Stewart & Bain

[2007] FamCA 337

[2007] FamCA 337

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA  

AT MELBOURNE  NO. DGF 766 of 2005 

IN THE MATTER OF:

MS STEWART  (Father)

&

MR BAIN  (Mother)

&

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE GUEST

Date of Hearing:               8, 9, 10, 11, 12, 22 & 23 January 2007
Date of Judgment:            25 January 2007

Appearances:

Mr Devries of counsel, instructed by Kerr & Thomas, Solicitors on behalf of the Applicant (mother)

Ms Phelan of counsel, instructed by Brian J Hyams, Solicitors, on behalf of the Respondent (father)

Ms O’Connell of counsel, instructed by Robert Halliday & Associates, Solicitors, on behalf of the Independent Children’s Lawyer

FAMILY LAW - CHILDREN - Mother's application for relocation (having earlier in 2004 secured a residence order by consent in her favour with the father to have specified contact) to their 9 year old son - The issue at that time was her application there be no contact - Despite the court orders, the mother failed to comply nor encourage contact - Father opposed relocation and sought residence - Long trial - Orders for residence made in favour of father - Contact to mother - Relocation refused

INTRODUCTION

1. The mother in these proceedings filed a Form 1 Application on 17 May 2005 which she amended six days later on 23 May 2005.  By that amendment she sought a number of orders which reflected her then attitude towards the father and the time he was to spend with their son, who was born in September 1997. 

2. The child has at all times lived with his mother who sought an order for leave to relocate with him to Tasmania upon her giving two months' notice to the father in writing.  This was, as agreed between all parties at the commencement of the hearing, a significant issue for my determination, accepting that the paramount consideration was the child's best interests.  The issue of the court's leave permitting the mother to return to Tasmania with the child was collateral to that fact. 

3. The mother sought a further order that pending her relocation the father spend time with the child on a supervised basis for four hours once a month at a nominated contact centre until he was 12 years of age, when it would become unsupervised in accordance with the child's wishes. 

4. By a Form 1A Response filed on 24 June 2005 the father sought an order that the Amended Form 1 Application filed by the mother be dismissed, relying upon orders that were made by me by consent on the fourth day of a trial which commenced on 25 October 2004.  He also filed a Form 1A Response on 24 May 2005 seeking an order that the Child Support Agreement entered into between the mother and himself on 8 September 1997 as varied on 1 August 1998 be further varied and that the rate of support payable to the mother be at a rate assessed by the Child Support Agency. 

5. I do not need to set out in this judgment a detailed analysis of the background to the proceedings for it is sufficient for me to rely upon what I had to say in my extempore judgment delivered on 29 October 2004. 

6. For the purpose of the hearing before me it was agreed by all parties, and properly so, that the allegations referred to in the various affidavits of the parties recording events prior to that date were not relied upon, accepting, however, that where appropriate to do so they may be used to found a basis for any question or questions relating to a fact in issue relevant to these proceedings including, for example, issues arising from the report of the family consultant, Ms C, dated 18 August 2006. 

7. The proceedings before me that commenced on 26 October 2004 underwent a volte face on the part of the mother who changed her position in running from one of implacable resistance to contact, as it was then called, between the father and the child to one where he should in fact spend time with his father upon certain terms and conditions.  Orders were ultimately made by consent on 29 October 2004, which is the agreed commencing point for the proceedings now before me. 

8. In order to better understand what occurred in the resolution of those proceedings it will be helpful for me to here set out my relevant findings, the mother and the father both having completed their evidence, and my expectations in approving the orders agreed upon. 

   “19.The parties have given evidence before me.  Dealing firstly with the father:  I formed an extremely favourable opinion of the father, both from his evidence in court and his general presentation.  He struck me as a very decent person, both genuine and sincere in his application for contact with [the child].  He was deeply imbued with the importance and value of family.  I have great confidence in his ability to nurture [the child] and sensitively see him through what I anticipate may be some difficult times in the short term.  In my view, he has much to offer [the child] in terms of guidance, nurture and the provision of a warm and loving family environment.  Historically, he has demonstrated great perseverance, discipline and a genuine desire to bond with and be part of his son's life.

   20.The father's parents […] have given evidence before me.  I thought they were most impressive, salt of the earth, wholesome and reliable people.  They value family and are clearly devoted to their own children and their grandchildren, participating both actively and regularly in their contact, particularly with their grandchildren.  The father has a brother who is married with two children aged 13 and 10 years.  His sister, also married, has two children aged 15 and 13 years.  The father, as I said, married [Ms S].  They share a happy and mutually rewarding union.  I was favourably impressed with the manner in which his wife described the role of the father in her life, that which he has played in her son's life, his positive and generous influence and, to use her own highly descriptive words, her conclusion that "we are much happier now that [the father] is in our life".  The father and his wife have a baby girl clearly loved within the broad family.

   21.The broad family of the father and the father himself have much to offer [the child] whose life will be enrichened by their presence, their influence and their guidance.  In that respect he is, in my view, a truly lucky boy.  The significance of the father's family is heightened by the fact that the mother, whose parents are deceased, has a brother and two sisters, all of whom live in Melbourne but with whom the mother has no contact.  The mother has, she said, four close friends.  That is her life, apart from her work‑related friendships.

   22. Dealing with the mother.  I found her evidence to be, on some significant issues, somewhat unreliable.  I carefully observed her, however, in the giving of her evidence.  She presented strongly in the witness box despite the natural feelings of anxiety that may ordinarily flow from such an experience.  She displayed no obvious or overt signs of distress or unease and to the contrary was assertive, indeed quite forceful at times in the giving of her evidence.  She presented somewhat differently from the picture presented in the affidavit of a person subject to stress and anxiety by reason of the proceedings.  In the result, having observed her carefully over a considerable period of time in the witness box and having given my earnest attention to all of her evidence, I am satisfied that she is a strong, forceful and emphatic person who will be able to cope with the orders to be made by consent.  Her ready acceptance now of the father's motivation and that which both he and his broad extended family have to positively contribute towards [the child’s] welfare persuades me that her general parenting of the child and ability to cope overall will not be affected by the orders.

   23.My one concern has been, however, whether the mother shall genuinely embrace the role that the father and his family shall play in [the child’s] life, and whether she will sincerely and with unfeigned affect encourage the child's contact with the father and promote the importance of his role in the child's life.  In her evidence the mother declared that she now accepted, and was wholly satisfied that the father was genuine and sincere in his driven desire to parent [the child].  She accepted that the father had good intentions and that he cared for his son.  She in effect promised that she would positively encourage [the child’s] contact with his father, to speak of him with affirmative and unambiguous favour.  It is important to [the child] that she does so and to generate a balanced, stable life for her son.

   24.I accept that she will so act and no longer countenance those past unnecessary intemperate, unfounded negative feelings about the father's love for his son.  In her evidence‑in‑chief the mother deposed that she has tried to ensure that [the child] is surrounded by "love, affection, harmony and respect".  With that enviable goal in mind, it is patently clear to me from all that I have heard that when with the father and his broad family, [the child] will assuredly be surrounded by all those qualities that the mother has sought to achieve.  She must recognise this.  In so doing she should accordingly do all things possible to foster the father's image to [the child], to actively promote the benefits and advantages he has to offer and sublimate any feelings of doubt or disenchantment.  A failure to so act may lead to other consequences.

   25.These consent orders achieved on the fourth day of the trial have come about with the assistance of [Ms M], the court‑appointed psychologist.  She has great familiarity with the factual background and matrix surrounding the parties.  Indeed, the compromise was achieved during the course of her impressive evidence.  The court is grateful for her assistance and it is noted that her role shall continue with the parties at her discretion.”

9. The rather curious position of the mother as viewed from her Amended Form 1 Application filed on 23 May 2005, which date bears significance given certain events that occurred four days later and to which I shall refer later in this judgment, changed or softened considerably when weighed against the Minute of Proposed Orders set out in her Case Outline Document filed on 5 January 2007 and revised Minutes tendered thereafter.  By that document the mother proposed the father spend time with the child, broadly speaking, in accordance with the orders to which she consented on 29 October 2004 following a “phasing-in” process.  This was so notwithstanding that since May 2005 the father had not had any overnight contact with his son.

10. The proposals of the mother included the time the father was to spend with the child pending her relocation to H in Tasmania, a property owned by her, and otherwise following such relocation which was to take place on four weeks' written notice by her to the father.  There were other detailed orders sought by the mother which I need not record at this time, but which I take into account in coming to my determination. 

11. On 12 January 2007 the mother tendered Exhibit “M1” providing for a substantial block period of contact in January 2007 and alternate weekend contact until she relocated to Hobart in July 2007.  Thereafter she proposed contact one period per month plus school holidays.  This changed yet again on 22 January 2007 when the mother, this time represented by Mr Devries of counsel, filed a minute of revised proposed orders, Exhibit “M3”, revisiting the question of time the father was to spend with the child and providing for a proposed relocation to Tasmania not later than 20 December 2007.  Ultimately, in the course of his final submissions on 23 January 2007, Mr Devries did not pursue the relocation issue further.

12. With that said, it was the mother's forceful and maintained position that since 29 October 2004 the father had demonstrated a "minimal commitment to developing a meaningful relationship" with the child and in effect placed all blameworthiness for the child's current strongly-held negative attitude to contact at the feet of the father.  On the other hand, the mother claimed that she had done all things possible to encourage their relationship, which was starkly contested by the father.  This issue became a very important one before me and brought sharply into focus the fact that I was to determine who was responsible, or largely so, for this most unfortunate state of affairs. 

13. In coming to my determination I gained considerable assistance from the report of Ms C and also by having regard to the polarised oral evidence of the parties before me.  To that extent, the issue of their credibility was a most significant one and which fact was embraced by the parties at the commencement of the trial.  If the mother acted, for example, as described by the father and that I found she was in reality a no-contact parent, then the fear expressed by Ms C that the child would have little, if any, possibility of having the benefit of a relationship with his father, his siblings and his broader paternal family would be realised. 

14. The issue of the mother's proposed application for leave to relocate to Tasmania in the short term lost its immediacy with the progress of the case as it became progressively apparent that her alleged negative impulses disaffecting the child's relationship with his father developed prominence as a fact in issue.  The orders sought by the father set out in his Form 1A Response also changed dramatically, moving from an ideal of seeking a close relationship with his son on an unsupervised basis to that of residence as one of two options proposed on 9 January 2007, to that of residence as a final order.

LEGAL PRINCIPLES

1. The principles governing this case are set out in the Family Law Amendment (Shared Responsibility) Act 2006, (“the Act”).  In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration.  See s 60CA of the Act.  In determining what is in his best interests I must consider those matters set out in s 60CC(1) of the Act.  They are the “primary” considerations and the “additional” considerations set out in that section.  There are two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of his parents.  The second is the need to protect him from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  The Act indicates that these considerations are to be considered as having particular importance.  They are described as primary, and, as a note to s 60CC of the Act points out, are consistent with the first two objects of Part VII as stated in s 60B.  Accordingly, they are matters requiring my careful consideration. 

2. In a parenting case I am also required to take into account the 13 additional considerations set out in s 60CC(3) of the Act.  I will indicate what these are later in my judgment.  I must also take into account the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities.  See s 60CC(4) of the Act. 

3. I will also be guided by s 60B which sets out the objects of the Act dealing with children and the principles underlying it.  There are other provisions of the Act which I will consider in relation to particular matters, but these are the general principles that apply in this case.

4. Insofar as the standard of proof concerning the various evidentiary issues for my determination is concerned, the level of persuasion is the civil standard, namely on the balance of probabilities. See s 140(1) Evidence Act 1995 (Cth). By reason of the manner in which these proceedings have been conducted, it will be necessary in the course of my judgment to make what may be perceived as some harsh comments, but in doing so I emphasise at the outset that any criticisms I make are not intended to insult, belittle, nor undermine the confidence of the mother. On the contrary, it is my hope, and indeed my expectation, that the findings I make in this judgment will be considered carefully by her and used positively to benefit the child and for each of the parties to better understand an objective, independent consideration of the relevant matters necessary to facilitate the child's best interests.

5. It will be readily apparent from my judgment that the issue of credibility, as I have already discussed, will become an important one.  That is necessarily so given the issues raised and submissions made to me from time to time.  Accordingly I will in the course of this judgment make a number of significant and crucial findings concerning the acceptance or otherwise by me of the evidence on different and important issues.  Given this fact, I wish to emphasise that I have had the advantage of carefully observing the witnesses in the giving of their evidence which has been an important tool for me and one of considerable assistance, particularly when that observation spanned a number of days during which numerous issues were put to them.  I am not by any measure asserting it as a panacea for it is patently clear that an assessment of truthfulness or reliability by demeanour can be nothing short of hazardous, if that is the only criteria.  But in this case, in addition to my general observations of demeanour in the above circumstances, I also take into account the inherent likelihood or otherwise of the evidence given on a particular issue and its consistency overall with other evidence and documents relied upon.  I have made such comments in earlier judgments including L v B (2005) FamCA 242.

6. The fact of a trial judge being in a privileged position of observing witnesses was commented upon in Minagall v Ayers (1996) SASR 151 at 154 per Hogarth J (see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at 313 per Kirby J.:

   “By conventional theory the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process.  They normally provide the primary decision-maker a distinct advantage which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of rehearing …”

7. As I discussed in L v B (supra), a trial judge is charged with the onerous responsibility of being given the task of affording weight to a particular fact in issue which will often not be capable of rationalisation beyond the statement "having heard him, I am not satisfied that I should accept what he says".  (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-4 per Mahoney JA). In that case I gain considerable assistance from his Honour's comment that:

   “The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things.”

8. This has been a very difficult case for the impact of my orders may bear heavily upon the mother given that she will be obliged to continue living in the Melbourne area and that the child will be removed from her full‑time care.  I have accordingly been careful in evaluating the relevant evidence which necessarily brings into account matters such as credibility and the inherent likelihood or otherwise of the evidence of the principal protagonists.  I have had recourse to authority in explaining my task.  I was also assisted by what Dawson, Gaudron and McHugh JJ had to say in Louth v Diprose (1992) 175 CLR 621.

THE EVIDENCE

1. In coming to my determination I have taken into account the affidavit evidence of the parties and their oral evidence before me.  Overall, I have little hesitation in preferring the evidence of the father to that of the mother, for there is much about her evidence that gives me cause for real concern.  For example, her evidence before me which led to the compromise on 29 October 2004 was notable, indeed conspicuous with the abrupt manner in which she changed from a no-contact parent consenting to a phasing-in arrangement ultimately anticipated to result in what may be styled as the usual orders of the court.  A classic volt face.

1. Despite the expectations expressed by me in my extempore judgment, all that changed and by the time the mother filed her Form 1 Application on 17 May 2005, a mere seven months later, she had reverted to a proposal that restricted the time the father was to spend with the child to the barest minimum, notwithstanding the concessions made by her before me and set out in my judgment.  Thereafter there has been no overnight contact and ultimately upon the crepuscule of the hearing her position changed yet again to a generous proposal of contact between the child and his father.

2. The mother's affidavit is ripe with its assertions that the father is wholly to blame for the situation and that she had, notwithstanding, done all things possible to encourage the child to spend time with him.  I have no hesitation in rejecting that assertion.  There are a number of matters arising from the mother's evidence that lead me to conclude that she is quite duplicitous in certain significant aspects of what she had to say and misleading, for the reality is that she could see no benefit in the father as a parent or being a worthwhile person to contribute to the child's life or general nurture.  That, in my view, was a grave mistake of judgment on her part and reflective of her utterly negative disposition towards him. 

3. The mother was quick to assign blameworthiness to the father, to demean him as a parent and to defend her own actions.  She did this at times in quite untenable circumstances.  The mother was argumentative, offensive and in a number of instances thoroughly unreasonable.  She struck me as the sort of person who would say that which best suited her case.  She clearly asserted that, in summary, the father was of poor character, untruthful and a witness prepared to say anything to advance his case, regardless of whether it was true or not.  I reject that illustration of him. 

4. The strength of the mother's antipathy, indeed detestation of the father was such that it would be bordering on the ludicrous to find that she shielded the child from the fact and that she clutched such stringent emotion to herself.  The evidence I have read and heard in this court is such that I am satisfied the child's attitude to his father earlier reflects his mother's banal influence upon him, which was both surreptitious and overt, depending on the circumstances open to best accommodate her view. 

5. Such a message from the child was clearly given to Ms C during the course of her interview and indeed to the father both orally and by action.  I reject the mother's various denials concerning what I regard as her manipulation of the child and I am satisfied that the child's actions and his various commentaries may be sourced from her.

6. At the commencement of the proceedings I sought from Ms O'Connell, counsel for the Independent Children's Lawyer, whether Mr Halliday had any preliminary view at that stage given his long involvement in the case.  She made it clear that the Independent Children's Lawyer was gravely concerned that the child did not have an appropriate relationship with his father, his sister, paternal grandparents or broader family.  Further, that it was, in his view, extremely unlikely that any relationship between the father and his son would be fostered if the mother relocated to Tasmania.  For example, it was submitted that the mother had not complied with the orders of 29 October 2004 with any great spirit and that as matters then stood, it appeared that the child had been alienated from all his family save the mother.  That, in the result, proved to be the case.

7. The mother's evidence‑in‑chief set out in a trial affidavit dealt firstly with the report of Ms C.  She was unrestrained in what I regard as an intemperate, indeed vitriolic, attack upon the Family Consultant, alleging, inter alia, professional impropriety, inaccuracies and bias, resulting in what she claimed were "prejudiced recommendations".  I have rarely ever encountered such rancorous and extravagant allegations made against an expert witness.  At the conclusion of the relevant part of her affidavit she had this to say:

   “32.I strongly believe that [Ms C’s] evaluation and recommendations are biased, written with a great deal of prejudice and largely based on [the father’s] perspective of the situation, which in my opinion, is not true or correct.”

8. It seems to me that the mother's attitude sat seamlessly with her view of any situation or person that did not fall into line with her nor agree with her personal views.  Much of her affidavit was struck out as being argumentative, matters of opinion and otherwise of scandalous content.  Ultimately, on day 6 of the proceedings, counsel engaged by her resiled from the assertion made but that did not change her clear attitude and disposition to Ms C, indeed also to Ms M in the earlier hearing before me in October 2004.

9. I do not propose to review here what she alleged for it is quite apparent that any fair reading of paragraphs 3 to 32 of her affidavit underpins that which I have found, particularly when aligned with her evidence, the evidence of Ms C and the overall evidence I have received in these proceedings. 

10. Throughout her affidavit the mother sought to resurrect and address matters stale in time and for me to draw a conclusion adverse to the father, notwithstanding that which she said under oath before me in the proceedings that concluded on 29 October 2004 and of the various findings made by me in my extempore judgment.  Many of the mother's allegations, consistent with much of what she said in her oral evidence reflected her negative attitude and personal, deeply held hostility, indeed odium of the father.  Her affidavit reflected a litany of complaints without a word suggesting any positive trait vested in the father, his conduct or any aspect of parental responsibility.  In my view, her target was to demote, indeed destroy, any claim proffered by the father and to urge me to view him in the poorest possible circumstances as lacking any interest in the child's life and given, at best, to a "low level of commitment" concerning the time he has spent with his son.  I have no hesitation in rejecting such an extravagant, and what I regard as an unwarranted attack.

11. The mother blamed the father for unnecessary litigation and its detrimental impact upon her both emotionally and in financial terms.  I reject any allegation by her that she sought to encourage contact between the child and his father as merely self-serving and hollow in substance. 

12. The mother then dealt with a number of matters that she styled as “other family issues”.  She sought to contest findings made by me in my judgment of 29 October 2004 and various aspects of the evidence given by the father in those proceedings.  Further, the mother sought to present evidence of events at which she was not present and to cast aspersions against the father or vilify him in relation to them.  She suggested, in one particular instance, that the father acted with "great vengeance" in relation to certain items belonging to his son.

13. The mother next dealt with the issue of relocation with the child to Tasmania.  I have regard to all that she has said.  She maintained her assertion that the father had demonstrated only “minimal commitment” when it came to developing a relationship with the child and asserted a similar negative comment in relation to the child's paternal grandfather.  She claimed that due to ongoing court applications issued by the father she had suffered significant stress which had a negative effect upon her work performance.  The mother claimed that she was anxious to resume her studies without which she would continue to suffer financial hardship.  She claimed that such studies would improve her prospect of employment.  She deposed that otherwise she was able to return “back home”, as she styled it, to Tasmania it would not be possible for her to continue her studies under her current financial circumstances.

14. The mother has already placed her home at T on the market for sale.  She explained that the tenants in her property at H, Tasmania vacated the premises on 5 January 2007.  It was her then proposal to live in that property with the child and complete her university course in nursing at the Tasmanian University which may be finalised within 12 months.  She said she would work part‑time as well.  The property she owns in T remains on the market for sale, but as matters presently stand, no offers have been received. 

15. Before being cross‑examined, and given that the evidence set out in her trial affidavit starkly revealed the polarised view each party had to a number of central issues for my determination, I sought clarification as to how this had come about.  The mother made it clear that she believed the father would make a false deposition if he believed it would be to his advantage.  The mother's evidence brought into stark relief that I should exercise caution and in the result I am satisfied that, upon careful review, she is not a witness upon whom I can rely unless her evidence is corroborated by that of an independent third party or documents. 

16. When cross‑examined by Ms Phelan and asked whether she was able to say anything positive about the father her reply, save for a request that Ms Phelan be more specific, was at first to merely assert that she had no "formal relationship" with him since 1997.  It was put that he had paid considerable moneys by way of child support.  Her initial response was a negative one, claiming that she had to "chase him on several occasions" for payment.  She begrudgingly conceded that on the whole, the father had met his child support obligations, which on any view have been substantial.  The mother agreed that it was appropriate for the child to know “both parents”, which she said was her belief back in 2004.  That was, in my view, a mere assertion on her part which she had time and again honoured in the breach.

17. Ms Phelan referred the mother to paragraph 23 of my extempore judgment delivered 29 October 2004 and in particular my finding that:

    “… In her evidence the mother declared that she now accepted, and was wholly satisfied that the father was genuine and sincere in his driven desire to parent [the child].  She accepted that the father had good intentions and that he cared for his son.”

18. The mother said that the father had not since demonstrated those attributes, but accepted that it was her belief “at that time”.  In my view, given all that I have heard, it was a blatant misrepresentation on her part and a device to remove herself from the court, regardless of the truth. 

19. Ms Phelan next directed the mother's attention to her affidavit filed 17 May 2005 and Annexure “SS18”, being a letter from A Services to the court dated 12 May 2005.  There Ms B, the author of the report and witness called on behalf of the mother, said:

    “I had further contact with [the mother] in October 2004, when she telephoned me at CCS to inform me of the outcome of the Family Court hearing on 29 October, handed down by Guest J.  [The mother] expressed extreme distress and disappointment in the decision, which ordered that her son […] would have graduated increase in his contact with his father, […] ...”.

20. In relation to that, the mother said it was a reference to her "being unable to relocate" to Tasmania and not one concerning the fact that the father was to have contact to the child pursuant to court orders.  I have no difficulty in rejecting that explanation for it is plain on the face of that document that her distress and disappointment related to the fact that the father was to have contact with his son.  It is to be borne in mind of course that prior to the hearing commencing before me in October 2004, the mother was in pursuit of an order that there be no contact between the two of them.  The mother said in her evidence that she informed the child about the relocation proposal prior to her issuing her Form 1 Application for Final Orders on 17 May 2005. 

21. Ms Phelan then directed the mother's attention to paragraph 47 of the father's affidavit filed 24 June 2005.  Given the significance attached to this incident, I propose to record precisely what the father had to say:

    “47.I attempted to collect [the child] for contact on 27 May 2005.  After missing the previous fortnightly contact with [the child] I was keen to see this contact proceed.  It started reasonably well with [the child] having changed out of this school uniform ready to go.  He seemed happy enough, however he ran outside after I signed him out and climbed and hid up a tree in the school yard.  After I found him we played around a bit in the school yard, when I told him it was time to go he said he didn’t want to go and hid in a large bush.  He said that he had been doing some research and that I had given my property to my wife so he wouldn’t get any money when I died.  I explained that when I die he will be treated equally to [my daughter], and [my wife’s son].  [The child] was very angry now and said I was lying and that he wished we would all die.  I stopped him from going back inside and sat him on a large rock, and tried to explain how important it is for him to know his family, and tried to impress upon him that he should make up his own mind what people are like and not only listen to his mother.  [The child] was very angry and swearing a lot.  I asked him why it was that we had so much fun in the past and now he didn’t want to see us at all and what had changed.  I said ‘you haven’t changed, I haven’t changed, so what has changed?’  [The child] did not answer.  I explained that I had always enjoyed our time together, and I know that he did also.  Once again he did not answer.  I didn’t think I could achieve any more so I told [the child] to come inside and I would call his mother.  I rang the wife at 4.45pm and told her that [the child] did not want to come to our place this weekend, and asked her to come and pick him up.  All she said was that ‘it was my problem and not hers’ that [the child] didn’t want to come with me.”

22. The mother at first denied that she said anything of the sort to the child and explained that, if anything, the child had logged onto her computer, he being “very computer literate”, and must have read an affidavit on the computer; alternatively, that he had read some of her emails.  It is to be recalled that the child was then seven years of age. 

23. Historically, it is important to recall that orders were made by consent on 29 October 2004.  On 18 April 2005 the father caused to be issued a contravention application concerning contact.  On 17 May 2005 the mother instituted a Form 1 Application for Final Orders (Relocation) and responded to the father's Contravention application the same day.  On 24 May 2005 the father withdrew his application for Contravention and then filed an Application for Final Orders dealing with child support issues.  On 9 June 2005, he filed a Response to the mother's application for Final Orders.  The mother had filed an Amended Form 1 Application on 23 May 2005. 

24. In her evidence, the mother at first said it was her understanding that a conversation with Ms M concerning issues of the father's Will took place on 17 May 2005.  The fact of a conversation appears consistent with the letter from Ms M to the mother and the father's solicitor dated 15 June 2005 recording the counselling sessions that later took place that date.  As events transpired, she could not, however, have discussed the father's will with her.  Ms Phelan referred the mother to her affidavit filed 16 January 2006 and in particular paragraphs 3(vi) to (vii) thereof.  There the mother asserted that she had stated to Ms M she was aware of the fact that the father had transferred two properties to his wife, "in order to hide his assets and deprive [the child] of any legal inheritance in the event of his father's death".  She deposed that after her appointment with Ms M, which was on 17 May 2004, she questioned the child about "this incident and [the child] showed no understanding of what the transfer of the property means or how this property transfer is likely to affect him short or long term". 

25. I am satisfied that at the meeting the mother had with Ms M on 17 May 2005, the father having returned from overseas on 11 May 2005, had not had any discussion with the Family Consultant.  Thus, the first meeting with Ms M took place on 30 May 2005 after the child had said that which, it is deposed by the father, the child had said to him on 27 May 2005.  Furthermore, he was to have contact with the child on 13 June 2005 but the child refused to go. 

26. Given her evidence, the mother was asked to produce any email or affidavit prior to 27 May 2005 that dealt with her explanation that the child obtained information from documents on her computer.  The mother said that she had in fact obtained documents from the titles office relating to the transfer which were in her lever arch files.  She was asked to produce the documents.  She went on to say that, in her view, a possible explanation would be that Ms M discussed the issue with the father, but as it transpired of course, that could not have been so. 

27. Ms Phelan referred the mother to paragraph 44 of the father's affidavit filed 24 June 2005 where the father deposed that he was upset and disappointed that the child did not want to be with him or his family for the weekend, asserting:

    “I didn't understand why as contact with [the child] had been going so well.  It had been six weeks since we had seen [the child] due to our family being overseas for four weeks.”

28. The mother made it clear that she had no personal conversation with the child about the issue and repeated that any information the child obtained must have been sourced from her emails or her affidavits.  I reject this explanation.  Given the mother's attitudinal disposition to the father, her unrestrained anger and frustration, I have little doubt that she was unbridled in discussing matters with the child. 

29. Ms Phelan resumed her examination on this important incident when the mother returned to the witness box on the second day of the hearing.  When asked if she were able to locate any documents such as emails or affidavits stored in her computer, the mother said that she had found copy certificates of title searches that "must have been lying around".  She appeared to me at this stage to be offering this as a possible explanation for what the child said to his father on 27 May 2005.  She explained that she attended the Titles Office on 26 May 2005 as she had been engaged in child support issues since 1 April 2005.  The copy documents produced relating to the G property, (Exhibit “F4”) and the Y property, (Exhibit “F5”) referred to in the various affidavits. 

30. The mother then made it clear that they were the only documents she had relating to what the father had to say in paragraph 47 of his affidavit.  Both the exhibits were shown to be obtained at 12.17 pm and 12.12 pm respectively on 26 May 2005.  Following some tortuous evidence from the mother, she conceded, in the result, that even if her hypothesis was correct, the information contained in those Exhibits could not have led the child, then seven years of age, to say what is alleged by the father.  With that I agree. 

31. The mother then advanced an entirely fresh hypothesis, asserting that she hired a private inquiry agent to investigate the father's position and that he forwarded to her an email with certain information and had spoken to her on one occasion.  She was unable to produce the email, explaining, conveniently in my view, that she was requested to delete it from the files in her computer.  She named the private inquiry agent.  I do not accept the mother's evidence as given, and even if correct, there was nothing in what she said that could link the contents of the child's commentary to his father with that of any document allegedly received. 

1. Ms Phelan directed the mother's attention to “Annexure 17” of an affidavit sworn by Mr J on 3 February 2006.  They were photographs of the two properties taken (as seen from a date stamp) on 19 and 31 May 2005.  The mother said she asked a friend of hers, Mr Y, to take them.  She gave them to Mr J who was a chartered accountant engaged by the mother.  The affidavit with its annexures as filed is, in my view, little short of a disgrace.  I am satisfied that there is nothing in these documents, even if left randomly lying about her home, that could in any way underpin or source the remarks of the child to his father on 27 May 2005. 

2. Ms Phelan next addressed the mother's attention to paragraph 12 of the father's affidavit filed 15 November 2006 in which he deposed that he visited the child on 27 May 2005, being the occasions he refused to go with him.  He made it clear that comments made by the child indicated that the mother had been discussing issues with him relating to the Wills of his wife and himself.  He said that he telephoned the mother and notified her of the problem and that he had a diary note which showed that he made this call to her and of its content.  The father has been consistent at all times with this aspect of his evidence. 

3. Ms Phelan then addressed the mother to paragraph 33 of her affidavit filed 29 June 2005 which was in response to paragraph 47 of the father's affidavit filed 24 June 2005.  There the mother deposed:

   “33.In response to paragraph 47 I state that:  I strongly deny having discussion with [the child] about father’s transfer of his properties to [his wife].  I did discuss this issue with [Ms B] over the telephone.  At the time of my telephone conversation with [Ms B] [the child] was asleep in his room.  The only explanation that I can offer is that; [the child] must have woken up and overheard part of my conversation with [Ms B].  [The child] did not say anything to me about listening to my telephone conversation with [Ms B] in relation to this matter.  I’ve learned about [the child’s] knowledge of this matter from [Ms M] on June 04, 2005.  I have always tried my very best to protect [the child] from on-going Family Court Proceedings… Clearly in this case it was not possible.  [The child] has no legal right to any inheritance of the properties which are transferred to [the wife].  Therefore [the child] is not being treated equally as [his step brother and half sister]. [The child] is a very bright boy.  I respect [the child’s] wishes and his point of view.  I do not “Brain Wash” [the child] in any way and have always encouraged [the child] to do and say what he thinks is right.”

4. In her evidence the mother accepted, and such is the fact, that she did not suggest that the father had fabricated the alleged conversation as she had earlier hypothesised as a possibility in her evidence.  The mother denied saying anything "like that to friends which could have been overheard by [the child]", save that she did discuss it with Ms B and Ms M.  Her explanation thus centred on a phone call with Ms B as deposed in her affidavit of 29 June 2005.  With that said, Ms Phelan referred the mother to Annexure “SS7” to her affidavit filed 27 June 2005, being a report from Ms B dated 21 June 2006.  The following is extracted from the report:

   “On the evening of 30th May 2005 [the mother] was served with documents at her home relating to an application by [the father] for a reduction in Child Support Payments.  She telephoned me after receiving the documents, in a state of extreme agitation and distress, as her worst fear had been realised.  It is significant to note that she has now been involved in nine separate Court Proceedings since the birth of [the child], all instigated by [the father].  At the time of the call [the mother] expressed a sense of absolute despair about her future, and her frustration and anger about having to go through yet another Court proceeding.”

5. The mother made it clear that the phone call mentioned by Ms B was the very one she referred to in her own affidavit filed on 29 June 2005.  Thus, her explanation by way of hypothesis was plainly incorrect and further, that when she spoke to Ms M on 17 and 19 May 2005 (Exhibit “F1”) she did not have the land titles. 

6. In the whole of the circumstances I am satisfied that the information addressed by the child when speaking to his father on 27 May 2005 was sourced directly from the mother.  I have no hesitation in rejecting her denial and explanations.  Her conduct in so doing is demonstrative of unbridled communication with the child which has had a direct impact upon the child's attitude to his father.  Thus it is that I can also safely conclude that the comments made by the child to Ms C are as stated by him and that the mother's denial is false. 

7. I need only add that on day 3 of the trial, the mother sought leave to tender an email from her to Ms B on 26 May 2005 at 8.42 pm and the reply of Ms B on 27 May 2005 at 12.19 am.  They are both in evidence.  It is clear that the email plainly suggests she did not speak to Ms B, as explained by her in her affidavit as a possible source for what the child said to his father on 27 May 2005.  I am concerned that the mother did not rely upon the email but chose to advance the hypothesis of a phone call overheard by the child.  However, one explanation could be that she did not then want to have presented such an offensive document. 

8. The mother’s new explanation for the conversation was that the child may have accessed her computer before he went to school.  She was unable to say whether, when she looked at her emails, that the email had been already “opened”.  Her email reeks of excitement upon which she viewed as the "significant discovery" which was made at about midday 26 May 2005.  It is an insulting and derogatory piece of writing in which she engaged her professional acquaintance.  I reject her explanation.  The document makes it so much clearer to me that she spoke to the child about her significant discovery which the child relayed to his father.  Such conduct is barely short of disgraceful and for obvious reasons.

9. Ms Phelan then referred the mother to paragraph 42 of the report of Ms C which is as follows:

   “42.When asked if he felt caught in the middle and he stated, ‘Mum doesn't want me to see dad and I don't really want to see him.  I just don't.  I don't want to upset her.  I don't really like him, I just don't.  I haven't seen him for ages.’  The Family Consultant then asked him what happened when he did see his father at school and [the child] responded that he ‘basically ignored him.  He annoyed me.  I was playing some games on the computer and then I'd stuff up because of him’."

10. The mother made it clear that she said nothing of the sort to the child.  She did not accept that the child "may be getting subliminal messages" from her.  I do not accept her denial.  It is clear to me those matters expressed by the child are sourced by the mother.

11. Ms Phelan then referred the mother to paragraph 44 of the report which recorded Ms C's discussion with the child. 

    “44.Then the Family Consultant said that she got the impression that his mother may have told him what to say and he said, ‘Yes, she said to say what I said to [Ms M].  All I want is for the court to be over and us to go to Tasmania.’  This last sentence was a repeat of his previous sentiments expressed at the beginning of this interview.  He added that he still wanted to go to Tasmania, and that if he wasn't allowed to go he thought his mother would be very upset.” 

12. In response to that, the mother said that the child wanted to live in Tasmania and "I said if that's what you want, you tell the lady what you want to do".  I sought clarification of this and I asked the mother whether, hypothetically speaking, if I found that it was not in the child's best interests to go to Tasmania, what would she say to the child.  She responded, "I would say we can't go."  It was left entirely at that.  It seems that the child could only feel the burden of responsibility pointing to his father.  I would have expected a far more insightful and sensitive explanation, evidencing positive parenting responsibility.  However, that was not possible with the mother.

13. Ms Phelan further addressed the mother's attention to the recommendation made by Ms C, which is in the following terms:

    “73.The Family Consultant recommends that as soon as possible [the child] begins spending a full day with his father each week, to get to know his father and half-sibling, with the changeover to be at [O Care], for at least the next three months, to nurture and consolidate the father/son/family relationship.  If this arrangement is ordered and is encouraged by [the mother], and takes place regularly each week according to the orders, then the Family Consultant recommends that [the mother] is permitted to relocate to Tasmania with [the child].  However, if [the mother] does not support or abide by such an arrangement, the Family Consultant would have serious reservations about recommending relocation for [the child].”

14. The mother said it was not possible at the moment to have changeover at O Care because of her work commitments.  She explained that she was working “in pool” with a large health organisation where she commenced employment on 15 May 2006.  She worked five shifts (the shift alternatives being 7 am to 3.30 pm, 1 pm to 9.30 pm and 9 pm to 7.30 am).  She said it would be difficult for her to take the child to O Care once a fortnight of a Friday.  In so saying it appeared to me she was making every excuse possible to avoid this occurring.  She was offering no assistance at all and I had the clear view that she was utterly resistant to the proposition.  The mother said it would be difficult to obtain leave from her work to take the child to O Care and made it clear that she had requested each alternate Friday off work.  She said it would be difficult to get permission to be off work to undertake the task.  I do not accept her evidence, and which finding is ably buttressed by the evidence of Mr S to which I will shortly refer.  Her attitude reveals historic consistency over the past two years.

15. Ms Phelan then addressed the mother to the fact that my orders of 29 October 2004 provided for the child to be with his father on holidays, including school holidays for June 2006.  He was not delivered for that purpose.  The mother at first said that she telephoned O Care "several weeks" prior to the contact period but was informed by them she need not attend as the father had “cancelled contact on 21 June 2006”.  The contact period for the June school vacation was to commence 25 June 2006.  In my view, the contact period failed due to the mother's poverty-stricken attitude. 

16. Ms Phelan further directed the mother's attention to the father's affidavit filed on 24 June 2006 and in particular Annexure “PGB5”, being a letter from the mother to the father's former solicitors dated 28 May 2005 (Exhibit “F2”).  That letter reveals a reluctance on her part to participate driving to O Care, claiming that she attends lectures, tutorials and carries out work commitments as the reason why it was not practicable to do so. 

17. Ms Phelan put to the mother a number of questions concerning her employment in 2005 and I am satisfied that she offered every excuse in an endeavour to demonstrate that she was unable to actively and graciously participate and assist the child to spend time with his father.  Her various explanations toll a hollow ring for there was no empirical independent evidence to support her bold assertions advanced to best accommodate what I regard as her untenable position.

18. Ms Phelan tendered a survey of the time the father had spent with the child since the court orders of 29 October 2004 (Exhibit “F6”).  I accept the contents which starkly reveal an appalling situation.  In my view, acting upon all that I have heard in evidence and read, it is the mother who, perforce her emotional and bitter disposition has so acted to make contact fundamentally unworkable and improperly addressed the child in the terms found by me earlier in this judgment.  Her demand that contact be supervised was, in my view, utterly inappropriate. 

19. At one stage the mother said she had proposed the father have overnight weekend contact in October 2006 and produced correspondence from her files (See Exhibit “F7”).  Her proposal, it must be said, was limited to one weekend only and subject to what I regard as neurotic and stringent conditions.  That however, reflected her then viewpoint and by some mercurial leap in logic, I am now being sought to accept her amended proposed orders as set out in Exhibit “M3” and trust that she would cooperate, thus enabling her to relocate to Tasmania, which proposition has since changed.  The evidence of the mother that she had “forcefully” requested the child to attend contact is evidence that I reject when I have regard to the overall impact of all that I have heard and read. 

20. Ms O'Connell, counsel for the Independent Children's Lawyer, commenced her cross‑examination by reference to paragraph 22 of my extempore judgment where I said that the mother

    “… in effect promised that she would positively encourage [the child’s] contact with his father, to speak of him with affirmative and unambiguous favour.”

21. The mother said that she “definitely” carried through with that promise to positively encourage contact between the father and the child.  She gave as an example that she provided to the father fixtures for the child's basketball commitments, "in good will".  She then produced an email dated 10 December 2004 and which revealed that there was a “rider”, as put by Ms O'Connell, that by attending the basketball commitment with the child the father would surrender the Friday night contact pursuant to the orders.

22. The mother was cross‑examined as to what she actually said to the child to encourage contact and speak in an affirmative way about his father.  Her evidence, in my view, was both bland and trite.  She said that she explained to the child that he would be "seeing his father", that he was "going to his house" and would see "his grandparents".  She said that it was important that the child went on contact and “had fun”.  It was her evidence that her conversations with the child to encourage him “were continuous”, right through until October 2006, notwithstanding which no overnight contact had occurred since May 2005.  I reject that evidence, for if she had so acted I am confident that the child would have reacted positively.  When asked why she issued her Application in May 2005 for supervised contact, she said it was "agitated" by the father's Application to vary Child Support Agreement. 

23. When asked what she said to the child in speaking to him with “affirmative and unambiguous favour” (to use the words of my earlier judgment) in favour of the father she became evasive and appeared to me to be making up things as she went along.  She appeared reluctant to offer any positive observation about the father.  In the result, she said that she informed the child that the father was "your father", a more than obvious observation, "is very nice" and "had machines and television systems". 

24. Ms O'Connell also referred to the evidence of the mother when she was questioned by Ms Phelan who sought to address the good points of the father in circumstances where she was unable to offer any positive characteristic at all.  When asked why, she said it was because over the past two years she had "cancellations" of contact.  When asked again what were his good points, she said that his "interest in electronics" would interest the child.  That failed to answer the question.  When pushed, she said that she informed the child "your father loves you" and "he wants you to be part of his family" and that "I want you to go and have fun".  I do not accept that evidence by any measure.  It was never offered earlier as part of the mother's evidence and, in my view, this was a further attempt of her making it up in the witness box.

25. Ms O'Connell referred the mother to page 7 of Ms M’s report dated 17 September 2004 in which she recorded the following:

    “[The child] indicated that he does not call [his father] "Dad" because "he's not my dad, he just thinks he's my dad, but he's not.  He always thinks he's my dad but mum says he isn't".  When asked who he thinks his dad is, [the child] replied "no-one".  He made it clear that "mum doesn't want him to be my dad.  She said that.  I don't want him to be my dad because my mum hates him and I hate him too".  In his comments [the child] indicated that he could not envisage that his mother or he could ever learn to like his father.  In contrast, [the child] spoke positively about the various things he had done with his mother.  He did not indicate any worries or concerns with regard to that relationship.”

26. Having read that, it was put to the mother that she attended court in October 2004 on the basis that no orders be made for contact.  That changed, as I said, on day 2 of the proceedings and ultimately the mother made promises in the terms set out in my extempore judgment.  Given the circumstances of what the child said, the mother agreed that it was "a big hurdle for my son".  She said that she talked to the child after the hearing in a “positive manner” and that she had done her best to be positive to him.  Given all that I have heard, I do not accept that evidence by any measure. 

27. Ms O'Connell next addressed the mother's attention to paragraph 42 of Ms C's report which I have earlier recorded in this judgment.  In relation to the contents, the mother denied that she ever said to the child that she did not want him to see the father.  Further, that the child could never have got that impression from her and that if that was what he did in fact say to Ms C, he must have got the impression from the “cancellations” of contact.  Clearly it had nothing to do with cancellations.  For reasons earlier given, I reject that evidence too.  The negative influences of the mother upon the child were, in my view, both plain and obvious.

28. The mother said that since October 2005 she lost “all hope” that she could ever have a positive resolution in the proceedings.  She then, in a somewhat incoherent manner, referred to a number of email communications, which ultimately were tendered and marked Exhibit “ICL1”.  She agreed that the essence of the content set out in those emails was her proposal that there be only supervised contact at O Care.  She acknowledged that the last unsupervised contact with the father was on 2 April 2005.  When asked why contact ceased, her trite, in my view, reply was that it was because the father went on holidays.

29. Ms O'Connell put to the mother that on the first day of the proceedings before me her evidence was that she was in agreement to the child going away on holidays with his father.  Her only rider at that time was that it would have to fit in with her “work commitments”.  It was further pointed out to her that on the second day of her evidence, she had said she would not agree to overnight contact and that the child would need to have a “lengthy reintroduction” before that could take place.  On that basis it was put that the mother had no intention of undertaking that to which she agreed on the first day of her evidence.  This she denied.  When asked why she changed her mind, she replied she did not know what her “work arrangements” were and did not want to “lose her employment”.  She said that was her “significant” concern.  However, as may be readily understood, her work commitments had nothing to do with that contact and it appears to me that which she said on the first day was mere lip service in agreeing to a process that she had no intention of undertaking.  In any event, her evidence as to work commitment was demonstrated to be plain nonsense. 

1. The mother was referred by Ms O'Connell to paragraph 28 of the C report which was as follows:

   “28.However, she did acknowledge that [the child] has a right to bond with his half-sister, but that when she proposed that [his half-sister] come to [O] Care, [the father] refused this suggestion.  She also stated that [the father] had never requested holiday time with [the child], never asked for Father's Day, and did not invite [the child] to [his half sister’s] recent birthday party.  She did not seem able to see the anomaly in these suggestions given that [the father] is only having very limited contact with [the child] and she will not allow him to telephone or email her.“

2. The mother explained that the reference to [the half-sister’s] birthday was her “second birthday” in September 2005.  I do not accept that if the father had telephoned and requested the child to attend his home on [the half-sister’s] birthday that the mother would have gracefully embraced such a notion.  Given all that I have heard and read, it is farcical to suggest that would be so.  The mother went on to say that if the husband telephoned her and asked for the child to go on [the half-sister’s] birthday, she would “embrace” it.  I reject that evidence, particularly in the light of the fact that she was only prepared to concede by her initiating application four hours supervised contact at a contact centre.  Again, this is a trite example of the mother's evidence to say something that would best be tailored to accommodate her case but was, in fact, far removed from reality.

3. The mother was asked, in the event that she were permitted to relocate to Tasmania how she would keep the father informed about the child's welfare.  She said, "I would need an independent mediator", and that any communication between herself and the father should be in writing.  However, she, somewhat resentfully in my view, proffered that communication between the child and his father could be by telephone.  Given the evidence thus far and the statements made by the child to Ms C (and indeed earlier to Ms M) it would be barely possible to imagine that such telephone communication would take place, having regard to her intransigent attitude.  She made it clear that she felt she could not communicate with the father, save in written form and there would be no oral communication between them so far as she is concerned.  Such is her attitude towards essential, indeed ordinary, communication.

4. The mother conceded that the Independent Children's Lawyer wrote to her in late 2006 (Exhibit “F7”) requesting she participate in the “Family Transitions” program.  She refused to do so.  She explained that she would prefer the evidence to be tested in court about the current counselling they had undertaken, which I assume was a reference to Ms C.  When asked for any other reason, she said that the program did not have, in her experience, an understanding of “the process”.  She agreed that she made no inquiries of the organisation.  All this sat rather uncomfortably with the fact that the mother had chosen to communicate with Ms B and which she claimed was for “personal counselling”.  However, Ms B saw, the mother said, the child on two occasions but denied they discussed issues that were being dealt with by Ms M.  She conceded, however, they discussed problems concerning contact and relocation, which were the same issues for which Ms M was appointed in order to assist them.

5. Ms O'Connell directed the mother's attention again to the issue that when she filed her Form 1 Application she sought an order for supervised contact.  The contrast was highlighted that now, in the course of these proceedings, she is prepared to accept an order for unsupervised contact.  The mother said she did not propose to go to Tasmania until July 2007, and until such time, she was prepared to consent to an order that the father have contact with the child each alternate weekend.  That evidence was nothing short of breathtaking.  The naivety of the mother in the giving of this evidence was monolithic in that it failed to grasp the essential problems and was, in my view, nought but mere lip service.  Her explanation for the change was that she was “thinking irrationally” earlier by reason of the four applications issued by the father. 

6. Significantly, she said that her application was only issued as a result of the Applications for Contravention and the threat of litigation dealing with child support.  I reject that evidence for, in my view, it is clear that the mother had, despite the terms of my extempore judgment, shortly thereafter embarked upon a course to freeze the father out of contact with the child.  In any event, such an explanation is plainly scandalous and evidencing an unscrupulous attitude. 

7. It came as quite a surprise to me that the mother said she would not propose to travel to Tasmania until July 2007 and which, on day 6, was extended to December 2007.  In the result, the mother said in her evidence that in October 2006 she decided that she would not travel to Tasmania until July 2007.  When asked why she had not disclosed that fact in her Case Outline Document or explained it at the commencement of the proceedings she said, "I don't know how to properly explain myself".  I reject that explanation. 

8. The mother said that upon relocation she proposed to send the child to the U Primary School commencing in Term 2.  She explained that she gave notice of this fact to the Independent Children's Lawyer, but not to the father.  Later in the course of cross‑examination the mother conceded that the father had “a right to know” where his son was attending school, but that she had not informed him of her plans as "I don't know the outcome of the case", and that she would only release the information when orders were made.  When it was put to her that she was “plotting” something that may not eventuate, the mother made it clear that the father, in her view, need not be told about her proposal.  Such is the extent of her willingness to include the father in the child's development. 

9. The mother proposed to use child support payments for the purpose of the child’s education.  When it was put to her by Ms O'Connell that the father had consistently paid child support for his son she hesitated, and consistent with her earlier evidence, begrudgingly responded, "Yes, most of the time”.  She went on again to qualify her answer by saying that the father is committed "financially more than being there when his son needs him".  She then went on to explain that he did not seek to see the child but simply “turns up”, which she explained was not a commitment.  I fail to grasp the gravamen of her evidence for it appears to me that the father has maintained contact with the child in the face of stringent opposition and despite the child's attitude so overtly displayed to him. 

10. The mother said that from October 2004 until the filing of the contravention applications she frequently told the child that his father “loved” him.  For the reasons given in this judgment, I do not accept that evidence.  The mother went on to gratuitously offer that she did not think that the father loved the child.  She accepted that she did say to Ms C in the course of her interview “… it is not true love or parental love”, and then qualified it by saying that statement was a reference to the father not talking to the child in the waiting room.  I do not accept that evidence for the statement made follows the earlier sentence, "His father did little to build a relationship with [the child]”.

11. The mother was again asked by Ms O'Connell what she would say to the child if relocation were not permitted.  She said that she would say, "Unfortunately we can't go”.  "The court would not let us go” and "Because you have to get to know your father first”.  It seems to me that such responses could only inject into the child a view that the reason why his mother and he could not travel to Tasmania was entirely the fault of the father.  I have little confidence that the mother could ever sensitively explain the situation to the child and in the circumstances I will direct that the terms of my order following this judgment and the rationale for it be explained to the child by the Independent Children's Lawyer.

12. It seems to me from the mother's evidence and consistent with what I said in my judgment of 29 October 2004, that she has little, if any, association with her immediate family.  She said that she had not made any contact with the paternal grandparents, offering the insipid reason being "because I don't have their address".  She agreed that she never sought to do so through the father, the Independent Children's Lawyer or the father's solicitor. 

13. Ms O'Connell turned the mother's attention to paragraph 33(a) of her affidavit filed 2 October 2006 dealing with the issue of the “tree house”.  I listened carefully to her evidence and it is plain to me from what she said that she engaged the child in dialogue about this issue and then with investigatorial fervour made inquiries of the current owners of the G property under false pretext.  She did this because "I felt that this led to lots of things the father says which are not true”, and to "show he was a liar".  She said this inquiry by her took place in about May 2006.  In fact, that which she discussed with the child on this aspect, was plainly wrong. 

14. The child met with the Independent Children's Lawyer on 12 April 2006.  It was accepted that the Independent Children's Lawyer made contemporaneous notes representing the questions asked and statements made in the interview process.  With that in mind, it was agreed that the matters stated in Exhibit “ICL2” accurately recorded the statements made and reflected the child's attitude.  They were as follows: 

    ·     [The child] said he does not see his Dad much I can’t be bothered

    ·     I have not seen for maybe a month

    ·     He does not come to see me.

    ·     He does not bring me presents

    ·     I don’t speak to him on the phone

    ·     My Dad works at ‘[V]’

    ·     No sure how long since I have been to his home.

    ·     He stays for about 5 seconds (after school care)

    ·     I am not interested in seeing Dad. He said he had a tree house and he never did. He lied to me.

    ·     I won’t be changing my mind

    ·     I go to [F] Primary School

    ·     I started there in 2005 I am in grade 3

    ·     I did not go to the Commonwealth Games. I am not interested in watching the Commonwealth Games

    ·     I want to go back to Tasmania

    ·     I asked [the child] what he thought if the Judge said I want [the child] to stay in Melbourne and see his Dad more and not go to Tasmania. [The child] said he would not be happy with that.

    ·     I asked [the child] if he went to Tasmania, would he be prepared to see his Dad more. [The child] said he would not be happy about that.

    ·     I asked [the child] what he would do if the Judge said he had to see his Dad more. [The child] said (at first) he would not do it. And then he said he might do it if he had to. [The child] said he would rather not see his father or speak to him on the phone and did not care if his father was upset about it as it would make his mum happy.

    ·     I asked [the child] about the other members of his father’s family (his half sister and step brother).

    ·     I asked [the child] about the visits at after school care by his father. [The child] said it gets annoying.  [The child] said he did not want any (visits at after school care).

15. Ms O'Connell addressed the mother's attention to Exhibit “F8”, and what I regard as her offensive commentary and use by her of the descriptive term "idiot".  Her explanation for that was that she was “very angry”, but that she did not think of the father as, “an idiot”.  She said that she had never described him in derogatory terms in front of the child, this being so notwithstanding that the child, as appears in the C report, was of a view that his mother hated his father.  I have little doubt that the mother unburdened her view of the father to the child at will.

16. The mother denied that she informed Ms C (report at paragraph 53) that she said, "The law can't stop me”, from going to Tasmania.  The mother explained that what she said was that she would not go to Tasmania without the child.  She claimed that she informed Ms C that there was no law preventing her from going to Tasmania, but that orders could be made preventing her from taking the child to Tasmania.  I found that explanation to be somewhat vapid. 

17. Throughout the proceedings the mother was very reticent to accept any criticism about her behaviour.  She denied that she played a “destructive role” in the child 's life by reason of her attitude to the father and said that both she and the father were “equally responsible”.  She emphatically denied that the child's attitude came about as a result of her influence and then gratuitously offered in a speech-making process, "I don't believe [the child] is rejecting his father".  The mother's lack of insight and failure to grasp essential and clear issues is obvious.  In the maintenance of mere lip service the mother asserted that she did not think the child was aligned with her feelings concerning the father, nor was he affected by any negative view she held of him.  I reject that evidence.

18. I have been vigilant in my attention to the mother's evidence, understanding of her position and her desire, for example, to relocate to Tasmania.  However, I have little, if any, confidence in her as a witness upon whom I can rely.  I have realistic reservations, for example, that if she were permitted to relocate ultimately to Tasmania without affording to the father a significant appropriate period of time in order to enable the child to understand the worth or value of him as a father and also of his broader family, she would so act that their relationship would be lost and alongside with it the risk of long-term damage to the child's emotional stability and general welfare. 

THE EVIDENCE OF MS B 

1. In coming to my conclusion I have regard to the three reports of Ms B relied upon by the mother.  At the commencement of her evidence, Ms B said that her role was to “receive information” from the mother as to the family situation and to support her generally “in her distress”.  However, her three reports go far beyond this to the presentation of a purported professional opinion.  Throughout the reports, Ms B does precisely this and despite her express statement disavowing her role as an expert witness, that does not sit comfortably with her given task in fact and with the construction of her reports.  For example, if I were to treat her in the same way as a lay witness, then much, indeed most, of her report would or could be struck out as offending rule 15.3 of the Family Law Rules 2005.  It would, in the result, be a meaningless, indeed futile, exercise. 

2. Thus, as the mother had waived any privilege or confidentiality associated with her sessions and notwithstanding that there are procedural constraints concerning the role of Ms B, I will, and with the consent of the practitioners, accept her reports and first direct my attention to the reality of her position, namely a professional witness holding herself out qualified to express an opinion within the ambit of her expertise.  Indeed she set out her qualifications to support her opinion.  Having then dealt with her evidence on that basis, I will address, if necessary, my evaluation of what she had to say and the weight I should give, if any, to her overall testimony.

3. It is worthy of comment that Ms B has never before appeared in any court in the State of Victoria in any proceedings exercising either state or federal jurisdiction as an expert witness.  Her qualifications are, with respect, somewhat modest, not exceeding basic degree status.  Her conduct, however, in the pursuit of her task came under considerable scrutiny and was a matter of real concern to me.  I will deal with that shortly. 

4. It did not appear to me that Ms B had the slightest notion or understanding of the role of an expert witness, which is evidenced both from her oral evidence before me and her conduct relevant to the mother.  The role of an expert witness is clear.  I do not intend to record chapter and verse an explanation of that role.  Suffice for me to say, however, that the evidence of such a witness should be seen to be "the independent product of the expert uninfluenced as to form or content by the exigencies of litigation" (see Whitehouse v Jordan (1981) 1 WLR 246 at 256). Further, a witness in her position should provide "independent assistance to the court by way of objective unbiased opinion in relation to matters within his (her) expertise" (see Polivitte Ltd v Commercial Union Assurance Co Plc (1987) 1 Lloyd's Rep 379 at 386 per Garland J. See also National Justice Company Naviera SA v Prudential Insurance Co Ltd (the Ikarian Reefer) (1993) 2 Lloyd's Rep 68 at 496).

5. In Re W v W:  Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and Ryan J identified, for example, that it was not appropriate for an expert witness "to act as an advocate for a cause".  Their Honours made it very clear that the evidence of an expert witness who had demonstrated bias should be given little, if any, weight.  In 1998 the Federal Court published Guidelines which are instructive on this issue.  Overall, it appears to me that Ms B has assumed the role of an advocate and has entrenched herself in the camp of the mother, dressing herself with the robe or accoutrements of partiality and dependence.  As Brooking J said in Phosphate Cooperative Co of Australia Pty Ltd v Shears and Anor (1989) VR 665 at 683: “The expert's integrity and freedom from baneful influences are essential.”

6. In these circumstances, whilst Ms B is presented by the mother as an expert witness before me and despite her disavowal in evidence of that role, I am most cautious about what she had to say, given what I regard as her gross partiality and her lack of independence.  I do, however, have regard overall to her report and evidence, which in the result I find to be of little assistance to me. 

7. The evidence of Ms B was given in a manner that demonstrated to me her lack of experience.  She was reticent, almost apologetic, confused as to her role and permitted her evidence from time to time to trail off into an inaudible response.  Given my earlier discussion with her concerning the relevance of her evidence, which necessarily depended upon an acceptance or otherwise of her as an expert witness, she was very quick to explain, indeed several times, that she was not an expert witness.  She at one stage suggested that she was “just responding” to the requirements of the mother. 

8. Ms Phelan addressed Ms B's attention to Exhibit “F8”, who after some hesitation accepted the contents of her response at 12.19 am on 27 May 2005, which I have earlier referred to as being "utterly and without question inappropriate".  So it was, for she so trenchantly aligned herself in the mother's camp and demonstrated inarguable and unprofessional dialogue.  Her criticism of the Family Consultant was both extravagant and intemperate.  She had this to say in her email to the mother:

   “Hi [the mother],

   I just ready your email at this late hour. I must admit to being quite tired after a long day of writing, however will attempt a ‘sensible’ response if I can.

   - This financial information would seem to show that [the father] has been ‘moving funds’ across to [the father’s wife] (i.e. the house), in order to make his taxable income lower.  However, another result of it is, as you say, that by her having the financial assets, there would seem to be no legitimate inheritance from [the father] fro [the child] (though I suppose we need to be careful in making too many assumptions.  Perhaps he does have some other kind of provision, i.e. a trust fund or something similar for [the child]).

   - I agree, probably best not to raise this info with [Ms M], given her lack of neutrality so far.  When you say you would much rather question [the father’s wife] (first), I take it that you mean during the 4/7 court proceedings?  I imagine though they will both have strategic responses ready to paint a positive financial/social picture regarding [the child].  If you do want to question [the father’s wife] in the Court, I don’t know that you need to really discuss it with someone else prior to that? (unless you have someone in particular in mind, perhaps with a finance/legal background?).

   The only option I can think of may be the Women’s Legal clinic (that runs in the city on Thursday mornings.  Perhaps running the information by one of the women lawyers may assist you in some way?)

   - Based on some of the information written by [O] Care for the other proceedings, they are probably fairly partial to [the father’s] situation (rather than impartial) so, yes, choosing [Ms M] for the counselling does sound like the lesser of two evils.

   I agree that talking with the Child Rep about the [father’s] finances, in terms of [the child’s] long term financial security, and it being very relevant to [the child’s] welfare, would seem like a reasonable and sensible thing for you to do.  Any information s/he exchanges with you is going to be very much from [the child’s] perspective of course.

   - Does the letter from the lawyer stipulate that the family counselling has to involve you and [the father]/[father’s wife], or you, [the father[ and [the child]?  As you have already stated to [Ms M], to expect you to sit in with him during a joint session would seem extremely demanding of you personally.

   Well [Ms Stewart], my eyes are struggling to remain open.  I hope some of this has made sense.  I am running a workshop at [C] early tomorrow so best get some rest.

   Will be in touch,”

1. Having regard to all that I have said, I am not satisfied that the wishes expressed by the child are soundly based or well thought through.  He has been sharply influenced by his mother and has little, if any, proper appreciation of the factors involved and the issues I have to decide.  They are, in my view, the result of pressure exercised by the mother and reflective of her needs, not his own.  He does not have the maturity to appreciate the competing factors nor the important issues addressed by Ms C.

2. I now consider the nature of the relationship the child has with each of the mother, the father and other significant persons.  Drawing upon the earlier parts of this judgment rather than repeating them, it is clear that the relationship between the father and the child is at a very low ebb indeed.  So much so is clear to me from the evidence of Ms C and of the father.  However, there is credible evidence, unassailed by the mother, that the short time spent between the two of them at the F school has reward.  I have every confidence in the father that when presented with the opportunity, such as I propose to make in the orders, he will approach the situation with consummate sensitivity and tenderness.  So too will the father’s wife, for she too has much to offer the child.  I am left with no doubt as to her capacity to build the foundation of an appropriate family relationship embracing the child.  Much too will depend upon the attitudinal disposition, as I have explained earlier, of the mother.

3. I accept the evidence of Ms C as to her observations of the relationship between the child and his mother.  It was not in contest that she has his interest at heart, houses him appropriately and attends to his general educational needs.  The problem is that while she may believe that she has acted in his best interests, the fact is she has not, as evidenced in the report of Ms C and her oral evidence before me.

4. I next consider parenting and discharge of parental responsibilities.  In the circumstances of the proceedings before me, it is convenient to deal under this heading with a number of considerations listed in s 60CC(3) and also subsection (4).  I consider under this heading the following paragraphs: 

   “(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;

   …

   (f)the capacity of:

   (i)each of the child’s parents; and

   (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;

   …

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

5. I also consider under this heading sub-sections (4) and (4A) which are as follows:

   “(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

   (a)has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child; and

   (b)had facilitated, or failed to facilitate, the other parent:

   (i)participating in making decisions about major long-term issues in relation to the child; and

   (ii)spending time with the child; and

   (iii)communicating with the child; and

   (c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

   (4A)If the child’s parents have separated, the court must, in applying sub-section (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”

6. I have already made findings relevant to these paragraphs earlier in this judgment and upon which I rely.  I am satisfied from all that I have heard and read that the mother has in the past failed to facilitate and encourage a close and continuing relationship between the child and his father.  I need only go to the recent past events with the mother primarily contesting the earlier proceedings before me in October 2004 on the basis that there be no contact between the father and the child which was, in my view, a most unusual, indeed unsustainable stand to take in the light of the whole of the facts underpinning those proceedings.  The report of Ms M prepared for those proceedings was clear.  As I have recorded in my judgment of 29 October 2004, the mother's position dramatically changed whereby she consented to orders that the child spend time with his father phasing into overnight arrangements. 

7. The situation soon reverted to one reflecting the course of history and by May 2005, a mere seven months later, overnight contact ceased.  The mother cast, as I said, blameworthiness for that situation at the feet of the father, although in a modest and generous moment in cross‑examination, claimed that both she and the father were “equally responsible”.  I think not. 

8. Further, I reject outright her evidence that she encouraged the child to attend on contact with his father.  She may have packed his bag as a mere notional act of compliance, but that is where it ended.  I reject her evidence that she spoke well of the father to the child in the terms I have earlier set out.  Her credibility as a reliable witness before me is marginal, at best.

9. One low point in her evidence, for the nadir was plumbed several times, was her explanation that her Form 1 Application for Final Orders filed on 17 May 2005 was only issued as a result of the father's application for Contravention and the threat of litigation for child support.  So much so for her bona fides, and notwithstanding, I see her as driving the application to its commencement before me.  The report of Ms C in August 2006 clearly explained the answer but the mother, by her determined ideation of what orders should be made and expressed in her amended Form 1 Application filed 23 May 2005, drove the proceedings to the court whereupon, consistent with history, she changed her mind again.  Her proposals chronologically may be seen from her amended Form 1 Application, her Case Outline Document filed 5 January 2007 and the progression of Minutes marked Exhibit “M1” and Exhibit “M3”. 

10. I am satisfied that it is the mother alone who has so acted as to cause the child to hold the attitude currently expressed towards his father.  I am satisfied, for example, that she was so unbridled in her anger over the father's property arrangements that she enjoined the child in her discussions resulting in the events of 27 May 2005.  Her various explanations in denial and exculpation fell like dominoes and left that which she said in court and deposed to in her affidavit bereft of credibility.  She drew Ms B into her personal situation so that, in the result, she too lost her independence as a proposed expert witness.  I have earlier expressed my views on that aspect. 

11. I accept as accurate those matters reported upon by Ms C recording the spoken words of the child to her.  I have no doubt that the child, somewhat naively, told her exactly what had happened.  I reject the mother's denials and accept the evaluation of Ms C as to the influence effected by the mother upon her son. 

12. The mother's view of the father was effectively as a worthless parent and permitted her negativity to permeate or pervade the child who responded to it in the manner expressed by Ms C.  It was a moment of pitilessness or pathos that the mother was unable to express in her evidence any positive traits about the father who has, in reality, so much to offer the child as a loving parent.  Consistent with that is her utter inability to entertain oral communication with him. 

13. The evidence persuades me that the mother has the capacity to provide for the child's general physical nurture and his intellectual needs, but in relation to certain of his emotional requirements, she has failed.  No doubt she has a deep love for her son and provides warmth and affection.  However, such is her blinkered attitude to the father that she impacts her negativity upon the child in an unbridled and intemperate manner.  She cannot separate her own feelings of anger, pique and general resentment from his best interests.

14. The result is so apparent, evidenced in the child's attitude for some two years and that which he has expressed to Ms C.  It will be in her own best interests to gain professional assistance to aid her parenting of the child into the future.  Central to this is the mother accepting that the father has much to offer the child both personally and in the provision of a loving broad family, all of whom are willing to embrace the child into their environment. 

15. I find that the father has the capacity to provide for the child's needs, including his emotional and intellectual needs.  All he requires is time and the appropriate environment to demonstrate to his son the worth of his family.  Collateral to that is a requirement that the mother encourages the child with unfeigned display to enjoy his father's presence and to address him positively without any covert or subliminal sign of disingenuousness.  However, she has not done this in the past, and given the expert evidence of Ms C, is unlikely to do so in the future.  The father's persistence in visiting the child at school underscores his authentic desire to bring the child into the family fold.  I found his explanations in evidence to be unalloyed, insightful and moving. 

16. In acting as she has done, the mother has failed dismally in an important component of parental responsibility.  Were I to order that the child live with his mother, given all the evidence I have heard, I have no confidence at all that she would comply with the spirit and intent of the orders and that a positive reintroduction of the child into the father's family would be a mere pious expectation.  I do not accept that the mother has the capacity to achieve that end for she has had every opportunity to do so since October 2004.  Despite her assurances at that time and upon which I acted, it was within a day or so that she complained to Ms B of her plight.  Whatever she says has transpired to be mere hollow representations to achieve her own ends and without regard to the child's best interests.  This was adequately explained by Ms C in the course of her evidence before me.

17. I am satisfied that the father has taken all reasonable steps to spend time with and communicate with the child.  He is a businessman with commercial commitments, which became a target of unreasonable attack by the mother.  She appeared obsessed by the minutiae into which she descended when dealing with this issue.  Despite the straitened circumstances in which he found himself, I find the father did all he reasonably could to maintain a connection with his son.  The mother has, for the reasons I have thus far addressed at length, failed to facilitate the father spending time with the child.  I have little doubt that if by deed and the spoken word she both presented and talked to the child positively about his father, that she did so in a genuine, uncontrived and authentic manner, that he would in time respond to her entreaties.  However, now starkly imprinted in history, she has not done this and despite the submissions of Mr Devries, I am satisfied that she cannot and would not in time act in that manner. 

18. In coming to my determination I make it clear that I have had regard to the events following my orders of 29 October 2004 and the underpinning commentary by me in my extempore judgment.  I need not repeat them further, for my analysis and findings are clear.  I do emphasise, however, the warnings were there and I made it clear that a failure on her part to foster the father's image to actively promote the benefits and advantages he had to offer and sublimate any feelings of doubt or disenchantment may lead to other consequences, and they have. 

PARENTAL RESPONSIBILITY

1. Section 61DA(1) of the Act provides that when making a parenting order I must apply a presumption that it is in the best interests of the child for the mother and the father to have equal shared parental responsibility for him.  However this sub-section does not apply in certain circumstances, namely:

   “if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)family violence.”

2. Having regard to the overall circumstances of the case, there are no such reasonable grounds and thus the presumption applies.  In any event, I am requested by all parties to make that order.  However, it is important to note that the presumption relates solely to the allocation of parental responsibility as defined in s 61B of the amending legislation.  It does not provide for a presumption about the amount of time the child is to spend with each of the parents.

EQUAL OR SUBSTANTIAL AND SIGNIFICANT TIME

1. In this case, one of the parenting orders I propose to make will be that the parents are to have “equal shared parental responsibility” for the child.  Accordingly, I am required by section 60DAA to consider whether to make orders that the child should spend equal time or substantial and significant time with each parent.  The section provides, relevantly, that I must –

   “(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)it if is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”

2. I am to consider, therefore, whether the child should spend equal time with each of his mother and father, whether that would be in his best interests and whether it is reasonably practicable.  Given the whole of the circumstances detailed by me in this judgment, it is not reasonably practicable, nor is it in the best interests of the child to spend equal time with each of his parents, given the situation now prevailing. 

3. The legislation, relevantly, provides that if I do not make an order for the child to spend “equal time” with each of his mother and father, I must –

   “(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.”

4. Accordingly, I am to consider whether the child spending substantial and significant time with each of his parents would be in his best interests and whether it is reasonably practicable.  There does not appear now to be any reluctance on the part of the mother to agree to the child spending time with his father given the terms of paragraph 26 of her Minutes of Proposed Orders (Exhibit “M1”) which commenced with a nine-night proposal from 15 January 2007 (now past) then each alternate weekend from 5.30 pm Friday to 5 pm Sunday.  Why this could not have been set in place earlier is not difficult to understand given her attitude surveyed by me in this judgment and the fact that she has repeated history again with her proposal.

5. It is the putting into effect by her in the manner described by me that is the difficulty, for I do not, by any measure, accept her assurances given thus far and which I will not again risk to be tested further by the passage of time.  History has been etched in stone and to do so would, in my view, be contrary to the child's best interests.  It is within the framework of my proposed orders that the father will have the opportunity to build a meaningful relationship with his son who will be introduced to family life in the traditional sense.  I have every confidence in the father's ability to achieve this desired goal, thus enabling the child to have the benefit of two parents in stark contrast to the position and future were he to continue to reside with his mother. 

6. The orders I propose to make will enable the child to spend substantial and significant time with the mother and are orders in the exercise of my discretion which I consider to be in his best interests. 

CONCLUSION 

1. As it was in the proceedings before me in October 2004, the contest between the parties changed dramatically with the progress of litigation.  The mother's position altered from, inter alia, leave to relocate to Tasmania and that the father have four hours supervised contact once a month through a series of revised minutes of proposed orders, to what may be termed "standard" orders whereby the father would spend time with his son.  The issue of her proposed relocation was abandoned. 

2. It is also plain that within 24 hours or thereabouts of my orders made on 29 October 2004 the mother telephoned Ms B.  The evidence for this rests in the report of Ms B, Exhibit “ICL7”, and dated 12 May 2005 where, inter alia, Ms B had this to say:

   “I had further contact with [the mother] in October 2004, when she telephoned me at [C] to inform me of the outcome of the Family Court hearing on 29 October, handed down by Justice Guest.  [The mother] expressed extreme distress and disappointment in the decision, which ordered that her son […] would have graduated increase in his contact with his father, […].  During that call she requested follow up counselling from myself.”

3. Thus, the scene was set.  The attitude of the mother towards the court orders of 29 October 2004 was exposed to arguably reveal, having regard to the events between that date and 5 January 2007, that her representations set out in my extempore judgment were hollow and exposed as mere artifice.  When I consider such a forlorn history I have little, if any, confidence that she would embrace in a wholesome, genuine and uncontrived manner the terms of her proposed orders detailed in Exhibit “M3”. 

4. The events I have carefully detailed in this judgment reveal her continued oppositional disposition to faithfully consider the value of a relationship between the father and his son.  It was the view of Ms C that the mother's negativity to the growth and development of such a relationship was such that it may not, if ever, change. 

5. The mother's Application filed 17 May 2005 was her first pre-emptive strike to fulfil her own desires and effected without any insightful recognition of what was in the child's best interests.  The mother maintained her unyielding attitude of negativity, evidenced adequately in this judgment, until the filing of her Case Outline Document on 5 January 2007, being the advent of the proceedings to commence before me.  At that time, alternate weekend contact was proposed pending her relocation to Tasmania upon four weeks prior notice in writing.  However, the die was cast and with the rapid progress of the evidence the father's position changed from a proposal put in the alternative (Exhibit “F3”) to an order that the child live with him (Exhibit “F12”).

6. The rationale of how the mother came to her proposal first put on 5 January 2007 has not been adequately explained, but after hearing all the evidence I am left with the plain conclusion that the charade was again about to commence.  The ominous warnings as to the direction of the litigation pathway were laid out with striking clarity in the report of Ms C of August 2006 who even then in the course of her recommendation governed by the circumstances presented to her said:

   “76.However, in view of the past, it is likely that [the mother] will not abide by the court orders, or encourage [the child] to say he does not want to see his father, which then gives her the opportunity to counsel [the child’s] time with his father.  As this, in the Family Consultant's opinion, is a probable scenario, it is suggested the court orders may need to consider what sanctions could then be imposed on [the mother].”

1. The position of Ms C also changed so that she expressed a view that the child should now live with his father.  It is to be acknowledged that, as Ms C understood her position at the time of her report, the main issue, which I stress, then was the mother's proposed relocation to Tasmania.  As proceedings unfolded to its conclusion before me, that issue was abandoned by the mother for it became patently evident that the question of the child's residence was the central issue and a determination of what terms and conditions would best facilitate that situation. 

2. The report of Ms C was clear in its terms.  It accurately recorded events to that time and the attitude of both the mother and of the child towards the father.  The mother did nothing upon the publication of the report and the father's time with the child with all attendant difficulties as described in this judgment, took place without any suggestion of compromise or some form of lateral resolution in order to meet the evaluation of Ms C until 5 January 2007.

3. With the appearance of Mr Devries there followed a wave of reality, with respect, and given the history commencing from 29 October 2004 and such other material within his command, including what I regard as the compelling and very helpful evidence of Ms C, he did not pursue the issue of the mother's proposed relocation (albeit that by Exhibit “M3” par 12 it was, subject to certain conditions, still alive) nor contest issues concerning the mother's credibility.  In the course of his final address on 23 January 2007, Mr Devries abandoned, in my view with practical reality, paragraphs 12, 13, 14 and 16 of the mother's Minute of Revised Proposed Orders.  The essence of his submissions was to persuade me that the child should continue to live with the mother and that the father have appropriate, indeed generous, contact with his son.  Shades of the submissions advanced on 29 October 2004. 

4. I have throughout this judgment directed a number of my findings to determine issues very much dependent upon credibility and respect for the truth.  Such matters open the doorway to trust and reliability.  It is inarguable, nor has it been sought to argue the contrary, that I should not in all the circumstances accept the mother as a witness of truth.  Put simply, I not trust her.  These proceedings have mirrored, to a remarkable degree, those before me in October 2004.  She claims she came to court as a no-contact parent and with the progress of the proceedings greeted the dawn of enlightenment and agreed to a series of carefully constructed orders, paving the future development of a meaningful relationship between father and son.  All representations made by and upon her behalf proved hollow and insincere. 

5. I have earlier in this judgment made substantial findings dealing with the mother's credit as a witness concerning material issues.  As I have already made clear, for example, I reject her various explanations responding to the father's evidence relevant to the events of 27 May 2005.  To permit the child to become involved in and privy to the father's personal financial situation was utterly unacceptable and evidences, in my view, a pathological inability to separate her own emotional and angry reactions from the child's general welfare and best interests.  Given the whole of the evidence, I am left without doubt, and to the requisite standard of persuasion, that the child's reaction and behaviour towards his father has resulted from the mother both directly and by covert response. 

6. In my view, she bears the type of personality that indulges free expression to whoever may be a receptive ear to her anger, distress and dissent.  Given the father's presentation in this court and that of [his wife], in respect of whom I have made clear findings, the boy's maintained resistance and his illogical stubbornness can only have been encouraged and sourced from the mother.  Her constant exhortations that she had encouraged the child to attend contact is, as I have said, mere lip service and which I have no hesitation in rejecting.  Had she encouraged him in an authentic and unalloyed fashion, spoken positively to him about the father's value as a parental figure in his life, I have little doubt that we would not be in court this day.

7. There was nothing put that in my view diluted the insightful and penetrative evaluation by Ms C.  The evidence overall persuades me that, as opined by her, the mother would find some reason to terminate or detrimentally affect by negative influence contact between father and son.  This is despite the mother's evidence to the contrary, which, as I have made it patently clear, I reject.  I accept the opinion of Ms C that the mother has not in any way promoted a meaningful relationship between the child and his father and is unlikely to do so.  In my view, it is plain to concede that the child, as matters present stand (a phrase which I underscore) has aligned himself with his mother by reason of her conduct, actions and spoken word.  This must change.  It is only in the child's best interests that he grows up also under the umbrella of his father's care and general nurture for, I have made perfectly clear, the father has much to offer him.

8. As matters stand today, I agree with the evaluation of Ms C that the motivation of the mother in reality was to get as far away from the father as possible and in the event of that being achieved it would be unlikely she would encourage the child to spend time with his father.  Furthermore, for the reasons set out by me in this judgment arising from all the evidence I have heard and read, I do not believe the mother's attitude is capable of change so as to encourage a relationship if the child were to continue to reside with her.  It is in the child's best interests that he realises the worth of his father who has so much to offer him. 

9. He would have the benefit of two parents, for it is clear that the father has the capacity, the ability and the insight to foster and encourage the mother as an absent parent.  He bears her no ill will, but has endured frustration at the constant hurdles erected by her in his quest to spend time with his son.  Not so the mother whose history or track record is quite the opposite.

10. In her final submissions on behalf of the Independent Children's Lawyer, Ms O’Connell supported the father's application that the child live with him.  She carefully analysed the merits of the competing proposals, concluding that there was no reliable evidence that the mother would ever encourage the relationship between the child and his father.  Notwithstanding that the child would have contact with his mother, there would be less opportunity for her to negatively influence the child.  That too was the opinion of Ms C.  She emphasised that the alternative option, being the maintenance of the status quo has been tried before and failed dramatically, in which circumstances it was futile to make another set of orders.  I agree with that submission.

11. In support of her submission and the recommendation of the Independent Children's Lawyer, Ms O'Connell reviewed the evidence buttressing the proposal and addressed those material matters I have earlier discussed in this judgment. 

12. An issue was raised concerning the child's wishes in that there was no evidence as to how he would feel if I were to order that he live with his father.  See, for example, R v R (Children's Wishes) (supra) at par 60 where the court said that it was “generally desirable that authors of family reports ask such a supplementary question”.  It was not expressed as a mandatory prescriptive, but as a “desirable” course to follow.  It is plain from the report of Ms C that the child's wishes were expressed through that which he had to say and it is plainly obvious that such a proposition would be anathema to him.  So much so was addressed in the evidence of Ms C for the child had no wish to even see his father.  What is plain is that the child's wishes and views are significantly, indeed comprehensively, coloured by his mother in the variable ways I have addressed.

13. It is correct to say that it is not known how a change of residence will affect the child.  However, it did not concern the mother that the child may be affected by his, on her proposal, (Exhibit “M1”) going to live with his father for a block period from 15 January to 24 January 2007 and otherwise the time set out in paragraph 26 of that proposal.  It was never an issue.  I accept that the child may be quite antipathetic to the order I propose to make that he live with his father, but there are more significant short and long term issues to balance against that negative factor.  They are spelled out with clarity in my judgment and supported by clear and compelling evidence.

14. To continue to live with his mother is, in my view, a detriment, for despite all that the mother has said and for the second time I do not accept that she will positively project the father to the child, nor foster their relationship.  It is a recipe to return to court.  The child will appreciate, and accepting that it will not be without difficulty in the short term, that his father has value.  He will learn the benefits of a broad and loving united family under the guidance of a parent who has never wavered in his consistent desire to be a presence in his son's life, despite vehement opposition and in circumstances where many in such a position may well have surrendered.  Such is the mark of the man.  The child will be well housed.  He will be well educated.  He will be nurtured in a free and open family life, receiving the benefits that such a unit has to offer. 

15. This particular issue was one principally relied upon by Mr Devries, referring to the decision of the Full Court in KMB v PRL (2005) Fam CA 1202, and in particular paragraphs 70 to 72 inclusive.  Firstly, it is so very plain that the facts of that case on appeal from my judgment at first instance were markedly different from those now before me.  In these proceedings the father, despite the necessitous circumstances in which he found himself, had contact with his son.  The family dynamics between the two competing households in KMB v PRL (supra) and this case are entirely different.  That was a no-contact case compared to the proceedings now before me where it is the mother's proposal that the child spend time with his father, including block periods, without the scintilla of a suggestion that it would impact adversely upon the child.  It is a natural consequence of the welfare jurisdiction that orders are made in circumstances where trial judges cannot predict the certainty of future events. 

16. In support of his submissions, Mr Devries urged upon me the dire consequences for the mother if she did not obey the raft of orders provided for in Exhibit “M3” of her proposals.  Let me make it clear.  The same dire consequences may apply if she does not comply with the orders I propose to make.  She must still control any feelings of anguish she may feel with my orders and positive encourage the child in the future.  As I said in L v B (2005) FamCA 242:

    “413.There is an obligation on the part of each parent to foster the image of an absent parent.  That within itself requires discipline, together with an ability to sublimate one's own feelings of pain, hurt or anger to benefit the best interests of their child.  I am not looking to the actions of the perfect parent in a utopian world but of one who recognises the importance of such qualities and strives to achieve that desired end. 

    414.That may mean, for example, an aggrieved parent seeking greater understanding by recourse to professional assistance.  To wallow in the mire of disillusionment, anger and bitterness can only, certainly by example alone, influence a child in a variety of negative ways against the absent parent.  The effect is dramatically compounded by the spoken word of negativity, passive alienation and subversive manipulation.”

17. Mr Devries submitted that the mother on her proposals would be "obliged to embrace wholeheartedly [the child’s] contact with his father".  What is missing in logic from that pertinent observation is that history has shown, and sharply so, that despite every conceivable opportunity and despite her promises to do so, she has not so acted.  The evidence of Ms C underpins this finding.  In fact she acted antithetically to that ideal. 

18. In seeking to rely upon KPB v PRL (supra), Mr Devries drew upon the fact that the orders made at first instance required a change of school and locale.  That is not something, however, that caused the mother concern in these proceedings during 2006 when her own proposal was to relocate to Tasmania and thereby remove the child from the F Primary School and the home in which he had lived for several years.  In any event, most changes of residence in like cases involve a change of locale.  It is not as if Y property is an environment alien to the child. 

19. The housing proposal of the father and his broad proposals for the child's education were not challenged either in evidence or submissions.  The fundamental feature here is that of parental responsibility and the capacity, willingness and ability of each of the mother and the father to facilitate and encourage a close and continuing relationship between the child and the other parent to provide for his emotional needs and their attitude to the responsibilities of parenthood.  I have dealt with all of these considerations and my conclusion is so very clear.  It is in the child's best interests to now live with his father and spend time with his mother. 

20. I wish to make it perfectly clear that I have listened earnestly to all that Mr Devries has had to say.  I have weighed it against the evidence and I am satisfied to the requisite standard of persuasion that the orders I propose to make are in the best interests of the child.  I propose to stand the proceedings down at this time for the parties to discuss what may be regarded as a fine tuning of the final orders.

21. Turning to Exhibit “F12”, I propose to make orders in the terms of paragraphs 1 to 9, save that I prefer the changeover to be at O Care for the reasons advanced by Ms C.  It may be that the mother could return the child to his new school when matters have settled.  I would prefer a situation whereby the Independent Children's Lawyer remain in the proceedings, if possible, for at least a further 12 months.  As to the actual changeover consequent upon my orders, I see it as being important that the Independent Children's Lawyer and Ms C be present to explain the situation to the child and the general effect of my order.  However, I leave the details of that event to counsel for discussion. 

22. In this matter, following discussion with counsel I have a Minute of Proposed Orders.  They are not being made by consent.  They are being made by the Court.  I mark the Minute of Proposed Orders Exhibit “A” and make orders in the terms of Exhibit “A” which will be prepared by my Associate. 

ORDERS

1. That all previous parenting orders be discharged.

1. That the father and the mother have the equal shared parental responsibility for the child, a son, born in September 1997, including equal responsibility for the making of decisions regarding long-term issues in respect of the child.

1. That the child live with the father.

1. That the child spend time and communicate with the mother as follows:

   4.1from 6.20 pm Friday to 4.30 pm Sunday each alternate weekend commencing 16 February 2007 (extending to include any public holiday or curriculum day that falls on either side of the weekend that the child is to be with the mother);

   4.2for one half of all school term holidays commencing at 10.00 am on the day after the conclusion of school and concluding at 4.00 pm on the middle Saturday of the holidays;

   4.3for one half of the long summer vacation commencing on 10 January 2008 in the 2007/2008 holiday period and in each alternate year thereafter and the day after the conclusion of school in the 2008/2009 holiday period and each alternate year thereafter;

   4.4from 10.00 am Mother’s Day to the commencement of school the next day and the time spent with the mother be suspended from 10.00 am on Father’s Day;

   4.5by telephone, mail or email at all reasonable times;

   4.6for such further and other periods as agreed in writing between the parents.

1. That the father inform the mother in writing as soon as practicable of the address of the school at which he proposes to enrol the child and authorise such school to provide the mother with all information usually provided to parents.

1. That the mother be entitled to attend all activities of the school normally attended by the parents.

1. That each of the mother and father inform the other parent of any illness or emergency affecting the child including the name and telephone number of any treating health professional and authorise such professional to communicate with the other parent, if so requested.

1. That each of the mother and father be and are hereby restrained from taking the child to any other psychologist/psychiatrist/counsellor save for that person in paragraph 9 hereof save with the agreement of the Independent Children’s Lawyer. 

1. That the father be at liberty to engage the services of Ms M or other like professional to assist the child in settling into his household, and such professional be at liberty to provide a report to the court in respect of the child and the parties’ compliance with these orders.

1. That the father and mother be and hereby are restrained by themselves, their servants and agents from:

   10.1causing or allowing the child to use or be known by any name other than [the child].

1. That the mother and father, their servants and agents be and hereby are restrained from removing the child from the Commonwealth of Australia and the Marshal of the Federal Police be requested to place the child’s name on the Watch List either by the name SB or HB or PB, or any other name.

1. That any passport held by the mother or her agent on behalf of the said child be surrendered to the Registrar of the Family Court of Australia.

1. That the appointment of the Independent Children’s Lawyer be extended to 20 January 2008 AND THAT Victoria Legal Aid, given the circumstances of the proceedings, be requested to fund the said period of extension.

1. That the Child Support Agreement registered with the Child Support Agency in 1998 be and hereby is discharged.

1. That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

1. That all extant applications be otherwise dismissed AND THAT the proceedings be removed from the Active Pending Cases List.

(17) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

1. That the ex tempore judgment delivered this day be transcribed, placed on the Court file and made available to the parties and their professional representatives.

1. That preparation of these orders be expedited.

1. That all Exhibits and Subpoenaed documents be retained for a period of 30 days from this date at the expiration of which, subject to any further application, be returned to the providers of the same.

I certify that the preceding 282 numbered
 paragraphs are a true copy of the
reasons for judgment herein of
the Honourable Justice Guest.




Associate to Guest J

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as STEWART & BAIN