POWELL & KILPATRICK

[2014] FamCA 1130

FAMILY COURT OF AUSTRALIA

POWELL & KILPATRICK [2014] FamCA 1130

FAMILY LAW – CHILDREN – With whom a child lives – Best interests of the child – Abuse and Family Violence – Where the court satisfied the mother represents an unacceptable risk of harm to the child – Where the task of the court in determining whether a parent represents an unacceptable risk is one which requires a positive satisfaction to the requisite standard, mindful of the consequences which a grave finding may impose – Where the court satisfied that the mother assaulted the child – Where the mother has anger issues – Where the mother has been disengaged from proceedings for six months – Where court ordered the child to live with the father – Where the court ordered the father to have sole parental responsibility – Where mother at liberty to apply to discharge or vary orders within three months.

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of the child – Where the court made no order providing time with the mother as not in the child’s best interests.

FAMILY LAW – CHILDREN – With whom a child communicates – Best interests of the child – Where mother’s contact with the child provided for to the extent that the child wishes to instigate communication with the mother – Where mother permitted to write or send presents on child’s birthday and at Christmas – Where father permitted to intercept and review any communication sent by the mother.

Family Law Act 1975 (Cth) ss 60CC, 61DA.

APPLICANT: Ms Powell

RESPONDENT: Mr Kilpatrick

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 233 of 2011

DATE DELIVERED: 10 February 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 10 February 2014

REPRESENTATION

SOLICITORS FOR THE RESPONDENT: O’Reilly Stevens

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER

Lehmann Feathersone Lawyers

Orders

1. All previous parenting orders made in these proceedings be forthwith discharged.

2. The Father have sole parental responsibility for M, born … 2008 (“the Child”).

3. The Child live with the Father.

4. The Mother is restrained from spending time with or attempting to spend time with the Child.

5. Unless intiated by the Child, the Mother is restrained from communicating with, or attempting to communicate with the Child, except that the Mother be permitted to write and/or send presents to the Child on and for his birthday and Christmas.

6. The Father is permitted to intercept and review any communication sent by the Mother to the Child under the exception provided for in Order 5 hereof, and in the event that he is of the view that the communication is innapropriate, not allow the Child to receive or view the communication.

7. The Father is to provide to the Mother the Child’s current postal address from time to time.

8. An Order issue authorising the Minister, Department of Foreign Affairs and Trade to accept the Father’s sole application, pursuant to the Australian Passports Act 2005 (or such other law, which is operational from time to time), to obtain the Child’s passport and the Child is permitted to leave the Commonwealth of Australia, notwithstanding that the consent of the Mother has not been obtained.

9. The Mother has liberty to apply to discharge or vary these orders provided that such application is made no later than on or before 4:00 pm Friday 9 May 2014.

10. If the Mother does not avail herself of the liberty to apply in order 9 hereof, then at 4:00 pm on Friday 9 May 2014:

    (a)all extant applications stand dismissed and the matter is removed from the list of active pending cases;

    (b)      the Independent Children’s Lawyer is forthwith discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Powell & Kilpatrick has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 233 of 2011

Ms Powell

Applicant

And

Mr Kilpatrick

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Before me is an application for final parenting orders in relation to the child, M (“the child”), born in 2008.  The parenting orders which are sought by the father are to the effect that he should have the sole parental responsibility for the child; that the child should live with him; and that the child should neither spend time with the mother nor do the orders propose any regime of communication.  The mother’s proposed orders, when she last articulated them, appear to have been that the child should live with her and spend such time with the father as she was agreeable to affording him.

2. However, this matter proceeded by way of undefended hearing because the mother has not engaged in these proceedings now for in excess of, it appears, some six months.  I record my recollection that, during the time when the mother was engaged in these proceedings, she was an enthusiastic protagonist and it is quite unexplained on the material before me why it is that the mother has, within about six months, changed from being an enthusiastic and involved litigant to having wholly disengaged from the Court process.

3. All of that makes it difficult to identify what, if any, proposal the mother would presently articulate were she before the Court.  It may be that she would press the orders which she sought most recently.  It may be, however, that her disengagement from the proceedings is indicative that she no longer wishes to have any parenting role in relation to the child.  One simply does not know.  I should also, at the outset, indicate that the Independent Children’s Lawyer supports the orders of the father.

4. Also, at the outset, it is convenient to record that, during the course of submissions by the solicitor for the father, I suggested that, given the unexplained disengagement of the mother from these proceedings, and given the very draconian nature of the orders that the father seeks, which in effect, deprive the child of any involvement of his mother for approximately the next 12 years, at least, in his life, that the orders ought, if made, be accompanied by an opportunity to the mother, within three months of the service of those orders upon her, to have liberty to seek to either discharge or vary the orders and, at the same time, delaying the discharge of the Independent Children’s Lawyer until that period of time has expired.

5. I should record that the solicitor for the father and the Independent Children’s Lawyer supported such an order being made, no doubt, because they were appreciative of the otherwise severe impact which the orders may have on the child, were it, in fact, to have been the mother’s intention to have continued at some future time to involve herself in his life.

6. The case has some unusual aspects to it.  The most troubling aspect of the facts before me relates to an alleged assault perpetrated upon the child by the mother in 2012.  Amongst the material before me was a tender bundle produced by the independent children’s lawyer.  It includes the police brief arising out of the charging of the mother with the assault of the child.  It relevantly records that:

   On Wednesday, 14 November 2011, at about 10 am, the victim child was dropped off at [B] Childcare Centre by the defendant.  When the defendant had left the centre, the child presented to staff, pointing at his head, saying, “Look what my mum did.”  Staff observed a lump and a small laceration on the child’s forehead.

   Later that afternoon, the child was collected from the centre by name obliterated.  During a conversation with the victim child, he pointed at the head and said, “Look what my mum did.”  Name obliterated reported the matter to police.  At about 10.30 am on 15 November 2011, officers from the [C] CIPU conducted a 93A with the victim child.  The victim child told the police the defendant had him in the head with her hand.  He said that the defendant hit him really hard when he was going to [B Childcare Centre].  Police observed bruising and swelling to the victim child’s forehead and a small laceration in the centre of the swelling.  CIPU officers attended [C] SOC office where the child’s injuries were photographed.

7. A little later in the Court brief, the following appears:

   After initially denying assaulting the victim child, the defendant told police that she, in fact, struck the child with the back of her right hand to his forehead.  When asked, she confirmed that she was wearing a large ring on her right hand.  The defendant told police that she and the victim child were returning to the car from a medical appointment but they had to cross the street to get to her car.  She states that she cannot remember why she struck him but it was a reflex.  She further stated that she cannot recall whether the victim child was sitting in the car or getting into the car at the time of the assault.  She states that the child’s eyes teared up a little bit.

8. The charges against the mother were laid, seemingly, in the Magistrates Court.  It was during the currency of those charges that the mother, on occasion, appeared before me, vehemently asserting her innocence and asserting, amongst other things, that it was the product of the father inculcating into the child some incorrect memory of the occurrence.  I note that, again, without any real explanation, it appears as though some time limit associated with the presentation of material against the mother expired in the criminal proceedings, which led to them being dismissed.  They do not appear to have been resurrected.

9. Prior to the incident in November 2012, the father had had concerns arising out of largely unexplained injuries which the child, from time to time, presented.  For instance, on 15 February 2012, according to further material within the tender bundle obtained from subpoenas issued to the Queensland Police, the following occurs in relation to a report and in relation to the child, M:

   The reporting officer observed a couple of very minor and faint bruises on both arms of the victim child, both of which were barely visible.

   A section 93A statement was obtained from the victim child and partial disclosures made, being that the victim child stated that the suspect had smacked him in the past when he was naughty but refused to particularise further, preferring only to speak of his playground antics.  The victim child was also unable to particularise how often he was physically punished and what form of smacking is given by the suspect. 

10. Nothing arose by way of either police or Department of Community Safety & Child Welfare on that occasion.

11. In consequence of the involvement of the police and the Department in November 2012, the child, who up until then had been living in something of a shared care arrangement, was placed wholly in the care of the father and has remained in his care since then.  The mother’s life appears to be a somewhat curious one.  It is difficult to obtain any real insight into it, however it appears as though domestic violence has been a persistent feature for at least five months of her life during 2012 when she was in a relationship with a Mr T.

12. Amongst the subpoenaed material tendered by the respondent is a report, or several reports, in relation to events which appear to have transpired on 28 July 2012, which demonstrate, at least by reference to a particular incident, very threatening behaviour on the part of Mr T towards her and highly aggressive conduct.  Further, it appears as though, also on 28 July, the mother alleged that she was raped by Mr T and it appears as though the child, M, was – at least, according to the mother – whilst not physically immediately present during the course of that assault or rape or both – that he was, in fact, in the room next door.

13. It certainly appears as though, for that five month period and perhaps on other occasions, the child has been living in a domestically violent home without, it would appear, the father being aware of that feature of the child’s living arrangements.  Further, the mother appears to have a particularly aberrant driving record.  In the material in the subpoenaed tender bundles appears her driving record.  It has many entries in relation to speeding, in relation to high speed acceleration, and other aberrant driving.  Whilst it cannot be said with any confidence that the child, M, was necessarily present in the car on one or more of those occasions, it nonetheless is one of the few objective indicators as to the sort of life that she appears to lead.

14. According to the material in the tender bundle, the maternal grandmother has, on occasion, expressed concern to authorities in relation to her daughter’s anger and inability to cope with anger.  That appears to be, again, a recurrent feature of her life in that she appears to have difficulty dealing with authority figures and authority, and appears to have a somewhat impetuous approach to behaving in the presence of authority and authority figures.  As I say, part of the unsatisfactory nature of this case is that, against all of that sort of material, and notwithstanding her vehement denial of much of that material – at least when she appeared before me during interim mentions of the case – she has chosen to disengage from the proceedings and appears to have chosen to wholly disengage from any attempt at involvement in the child’s life.

15. Against such allegations it would appear to be a reasonable inference to draw that, notwithstanding her vehement denial of them, her failure to appear to refute them or to otherwise seek to substantively dissuade the court from making conclusions is consistent with a concession that there is some substantial truth to the allegations.

16. That is, of course, an important matter in this case particularly because the principal reason why the father seeks to urge me to make orders that would in effect preclude the mother from having any involvement in the child’s life is that she represents an unacceptable risk of physical and emotional harm to the child.  One could readily imagine that faced with those allegations a parent who refuted that suggestion would be at pains to engage in the proceedings and to put every piece of material that would refute those allegations before me.

17. As I say, the mother has chosen to disengage from the proceedings in the face of the grave allegations which the father makes against her which makes it more reasonable for the court to make the conclusions which the father asks the court to make.  The question of whether or not the mother represents an unacceptable risk of harm to the child is the determinative issue in this case.

18. I am mindful that it is a serious allegation and, in accordance with the authorities, a finding of unacceptable risk, even though it is to be established only on the balance of probabilities, needs to be made mindful of the severe consequences which such a finding can visit upon a parent and indeed a child.  I acknowledge that the task of the court in determining whether a parent represents an unacceptable risk is one which requires positive satisfaction to the requisite standard, mindful of the consequences which the grave finding may impose.

19. As I have indicated, the question of whether or not the mother represents an unacceptable risk is really the determinative factor here. Whilst I propose to in due course, briefly traverse the balance of the section 60CC factors I propose to deal with the risk of harm which the mother is said to present to the child at the outset because it is the principal issue in this case. Moreover, I am mindful that section 60CC(2)(a) says that that is the consideration to be given the greater weight as between the primary considerations. Even if section 60CC(2)(a) had not been enacted, on the facts of this case that would consideration would, in the exercise of my discretion, be given greater weight than any other factor anyway.

20. I have already traversed the substantive material relied upon by the father to justify the finding of unacceptable risk.  I have also adverted to the fact that the prosecution against the mother did not proceed, or at least did not proceed to conclusion, for reasons which the evidence does not enable me to discern.  Notwithstanding the fact that there is no direct evidence of the assault by the mother, in the sense that the only evidence I have of it is secondary evidence derived apparently from a section 93A interview of the child, and notwithstanding the fact that the evidence is in the form of police records rather than witness statements, nonetheless with all of those caveats, I am satisfied, on the balance of probabilities, that the mother did indeed, on the occasion in question, assault the child.

21. Moreover, I am satisfied, on the balance of probabilities, that it is likely that there have been other occasions in the past where the mother also assaulted the child, perhaps in some misguided disciplinary response.  As I have already indicated, the mother appears to have issues with anger.  This has been adverted to by her own mother on more than one occasion. 

22. Given the fact of a past assault, and the fact that I am persuaded on the balance of probabilities that there are likely to have been earlier assaults, and the fact that the mother appears to have anger issues, and the fact that the mother has disengaged from these proceedings in the face of those allegations and those likely findings, I am satisfied that the mother does indeed represent an unacceptable risk of harm to the child.  In making that finding I am cognisant of the severe consequences which that finding visits upon both the mother and the child.

23. The other matter I should advert to whilst considering the impact of such a finding is that ordinarily one could well imagine that a regime of supervised time between the child and the parent would be appropriate, or at least sufficiently affording the child protection from the risk of any ongoing assault from the parent, so as to render the otherwise unacceptable risk, one which the court would be prepared to countenance.  However, it is plain from the material before me that the father has offered the mother to attend the C Contact Centre to enable supervised time with the child to take place, but she has not availed herself of that opportunity.

24. In part that might be explained by her difficulty in interacting with people in authority.  That was something which I was mindful from her own presentation in court.  I could well imagine that the mother would have difficulty subjecting herself or submitting herself to the authority of supervisors at the contact centre.  Therefore whilst it might be thought that to deny the mother even the opportunity for supervised time with this child is going too far, firstly, the mother does not appear to seek it, nor does the independent children’s lawyer suggest it.  Secondly, it has been afforded to her in the past but she has not availed of it.  Thirdly, it appears as though it may not work given the mother’s characteristics in dealing with people in authority.

25. I then turn to consider the balance of the 60CC considerations.  The first is the benefit of the child of having a meaningful relationship with both of his parents.  It appears as though, at least up until November 2012, there was at least some benefit to the child of having a meaningful relationship with his mother, although I note that in the course of the materials before me are some suggestions that the level of conflict between the parents had caused the child to already become somewhat introverted and there was a prediction that he may well continue to suffer psychological side effects of being exposed to the conflict.

26. That isn’t to say necessarily that the mother could not have brought some benefit to the child in having a relationship with her.  However, it appears that in practice the nature of the relationship between, on the one hand the child, and his parents, and on the other, between the parents, has eroded what would have otherwise been the likely benefit to the child of having a meaningful relationship with both of his parents.  Therefore whilst in an ideal world it might be said that the child should continue to have a relationship with his mother there are downsides to such a relationship, in any event.  And, moreover, the mother does not, presently at least, seek to argue that such a relationship should continue.

1. I then turn to the additional considerations.  The child is too young for any views that may have been expressed by him to be given any weight.  The nature of the relationship between the child and his father, on the one hand, appears to be sound and ongoing.  On the other hand, the child’s relationship with his mother has not existed since November 2012.  It’s impossible to discern what he presently thinks of his mother and, indeed, whether he would recognise her.

2. The nature of the relationship of the child with other persons is relevant here, particularly the grandparents.  It appears as though the father is willing to facilitate an ongoing relationship between the child and his maternal grandmother, and indeed it appears as though she recognised that he was likely to be the best facilitator of that relationship, rather than the mother, due to conflict between the maternal grandmother and the mother which eroded the capacity of the mother to facilitate that relationship.

3. As to the consideration in section 60CC(3)(c), the reality is that since November 2012 the mother has not had any involvement in the child’s life. In part that is because of the regime of orders which has prevailed, but most recently it is because she has disengaged from these proceedings. The father has at all times maintained a major role in the child’s life and since November 2012 has been in effect the only parent in this child’s life. Similar observations can be made in relation to section 60CC(3)(ca). The mother had, at least prior to November 2012, been attempting to fulfil her obligations to maintain the child. Since then she has not done so.

4. Sub-paragraph (d) is not directly relevant, in that the orders sought by the father do not affect any change in the child’s circumstances.  However, I accept that his orders will see the child separated from his mother for at least the balance of his childhood and perhaps going forward.  No doubt a child would benefit from a relationship with both parents.  However, that does not seem to be a practical prospect here, as regrettable as that may be.  Now, (e) does not appear to be relevant, save that the mother’s last address was in southeast Queensland.  Whether that remains her present city of abode is unclear.  There is not information from which I can draw a conclusion either way in relation to (e).  Sub-paragraph (f) is highly irrelevant here.

5. The mother appears to have lived a somewhat unstable and erratic life.  It casts real doubt upon her capacity to provide for the child’s needs, whether emotional, physical or intellectual.  Particularly I am mindful that the child appears to have been caused by the mother to live in a domestically violent home for at least five months.  That reflects poorly upon the mother’s capacity to provide for the emotional needs of the child. 

6. Sub-paragraph (g) does not appear to be relevant.  Sub-paragraph (h) is relevant here.  However, to the extent that it is relevant it wholly favours the father.  It favours him in two respects.  Firstly, he is the conduit to the child enjoying his Aboriginal or Torres Strait Islander background and heritage.  Secondly, the material before me tends to suggest that the mother either does not celebrate that heritage, and tends to downplay it, or alternatively seems to see it in something other than a positive light.  Sub-paragraph (h) is relevant; it wholly favours the father.  Sub-paragraph (i) overlaps with considerations I have addressed before, namely, the attitude of the father and mother are quite different.  The father has stepped up to the mark in terms of his responsibilities of parenthood.

7. The mother, whilst no doubt ferociously attending upon her attempted discharge of her responsibilities of parenting the child, appears to have been misguided, has been prone to violence and has exposed the child to domestically violent environments.  Sub-paragraph (j) is relevant, in that there is family violence involving the child’s family, particularly the mother.  It does not need to be addressed further.  Sub-paragraph (l) is relevant here, in that of course it would be preferable to make an order which wholly settled the dust in relation to the child’s parenting.  However, for the reasons I have previously identified, the unexplained disengagement of the mother from these proceedings renders it desirable to give her a further opportunity to engage in these proceedings and seek to discharge or vary any orders which are made.

8. Against that review of the factors, I turn to consider the appropriate regime of parenting orders for this child. The starting point is, as is usually the case, to consider whether or not the presumption of equal shared parental responsibility provided for by section 61DA applies. The presumption afforded by subsection (1) does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. For the reasons I previously identified, there are more than reasonable grounds to believe that the mother has abused the child. I have found that she did, in fact, assault the child, on the balance of probabilities. Therefore, the presumption of equal shared parental responsibility does not apply and, moreover, given the history of these parties, the level of hostility between them, the fact that the parents do not appear to have had any form of communication whatsoever now for in excess of six months, make it plainly not in the child’s best interests that there should be equal shared parental responsibility or, indeed, any parental responsibility afforded to the mother at all. There will be an order that the father have sole parental responsibility.

9. I turn then to the living arrangements for the child.  I have already observed that since November 2012, the child has resided with the father.  Notwithstanding the fact that her last articulated position was that the child should reside with her, the mother does not press for such an order any longer, or at least to the extent that she may continue to press for it, she has not engaged in the proceedings to seek it.  Therefore, in reality, there is only one order which can possibly be in the child’s best interests and that is the child should live with the father.  There is no other practical option on the table.

10. Even but for the mother’s disengagement, her assault of the child in November would inevitably mean that, absent some cataclysmic change in her behaviour, that it would be inevitable that the child would live with the father.  The reality is that that order is essential to maintain the physical safety and security of the child.  I therefore determine that it is in the child’s best interests that he live with the father.

11. That then leaves, in substance, the issue of the time, if any, which the child should spend with the mother.  This is a somewhat more vexed issue.  The orders which the father seeks effectively, as I have indicated, wholly shut off the mother from the child until at least his majority.  On one view, that is such a dramatic consequence as to require the court to carefully examine the material before it to justify that it would be in the child’s best interests to, in effect, grow up without any continuing involvement or knowledge of one of his parents.  I am mindful of the dramatic nature of the orders which the father seeks in this regard.  However, there are several matters which need to be addressed.

12. The first is the relatively clear evidence that the mother does have serious issues with anger and particularly her ability to control her physical response to anger.  That does not appear to be something which she has any real control of, at least on the materials before me.  Her responses appear to be instinctive, impetuous and often physical.  That is a major matter when one is considering the safety and security of a young child.  It would cast serious doubts as to whether or not the mother should, even if she were willing and engaged in these proceedings, to spend anything other than supervised time with the child.

13. The second matter is, of course, that the mother has disengaged from these proceedings and it is somewhat idle to contemplate making orders that the child spend time with the mother when the mother is not here to agitate for such orders or to seek any input in relation to them. 

14. The third matter is, of course, that there has been a degree of conflict between these parents and, moreover, the practicality of the mother spending time with the child is vexed given that the court doesn’t even know where she is presently living and, indeed, what State she is living in.  All of that makes it very difficult to the point of impossible for the court to practically embark upon contemplating any regime of orders for the mother spending time with the child. 

15. Therefore, notwithstanding the relatively draconian nature of the orders which the father seeks and which are, I note, supported by the Independent Children’s Lawyer, I am of the view that in the unique and regrettable circumstances of this case, it is in the child’s best interests that there be no order providing for the mother spending time with the child. 

1. That then brings me to the question of what communication, if any, there should be between the child and the mother.  It will be immediately appreciated that, whilst the physical safety of the child is ensured by there being no physical contact between him and his mother or otherwise spending time between them, it is quite another matter when one comes to communication which is not attended by the risk of physical harm.  Ordinarily, one might think that there would be no need to, within reasonable bounds, restrict communication between a child and his mother.  However, this case raises the reasonableness of the communication which is likely to ensue between the mother and the child and particularly the likely content of it. 

2. I have already indicated that the mother had a very robust approach to her engagement in court.  That appears to be characteristic of her engagement with many, including her own mother and authority figures.  I don’t have much of an insight as to how she has engaged with the child in the past, save that it appears as though physical discipline to the point of assault has been a feature of it.  No doubt there will be impulsive aspects to her interaction, were it allowed to continue, and it may well be that there is the similar level of robust activity on her part. 

3. Against that background, Ms Hartley, who appears as solicitor for the father, seeks an order that the mother’s communication with the child be restricted to written communication on the child’s birthday and at Christmas, save that she indicates that the father should be permitted to vet that communication to ensure that it is reasonable.  She, during the course of debate, conceded that it would be appropriate to permit the child, should he see fit in the future, to instigate communication with his mother and there should be no prohibition on the mother responding to that communication in like kind.  However, that is likely to be some years off, if it ever occurs. 

4. What I am concerned to do is to evaluate what communication with his mother between now and the age of 18 is appropriate and in the best interests of the child given the material before me, always of course, mindful of the caveat that the mother has not engaged in these proceedings for six months or more, and has not appeared at this hearing.  The father, via his solicitor, points to instances of the mother’s communication.  For instance, in an annexure to her affidavit filed 28 June 2013, it is plain that that robust approach to communication, which was characteristic of her appearances before me, was very much manifest in that communication.  For instance, one of the paragraphs reads:

   I have zero tolerance for [the father] or his lawyer’s games.  I think they have all forgotten I am [the child’s] mother.  I am very concerned about my son’s disturbing behaviour.  It has been found that, since spending time with [the father], [the child] has started peeing on other children and sticking his finger up another child’s bottom.  Further, on a visit to his Aunty [S], we were sitting around playing with toys on the floor;  I went to go to the toilet;  my Aunty [E], who was also present, went to cook dinner;  all of a sudden, [the child] just started saying to [S] that he is scared to go to bed at night, because the devil was under his sheets.  [The child] also said, as he folded his arms and put his head down, “I’m not an Aussie boy, I’m a black boy.”  He looked upset.  [The father] is inappropriately labelling my son by being told he is black when he is not.  [The child] has not been given the opportunity for a normal upbringing.  They are brainwashing my son into all sorts of obscure things.  For example, “Presents come from God”, [the child] said to his Aunty [S] out of the blue.  This is a clear example of the psychological trauma and effect [the father] coaxing my son.  I am disgusted with what these people have done to myself and my child and they continue to get away with it.

5. That, I think correctly, Ms Hartley suggests demonstrates the prospect that the mother may not have much insight in communication with her son in the future.  Certainly, it would seem unsatisfactory to permit there to be unmonitored and unsupervised telephone communication, for instance, because it is likely that the mother would, in those communications, seek to ventilate the same sort of concerns which she was ventilating in the paragraph that I have just read from her affidavit and perhaps also seek to deny the misconduct which I have found in the past she has perpetrated towards the child. 

6. All of that, to my mind, makes it in the child’s best interests that there be some monitoring of any communication.  Of course, monitoring telephone communication is very difficult with, at the same time, affording any privacy to the child.  In my view, in the, unique circumstances of this case, telephone communication is likely to be highly problematic and not in the child’s best interests.  On the other hand, I accept that there should be the opportunity for the mother to continue to have some contact with the child and for, to the extent that the child wishes to instigate communication with his mother, that to be unrestricted.  Therefore, I propose to accede to the request of the father.

7. That then means that there will need to be further orders that the father maintain, or continue to provide the mother with the child’s address from time to time to enable that to occur.  No doubt that would be a postal address, not necessarily a physical address.  The order, when it is finally cast, will be expressed to commence, “save where instigated by the child, the mother is prohibited from…” 

8. That then brings me to the final matter which is the passport issue. 

9. I am satisfied that it is in the child’s best interests to be able to travel overseas.  His grandfather on his father’s side splits his time between Country X and Country Z and, clearly, it is likely that the child will wish to travel at some stage to see his grandfather.   

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 February 2014.

Associate:

Date:  10 February 2014