliable with contact;
vi.he had failed to feed the children;
vii.he had failed to meet the medical needs of the children;
viii.he had left them alone at home and in the car;
ix.he had used bribery on the children;
x.he had taken the children to M rated films;
xi.he was insensitive to all her children’s needs; and,
xii.he had threatened the children with calling the police when they misbehaved.
The matters referred to in (b)(i),(ii),(iv),(v),(vi),(vii),(viii),(ix) and (x) are exaggerations, are unproven to a sufficient degree, are petty or are matters of opinion about parenting style or obligations. Even if established to the degree they have been alleged, they could not alone or in combination with any other established fact or matter alter the child’s right to have a substantial degree of contact with the father if it was otherwise in his interest to have that level of contact.
Mr Thomas of Counsel appeared for the mother. His closing address was initially made before the father’s counsel announced his unwillingness to have contact if residence is granted to the mother. At that stage, the mother was not greatly resistant to some contact between the child and the father if she obtained an order for residence, even though it might have been a little more than had been occurring in the months prior to the finalisation of the hearing. His first submission was that the mother believes that the child had been sexually abused. He accepted that this may be an erroneous belief. This submission was made, no doubt, to excuse and counteract any finding that the mother should not have obstructed contact and had behaved inappropriately in doing so.
The next substantial submission for the mother was in support of the submission made by the separate representative to the effect that there is too much risk that change would undermine the child’s wellbeing because of the uncertainty of its effect. Mr Thomas submitted that, according to Mr U, the child was, by late 2005, thriving in the mother’s care while having contact with the father. This was relied on to refute the suggestion that the mother was deliberately harming the child to get her own way. I must say this submission may well have been a critical aspect of the case if the father had not, later, disavowed contact if residence remained with the mother. It could not have been overlooked that the child had not been alienated from the father and wanted to see more of him.
The father’s case was that he was really originally interested in simply taking part in the child’s life and would have been satisfied with this had the mother not attempted to turn the child away from him and to end contact by habitual obstruction relying on fabricated, exaggerated or petty complaints. He, in effect, said he felt it would be in the child’s best interest to continue an unexceptional, loving relationship with both parents until he realised that the mother was attempting to make this impossible. He then developed the belief that it would be better for the child’s welfare if the child lived with him and had unexceptional contact with the mother. Later, as a result of some suggestions by Ms T, he developed the idea that there ought to be a moratorium on contact with the mother to allow the child to settle down in his new circumstances.
When Ms Reynolds of Counsel, who appeared for the father, commenced her closing address, the ultimate stand which the father took was, for the first time, revealed and discussed. His first choice was said to be to gain residence with no contact between the child and the mother. His attitude, if the child’s best interests required the Court to continue his residence with the mother, was for him to have no contact at all with the child until he reaches an age when he can choose for himself whether to have contact with the father and the mother will be able to do little about it; say 16 years. The father said he would not avail himself of any right to have contact which might be reserved in the hope that the father may change his mind. Both stances were said to be to avoid putting the child under stress because of continuing parental conflict.
Apparently the father had not listened to the evidence of Ms T to the effect that cessation of contact would really be, in the child’s mind, a continuation or manifestation of the contact, or to Dr R, who recommended that the child maintain a relationship with both parents. It seems to me that either of the father’s alternatives would be quite dangerous experiments with the child’s welfare in the situation that existed at the time. The child was already doing better than he had for quite some time. Dr R seemed dubious about the claimed setback the mother told him about, in November 2004, when she alleged, for the first time in more than 6 months and about 1 month after I released Dr R’s October 2004 report to the parties, that there had been a relapse in encopresis after the most recent contact visit.
Ms Reynolds submitted that the child should, in effect, be divorced from his mother because he has been damaged by the mother’s attitude, and that of Mr P, which was that he should not be allowed to have a relationship with his father. This is, in my view, a bizarre justification for the father’s principal claim. The child has lived all his conscious life with the mother rather than the father and is likely to be more attached to her than any other.
The father seemed to have had a change of heart after the luncheon adjournment during Ms Reynolds’ address. Ms Reynolds then informed me the father now had a third alternative in mind. It was that the child reside with the father and have no contact with his mother for a period to be recommended by an expert, either Ms T or someone else. I was being asked that I follow one of Ms T’s suggested alternatives, with some modification. I was really being asked for an order that the child live with the father for a period without seeing the mother, and for an order requiring an expert to see the child from time to time during that period and ultimately make a recommendation about if and when contact with the mother should be reintroduced. When it was pointed out that this was a final hearing and the order being sought was really an interim one, I was then told that the father would not give up residency if or when recommencement of contact with the mother was recommended, but would comply with consequent orders. Ms T did not recommend such a regime. She suggested that, if residence was granted to the father, it might be appropriate to suspend contact with the mother for say, six or twelve months then reassess the whole residence situation. The reasons I have already given for rejecting this type of determination of these proceedings do not need to be repeated.
I have no particular basis for being satisfied that any period of contact suspension might be the most appropriate to advance the child’s welfare. I am not in a position to make a final order in the nature of the third alternative. I am not satisfied that, after an experimental period with the father and no contact with the mother, my ability to best advance the child’s interests would be improved.
In order to decide what is in a child’s best interests, the Family Law Act 1975, pursuant to s 68F, which is the relevant section for these proceedings, provides that the Court must consider certain matters. I shall consider such of them as have been the subject of evidence in the order in which they are mentioned in s68F.
a. Expressed wishes and the weight to be given to these - The mother claims the child is afraid of the father and his paternal grandmother and does not wish to see him or the grandmother. He had expressed consistent feelings and wishes to Ms T and Dr R and has written a note which purports to be an expression of this wish. The note is in evidence. I have formed a firm view that these expressions have been the result of either the mother’s conscious efforts to get the child to say things which bolster her case or his knowledge of the mother’s needs and his wish to meet those needs.
It is likely that when he has expressed wishes which help the mother’s case, in most instances he has been moved by both motives. The note, “Exhibit U”, has, in my opinion, been written by the child because of his mother’s urging and manipulation of him. It is one of the most disturbing aspects of her efforts in this respect. I am quite satisfied she persistently pursued these for tactical reasons which could achieve nothing if not a weakening of the child’s ties to his father, great stress and disturbance for the child, a general worsening of his psychological health and, most importantly to her, the achievement of her selfish ends. I am quite satisfied that when the child told Ms T and Dr R that he wanted to see a lot of his father he was stating his true feelings and needs.
b.
The child’s relationship with the relevant adults and children in his life – It is highly likely that the child is closest to his mother. She has played the major role in his care. The expert evidence, despite the mother’s claims and efforts, satisfies me that the child is close to the father and feels a strong need to have contact with him and will be disadvantaged by lack of contact. Despite the mother’s self-indulgent and harmful behaviour toward the child, I am of the view that it is extremely likely that the child would be harmed more by isolation from the mother than by exposure to her. In fact, it is likely that if the child was not to live primarily with his mother and siblings, it would be quite detrimental to his welfare. The various relationships he had with members of his parents’ families, despite the deficits in the parties’ parenting abilities, still allowed him, in the months leading to the end of the hearing, to be doing better than he had been doing for many years, despite being in the mother’s care.
I do not know much about the child’s relationship with his maternal grandmother. I accept that it is good and that she has had a normal, if somewhat distant, involvement in his life. She lives in the ACT, so does the paternal grandmother. I accept that the child feels a loving and close bond with the father’s mother because he spoke to Dr R of her in a manner which is consistent with this.
Mr P impressed me as suitable to be the child’s surrogate father despite his apparent belief in the mother’s characterisation of the father and his mother. They seem to have a good relationship. I accept his evidence that the child has a good relationship with his half-brothers and half-sister from the mother’s first marriage. It would have been helpful if Ms T had seen the child with his brothers and sister, but I do not think it is a critical deficit and accept that Ms T believed she had a good reason not to take this course. I accept that the child likes and has a good relationship with Mr L who impressed me as someone who might be a good surrogate parent for the child.
c.
The effect of change – As I have said, I think it would involve unacceptable risk to the child’s welfare to take him from the mother’s principal care and place him in that of the father. The child has always lived with his siblings and would miss them if his residence is changed. The idea of removing his mother from his life permanently or even for a year or six months is completely unacceptable. The uncertainties and therefore risks to the child’s mental health and stability are too great. He would even be removed from the school where, finally, he is making good progress. I think that isolation from his father and paternal grandmother will do harm to the child but not nearly as much as isolating him from his mother and siblings. If it were not for the father’s stance, I probably would have regarded an unexceptional regime such as living with the mother, having frequent overnight school term and half school holiday contact with the father as the most appropriate to advance his best interests.
I am left to decide between living with the mother and not seeing the father
and living with the father and not seeing the mother for some time, or at all, or seeing the mother fairly infrequently, but regularly. It is my assessment that to institute any of the regimes by which the child will live with the father is more likely to have a greater adverse effect on him or involve greater risk; risk which is of exposure to an unacceptable level of emotional harm, than living with the mother and not seeing the father, Mr L and his paternal grandmother at all. It cannot be overlooked that the child has not, in his recalled life, lived with the father, although he did stay with him for one five week period and another shorter block period, and that he is doing well now despite seeing little of his father, Mr L and his paternal grandmother over the years.
d. Practical difficulties in contact – The father and Mr L live in Newcastle, the mother on the Central Coast. Although the distance between the parent’s homes is not small, it is an easy drive or train trip between them. The parties can each afford the cost of transport for the sake of contact changeovers. There are no practical difficulties which might substantially undermine the child’s right to have direct contact with both his parents except the father’s unwillingness to have contact if the child lives with the mother and the mother’s unending efforts to obstruct contact with the father.
e. Each parent’s capacity to provide for the child’s needs – Both parties are well able to provide for the child’s physical needs. I regard the mother as currently able to provide for the child’s intellectual needs because he is progressing well at the private school she has chosen for him. I have no doubt that the father could provide for the child’s intellectual needs adequately. Mr L is highly likely to assist in this respect.
I have no confidence that either party can provide for the child’s emotional needs. I regard each as grossly deficient in this respect, and fear for the child’s welfare in the primary care of either. The matters I have already referred to and the findings made about the mother’s manipulation, self-indulgence and failure to appreciate or care about the child’s needs make it perfectly clear that his emotional wellbeing is not only at further risk by remaining in the care of, therefore under the influence of and subject to the manipulation of, the mother, it has already been damaged.
There have, so far, been few matters raised which I have accepted as true or significant and are critical of the father’s parenting. He has had little opportunity to do anything which might realistically demonstrate his parenting abilities. However, these proceedings themselves have given him some opportunity and have also given me the opportunity to assess him from the point of view of a Judge who is otherwise a layman. My assessment of the father from his presentation while giving evidence is that he is little different to the mother; self-indulgent and narcissistic; the latter term having its dictionary meaning rather than any more technical meaning. That assessment was reinforced by the orders the father put forward during closing addresses. To seek such orders, especially those which would exclude the mother from the child’s life relatively permanently, or for a significant period, he must have simply ignored Dr R’s evidence and the fact that, although Ms T professed an alternative which involved limited exclusion of the mother from the child’s life, she was opposed to other than exclusion for just sufficient to give the child time to settle and expressed no preference for any change in the child’s principle residence from the mother to the father. She merely discussed the advantages and disadvantages of the alternatives which she thought were the least likely to harm him. Living with the father and not seeing the mother at all was not one of these.
In fact, there is no evidence from any witness who was put forward as a relevantly qualified expert to suggest or recommend such an extreme solution to this dispute. That such a proposal was attractive to the father in the light of the evidence from the child’s school teacher that, finally, the child was demonstrating good progress, is a testament to the father’s inability to appreciate the matters which are necessary to understand and act on for a parent to be able to make parenting decisions which take his child’s best interests, particularly emotional health, into account.
The father’s Counsel said the father decided on the course she announced because he wanted to remove the child from the stress which was associated with contact and the parties’ conflict. There was convincing expert evidence to the effect that the child should continue to have contact with the father and would be harmed by being put in a position where he is likely to feel abandoned by the father. This, too, has not been given sufficient weight by the father.
Of course, if the child would feel abandoned by the father if he could not have contact with him, one must ask how he would be affected if deprived of contact with the mother in view of his much closer involvement with, and likely attachment to, her. The preferred alternative proposal by the father seems to have given no weight to the likelihood that the child would continue to need his mother and siblings more than anyone else and would be most harmed by removal of them from his daily life.
f.
Relevant aspects of the child’s background, maturity and sex – There is no evidence to suggest his level of maturity for his age or his sex are particularly significant in the decision to be made. The background of his mother is unexceptional. That of his father contains two aspects which ought to be mentioned.
The first is that the father is homosexual and living in a stable homosexual relationship. There is nothing about this situation which I regard as creating any difficulty. The child, I am satisfied, does not find this to be a problem. It is said by the father that one or more of the child’s siblings is prejudiced and has said things to undermine the child’s relationship with the father and Mr L. This is given as a reason to distance the child from his siblings and the mother. The mother complains that the father embarrasses the child at times because of his flamboyant behaviour and dress and overt displays that are said to flag his homosexuality. The complaints of both sides do not seem to have caused the child any undue problem. They should play no part in deciding his future relationship with his parents. There will always be people who are intolerant and prejudiced against others not like themselves. I am of the view that the child’s best interests would require that he simply get used to, and hopefully, learn to cope with incidents which manifest this situation. The evidence suggests he has already learnt to cope with this type of attitude from his school friends and members of the mother’s family, especially his mother and brothers. His father will not change, and should not need to, to overcome the intolerance and prejudice of others.
There are allegations by the mother that the father exposed the child to inappropriate homosexual behaviour at a party. It is as though it is suggested that he could predict it would occur in advance. I think it is likely that the mother has exaggerated or influenced the child to exaggerate what occurred. In any event, incidents which cannot be predicted but offend against good taste or raise the moral ire of observers often occur, whether at homosexual or heterosexual gatherings or in other circumstances where children are unexpectedly exposed to them. Parents cannot wholly protect children from these even when protection is really needed. I do not regard the father as having shown any lesser levels of parental responsibility by exposing the child to this incident which is an insignificant matter in the context of these proceedings. There is not only no evidence that it has harmed the child, there is no evidence that it could harm him. More importantly, there is no evidence that the father knew or suspected anything untoward might occur at this party.
The father says he has some Aboriginal blood. He knows no more than that about it and cannot, as a result, maintain a worthwhile connection for the child with the lifestyle, culture and traditions of any relevant the child people at this stage. If the father intends to learn more of his heritage, as he says he does, it is all the more curious that he has chosen to put himself in a situation where he might not be able to pass his knowledge to the child; that the child will not even learn much about him. He should have claimed contact as an alternative to his claim for residence. He could then have involved the child with his own and the child’s Aboriginal heritage, irrespective of the outcome of the proceedings. Now, at best, he is less likely to be able to pass any knowledge on to the child, especially while the child is young and in his formative years.
It is in the child’s interest to understand this aspect of his background. The father is in a situation, because he knows so little, where he could not ensure such an understanding. Consequently, this is not, at this stage, a significant determining factor in deciding what orders for residence should be made.
g. The need to protect the children from harm, either physical or emotional, by being subjected or exposed to abuse, ill treatment, violence and other behaviour - The mother has made allegations of violence against the father. She said there were some incidents where the father was violent to her while the child was either a witness to them or to the consequence to her of them. There is also the allegation that the father has been violent to the child by sexually abusing him. I have found that the latter, to a high level of probability, did not occur. I have also found that his mother, in all probability, had not sexually abused the child. There is no unacceptable risk of sexual abuse at their hands.
Because the parties do not live together, have redirected their lives, live some distance apart and have only fleeting contact with one another, there is no need to take steps to protect the child from the psychological effects of any future assaults by the father on the mother. In saying this, I should not be seen to assume that there were assaults at the level of seriousness which the mother alleges occurred.
There are matters of some moment which should be dealt with before dealing with the assault allegations. The first is a claim by the mother that, in the past, the father has had suicidal thoughts and, if he was to commit suicide or attempt to, it would harm the child. The father has denied any such thoughts in recent times. There is no evidence to satisfy me that there remains any risk of suicide. The incidents she relies on were long ago; in 1995 and 1997, when the father must have had unresolved difficulties with his identity and sexual orientation and was suffering, in addition, to external stresses which no longer touch him.
Somewhat bizarrely, there is a claim which each party makes against the other. Each says or infers that because the other has been sexually abused by a close family member, he or she is more likely to be sexually abusive to the child and, therefore, he is at risk of sexual abuse. There is no evidence before me that those abused as children are so much more likely to repeat the abuse cycle that they pose an unacceptable risk to children. It is therefore unnecessary, because it is of no forensic use, to know whether either or both parents have been sexually abused. Each denies such abuse.
The father denied other forms of abuse at the hands of his mother. Yet, in 1995 when his mental health was being assessed by a hospital, he admitted that his mother was very controlling and punished the children with “horsewhips”. “Horsewhips” is likely to have been used as a figure of speech rather than as a literal description. The description does not necessarily amount to what is properly described as abuse, but in any event I am not satisfied that such treatment, whether abusive or not, would result in the father being more likely to physically abuse the child. Nor am I satisfied that the child is at risk of abuse from his paternal grandmother. I think that the father would protect him. I do not regard the likelihood that he might need to as other than very remote.
I am inclined to believe that the mother told the father that her grandfather had abused her and that her mother failed to protect her from this abuse. It could explain, but it does not excuse, the mother’s knowingly false and/or exaggerated allegations. Otherwise, whether she was abused or not is irrelevant.
A much more concerning matter is the risk the child faces of having his emotional health undermined by the mother. I have little doubt that the mother has been the main cause of his emotional upset, and therefore his encopresis, to date. I find that she has deliberately set out to distance herself from the father and to do that felt she had to end the child’s relationship with him and did her best to achieve this. I regard her claims about the child’s aversion to the father as false. When he did or said things to her and others which could, on superficial examination, be interpreted as supporting these claims, he did it to meet her wishes, not to meet his own basic needs. However, I think that the mother has fabricated many of her claims in purported proof of her case and exaggerated most of the others about the child’s behaviour and statements. If she has any insight into the child, she would have understood he was telling her what she wanted to hear if he complained about the father. If the complaints were about matters otherwise warranting true concern, I think she probably knew these were false and for her benefit. When he was really upset and when he manifested that upset by bouts of encopresis, he was highly likely to be reacting to the mother’s behaviour and attitudes, not the father’s.
It was suggested that, because the mother was sexually abused as a child, she was more sensitive to or paranoid about the possibility that the child might also be sexually abused and actually believe he was at risk of being so abused by the father or paternal grandmother, although he had not been abused. It was submitted that it therefore followed that the mother had a strong motive to exaggerate or fabricate. After carefully considering all the evidence of the sexual abuse allegations that I have mentioned, and after weighing the mother’s other evidence, her credit and the impression she gave me as a result of giving her evidence, I am satisfied, on balance, that the mother has not acted out of the motivation so ascribed to her. I am satisfied that she lied and exaggerated out of self-indulgence; her motive being to exclude the father from her life, not to protect the child.
Paradoxically, this finding leads to the conclusion that, if the father is actually excluded from the child’s life, the mother will not feel a need to continue to put pressure on the child to reject him. If I had found that the mother really believes the father and/or his mother present a danger to the child, it would be more likely that she would continue to be more strident in her efforts to get the child to reject his father. This would have been likely to cause the child considerable harm because it would probably ultimately lead to a level of alienation from his father that might be irreversible or difficult to reverse. As it is, she is not likely to continue to put much pressure on the child and, therefore, the child is likely to be left with some capacity to be reunited with him when he grows older.
The father’s stance on contact demonstrates his inability to provide properly for the child’s emotional needs.
h. The parties’ attitude to parenting – I am of the firm view that both parties are quite irresponsible in the sense that neither appears to me to be able to distinguish his or her needs from those of the child or, if they can, are unwilling to meet his needs when they conflict with their own. The most alarming instance of this is the father’s decision, contrary to all the acceptable expert evidence about the best course to take, to refuse contact if the child continues to live with the mother. The father says he took this stance to lift the stress imposed on the child by the mother’s continuing efforts to alienate the child from him. I do not accept that this is his true motive, although I cannot know what his real reason for this position is. If it is his true motive, it is contrary to the only evidence of relevance, that such a situation will be seen by the child as a manifestation of the conflict and will reinforce the problem in his mind. The father’s decision to adopt the stance he did is quite irresponsible.
The mother’s lack of parental responsibility is amply demonstrated by her self- indulgent persistence in attempting to distance the child from the father.
i. Family violence – The mother alleges the father has been violent towards her. The father denies this. I do not believe his denials, although I accept that, in the instances upon which the mother relies, she has exaggerated the degree of violence and/or its effect on her. I accept that the father was probably disturbed when he behaved violently and his violence is ameliorated by his attempts, at most of the relevant times, to obtain psychiatric assistance.
The violence against the mother that she complains of herself occurred in 1997, the year when the parties separated. The child was of an age that he would not understand or recall any violence he may have seen, but he would probably have sensed any upset that violence engendered in the mother. The incidents specifically complained of occurred in January, February, May (the day before separation) and July 1997, although the mother also alleges that from January to May 1997 there were many other incidents. The other incidents were generally described as involving the mother being dragged by the hair or kicked by the father. On one occasion, what appears to be alleged is an attempt to slam a door on the mother. It is most enlightening that these incidents, although allegedly serious, are not described specifically or in any detail at all, yet what appear to be not more, or even less, serious incidents are described in greater detail.
The earliest specific complaint is about something which happened during a car trip with the child and the mother’s other three children. The father became angry and used abusive descriptions for the mother and children. The father then demanded the mother and the three oldest children get out of the car. He then put their luggage out. When the mother attempted to get the child from the car, the father “slammed” the car door on her legs, engaged in a tug-of-war over the child, threatened to kill the mother and hit her in an attempt to gain control of the child, then drove off with the child and stranded the mother and the three other children in Sydney’s Northern suburbs. They lived in F, near Newcastle in New South Wales. His behaviour frightened all children. The father attended the D Mental Health Hospital after this incident. The mother told the hospital he had been emotionally abusive over the previous three years and she was concerned that the father was suicidal. She said he had pushed them out of the car but did not mention any other assault.
The next incident occurred on 22 February 1997. During an argument at
the home, the father is said to have pushed the mother so she fell over. He then allegedly dragged her out of the house although the mother attempted to resist this. When the mother forced her way back into the house and attempted to enter the child’s bedroom, the father tried to close the door and the mother’s arm became jammed. He then threatened the mother with harm.
On 7 May 1997 the parties were arguing. When the mother told the father she intended leaving the next day, the father pushed her over, kicked her and punched her. He also threatened to disfigure her. The following morning the argument flared again and the mother says she fell down a flight of four or five steps during a scuffle.
On 31 July 1997 proceedings took place between the parties in the Canberra registry of this Court. Afterwards, the mother says she was near her car when the father drove a car at her and swerved away at the last minute. The father was charged with dangerous driving and breach of an AVO. He was refused bail and spent ten days in custody. The mother claims that a witness who could easily be identified also had to jump out of the way. Yet, eventually, the charges against the father were dismissed.
The notes from D Mental Health Hospital, in F, show that in late 1995 the father was having psychological problems. He says, and I accept, that he did not become conscious of his attraction to men rather than women until two years after separation from the mother; that is, in 1999, and he “came out” not long afterward. It is, therefore, little wonder that he was psychologically disturbed in 1995. One of the problems he mentioned to those taking part in his care at the hospital was bouts of anger. On 22 February 1997, he presented at that hospital after being referred by the police. It was said in the hospital notes that he had assaulted the mother who refused to have him charged. She told the hospital he had become aggressive once his psychiatrist had prescribed medication which was intended to keep him calm.
Although I think that, generally, the mother has exaggerated her claims about assaults on her by the father I am satisfied he assaulted or threatened her and otherwise acted in an aggressive way to her in 1997 until the parties separated and that he also was aggressive to her in July 1997 after separation. In coming to these conclusions, I have not overlooked the fact that, once, Mr N saw the mother with a black eye. She told him it was caused by the father. This was in 1996 or 1997. It is probably one of the reasons Mr N was biased against the father.
One of the reasons the mother and father first consulted Mr N was because they were in conflict about the way the father treated the mother’s children from her first marriage. It was alleged he was too harsh and aggressive with them. The mother said he was particularly hard on S, the oldest child who was born in mid-1997 and that he favoured the child and to a lesser extent the other children over him and had, on one or two occasions, hit S. I think that this is likely to have been the case. The father had his own problems. These probably manifested themselves in angry episodes. He is likely to have been too young and immature and inexperienced in handling children. This may have contributed to his behaviour. I do not accept that his anger, threats and violence are likely to occur in future. He has always sought treatment when he realised he had emotional problems and it is likely that their essential cause has been eliminated since he adopted an identity and way of life which better met his needs.
j. Family Violence Orders – There are no orders which were still current during any part of the trial. There had been no order for many years. There has been at least one AVO made against the father. He admits that he consented to it. It was made in response to the incident which occurred at the time of separation and lasted 12 months. The mother claims that the police also obtained an AVO against the father as a consequence of the incident when it is alleged by the mother that the father drove a car at her and also threatened her and her children’s lives. It may be that an interim order was obtained. I am not satisfied that a final order was made. The existence or nonexistence of orders which are no longer in force could not in themselves have any influence on the outcome of these parenting proceedings.
k. Preferability of making orders which are least likely to result in further parenting proceedings between the parties - It is usually, but not always, preferable to make such orders. I am quite satisfied, in this instance, that whatever parenting orders I make they will neither increase nor decrease the likelihood of further parenting proceedings between the parties. If I grant residence to the mother and refuse the father contact, the father might change his mind and later seek contact. If I grant contact, he is unlikely to avail himself of it and the mother is then likely to seek to extinguish this provision. If I grant residence to the father and grant contact to the mother the father is likely to move later to cease that contact. If I grant no contact to the mother she is likely to apply for it as soon as she feels she might be able to demonstrate a reason to gain contact.
l. Other relevant circumstances – I have referred to all matters which I regard as substantial considerations. Many other facts and matters were canvassed in the evidence and by the cases presented. In my assessment, none, either alone or in any combination with any other substantial or insubstantial matter or matters, could affect the outcome of these proceedings.
The case for granting residence to the mother is quite overwhelming. The child probably needs her more than anyone else and needs to live with her and his siblings in order to avoid undermining his already fragile emotional health.
This is no minor matter in the light of the most recent improvement in his school performance, reaction to contact with the father and better control of his encopresis. The risk in a residential change to his father’s household is too great. It would be a resort to the unknown. The adverse effect on him of the mother’s influence and relevant self-indulgent behaviour involves a lesser risk to the child’s welfare than residence with the father involves. The consequences of an order for residence with the mother are that an order for contact between the child and the father would not be complied with. The child would be left with dashed expectations for a while, but these would soon be replaced by a sense of disappointment and loss together with even greater pressure from the mother to distance himself from the father. This situation has more potential to harm the child than a simple order which recognises the reality of the situation and does not create any expectation of contact or right to it in the father. In any event, this Court should not act in vain. To make an order for contact between the child and the father would amount to such an act.
The Court has been left in the unwanted situation of having to choose between alternatives, all of which would be unlikely to help the child’s emotional health. I have chosen the course which I assess as likely to do him the least harm. In this way, his best interests are advanced to the greatest extent available in the circumstances.
The father should not, however, be prohibited from contact with the child. It is to be hoped he will decide to again become part of his life and should not, by my orders, be discouraged from doing so. There is no reason why the child should not be able to see and develop an even more loving relationship with his paternal grandmother.
Because of the effect of the orders, it is in the child’s best interests that they be explained to him by a person who is not biased against either parent despite my scepticism about the likely value of any explanation. The separate representative and a court counsellor are best qualified to do this.
If the father does not decide to see the child, he should know something about him. He should be able to receive his school reports, learn of any of his illnesses etc, so he has some knowledge of his son.
As the father will not be having contact with the child he will not know him well enough to make decisions for his upbringing. These should be left solely to the mother.
The above are my reasons for making the Orders of 14 November 2005.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen
Associate: …
Date: 8 August 2008
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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