S and H

[2008] FCWA 23

[2008] FCWA 23

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	S and H [2008] FCWA 23
CORAM	:	CRISFORD J
HEARD	:	14-16 & 23-25 & 31 JANUARY 2008
DELIVERED	:	5 MARCH 2008
FILE NO/S	:	PT 3592 of 2005
BETWEEN	:	S
Applicant/Father
AND
H Respondent/Mother
Catchwords:

Children's issues - with whom a child lives - change of residence to father

Legislation:

Family Court Act 1997, s 66A, s 66C, s 70A(1)

Category: Not Reportable

[2008] FCWA 23

Representation:

Counsel:

Applicant	:	Ms K Munro
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Mr R Bannerman

Solicitors:

Applicant	:	Legal Aid WA
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Bannerman Solicitors

Case(s) referred to in judgment(s):

Nil

[2008] FCWA 23

1 A Court’s task in children’s matters is to arrive at an outcome which in the

unique circumstances of each case is in a child’s best interests. Each child has a different life and what is one child’s best interests may differ from those of another child even in similar circumstances. Different minds can reach different conclusions on what a child’s best interest might be.

2 When [Ms H the mother], then just 17 years of age, gave birth to [B] [in]

December 2003 after a 32 hour labour, in her eyes she had no choice but to care for him. [B]’s father, [Mr S], then aged 18 years, was less interested, less aware and less responsible. Over time his attitude has changed dramatically. He wants to be involved in [B]’s life. Unfortunately, [the mother]’s initial sense of abandonment has not abated over time and as a result she has been unable to promote [B]’s relationship with his father.

3 After the evidence the Court is faced with two likely outcomes:

(a)	[B] to remain living with his mother and to have no contact with his father on the basis that presently any interaction with his father is extremely stressful for him, or
(b)	to live with his father and experience a removal from his mother with whom he has always lived and with whom he has a very strong bond.

4 Either option is likely to impact on [B] in a negative way – the former more so in

the long term and the latter more so in the short term. Either course is likely to make it
difficult for [B] to reach his full potential.

5 The Court asks whether it is possible to achieve a middle ground where [B] can

have a substantial involvement with both parents, as envisaged by the Family Court
Act 1997 as amended by the Family Legislation Amendment Act 2006.

The applicable law

6 S 66A of the Act makes clear that I am required to treat the best interests of the child as the paramount consideration. The objects of Part VII are to ensure that the best interests of children are met by:

(a)	ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)	protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

[2008] FCWA 23

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

7 S 66C sets out the matters I must take into account in determining what is in the

best interests of [B]. S 66C(2) details what are described as primary considerations and s 66C(3) details additional considerations to be taken into account in determining what is in the child’s best interest. The additional considerations are not secondary considerations but are matters to be read in conjunction with the primary considerations. There is a degree of overlap in some of the considerations.

8 S 70A(1) of the Act directs that a Court when making a parenting order must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In this case each party sought an order for sole parental responsibility for [B].

9 Parental responsibility relates to decision making and not the time to be spent

with each parent. It does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or child abuse. Neither party sought to argue that either circumstance applied here.

10 The presumption, however, may be rebutted by evidence that satisfies the Court

that it would not be in the child’s best interests for his parents to have equal shared
parental responsibility for him.

11 In this case I have determined that the presumption has been rebutted by

evidence which will be canvassed further in the body of my judgment. Suffice it here to say the parties are not able to work together to arrive at any decisions in relation to major long-term issues for [B]. To varying degrees both are immature and lack insight. There is ongoing conflict between them.

Orders sought by the parties

12 [The mother]’s proposals are contained in her Papers for the Judge filed on

11 January 2008. She seeks that [B] live with her and that [the father] spends time
with him.

13 She proposes that for a two month period [the father] sees [B] on a weekly

supervised basis for two hours. Before any change or increase, she seeks an investigation be conducted into “any inappropriate behaviour concerning [B]’s accusations of [the father] hurting his bottom.”

14 If the investigation does not substantiate any wrongdoing on the part of

[the father] or those he mixes with then the time would be increased to three hours once a week unsupervised, at [the father]’s residence. This would increase to five hours after two months. There is also some provision for special days. There is no provision for overnight or extended time.

15 [The mother] also seeks a plethora of other orders regulating [the father]’s

behaviour when [B] is with him. Significantly, she seeks to exclude his present

[2008] FCWA 23

partner, [Ms K], aged 23 years from having any contact with [B]. [The father] and
[Ms K] live together with [their son] aged 8 months.

16 [the mother] had also filed an application on 10 July 2006 seeking to change [B]’s surname from [S] to [H].

17 At the conclusion of the trial, the independent children’s lawyer provided the

Court with a minute of orders he seeks which contemplate a complete change in the current living arrangements such that [B] would immediately live with his father. There would be provision on a weekly basis for [the mother] to see [B] for a period of four hours to be supervised by Relationships Australia. This was to take place over a four month period before the matter progressed. He seeks orders in relation to parenting courses and psychological assistance for [B].

18 [The father] proposed orders contained in his Papers for the Judge filed

3 January 2008. As a primary position, he sought [B] live with him and [the mother] initially have supervised time or in the alternative, [B] remain living with his mother and he have substantial and significant time with him.

19 At the conclusion of trial, as a result of the evidence, counsel for [the father] advised that he now seeks the same orders as the independent children’s lawyer.

Applying the facts to the law

20 I will firstly turn to the primary considerations in determining what would be most likely to promote the best interests of [B].

(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

21 [B] has a very strong attachment to his mother. He is intensely bonded to her.

As a single parent she has put all her energy into raising [B]. [The mother] and [B] live together in rented accommodation with a friend of [the mother].

22 [The father], on the other hand, has a weak relationship with [B]. There is as yet

no strong attachment. The nature of the relationship is positive but it is in the early stages of development. The meaningful relationship is lacking due to [the mother]’s view that [the father] and [Ms K] are a danger to him, disinterested in him and are simply seeking to get back at her for some unexplained reason.

23 [Dr W], Clinical and Forensic Psychologist who was appointed single expert

on 24 April 2007, reports that [B] is a child who may well end up with a mental health diagnosis as he gets older. He found a “demandingness” and hyperactivity in [B]’s nature that caused him some concern about future psychological development.

24 To date, any attempt by [the father] to establish a meaningful relationship with

[B] has resulted in [B] being subjected to an enormous amount of stress. Any orders for [B] to spend time with [the father] have effectively been undermined by [the mother].

[2008] FCWA 23

25 Although it would be beneficial for [B] to have a meaningful relationship with

both of his parents this must be weighed against the pressure [B] experiences in his mother’s household as a result of him visiting with [the father], [Ms K] and [their son]. [B] needs to be shielded from parental forces that will undermine his future development and security.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

26 There are three aspects that need to be considered here.

(i) [The mother]’s temper

27 The first matter is [the mother]’s sometimes angry and volatile behaviour

displayed in [B]’s presence. [The mother]’s ability to control her anger generally,
especially in the context of the Court proceedings, is questionable.

28 [The mother] accepted that she had issues in relation to anger as a child. Her

parents said she was angry and rebellious as a teenager. Her mother, [Mrs H] sought to minimise and downplay the anger by suggesting it was “normal” behaviour for a teenage girl. She said [the mother] had hit her father [Mr H], but it was in the context of a typical father/daughter battle. Although [Dr W] said there was a range of behaviours generally considered “normal” the evidence about how [the mother] acted here took it out of that range.

29 During the course of the evidence it became apparent that [the mother] has

a continuing problem. There were times when her actions were emotional, reactive
and extremely hostile. She was very sensitive to any form of criticism.

30 [The father] said that during the course of their relationship which spanned from

sometime in 2002 until around October 2003, [the mother] would get angry and throw things. He said she would pick up anything that was available such as crockery. He said she used very derogatory terms to describe people especially him. [The mother] denied this but it became apparent even while she was giving evidence that her language at times tended to be colourful. Correspondence she had written also contained very derogatory terms. [Dr W] said she had used very strong language when describing [Ms K].

31 She had, at the very least, been present with friends and acquaintances who

committed violent acts against the [S] family. She tried to distance herself from these
companions when such events took place.

32 One such event took place on 23 July 2006 at a Hungry Jacks food outlet in [the

suburbs]. [The mother] and a group of her friends attended the drive through area at which [the father] and [Ms K] were purchasing food. Trouble brewed and [the father] hurriedly tried to leave the driveway in his motor vehicle. A person with [the mother] threw a tyre lever at the car smashing the rear window. [The mother] and her friends including the assailant left and had lunch. The assailant was subsequently charged with a criminal offence. Although no one was hurt, I have no doubt this was a frightening event for [the father] and [Ms K]. [B] was not present.

[2008] FCWA 23

33 While these matters reflect very poorly on [the mother] generally, of specific concern to the Court is her anger and violent behaviour when [B] is present.

34 On 24 April 2007 the Family Court reinstated weekend time between [the father]

and [B]. The evidence suggests [the father]’s lawyer may have commented on the possibility of [the father] seeking [B] live with him due to [the mother]’s failure to facilitate any contact.

35 [The mother] was extremely distressed about this. After Court she attended her

parent’s home to collect [B] who was being looked after by [Mrs H]. Due to her angry reaction to the Court proceedings, she became very upset with her mother. She threw a chair at her, pushed her through a door and generally behaved in a violent fashion. She left with [B]. Her actions prompted her parents to obtain a 24 hour protection order.

36 The following day [the mother] went back to their home to make amends. On

this occasion her father asked her to leave. There was a highly charged verbal exchange. Her father came towards her and she kneed him in the groin. [B] was some 15-20 metres away. The evidence is not entirely clear but after this exchange it is not challenged that she pushed [B] out of the way. He fell down and was crying and upset.

37 [The mother] had previously been physically and verbally violent towards her

mother and also towards her father. I accept some of those actions are historic, but I also accept there is a very real ongoing problem that has not been adequately addressed. I am not satisfied that [B] has been quarantined from this behaviour on all occasions. [Dr W] found no evidence of a clear physical risk to [B]. I am however concerned that although there is no evidence at all of [the mother] deliberately physically hurting [B], she has an inability to control her emotions and physical reactions towards people she is closest to and who love her without reservation when she is enraged. Given her propensity to lash out at the people she loves it is important that her temper be addressed.

38[ [Ms L], a Clinical Psychologist consulted by [the mother] on a professional basis

deposed to helping [the mother] with anger management issues. It has not appeared to have made any great change in her behaviour at this time. [Ms L] was not available at trial but the affidavit she swore and relied upon by [the mother] was before the Court.

39 Her lack of self control in [B]’s presence is of concern and is something from which [B] needs shielding.

(ii) [B]’s sore bottom

40 [B] has always had some issues with toileting. [Mrs H] said [B] had a propensity to suffer from constipation, even as a baby.

41 [The mother]’s witnesses variously gave evidence about [B]’s ongoing bowel

problems. There were times when, although toilet trained, he did not use the toilet. There were times when he refused to go to toilet at all. There were also problems with leakage from his bowels.

[2008] FCWA 23

42 On the 30 August 2007 [the mother] filed a Notice of Child Abuse. She

documented that [B] stated [the father] touches his bottom and that [the father] keeps hurting his bottom. These statements were made to her, the day care centre and to [Ms L].

43 [The mother] said that she first saw bruising on [B]’s bottom when he was about

18 months old – around July 2005. She said it looked like his bottom had been wiped
too hard and it was bruised.

44 In mid 2006 there were still problems and a child health nurse who had seen [B]

suggested lactose intolerance as a cause for the redness around his anus. He was being given milk at the [S] house despite being asked not to. [The mother] said at that time [B] had told her he had a sore bottom although nothing was said about [the father] hurting it.

45 In May or June 2007 [the mother] discussed the issue with [Ms L]. She

recounted to her some of [B]’s behaviours at the time. These included showing people his genitals, asking people to touch his penis and rubbing his genitals on [the mother]’s leg. [Ms L] had said it was sexualised behaviour. She suggested that [B]’s problems may have been as a result of stress.

46 [The mother] said [B] started to identify [the father] as being the cause of the

sore bottom in about May or June 2007. She said she talked about it to [B] as he brought it up everyday and cried. She asked him to “show me where [the father] hurt your bum” and “show me how [the father] hurt you”.

47 [Dr W] published his first report on 27 June 2007. He had seen the parties in

May and June 2007. He felt the problems related to toileting and not to sexual abuse. [Dr W] reports his sexualised behaviour as being consistent with his development and presentation rather than anything sinister. He accepted stress may have started it, but it has now been compounded by other events, including [the mother]’s reaction to it.

48 At trial he said it was not unknown for young children to use a refusal to go to

toilet as a means of controlling their parents. Despite his lack of concern, after his
interviews [the mother] filed the Notice of Child Abuse.

49 [Dr W] investigated the matter again in September/October 2007 in preparation

for an updated report. He said the ongoing allegation was in fact the original allegation and not something new. He reported that [B] has become fixated on the issue due to the reaction he gets from [the mother] when he says it. He said [B] needed to be distracted away from it and corrected rather than questioned and comforted.

50 [The mother] said that after the supervised Relationships Australia visits in December 2007 and January 2008 the complaints of a sore bottom became worse.

51 [The mother] said [B]’s continual complaining that [the father] hurt his bottom

could be an attention seeking activity. She opined that it might be his way of letting her know he did not want to go to see [the father]. [Dr W] said [the mother] was not escalating the claim but that [B] was aware his statements excited attention and

[2008] FCWA 23

elicited a strong emotional reaction from [the mother]. [the mother] was unaware her
non-verbal reactions impacted on [B].

52 [The father] said that he had always carried out appropriate toileting procedures.

He could not recall any time when [B] may have been hurt. He said there was never any complaint by [B]. [The father] did not strike the Court as being overly insightful in the meeting of [B]’s needs and it is possible that he was a little heavy handed such that [B] did have a painful experience whilst his bottom was wiped.

53 Although [the mother] has said that she does not suspect [the father] of abusing

[B], she appears convinced that “something” has happened in the [S] household, such that further investigation is required despite lack of substantiation of anything untoward happening.

(iii) [B]’s return from time with [the father]

54 [The mother] has had difficulty dealing with [B] when he returns from spending

time with [the father]. She said that this was the only time she could not bear to be around [B]. She said he came home traumatised. He would be angry, hit, kick and spit. She said it took time for him to “neutralise”.

55 [Ms L] deposed:

“17. [the mother] has over sessions reported mixed feelings [B] (sic) she loves him and the two can be affectionate, but she has negative impulses towards [B] at times as well (by her own report). She has verbally lashed out at [B] when she saw a photo in the local newspaper of [the father] and [B].

…………

23. [B]’s behaviour can be difficult when he returns from his father’s, according to [the mother]. The ongoing stress of the court process, the fear of losing [B], plus her ongoing conflict with [the father] impacts negatively on her, and this in turn affects her parenting style.”

56 At the suggestion of [Ms L] she had her mother collect [B] after contact to allow

him time to settle down. She said after contact [B]’s behaviour was different in that it was like [the father]’s behaviour. She would ask [B] if [the father] had made him act like that simply to hurt her. She handed [B] to her mother if she was upset and needed space to be upset.

57 Various of [the mother]’s witnesses gave evidence about [B]’s behaviour on his

return from time with [the father]. [The mother]’s father said he came back like a little dynamo and took between one and a half to two hours to settle down. [Mrs H] said it took him overnight to settle. He would scream, yell and throw things. Very concerningly he would hurt the family pets. [A friend ]of [the mother] said on the one occasion she saw him he was out of control and trying to smash windows.

58 Although [Dr W] was critical of [B] not going from [the father] direct to his

primary attachment figure, it is easy to understand the logic in the advice given by

[2008] FCWA 23

[Ms L]. It does allow [the mother] and [B] the time to settle down. [The mother] said that sometimes after [B]’s return from being with [the father] she has felt the only way to make [B] listen to her is to smack him. She was unsure how to deal with this and did not know what to do.

59 The recommendation of [Ms L] has the benefit of quarantining [B] from

[the mother]’s anger and inability to deal with [B]’s behaviour. However, her lack of emotional availability creates its own set of stress for [B]. He is aware that [the mother] dislikes [the father] and [Ms K], yet he is sent there. On his return, [the mother] is not always there. [Dr W] said this could be seen as a rejection of him. This confusion for young [B] is stressful in the extreme.

60 [Dr W], in recounting his review of [the mother], said she shakes at the thought

of [the father] and his family. [B] asks why daddy makes mummy cry. [B] knows her feelings and is able to gain mileage and attention from that. I am satisfied that [B]’s distress is likely to stem from the extraordinary amount of anxiety imposed upon him by [the mother]. Her anxiety is out of proportion to the situation being faced.

61 These three separate yet interrelated issues are cause for concern for the Court. There is a need to protect [B] from the stress to which he is being subjected.

62 I must now turn to the additional considerations.

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

63 [B] is four years of age and as a result of this and the environment in which he lives, his views are of no assistance to the Court.

(b)

the nature of the relationship of the child with:

(i)	each of the child's parents; and
(ii)	other persons (including any grandparent or other relative of the child);

64 [B] has a close and loving relationship with his mother. She has been dedicated

in her care of him. They are bonded and form a family unit. They have an intense
relationship with few boundaries.

65 [B] has a loving relationship with his maternal grandparents and his uncle. His

relationship with his maternal grandmother is particularly close. She has cared for [B] from time to time and he is very attached to her. [The mother] and [B] lived with her parents for 18 months after the birth. [The mother] has a brother who is 19 years of age and he is close to [B]. She continues to see her parents almost daily.

66 [B] has a weak, but positive relationship with his father. He has not seen [Ms K]

since mid 2007. [Dr W] suspected a stronger attachment between [Ms K] and [B] than [the father] and [B] given she was a lot warmer in her interactions with him. She and

[2008] FCWA 23

[the father] started a relationship in May 2006. [B] last saw the paternal grandmother,
[Mrs S] in July 2007.

67 [Mrs S], when she did spend time with [B], appears to have had a good

relationship with him. She is well and truly involved emotionally in these proceedings. I accept that in the early days of [B]’s life she was the prime mover to [B] having interaction with [the father] and the paternal family. [The mother] continues to believe that [the father]’s Court application is motivated by [Mrs S]. I do not accept that to be the case.

68 [Mrs S] presented with a certain lack of insight. When she had collected [B] on

behalf of [the father] at the start of a visit the words she used to “reassure” [B] were really conversations which questioned [the mother]’s position. Despite this, she appeared open to communicating with [Mr and Mrs H] and trying to create an effective conduit for interaction between [B] and his father.

69 [Mrs H] was aligned with [the mother] in most of her views. There have been

difficulties in their relationship from time to time and at this stage, [Mrs H] appears fearful of losing her daughter’s trust and love. To this end she totally adopted [the mother]’s position. She accepted [the mother]’s behaviour and attitude without question.

70 [Mrs H] was very negative about [the father] and his family and the Court is not

satisfied that she is open to [B] having anything to do with [the father]. [Mr H], a loving grandfather, was less involved in the immediate difficulties, but was supportive of his daughter despite clashing during [the mother]’s teenage years and even recently. He could acknowledge the need for [B] to know his father.

71 [Mrs H] said she had a longstanding anxiety problem. [The mother] also accepts that she herself has an anxiety problem. She denies any depression.

72 It is of some use here to consider the history of [the father]’s time with [B].

73 When [B] was born in December 2003 [the father] had been present for some

part of the birth. Although there was little detail, he acknowledged that at 17 years of age he was not able to watch all the labour process and indicated he had a weak stomach. The Court accepts that he may not have been the stalwart support a young mother might have wished for during labour however, it is a little harsh to suggest complete abandonment.

74 [The mother] took [B] to the [S] household over Christmas 2003. Ongoing

contact was not agreed. In April 2004 at her instigation an Alternate Dispute Resolution conference was held. The parties reached some agreement about [the father] seeing [B].

75 There can be no doubt there were difficulties. It was agreed [the father] was to

see [B] at his mother’s home. On one occasion [the mother] saw him with [B] at a Hungry Jacks outlet. [The father] accepted that he had been at Hungry Jacks with [B] but said it was immediately after the pickup and he had gone there to purchase food on his way home. [The mother] disputes this.

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76 It is likely that [the mother] was possessive, critical and demanding. She was

smarting about the perceived abandonment of her and, by extension, [B]. However, [the father] presents as being very immature and selfish around that period of time. I accept that he was unreliable with times and arrangements. When he made arrangements he did not always follow through with them. However there is nothing to suggest that he did not want to see [B], albeit on his own terms. [Mr H] described him as apathetic. I accept that assessment in the early days of [B]’s life.

77 In March 2005 another Alternate Dispute Resolution conference was held. On

this occasion there was no agreement and by July 2005 [the father] had commenced
proceedings. This matter has been in and out of Court since that time.

78 From August 2005 [the father] was able to spend time with [B] for

approximately five hours once a week. He did not see him for Christmas as [the mother] obtained a violence restraining order against him which was dropped shortly after Christmas. In early 2006 for a period of time, [the father] was employed on the mines on a fly in/fly out basis. When he returned to Perth in March 2006 he was able to see [B] on and off until the end of the year. It was far from satisfactory. It appears towards the end of the year it petered out to a certain extent. This also coincides with his engagement to [Ms K].

79 During 2006 [the mother]’s life appears to have been fairly testing. She had

moved out of home with a young child and the year was punctuated by stressful Court
appearances.

80 The time [B] spent with his father in 2007 was completely unsatisfactory. It was on a fairly random basis for the first half of the year.

81 [The stepbrother] was born [in] 2 June 2007. [B] saw his brother and step

mother [Ms K] on a few occasions. [The mother] thereafter suspended contact
ostensibly on the basis of the content of the Notice of Child Abuse.

82 It was only on the 29 December 2007, after a Court order on 7 November 2007, that [the father] saw [B] at the Relationships Australia supervision centre. Despite the order that the parties “forthwith” contact the centre to facilitate the intake procedure [the mother] was extremely tardy in this regard. [The father] again saw [B] on the 12 January 2008 at the centre. Since trial he is seeing [B] at the centre on a weekly basis for up to three hours.

83 Given this history it is not surprising that [the father] and his family have a less than strong relationship with [B].

84 The Court has had the benefit of hearing from a Relationships Australia

supervisor and perusing the supervisor’s reports of the two visits that had taken place
before trial. [The father] had not seen [B] for around six months at that stage.

85 On the first occasion [B]’s first words were “[the father] hurt my bum”. He

expressed concern that [the father] would take him away. [The mother] had a prolonged goodbye telling [B] “don’t be scared”. She gave [B] a photo of herself and him. It was a reasonably large photograph. It was for [B] to look at if he got scared.

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86 Despite this and some initial reluctance on the part of [B] the visit progressed

extremely well.

87 At the end of the visit [B] said he would like to see [the father] again but he

could “never go to his house – not ever because [the mother] would get mad”. He said, after the visit, he liked seeing his dad and it would be good to see him again but “don’t tell [the mother]”.

88 The next occasion, approximately two weeks later, the visit was again

successful. [B] called [the father] “dad” throughout the visit. [The father] was able to
hug [B] goodbye at the end.

89 During both visits there were times when [B] was apprehensive but these periods appeared relatively short lived and easy to deal with.

90 Given the opportunity it appears that the strength of [B]’s relationship with [the father] could become very strong and positive.

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

91 [The father] was easily able to acknowledge the strong bond between [the

mother] and [B]. He was very aware of how much they loved each other. There was nothing in his or [Ms K]’s evidence to suggest they initially desired to remove [B] from [the mother] for any length of time. [The father] had originally sought to simply spend time with [B]. Given the difficulties placed in his way and the firm resolve he has to become a part of [B]’s life, his application changed to have [B] living with him. This was because it appeared to be the only way he could ever have a meaningful relationship with [B].

92 Even in those proposals there was provision for [the mother] to spend time with [B] although initially on a supervised basis.

93 [Ms K] was also realistic about her role in [B]’s life. [The mother] was the

mother. She said that the members of her household were never negative about [the mother] in front of [B]. She said that they would get nowhere with [B] if [the mother] was spoken about in a negative fashion.

94 [The mother] claims [the father] and [Ms K] are undermining her relationship

with [B]. She is hypersensitive about her role as a perfect mother. Although [the father] and [Ms K] have felt the brunt of [the mother]’s displeasure I saw little to suggest they had set out to deliberately distress her.

95 [The mother] has an unflinching view that [Ms K] should have no contact

whatsoever with [B]. She is convinced that [Ms K] is trying to usurp her position as [B]’s mother. [B] has said [Ms K] is his mummy. I do not accept that is something coming from [Ms K] but may be some awareness on [B]’s part that it will get a strong reaction from [the mother]. Additionally with a new baby in the household it is likely after his birth, that [Ms K] was identified as a mummy. [The mother]’s proposals for [B] spending time with [the father] exclude [Ms K]. It was only after the trial when

[2008] FCWA 23

[the mother] had some awareness of the real likelihood [B] may not live with her that she could contemplate [Ms K] playing some part. However, this was clearly on certain terms which appeared unrealistic given the reality of domestic life. Taking into account [the mother]’s propensity to be overly sensitive, it is unlikely that any involvement [Ms K] has with [B] will proceed smoothly.

96 Unfortunately [the mother] cannot acknowledge [the father]’s role in [B]’s life.

While on one hand she said that if [the father] went away she would not be happy as she acknowledges that [B] needs a father. Although, I suspect she does not envisage [the father] fulfilling that role.

97 On the other hand, her statements gave lie to the view of [B] needing a father -

any father. During her evidence she said “I believe the whole daddy thing is a joke.” She said [the father] was simply seeking attention. She also explained that she had previously held a view that all fathers are “arseholes” – she explained she was referring to her own father and [the father] in particular.

98 She suggested that it would perhaps be beneficial if [B] did not have any time

with [the father] just now. It was a matter that could be left until [B] was older. She said if she thought [B] wanted to see [the father] and his family she would let him, but she quickly added that he simply did not want to see them.

99 She had been found to have contravened Court orders in early 2007. She was dealt with by the Court for this on two occasions.

100 [The mother] summed her attitude up by, on many occasions, making it clear to

the Court that the issue was [the father]. If he was not “on the scene” then there would simply be no issue. She continually called upon him to change his behaviour and to stop being the problem. However, she failed to identify any specific matter that he could address.

101 [The mother] seeks a declaration that it is in [B]’s best interests to be known by

the surname [H]. She said that this is what he primarily used. It was what he was
known as at day care. She said he thinks his name is [H].

102 After some questioning about the issue it became apparent that her real source of

angst in this regard was that if [Ms K] married [the father] l then, as [the mother] put it, “they would all be [S] and I would be [H]”. She said on that basis she would change her name by Deed Poll to [S] to reflect the same surname as [B].

103 She said she would settle for [H-S] but would still use [H] as he lives with her

and it is easier.

104 Nothing has been put to the Court to indicate that it is in [B]’s best interests to be known other than [S]. It is another attempt to exclude [the father] from his life.

105 The Court is of the view that [the mother] is unwilling and unable to facilitate

and encourage a relationship between [the father] and [B]. Her world view is intense and immovable. There was little evidence of an acknowledgement of a need to change. As [Dr W] stated, she did not think contact should take place and therefore it would not take place.

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(d)

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)	either of his or her parents; or
(ii)	any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

106 In October 2007 [Dr W] reports that for [B] changing residence is likely to be a significant traumatic event, especially given the weakness of the bond with his father.

107 [B] is very attached to his mother. Although he attends day care part-time and

has spent time with his grandmother, predominantly he is with [the mother] constantly. She says he does not like her to be out of his sight. Not only is [B] very attached to her but on one reading he may consider he has been wronged by [the father] in that [the father] hurt his bottom. It is likely that not only would he be distressed and confused by being removed from [the mother], but also initially, at least, extremely angry about being removed. It would be an enormous upheaval.

108 He would also be apart from the maternal family with whom he is particularly

close.

109 A change in residence may assist [B] developing a better relationship with

[the father]. I am satisfied there is no realistic prospect he will do so whilst living with [the mother]. This change is likely to be a positive thing if the quality of care [the father] can provide and the nature of the relationship they are ultimately able to develop is positive. Present indications are that this is likely to be achieved. Any positive impact still needs to be weighed against the trauma that I have already referred to.

110 If he was to have nothing to do with [the father] and the paternal family his short-term reaction is likely to be a relief at the reduction in stress.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

111 All parties propose that contact initially take place at a supervised contact centre.

It is presently taking place at the Relationships Australia centre in [the suburbs]. [The father] is paying the contact centre costs. This is likely to be affordable for both parties in the short-term despite which party has to bear the cost. It may need to be a long-term option.

(f)	the capacity of:
(i) each of the child's parents; and

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(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and
intellectual needs;

112 I am satisfied that [the mother] can provide for [B]’s physical and intellectual

needs. She has been providing a high quality of care for [B] in those aspects to date. [Dr W] described [B] as a very likeable little boy who presents as bright and interactive. He said it was obvious his mother had exposed him to some quality age appropriate learning.

113 However [the mother]’s capacity to provide for [B]’s emotional and

psychological needs does not match her proven ability to provide for his physical and intellectual needs. She has shown she is incapable of shielding [B] from her own sense of being abandoned by [the father]. She has allowed him to become unnecessarily caught up in her own emotions which have revolved, to a large extent, around the ongoing legal dispute.

114 [Ms L] deposed:

“41. In terms of [B]’s emotional needs I feel he is a child in distress. The fact he is acting out behaviourally, smearing faeces, showing facial grimacing and showing some other strange behaviours suggests this.

42. These are not normal responses I would see in children his age. However, I cannot attribute these behaviours to [the mother] or any specific factor.

43. [B] presented in one session we had as much calmer, he did not run off, eye contact was better, and he played more with the toys, and engaged more appropriately with us. He did not facially grimace when I spoke to him. When I commented on this to [the mother], she replied that he had not gone for his visit with dad for a few weeks. She herself seemed less stressed in that session as well.”

115 [Dr W] assessed [the mother] as having various emotional and personality issues. She needs significant psychological support.

116 Despite recommendations on at least three occasions [the mother] has failed to

enrol in the “Mums and Dads Forever” program. After the evidence at trial she took steps to obtain a referral for some personal counselling by a clinical psychologist apart from [Ms L]. She said she was doing this to prove she was taking on board what had been said and that it looks good. Ideally the referral will improve her ability to deal with her sense of abandonment, her anger management and her ability to provide more adequately for [B]’s wellbeing. Unfortunately, I have grave reservations whether there will be any significant difference in the short-term. There was no evidence of much, if any, shift in [the mother]’s attitude.

117 It is difficult to comment on [the father]’s ability to provide for [B]’s physical

needs since he has never really had to do so. I accept that in the early days of him

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seeing [B] his mother was very involved. Recently, [Ms K] has been involved. [Ms K] presents as an extremely capable mother. She is proactive, responsible and committed.

118 Although the Relationships Australia visits between [the father] and [B] went

well, [the father] had to be directed by the supervisor to sit on the floor, interact and play with [B]. When this was suggested to him he readily complied but it was not something he spontaneously did himself. [Dr W] remarked that at a home visit [the father] had taken on a particularly parental role but lacked some warmth towards [B].

119 [Dr W] said [the father] did not appear terribly competent at present in meeting

[B]’s needs.

120 There had been a couple of behaviours of [the father] and [Ms K] that had irked

[the mother]. In both 2006 and 2007 [Ms K] had written a Christmas card to [B], on behalf of [the father] and herself, and in 2007 their [baby son]. The card had been put in [B]’s bag on a visit. [The mother] had seen the card and had been extremely upset by it. She objected to [Ms K] sending a card to [B]. She felt [the father] should have written the card and that [Ms K] should not be a part of any felicitations to [B]. [The father] explained that [Ms K] was the Christmas card writer in the household and that they had genuinely wanted to wish [B] a Merry Christmas. [The mother] felt that as [B] did not read it was a wasted exercise and only an attempt to anger her. Given [the mother]’s extreme reaction in 2006 it was imprudent to continue the practice in 2007.

121 I found [the father] to be a fairly rigid individual. He lacked insight into just

how devastating it would be for [B] to be removed from his mother. He had not considered a practical way of dealing with this apart from having some time off work. He thought [B] might be a little stand offish at first but this would be overcome.

122 After the evidence and prior to closing submissions he took some active steps,

with [Ms K], to enrol in two discreet parenting courses and to ensure that if the Court ordered [B] live with him, there was an appropriate [clinical psychologist,] immediately available to provide assistance. He had previously accepted a Court Registrar’s advice and completed the “Mums and Dads Forever” program in September 2006. He will rely heavily on [Ms K] and his mother. However, he is open to advice. He has been constant in his desire to parent [B]. He is willing to make changes and take steps to improve his ability to parent. He has also had the opportunity to parent another child in the last eight months. [Ms K] spoke highly of him in this regard. He is flexible in his work arrangements and would be available.

123 If [B] did come to live with him, [B] would experience and need to recover from

the trauma of separation from his primary attachment figure. I am satisfied that [the father] is able to access assistance and appropriate guidance on how to deal with the situation. He has strong family support. [B], for some considerable time would be a child with very high needs.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's

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parents, and any other characteristics of the child that the court
thinks are relevant;

124 [B] is still a very young child. He is very closely attached to his mother and is

easily influenced by her and his maternal grandmother. The evidence suggests that [B] closely aligns with females. [The mother]’s cousin] said [B] was stand offish with men – he is not a “man’s kind of boy”. [The mother] was quick to point out that [B] only enjoyed time at Relationships Australia contact because he could see the “nice ladies” there.

125 [The mother] was not capable of accepting that [B] may pick up on her views

and emotions in relation to [the father] and indeed men even if they are not verbalised.

126 Although [B] sees his grandfather and uncle, [the mother] has had issues with

both and there does not appear to be any constant male role model within [B]’s environment. Overall I accept that [the father] would provide a positive male role model.

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

127 [The mother] has demonstrated a good attitude to the overall responsibilities of parenthood in many respects.

128 Although it may well be argued that [the father] has not always demonstrated a

proactive attitude to the responsibilities of parenthood it would, in my view, be extremely unfair to suggest his reluctance at 17 years of age to be involved in [B]’s birth and early life should disqualify him from ever having a part to play.

129 [Tthe father] works as a [tradesman] in his father’s business. He currently pays

child support of $20 each month. This is what he is assessed to pay. There was a time when no payments were made and arrears accrued. He is currently in arrears some $400. He is repaying those arrears.

130 He explained that all his financial information had been provided to the

Child Support Agency. The reason his assessment was presently so low was due to the fact he had not worked over the Christmas period due to a slowing down of the [trade] at that time of year. He also pointed out he had a second child to support and [Ms K] was no longer employed.

131 I do accept that [the mother] has been primarily responsible for [B] in a financial

sense. Any sense of abandonment by [the father] has been heightened by his lack of support in this area. I have no doubt that if [B] lived within [the father]’s household he would be adequately catered for in this respect. [The father] has steady yet flexible employment. [Ms K] demonstrated an awareness of the need to be careful with money but that the family was quite capable of working within those constraints. She contemplates returning to work later in the year.

132 On 2 November 2007 there was a further Court event. Against the advice of

[Dr W], [the mother] took [B] with her to the Family Court. At the conclusion of the

[2008] FCWA 23

hearing, [the mother] felt the need to take [B] to [the father] and his family so that [B]
could tell [the father] how much he disliked him and did not want to see him.

133 Predictably there was a ruckus in the Court foyer. [The mother] dragged [B]

kicking and screaming to [the father]. She did this to demonstrate to [the father] that [B] did not want to see him and that [the father] needed to be shown that. In her evidence she said she should not have done it but in doing it her intentions had been good.

(j) any family violence involving the child or a member of the child's family;

134 This has been previously addressed.

(k)  any family violence order that applies to the child or a member of the child's family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person;

135 There are presently mutual violence restraining orders in place. These are due to expire in November 2008.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

136 Whatever order is made there is likely to be a continuation of these proceedings.

The only possible solution for no ongoing litigation is there be no contact between [B] and his father. Any other option is likely to involve the Court. This is stressful for all involved. It is also costly and time consuming.

Conclusions

137 I have arrived at the unhappy conclusion that there is no “middle ground” for

this Court to adopt such that both parents can immediately have substantial involvement in [B]’s life. This conclusion involves an analysis of past events and an assessment of the mother’s position in relation to a change in how she behaves and views [B] vis-à-vis [the father].

138 The present prospects of [the father] spending any reasonable time with [B]

remain unfortunately bleak. At this stage it is unlikely [the mother] can make any
adjustments such that meaningful contact will work.

139 [The father]’s initial application was that he be able to spend substantial and

significant time with [B]. By the time of filing his trial affidavit on the 22 January 2007, he was seeking to move to an equal shared care arrangement. In April 2007 the possibility of applying to have [B] live with him was raised in the context of the Court proceedings. At trial this was his position.

[2008] FCWA 23

140 In [Dr W]’s first report in July 2007 he said that [B] would not cope with a significant shared care arrangement at that time. He reported:

“74. If the mother does not significantly address her emotional reactivity there is certainly scope for in the future to consider the need to relocate the residence of [B] from his mother’s primary care. However, in my opinion all other avenues should be exhausted first as I believe that this would significantly negatively impact upon [B].

75. In the future I would recommend increasing [B]’s contact with his

father.

……………….”

141 After the publication of this report all time between [B] and his father ceased. [the mother] filed a Notice of Child Abuse and it was not until late December 2007 any further contact between the two was re-established.

142 In his report of 23 October 2007 [Dr W] recommended that contact be re-

established. Initially it would best be supervised by an independent agency. He suspected the first few visits may be problematic. If this went well then there would be weekly visits for six months before any overnight time was considered. He was of the view that twice weekly time would be best for rebuilding the bond between [the father] and [B].

143 At that time he anticipated two possible outcomes in relation to the re-

establishment of contact. [The mother] would deal with it and it would proceed or she would continue to be emotionally distressed by the visits, resulting in an intense emotional reaction. He said that if this was the case the Court is likely to be left with no option other than to change residence.

144 There was simply no visitS until the Court again intervened.

145 Despite the very real possibility of there being a change in living arrangements,

[the mother] has not been able to, as [Dr W] put it, at least “jump through any hoops” to show the Court a willingness to facilitate a meaningful relationship between [B] and his father. At the end of the trial when she made her closing submissions it was clear that she would undertake some psychological counselling but it very much appeared to be a matter of expediency and an attempt to make a good impression rather than an acknowledgment she needed some assistance in dealing with her emotional state.

146 [Dr W] has said that [the mother] has significant psychological problems

whether or not [B] is with her. She has not addressed her own problems and until they are addressed, [B] is subjected to the intensity of her emotional reaction. She needs significant support to address the various emotional and psychological issues.

147 If [the mother] had a different psychological makeup then it would be possible for [the father] and [B] to have a relationship. A catalyst for change is required.

148 If there is no contact at all with [the father] it is likely [B] will continue to be

exposed to [the mother]’s unresolved problems. These are not just to do with [the

[2008] FCWA 23

father] and [B]. Additionally, [B] would not have a relationship with a father who has a lot to offer and who would, overall, provide a positive male role model. He would miss out on a relationship with [his stepbrother].

149 A change to [the father]’s residence would present an enormous upheaval taking

some years to settle down. Although at trial [the father] had little relationship with [B], it is clear that with only two Relationships Australia visits, this has improved and [B] is warming to his father. The Court is very aware that these visits take place in a contained environment between [the father] and [B] without other family members present. However, so far they augur well for future progress.

150 Given [the mother]’s attitude to [the father] he cannot be viewed as someone

considered by [B] as neutral. [The mother] views him as the enemy and at least in her
presence [B] accepts that.

151 [The father] has a clinical psychologist immediately available to assist in any

transition. He is open to advice. He needs to accept the fact he is to be the parent to [B] and whilst [Ms K] and his mother are available, he must be the primary carer for [B]. He cannot abrogate his responsibility to others. [The father] and [Ms K], I am satisfied, can provide a satisfactory and stable long-term home. They have the commitment and capacity to develop a strong bond with [B]. On the basis that [the mother] does successfully undertake therapeutic interventions, then this appears to be the most likely option for [B] to grow up knowing both his parents.

Orders

152 Until further order:

1.	The child, [B] live with the Applicant, [the father].
2.	The Applicant have sole parental responsibility for the child.
3.	The Respondent, [the mother] spend time with the child as follows:

(a)	after the expiration of 48 hours from the date of these orders, one telephone call each week with the father to initiate the call,
(b)	after the expiration of 14 days from the date of these orders, for up to four hours each week to be supervised by Relationships Australia, [in the suburb] with the parties to share equally in the costs of the supervision,
(c)	the maternal grandparents be at liberty to attend the time in 3(b).

4. The Applicant is to communicate all matters relating to the child by telephone with the maternal grandfather.

[2008] FCWA 23

5. The Respondent be restrained by injunction from attending at the child’s day care or kindergarten and from approaching the child at times outside the terms of these orders.

6. The Applicant is to provide to the independent children’s lawyer proof on completion of his attendance at the Triple P Parenting Program and the course at [Suburban] Parents’ Link.

7. The Applicant forthwith upon publication of these orders, ensure the child attends upon [the particular], child psychologist as soon as practicable and continues to attend as recommended by [the child psychologist].

8. The Respondent be at liberty to contact family consultant Gillett and discuss the Reasons for Judgment and the orders made.

9. The injunction granted on 2 August 2005 in order 4 to be discharged.

10. The respondent’s application of 10 July 2006 be dismissed.

11. The matter be relisted for a special appointment no earlier than four months from the date of these orders.

12. There be liberty to relist before Justice Crisford at short notice.

I certify that the preceding [152] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate