T and B
[2006] FCWA 37
•2 MAY 2006
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: T and B [2006] FCWA 37
CORAM: THACKRAY J
HEARD: 17, 18, 19, 20, 21, 28 OCTOBER & 14, 15, 16, 17 &
18 NOVEMBER 2005 & 6 FEBRUARY 2006
DELIVERED: 2 MAY 2006
FILE NO/S: PT 3069 of 2000
BETWEEN: T
Applicant/Mother
AND
B
Respondent/Father
Catchwords:
Residence - contact - domestic violence - parent obstructing contact - contact terminated to reduce stress on young child.
Legislation:
Family Court Act 1997, s 166(2)
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr R Bannerman
Respondent: Self Represented Litigant
Child Representative: Mr S Jones
Solicitors:
Applicant: Bannerman Solicitors
Respondent:
Child Representative: Rattigan Kearney & Bochat
Case(s) referred to in judgment(s):
Nil
1 These proceedings concern [A], the six-year-old son of [Ms T]
and [Mr B].
2[Ms T] wants [A] to continue living with her and to have no contact with his father. [Mr B] wants [A] to live with him and to have supervised contact with [Ms T]. The Child Representative submits that [A] should live with [Ms T] and have contact with [Mr B], such contact initially to be supervised.
3 The trial extended over 12 days in October/November 2005 and
February 2006.
The parties and their families
4[Ms T] is 41 years of age. At the time the trial commenced, she was a student and housewife. At the conclusion of the trial, her counsel advised she had obtained part-time work.
5[Mr B] is also 41 years of age. He is a [tradesman], but claims to have had very little work for a long time.
6The parties met in early 1999. They started spending time together and [Ms T] soon fell pregnant. [A] was born in December
1999, but by then [Ms T] had terminated the relationship. Both parties had already been involved in failed relationships, each with
much older partners. Neither has any other children.
7[Ms T] has lived in Australia most of her life. Her parents are from [overseas] but they have lived in Australia since the early 1970s. Although her parents are still married, they have lived apart for many years. Both are strongly supportive of her position in these proceedings.
8 [Mr B] was born in England, but has lived in Australia since
1988. He has a brother living in Perth, but they are estranged. His mother lived in Australia for some time, but returned to [her homeland] in 2004. [Mr B] therefore has no family support in Western Australia.
Credibility
9[Ms T]’s trial affidavit, comprising more than 1,100 paragraphs, raised a plethora of issues. [Mr B] provided much less written evidence, but denied many of [Ms T]’s allegations.
10 Both parties went out of their way to portray the other in the worst possible light and there was little common ground. I did not
consider either of them to be a credible witness and it was therefore difficult to make firm findings of fact. I consider [Ms T]’s version of events often contained significant elements of truth, but was usually so highly dramatised that it was difficult to distinguish fact from fiction. [Mr B] continually minimised when dealing with his own poor conduct towards [Ms T] and was prepared to tell untruths in order to advance his cause.
11 Apart from the fact neither party has much regard for the truth, there was the added difficulty arising from them having been involved in so many incidents and court appearances. I accept that [Mr B], in particular, was genuinely confused about when and how some events had taken place. [Ms T] was more sure of her version, probably because she is an obsessive note taker, who has made this litigation the key focus of her life. Nevertheless, she too became confused on some occasions about the chronology of events.
12 One example of [Ms T]’s capacity to embroider an incident was a letter she wrote to the [Suburban] Community Legal Centre, in which she indicated concerns for her safety arising from a proposal to attend a settlement conference. She said “this is particularly so as [Mr B] has already assaulted me in a similar situation whilst we were attending a counselling session in the Family Court on 1 July 2002”. Under cross-examination, she again alleged that [Mr B] had “assaulted” her. In fact, even on her own evidence, she was not assaulted that day.
13 A further indication of [Ms T]’s tendency to milk a situation for dramatic effect was demonstrated during the early stages of the trial when she had to be excused for a lengthy period due to illness. When she was finally well enough to return, she brought with her not only drinking water, but also a hot water bottle and pillow. She then took an inordinate amount of time arranging herself and her accoutrements in the witness box.
14 There were some aspects of [Ms T]’s evidence that were quite bizarre. For example, she genuinely believes [A] can remember details of what happened during and immediately following his birth. She is so convinced of this she made mention of it in a form required by [A]’s school. She also believes that in March 2003, [A] accurately recalled details of his father’s drug taking which he had allegedly witnessed (but never previously mentioned) 15 months earlier. He even recalled the detail of the conversation he had with his father at
the time. This feat of memory is particularly remarkable given that
[A] was not quite two years old when the conversation occurred.
15 Almost all of [Ms T]’s evidence was given in monotone, with little display of congruent emotion. When she did show some emotion, it appeared to be exaggerated – for example, her near hysteria when reciting what [A] had allegedly said to her about the incident at [the marina]. [Ms T] explained her otherwise monotonous delivery by saying she had told her story many times and that she was simply trying to hold herself “together”.
16 [Mr B] represented himself during the lengthy trial. He was quietly spoken and generally polite, save for a number of outbursts during the closing address of [Ms T]’s counsel. However, on his own admission, he is a person who is prepared to mislead a court in order to gain an advantage. For example, he ultimately had to agree he had “lied his head off” in front of a magistrate in 2003, when obtaining an extraordinary driver’s licence. I am also satisfied he told many untruths before me – for example, his implausible explanations relating to some of the occasions he was observed driving under suspension. He also gave conflicting versions of some events. The most striking example was the assortment of explanations he proffered for going to [Ms T]’s home on the night he broke down her front door.
17 One of the major factual disputes related to the nature of the parties’ association after [Ms T] called off the relationship in September 1999, some months prior to the birth of [A]. [Mr B] would have me believe that after [A] was born there were long periods when they had a close, ongoing intimate association. [Ms T] paints a totally different picture. She claims [Mr B] was a violent stalker, and says she was only ever in his company because she wanted [A] to have a relationship with his father. I consider the truth lay somewhere between the two versions.
18 Although I accept that [Mr B]’s behaviour towards [Ms T] was frequently quite inappropriate, my impression is that she is a highly manipulative woman, with an unusual and complex personality. Whilst I do not make the statement lightly, I gained the impression she derived some perverse satisfaction from at least some of the negative aspects of their tumultuous relationship. I find that her interactions with [Mr B] sometimes made it difficult for him to know just where he stood. [Mr B] is a good-looking man, capable of great charm. The
parties appear, at times, to have enjoyed a very intense relationship. Understandably, [Ms T] was not at all taken with [Mr B]’s bad temper and poor behaviour when she got to know him better, but I suspect the underlying attraction remained for some time – and at times came to the fore.
19 The fact [Ms T] sent very mixed messages to [Mr B] can be illustrated by reproducing a letter she sent to him:-
“I am truly sorry for everything that has gone so horribly wrong between us, especially the time you have not had with [A]. I know I can never give you back that time and that hurts me more than you could ever imagine, and I hope some day to be able to make it up to you.
I know in my heart that you are, are always will be the love of my life. Please don’t let it be too late for us.
Nothing would make me happier than to know that one day our little family will be together. It’s what I have always wanted.”
20 [Ms T] initially suggested this letter was sent in the very early stages of their relationship, when in fact it was clearly sent long after [A] was born, at a time when she claims she did not want to have anything to do with [Mr B]. When the chronology was made clear to her, [Ms T] dissembled, saying she wrote the letter, “holding onto some hopes and feeling sad things had not worked out between us and we could not be a family”. Whatever she may have felt, [Mr B] could certainly be forgiven for entertaining hope they could get back together. This is a significant matter in understanding their subsequent behaviour, since [Mr B] continued to be obsessed by [Ms T], even when it should have been apparent his ardour was no longer reciprocated. His subsequent conduct toward her has not only brought him close to imprisonment, but has also had a serious impact upon the viability of contact with [A].
Relevant background
21 [Ms T] claims that [Mr B] became abusive and physical from the very early stages of her pregnancy. I consider it likely this is the case, especially when [Mr B] was affected by alcohol and drugs. I am unable to determine the precise extent of his abuse and violence, especially as [Ms T]’s capacity to overstate her case appears to have
no bounds. Nevertheless, I am satisfied [Mr B] is quick to lose his temper when crossed. I am also satisfied his behaviour was such as to give [Ms T] a genuine basis for concern about her safety.
22 I accept it was [Mr B]’s conduct that persuaded [Ms T] to call off their relationship in September 1999. She may have told [Mr B] she was doing so because he would not provide financially for her and the baby, but this was only one of the things that motivated her. I accept her evidence that [Mr B] responded by saying it would not be easy to get him out of her life and threatened to gain entry to her home without permission. I also consider it likely he did, in fact, break into her home a few days after she ended their relationship. [Ms T] also gave evidence of other stalking behaviour around this time, including a threat to abduct the (yet to be born) baby. Once again, I do not know where the facts ended and the fiction began, but I am satisfied [Mr B]’s behaviour at this time continued to give [Ms T] serious cause for alarm. I am also satisfied his behaviour was driven by a desire to resume their relationship and was flamed by paranoia that [Ms T] was involved with another man.
23 [Ms T] applied for a Misconduct Restraining Order against [Mr B] in October 1999. She repeatedly postponed the hearing of her application, citing stress and complications with her pregnancy. These complications were not such as to prevent her from seeking publicity in relation to a falling out she had with her obstetrician, which resulted in [exposure in the media]. At least some of the claims she made about her obstetrician’s conduct sound fanciful, for example that he diagnosed hypertension without ever taking her blood pressure. For present purposes, it is unnecessary to do more than note this as one of numerous examples of [Ms T] becoming involved in a dispute and then seeking or threatening publicity. Her explanation was that “everyone has a right to be heard – a right to justice…when you are wronged”. It is noteworthy, however, that she decided to take the issue to the press, but not the Medical Board, even though she was quoted in the newspaper as saying she was taking her complaint to the Board.
24 [Ms T]’s restraining order application was still pending when [A] was born. Instructions had been given to hospital staff that [Mr B] was not to be permitted to come into contact with either [Ms T] or the baby. He nevertheless did see [A] briefly, before being instructed by security staff to leave.
25 It is common ground that after [Ms T] came home from hospital, [Mr B] sought contact with [A]. [Ms T] says she told him he could see [A] at her house, but he did not take up the offer. I have difficulty accepting she made any such proposal. I am satisfied that [Mr B] was keen to resume his relationship with [Ms T] and would have been more than willing to see [A] at her place if she had made such a suggestion.
26 [Mr B] did nothing formally to have contact with [A] until he wrote to [Ms T] on 24 April 2000, asking for one or two hours’ contact each week, on any suitable evening. He indicated he would be willing to pay child support, but only if he saw his son first. This letter was sent just a few days before the hearing of the application for the restraining order. On the day of the hearing, [Mr B] was distressed to learn that [Ms T] had recently married [Mr M], with whom [Ms T] had lived in a de facto marriage relationship up until around the time she met [Mr B].
27 [Mr B] decided not to oppose the application for a restraining order. He says he took this position in the hope that [Ms T] would allow him to have contact with [A]. He also claims that when [A] was a couple of months old, they had a discussion concerning the boy’s surname. He says [Ms T] assured him that if he would cooperate relating to the name, she would allow him to have contact. Whatever may have been said between them, the issue relating to [A]’s name was obviously not resolved, as [Ms T] initiated proceedings in May
2000 to ensure [A] would be known by her surname.
28 In the meantime, [Mr B] had continued to telephone [Ms T], even though the restraining order had been granted. He was initially able to do so with impunity because the order was not served for some time after the hearing. Even after he was served, [Mr B] apparently delivered a letter by hand to [Ms T]’s home and telephoned her again. These actions constituted breaches of the restraining order, but the police elected not to prosecute on the basis they were minor infringements.
29 On 22 May 2000, [Mr B] once again wrote to [Ms T], putting forward a proposal for relatively limited contact, to be supervised initially by [Ms T]. She again did not respond to the correspondence and [Mr B] then commenced proceedings for contact in June 2000. In her response, [Ms T] opposed any form of contact being granted.
30 Notwithstanding [Ms T]’s objections, orders were made on 3
August 2000 for [Mr B] to commence seeing [A] each week under supervision at Daisy House. Contact never took place at Daisy House, but instead commenced at [Ms T]’s home, under her supervision. Each party gave differing versions of how it came to be that contact started in this fashion. Whatever the reason, notwithstanding all her
allegations about his conduct, [Ms T] allowed [Mr B] to begin visiting her home when it was feasible for contact to occur in a much safer environment.
31 [Mr B] claims that after the contact arrangements commenced in September 2000 he was allowed to visit [A] whenever he wished. [Ms T] says she was unhappy with him turning up at her home whenever he liked. In any event, it is common ground the contact took place on an ad hoc basis. [Ms T] says the arrangements did not proceed smoothly. For example, she claims that on 22 September and
28 September 2000, [Mr B] was abusive towards her when visiting and would not leave when [A] went to bed. She claimed that on one of these occasions, [Mr B] threatened that if she continued to be difficult, he would take [A] and she would not see him again.
32 In these circumstances, it seems odd that at the conciliation conference held on 29 September 2000, the Registrar noted “their relationship is amicable and neither wishes to progress the proceedings”. The parties reached an agreement about [A]’s surname and the contact application was adjourned indefinitely. Relations between them may not have been quite as amicable as the Registrar was led to believe, since it seems [Ms T] was escorted to the conference by a police officer; however, given the nature of their relationship, it is possible they made up their differences to some extent during the course of discussions.
33 [Ms T]’s very brief marriage to [Mr M] broke down at around this time. [Mr B] claims that he and [Ms T] then resumed their relationship. I have already indicated I am unsure of the true nature of their association in this period, but I suspect it was nowhere near as rosy as [Mr B] claims, nor as frosty as [Ms T] asserts. I do, however, accept [Ms T]’s denial of any suggestion that the parties cohabited at this, or any other time.
34 I find the parties’ ongoing association was punctuated by numerous unpleasant disputes, to which [A] would have been
exposed. Nevertheless, there were also times when they got along. For example, [Mr B] and [Ms T] both attended some of [A]’s [gym] classes. [Ms T] said she was content for him to do so because:
“[after he] behaved inappropriately, he apologized and behaved better, and I have always been thinking of [A] and he is his father and I was trying to be accommodating as much as I can.”
35 Whatever [Ms T]’s personal feelings may have been towards [Mr B] in this period, she was not preventing him from having contact with [A]. I accept her evidence that in the last four months of 2000, [Mr B] saw [A] about 13 times and that in the following year he saw [A] about 23 times. I accept that she invited [Mr B] to see [A] on Christmas Day and his birthday in both 2000 and 2001. Although [Mr B] was having reasonably frequent contact with [A] during 2000/01, I nevertheless consider it most likely his primary interest was in seeing [Ms T]. I gained this impression from the totality of the evidence, but in particular I accepted the evidence of [Ms T] and her father that [Mr B] appeared much more interested in spending time with her than with [A] when he was invited to spend Christmas Day 2001 with her family.
36 On 4 August 2001, [Ms T] and her father went to see [Mr B] at his home. This seems strange in view of [Ms T]’s allegations concerning [Mr B]’s behaviour in the period immediately prior to the visit. [Ms T]’s explanation was that her father had recently returned to Australia after spending some years [overseas] and wanted to meet [Mr B]. Whatever the reason for the visit, I accept that they found [Mr B] and a friend living in fairly squalid conditions. It was apparent they were cultivating and using drugs and were in possession of a police officer’s shirt. Bizarrely, [Ms T] also found a dead budgerigar wrapped in a sock in the freezer. [Ms T] and her father went to the Police after their visit. The upshot was that [Mr B] was raided by the Police and charged with stealing the police officer’s shirt. He pleaded guilty but says he was “taking a rap for a friend”.
37 Shortly after the police raid, [Mr B] visited [Ms T] at her home.
According to her, “under duress, with the threat of death, he forced me to come to the local park with him. He continued to taunt me and threaten my life”. Given the recent events, I suspect this may well have been an unpleasant occasion, but [Ms T]’s capacity for hyperbole makes me suspect the circumstances were not as dramatic as
portrayed. Had [Mr B] behaved as badly as she alleged on this and subsequent dates in September 2001, it seems improbable that [Ms T] would have taken [A] for a visit to [Mr B] at his home, which she did on 26 October 2001. She claims she only did so because [Mr B] had not seen [A] for some time and she presumed he would want to see his son.
38 [Ms T] alleges that [Mr B] became angry when she arrived unannounced on 26 October 2001. She claims he ignored [A] and “violently pushed the door open so that [A] got pushed over and fell to the ground”. [Mr B] then allegedly picked her up and threw her onto some brick paving, before he sped off in his vehicle. Sorting out fact from fantasy is again difficult, but I am satisfied there was an unpleasant incident and that [Mr B] did not take up the opportunity to have some positive interaction with [A]. I suspect he would have been apprehensive about the purpose of [Ms T]’s visit, given what had transpired on the last occasion she had been to his home.
39 [Ms T] also claims there were further unpleasant interactions between them in November 2001. Nevertheless, when [Mr B] sought contact without prior arrangement on Christmas morning 2001, she invited him to spend the day with [A] and her family at [their celebrations]. The day passed without major incident, but [Ms T] claims there was a particularly unpleasant incident involving [Mr B] a few days later. She summarised his visit to her house on 31
December 2001 in these terms:
“The Respondent came to my home uninvited and I believe in an intoxicated state. He began to tell me how easily he could kill me and how he then planned to take [A]. He told me how he would dispose of my body and report [A] and I as missing persons and he would get angry with my parents and pretend that he believed my parents were hiding me somewhere. He went as far as putting his hands around my throat despite my repeated requests for him not to touch me. I was in tears and he laughed saying that he would never hurt me.”
40 This confrontation was said to have occurred in the presence of [A], who [Ms T] claims was (understandably) very upset. For reasons never explained, [Ms T] and [Mr B] nevertheless saw each other every day from this incident on 31 December 2001 until the next altercation, which occurred at [the marina] on 5 January 2002. [Ms T] says that
during the visit to [the marina] “the Respondent strangled me to unconsciousness in [A]’s presence.” This episode received considerable attention during the trial. I do not intend to detail the various ways in which [Ms T] has described the event to the Police, her doctor, a magistrate and in this Court. Suffice to say I am satisfied there was a nasty argument and scuffle, which included [Mr B] momentarily taking hold of [Ms T] around her neck and her upper arm, causing her soft tissue injury. I am also quite satisfied that at no time was [Ms T] “unconscious”, as she has repeatedly asserted. Nor did [Mr B] attempt to kill her, as [Ms T] claimed in her affidavit. The police were called. They did not lay any charges, but did take [Ms T] and [A] home.
41 Although [Ms T] embellished the [marina] incident, it was nevertheless very unpleasant and not as trivial as [Mr B] has endeavoured to portray it. He sought to minimise by saying he had only grabbed [Ms T] by her “neck”, rather than her “throat”. He also claimed he had been trying to “calm her down”. It is an indication of [Mr B]’s inability to appreciate the impact of his conduct on [A] that he could only concede it was “possible” [A] overheard their argument, even though he was standing right next to them when it occurred.
42 [Ms T] applied for a Violence Restraining Order on 11 January
2002 arising out of the incident at [the marina]. She was subjected to a fairly vigorous cross-examination by the learned Magistrate who reluctantly granted an interim order. Within a matter of days, [Ms T] withdrew her application and also withdrew her complaint to the
Police. She now says she did so because [Mr B] threatened to kill her and that it was “the only way I had any chance of staying alive”. [Mr B] admitted that he had telephoned her and had asked her to withdraw the order. He said their relationship was “pretty strained” at the time, even though in an earlier affidavit he claimed that three days after the [marina] incident he and [Ms T] were “back together making up”.
43 The Magistrate asked [Ms T] to explain why she wanted to rescind the order he had so reluctantly granted only a few days before. She gave him extensive reasons, but never mentioned [Mr B]’s alleged threats to kill. She blamed the Police, and other agencies in “the system” for her decision not to proceed. She did, however, express concern to the Magistrate that [Mr B] would become “more aggressive” when he was served with the order.
(Page 13)
44 I do not know what motivated [Ms T] to withdraw the restraining order. It is plausible she did so because [Mr B] had placed pressure on her, but she did not want to tell the Magistrate for fear that he might not allow her to withdraw. On the other hand, it is also possible she considered she had overreacted and/or wanted the opportunity to continue her association with [Mr B]. ([Ms T] sought to revive her complaint against [Mr B] in March 2004, the day after the matter was set down for a conciliation conference. The Police refused to take action and [Ms T] then complained to the Corruption and Crime Commission, claiming she had “been wronged by the police service”.)
45 According to [Ms T], there were further disagreeable incidents during visits by [Mr B] to her home in early 2002. There was some interaction between [Mr B] and [A] on these occasions, but [Ms T] claims they were usually distressing. I have no idea to what extent she has accurately described [Mr B]’s behaviour. In any event, [Ms T] asserts that during one of the visits, [Mr B] announced he wanted to take [A] away for a weekend. She says he threatened he would not bring [A] back if she did not come along.
46 It was in these circumstances [Ms T] says she and [Mr B] went away with [A] to a hotel in [the country] for two days in March 2002. She claims she was, in effect, taken hostage and kept under almost constant surveillance by [Mr B] during their time away. [Mr B] recalls a night of beautiful sexual pleasure, whereas [Ms T] remembers keeping most of her clothes on and “struggling the whole time”. [Ms T] attempted to corroborate her claims by referring to the number of telephone calls her father made to her whilst she was away. It occurs to me that [Ms T] was aware her parents had a poor opinion of [Mr B] and would have been disturbed to know she was going away to a hotel with him. In order to justify her actions, she may have led them to believe she was an unwilling participant, as a result of which her father kept in fairly regular contact to ensure she was safe.
47 Once again, I do not know what were the true circumstances of the trip to [the country], but I found much of [Ms T]’s evidence very difficult to accept. Apart from my general scepticism about her credibility, there was one item of documentary evidence that showed she had clearly exaggerated. In her affidavit, [Ms T] claimed that whilst at the hotel, [Mr B] “started drinking the contents of the mini- bar”. The impression intended to be created was that [Mr B] had consumed a great deal of alcohol whilst keeping her locked up in the
hotel. Under cross-examination, [Ms T] said that she had seen [Mr B] “taking drinks and consuming them” and had seen him go the mini- bar “several times”. For his part, [Mr B] said he could not recall drinking at all while he was at the hotel. In an attempt designed to discredit this claim, counsel for [Ms T] put to [Mr B] the hotel bill, which showed someone had consumed mini-bar item(s) to a cost of
$7.00. If this was indeed for alcohol, it would have been a very small quantity – and it could just as easily have been for orange juice (as [Mr B] alleged) or confectionery.
48 Whatever might have happened whilst they were in Bunbury, [Mr B] acknowledges that [Ms T] again terminated their relationship shortly after they returned to Perth. Once again, [Mr B] could not accept the relationship was over for good. He remained paranoid about [Ms T] seeing other men and I find that he checked up on her movements. The few times they spoke to each other resulted in arguments that [A] is likely to have witnessed. [Mr B] says he requested [Ms T] to allow him to see [A] but, whether this is the case or not, he had hardly any contact.
49 [Mr B] reactivated the Family Court proceedings early in June
2002. On 10 June 2002, before [Ms T] became aware the proceedings had been revived, [Mr B] turned up outside [A]’s playgroup. He gave [Ms T] $350 for child support. According to [Mr B], their meeting was initially a pleasant one, with him and [A] playing happily together. He went even further in his oral evidence, saying he and [Ms T] were kissing and caressing. He says [Ms T] became aggressive when he informed her that he had recommenced the proceedings. He claims she then snatched [A] from his arms, telling him he would regret his actions and that “she would do everything in her power to stop him seeing [A]”. When asked why it was necessary to recommence proceedings if they were getting on so well, he said “we were not getting on 100%”.
50 [Ms T] describes the meeting at the playgroup in very different terms. According to her, [Mr B] appeared out of nowhere, grabbed [A] and behaved in a way that made her fear he was going to abduct him. He abused her and yelled, “have you slept with another man or has another man seen you naked?” He then said that if she signed an agreement that she would not become involved with another man, he would “walk away” and not bother her or [A] again. I consider it likely [Ms T]’s version of what occurred on that day was closer to the
truth than [Mr B]’s (although I note the account she gave under cross- examination contained a number of embellishments to the description given in her affidavit).
51 On 12 June 2002, [Ms T] allowed [Mr B] to speak with [A] by telephone. I accept her evidence that she heard him tell [A] he would be taking him on a “boat trip far, far away,…just [A] and Daddy”. [A] asked his father if his mother or grandfather could come too, but [Mr B] told him it would be just the two of them. [Ms T] says this caused [A] to be very upset. [Mr B] initially denied ever having threatened to take [A] away, but admitted he may once have spoken to him about taking a trip to Rottnest. However, when pressed, he said it was possible he had told [A] he was going to take him on “a boat trip far away – just [A] and Daddy”. Later that day, [Mr B] telephoned and left a message on [Ms T]’s answering machine, apologising for upsetting her and telling her how much he loved her.
52 On 14 June 2002, [Ms T] spent the night at her mother’s home because she feared [Mr B] was keeping watch on her house. I consider it likely he had made comments which reasonably led her to have such fear. On the following evening, when her parents were driving [Ms T] and [A] back to their house, they saw [Mr B]’s car parked in a nearby street. They turned around to go back to the home of [Ms T]’s mother, but [Mr B] followed them. They kept driving and [Mr B] followed them for at least 1½ hours. [Ms T] eventually went back to her home and [Mr B] then parked outside. She says when she telephoned the Police, she was informed that [Mr B] had reported her and [A] as missing persons.
53 The next day, [Mr B] left a message on [Ms T]’s answering machine in what she described as a “threatening tone”. She again contacted the Police and was advised to make another application for a Violence Restraining Order, which she obtained the following day. [Mr B] now claims that [Ms T] obtained the order “falsely”, even though he admits he had followed her around in his car for 1½ hours. [Mr B] had previously been advised that a restraining order would not override contact orders and accordingly he says he decided not to oppose [Ms T]’s application, preferring to await the outcome of his application for contact in the Family Court on 1 July 2002.
54 Although [Mr B] did not “assault” [Ms T] during their time at the
Family Court on 1 July 2002, as she has repeatedly claimed, I find it is
likely he accused her of being with another man and asked to know who had given her the jewellery she was wearing. [Ms T] reported the matter to the Police and on 6 August 2002, [Mr B] was convicted of breaching the Violence Restraining Order. On the same day he was also fined for two counts of driving whilst under suspension (having been convicted of similar offences in December 2001 and April 2002).
55 On 8 July 2002, [Mr B] parked his car outside [Ms T]’s home.
She called the Police but they were powerless to act when [Mr B] drew to their attention that the restraining order only prevented him from being closer than five metres to [Ms T]’s property. I did not accept [Mr B]’s explanation that he went to [Ms T]’s home that day only to see his son. I have no doubt he went there to score a point,
after discovering the order did not stop him coming into close proximity of her home. The prank backfired, as he had once again driven his car without a licence, for which he was charged and again convicted.
56 On 28 August 2002, [Mr B] left a letter with a child support payment at the home of [Ms T]’s mother, with a request for it to be passed on to [Ms T]. [Ms T] sent the cheque back and took proceedings for breach of the restraining order. [Mr B] pleaded guilty to breaching the order and was again fined.
57 At around this time, [A]’s doctor became concerned about [A]’s emotional wellbeing. He referred him for assessment by a paediatrician, who reported back that “[A] clings to his mother and is in a state of general anxiety and fear”. The paediatrician’s conclusion was that [A] presented as:
“an emotionally disturbed little boy with severe underlying anxiety brought about by the domestic violence that he witnessed and the on-going insecurity and effect on his emotions brought about by the on-going tension and conflict of family court proceedings”.
58 In light of his findings, the paediatrician considered that both [A] and [Ms T] required support from a clinical psychologist. He therefore arranged a referral to a local clinic. (The paediatrician much later met with [Mr B] and formed a favourable impression of him. He recommended that [Mr B] have contact with [A], which in turn led to [Ms T] making a complaint to the Medical Board.)
59 In the meantime, on 12 July 2002, [Ms T] had filed her response to [Mr B]’s application in the Family Court proceedings. The response indicated that she consented to him having fortnightly contact, so long as it was under:
“STRICT supervision only at a suitable venue, located within reasonable proximity of my home, such as that provided by Relationships Australia in [the suburb], at the father’s expense.”
60 Although [Ms T] was later to rely heavily on this response as showing her willingness for [A] to have a relationship with his father, it is noteworthy that there were a number of conditions attached to her consent, such as that [Mr B] attend anger management classes and undergo drug testing. Furthermore, her application concluded with the following statement:
“In view of [Mr B]’s recent attempt to remove [A] from my care and the trauma the child has suffered as a result, I question whether contact would be in the child’s best interest at this point in time. [A] still remains very fearful and not a day has passed without the child voicing his fear that his dad is coming to take him way”.
61 At the next hearing on 22 July 2002, [Mr B] sought an adjournment. He then failed to attend the adjourned hearing on 14
August 2002 (as did [Ms T], due to ill health). He also failed to attend the conciliation conference on 26 August 2002. The proceedings were then removed from the court list.
62 [Mr B] admitted he did not take up the supervised contact that was on offer in 2002. He explained his inaction by saying [Ms T]’s consent was simply a “ploy”. An alternative explanation he proffered was his disquiet about a letter he received in July 2002 from [A]’s paediatrician expressing concern about “what appears to be [A]’s anxiety neurosis relating to your separation from [the mother]”. This explanation has a strong ring of an ex post facto justification for lack of interest in pursuing arrangements for contact once [Mr B] found out that [Ms T] appeared willing to allow him to have supervised contact.
63 My scepticism about [Mr B]’s motives is informed by his behaviour on 12 October 2002. [Mr B] claims that leading up to that day, he was:-
“in a quandary as I wanted to maintain my ongoing relationship with [A], yet at the same time I was concerned for [A]’s welfare. I fell into a state of despair and having heard from a friend that [Ms T] had men staying overnight at her place, I attended at her home during the evening of 12 October 2002 in pure frustration. I forced entry into [Ms T]’s home where I confronted a male person who I had a conversation with outside.”
64 Other explanations given by [Mr B] for his visit to [Ms T]’s home were:-
•a friend, who happened to be a medium, told him there was “something wrong” at [Ms T]’s home. Being concerned for her welfare, [Mr B] rode his bike over to see if she was alright;
•his friend told him if he still loved [Ms T] he should go and tell her;
• he wanted to ask [Ms T] why she would let him see his son;
• he wanted to give her money.
65 I find that [Mr B] went to [Ms T]’s home on 12 October 2002 at
10.15 pm under the influence of liquor. He was not in the least bit interested in seeing [A] and gave no thought to the possible impact of
his visit on his young son, who was asleep inside the home. His only motive for being at the home was his angst about the possibility of [Ms T] being with another man. After being refused entry, he then proceeded to beat down the security door and the front door, after failing to obtain entry through a security screen window. Having obtained entry, he then challenged [Ms T]’s male visitor to come
outside. He demanded to know whether the gentleman was sleeping with [Ms T]. During the course of the invasion of [Ms T]’s home he repeatedly said he loved her.
66 [Mr B] was charged with aggravated burglary and breach of restraining orders arising out of the incident on 12 October 2002. The charges were finally dealt with in March 2004, when [Mr B] entered a plea of guilty. The District Court Judge said he would have imprisoned [Mr B] were it not for the fact that the prosecution did not seek a custodial sentence. [Mr B]’s punishment of two years’ imprisonment was instead suspended for two years and he was placed on an Intensive Supervision Order.
67 [Ms T] claims that [Mr B]’s conduct on 12 October 2002 resulted in $3,000 damage to her property. In his Statement of Financial Circumstances, [Mr B] disclosed expenditure of $167.50 per week on an item he described as being for [Ms T]’s “wants and demands”. When cross-examined about this somewhat cryptic reference, [Mr B] disclosed that it related to the claimed cost of the damage to [Ms T]’s home. His choice of words indicated to me that he had little remorse for his appalling conduct. It was also revealing when he said a similar incident would not reoccur because he would never put himself through such an experience again.
68 Whilst waiting for the charges to come before the District Court, [Mr B] left Perth to work in the North-West. He claims that his resulting isolation from [A] had an effect upon his “emotional state”, leading to him seeking assistance from a mental health service. He returned to Perth in about May 2003. Soon after his return, he once again breached the restraining order by going to [Ms T]’s house. She was not home at the time and he left a pink rose on her doorstep. He denied this was to send a message that he loved her. This was because the rose he left was pink (for friendship), not red (for love). Whatever the message he was sending to [Ms T], it is noteworthy that he left no gift or message for [A]. I accept that this “gesture” caused [Ms T] distress because she had enjoyed [Mr B]’s long absence and was shocked when she saw his car parked near her house. [Mr B] was again convicted of breaching the restraining order.
69 [Mr B] was required to attend a domestic violence program as part of his punishment for the breach of restraining order. I accept [Ms T]’s evidence that in September 2003 she was telephoned by the facilitator of the program, who led her to believe that [Mr B] had made remarks suggesting he was still stalking her. [Ms T] gained the impression the facilitator had some concerns about her safety, which was a reasonable assumption, given that she had gone out of her way to contact [Ms T]. When questioned about the reasons why the facilitator may have had these concerns, [Mr B] initially said he may have told the facilitator he had been around [Ms T]’s house, but he then claimed he had not been to her place since dropping off the rose.
70 When [Mr B] was later seen by [Ms C], a psychologist commissioned to prepare the pre-sentence report for the District Court, he admitted he had seen [Ms T] on a number of occasions since he returned to Perth, although she had not seen him. He claimed these
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incidents occurred in public places because they lived in the same neighbourhood. The comments [Mr B] made to [Ms C] suggest to me that he was still obsessed with her. He even told [Ms C] he still hoped for a reconciliation. I do not accept his explanation that he wanted a reconciliation because that would be only way he could get to see [A]. His greatest wish, he told [Ms C], was for [Ms T] to say sorry to him for what she had done to him
71 On 12 September 2003, [Mr B] filed a contravention application alleging inter alia a breach of the supervised contact orders made in August 2000. He took this action, notwithstanding he admitted it was his own fault he had not pursued the more recent offer of supervised contact. [Ms T]’s response was to file an application seeking to suspend the earlier orders and proposing that [Mr B] have no contact. This, in turn, prompted [Mr B]’s application for residence.
72 On 22 September 2003, [Mr B] arranged for Legal Aid to send a letter to [Ms T] proposing contact, which initially would be supervised. [Ms T] was also invited to attend Legal Aid’s Alternative Dispute Resolution Service. She was prepared to attend but expressed the overdramatised concerns about her safety mentioned above.
73 In October 2003, [Mr B] arranged for a friend to serve Family Court documents on [Ms T]. [Ms T] claimed in her oral evidence that the friend banged aggressively on her door “late at night”. “Late at night” turned out to be 7.20 pm, but I accept that the incident was probably distressing for [Ms T], since she initially thought it was [Mr B] who was outside. Arising out of this incident, [Mr B] was again charged with breaching the Restraining Order. He pleaded guilty in March 2004, at the same time as he finally pleaded guilty to the October 2002 home invasion.
74 In January 2004, a photograph of [Ms T] and [A] appeared [in the media], with a story relating to alleged shortfalls in the restraining order system. [A]’s photograph appeared under a caption “These eyes have seen his mother choked unconscious and a father he fears”. [A] had been given specific instructions by the photographer how he was to pose for the photograph – i.e. to hold his eyes wide open, presumably as if in fear. [Ms T] said [A] found the process “great fun”, as he was used to having his photograph taken at his modelling classes.
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75 No attempt was made by the [media] to conceal the identity of either [Ms T] or [A]. Anyone familiar with the family would have known that [Mr B] was the alleged perpetrator of the abuse described. Notwithstanding her repeated concerns that [Mr B] might kill her, [Ms T] said she was not adverse to seeking publicity because it drew attention to the failure of “the system to protect persons like myself”.
76 After the story appeared in the [media], [Ms T] contacted her local newspaper with a view to generating more publicity. This resulted in another story, with a fresh photograph of [A] clinging to his mother’s neck. Apart from drawing attention to her “cause”, [Ms T] also thought if [Mr B] saw the story he might reflect on his bad behaviour. It did not seem to worry her that [A] was receiving this exposure at the very time he was about to start school.
77 At the time her story appeared in the [media], [Ms T] implied during the course of a conversation with a Police Inspector that she was contemplating killing herself and [A]. This resulted in her being taken for assessment at a mental health clinic. She claimed she made the comments in desperation because someone had failed to return her telephone call. I find that although she made mention of gassing herself and [A], she had no intention of doing so. Her remarks were merely indicative of her propensity for melodrama. I also consider they were part of what has become a concerted campaign to ensure life is made as difficult as possible for [Mr B]. It was this campaign that prompted counsel for the Child Representative to suggest that notwithstanding her reasonable desire to be free of threats from [Mr B], it is [Ms T] who in some respects has now become the “victimiser”.
78 On 25 May 2004, the court authorised the appointment of the [the Single Expert] to provide a report to assist in resolution of the proceedings. [Ms T] did not agree to the appointment of a Single Expert and preferred that if there was to be an expert appointed, it should be a woman.
79 [Ms T] became disillusioned with [the Single Expert] after he had seen [A] only once. She said [A] was so traumatised by his first visit in June 2004 that she was not prepared to continue with the process. She claimed that after the visit, [A] was having nightmares, was scared of [the Single Expert] and was asking “why does that man want to talk about Daddy? I don't want to talk about Daddy”. She
therefore refused [the Single Expert]’s request for [A] to return for further assessment. Her parents also failed to cooperate with the assessment process, citing reasons I did not regard as having any validity. [Ms T]’s failure to ensure [A] was returned for a further meeting with [the Single Expert] resulted in her being found guilty of contravening the order relating to his appointment. It is noteworthy that [the Single Expert]’s purpose in wanting another meeting with [A] was to determine whether or not it was appropriate to introduce him to [Mr B], who he had not seen since the incident at playgroup in June 2002.
80 [Ms T] wrote an 8 page letter of complaint to the Psychologists Board detailing her concerns about [the Single Expert]. His 8 page response drew forth a 42 page reply – included amongst which was reiteration of [Ms T]’s fears about the physical dangers lurking in [the Single Expert]’s rooms, which could have caused [A] to “quite easily fall and break his neck”, have “a serious accident” and “sustain a serious burn injury”.
81 [Mr B] cooperated fully with [the Single Expert] and made a good impression on him. [The Single Expert] was unaware that [Mr B] had driven to his first appointment in breach of his extraordinary driver’s licence; however, this fact did not escape [Ms T]’s attention. After she exited from [the Single Expert]’s waiting room (in which she had locked herself and [A] because of her fears about [Mr B]), she and her family waited for [Mr B] to finish his appointment so that her father could take a photograph of [Mr B] driving away. This was then provided to the Police. [Ms T] attended the ensuing court hearing to see [Mr B] again found guilty and fined for driving in breach of his licence.
82 The parties were back in court in February 2005, this time in relation to another alleged breach of the restraining order. This arose out of [Ms T]’s claim that [Mr B] had looked at her “in an intimidatory manner” at the Family Court when he walked past her several times. Unsurprisingly, the police were not prepared to prosecute and so [Ms T] launched a private prosecution. Her complaint was dismissed.
83 The parties were once again before the Family Court on 24
March 2005. [Ms T] claims [Mr B] behaved aggressively towards her during the hearing, but more importantly, she also claims he swerved
his vehicle at her whilst she was walking along the footpath after the hearing. He denies this and says that [Ms T] jumped in front of his car to take another photograph of him driving illegally. Interestingly, [Ms T] omitted mentioning in her affidavit that she was taking a photograph of [Mr B] at the time. The charges relating to this incident have not yet been heard; however, the incident was relied upon by [Ms T] to ground a successful application for a new restraining order, her previous application having been dismissed.
84 [Ms T] claims that [Mr B] breached the new restraining order on
4 May 2005, when he served court documents on her father at the Family Court (it seems after [Mr B] had been unsuccessful in enlisting the services of the resident police officer to do so). [Ms T] claims that
during this incident [Mr B] blocked her way and waved papers in her face. The charge relating to this alleged breach has also not yet been heard.
The supervised contact experiment
85 [Mr B]’s application for contact with [A] had initially been set down for trial in February 2005. The matter had been listed on an expedited basis, in accordance with the recommendation of [the Single Expert]. [Ms T] repeatedly and unsuccessfully sought an adjournment of the trial. Ultimately, the hearing was indeed adjourned, but only on the basis of [Ms T] having consented to a trial period of supervised contact, with the arrangements to be reviewed in August 2005.
86 Regrettably, there was delay in the extraction of the consent order and there was further delay before the first visit took place on 7
May 2005 at Relationships Australia’s Contact Service. [Ms T] did not attend for her intake assessment until 2 May 2005. She then contacted the Police to inform them when [Mr B] would be at the Contact Service, as she hoped he would be arrested for outstanding matters when he attended for his first visit with [A].
87 True to form, [Ms T] was unhappy with the Contact Service from the very first visit. She did not accept the assurances of the experienced staff at the Service that the first visit had gone well. She was adamant the Service had broken an arrangement entered into with [A] to manage his fears about his father and then she accused staff members of lying. In accordance with her well-established modus operandi, [Ms T] followed up her initial complaints with a formal
detailed letter of grievance to the Chief Executive Officer of
Relationships Australia.
88 Much of [A]’s second visit to the Contact Service was occupied by [Ms T] pursuing her earlier complaints with members of the staff. When she finally consented to bring [A] into the Centre, [A] expressed a desire not to see his father, citing as the reason his father’s conduct towards him when he was a baby. The time for the visit expired without [A] and his father coming into contact. ([A] was shown his father through a window and waved to him.)
89 The third visit was cancelled on very short notice, due to [A]’s alleged ill health. A make-up visit was suggested, but [Ms T] declined, citing other engagements. [A] was brought to the fourth scheduled visit but he again indicated a desire not to have contact. There was a disagreement between [Ms T] and the staff and the upshot was that the visit was cancelled.
90 There were fewer problems on the next visit and [A] and [Mr B] spent some time together, including playing with some pet mice [Mr B] had brought along. This prompted a further letter of complaint from [Ms T] regarding the progress of contact, in which she also expressed concern about the mice, suggesting that they needed to be “wormed and vaccinated”. On the sixth visit, [A] became upset and said he wanted to go home. There was a confrontation between the manager of the Service and a gentleman friend of [Ms T] who had come along for the visit. Once again contact did not take place.
91 The Manager of the Contact Service, [Mr M], prepared a report for the Court in July 2005 setting out in summary form what had occurred on each of the six occasions contact had been scheduled. [Mr M] concluded his report with this assessment:
“The Children’s Contact Service receives many referrals where the majority of residential parents have justified concerns about the safety of their children during contact with their non- residential parents. However, on occasions, the Service has encountered families where such concerns are not at all evident and that the child’s contact with his/her non-residential parent strongly appears to be undermined by the residential parent. It is the view of the Contact Service that this is such a case. It is the assessment of all staff who have interacted with this family that [A] is not fearful of his father and, when contact has occurred,
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[A] has interacted very positively with him. In turn, [Mr B] has been very responsive to and appropriate with [A].
On the other hand, the Service has found [Ms T] to thwart their attempts to impartially assess [A]’s relationship with his father in a safe and child-focussed environment. When positive contact was observed to occur between [A] and his father, [Ms T] has refused to accept this, stating that staff had “lied” and breached her and her son’s trust. Initially it was the Support Worker who had undermined [A]’s trust, then the Coordinator, and finally, the Manager. Furthermore, it appears that, after positive contact has occurred, she has implemented strategies to thwart the next scheduled contact (e.g. putting pressure on [A] not to enter the Centre by remaining in his view in the car park with extended family members). It does not make sense for the contact visits to regress (i.e. whereby [A] is initially willing to enter the Centre, has positive contact with his father, but subsequently does not want to enter the Centre at all) unless contact is being undermined. After the recent incident whereby [Ms T]’s male associate interrupted contact visits, the Service is not prepared to continue visits unless clear conditions are put in place around them. As it is our clear assessment that [A] is not frightened of his father and has enjoyed his limited time with him, it is recommended that the current orders be varied so that [A] can develop a relationship with his father...”
92 [Mr M] then went on to make a set of what I consider to be very sensible recommendations about how contact might occur, including [A] being dropped at the Centre by a third party.
93 The matter came back before the Court for review as scheduled in August 2005. A further order was made for the supervised contact to continue on a weekly basis pending the trial scheduled to take place in October 2005. The order incorporated the main recommendations made in [Mr M]’s report.
94 [A] did not attend the first contact visit arranged pursuant to the new order, as he was said to be ill. The visit was rescheduled for 10
September 2005. Regrettably, the arrangements [Ms T] had made for that day to comply with the order fell through at the last minute. This was no fault of [Ms T], although the staff at the Contact Service understandably believed she had sabotaged the arrangements. The
visit was a disaster. [A] was crying as he approached the Centre in the company of the lady who had been engaged for the purpose. He then refused to enter. When [Mr M] tried to persuade him to come inside, he broke away and ran towards the nearby main street. He continued running around the corner, with [Mr M] in pursuit. [Ms T] and her mother were still in the area and [A] ran to them. They did not ensure [A] was brought back to the Centre and the visit was cancelled.
95 Another visit was scheduled for 17 September 2005, but this was cancelled by [Ms T] on the day, again citing [A]’s ongoing poor health. A further visit was scheduled for 22 September 2005, but this did not occur as Relationships Australia decided the visits should be suspended. [Mr M] provided a further report, in which he said:-
“[A]’s behaviour is escalating…It is our assessment that this behaviour is not because [A] is frightened of his father (as he previously experienced two positive visits with him) rather, it is a direct result of the tactics of [Ms T].”
96 [Mr M] went on to say that “[Ms T] will not stop in her endeavours to thwart [A]’s contact with his father” and he strongly recommended she “seek therapy to address whatever her issues are with [Mr B] so she can focus on [A]’s needs”. [Mr M] then went on to state, very aptly, the decision I am now forced to make:
“This unfortunate situation poses a dilemma: [A]’s right to have contact with his father versus the distress that he is now experiencing through [Ms T]’s influence if he does have contact with him.
In conclusion, we are at a situation where [A] will not enter the Contact Centre and staff cannot forcibly restrain him. Therefore, any further attempts at contact will be fruitless and we believe this is precisely what [Ms T] wants. It is the Court’s role now to decide what further actions needs to occur, taking into consideration [A]’s emotional well-being over the short-term versus the long term.”
97 I do not consider it necessary to assess in fine detail the contradictory evidence provided on behalf of [Ms T] and that given by [Mr B], [Mr M] and staff at Relationships Australia concerning what did or did not occur on each of the scheduled contact visits. It is common ground that [A]’s distress escalated as the process continued. It is acknowledged that the visits were suspended because further
attempts at contact would be fruitless. What is in dispute is the reasons for this state of affairs.
98 The evidence of [Ms T] herself and her witnesses satisfies me that, at best, [A] was encouraged to view the contact visits as an unpleasant chore that had to be endured and that he was a “brave boy” who had “stood up for himself” when he objected to seeing his father. I consider [A]’s reaction to the visits was primarily influenced by two factors. The first is the fear that has been instilled in him by what he has been repeatedly told by his mother and grandparents concerning [Mr B]’s behaviour when he was very much younger. The second is what [Ms K] from Relationships Australia called, the “non-verbal cues” given by [Ms T] and some of her supporters immediately prior to and during the contact visits, which reinforced [A]’s fear of his father. I consider it probable that the impact of these stimuli on [A] was pronounced because he is an anxious, fragile little boy, who was exposed to violence and conflict at a very early age and who has been raised by a mother whose own anxiety borders on the irrational.
99 Although I have found it unnecessary to make detailed findings in relation to the many contested issues of fact surrounding [A]’s visits to the Relationships Australia Contact Service, I consider I should make a few remarks about the Service and the reports provided by [Mr M]. In my view, Relationships Australia provides a highly professional and much needed service to the most difficult client group in the family law “system”. I consider it was grossly improper for [Ms T] to secrete a device in [A]’s pants to record the sensitive work being undertaken by their staff, whose only desire was to protect her son’s interests and implement an order to which she had consented. One cannot begin to imagine the campaign [Ms T] would have waged had anyone treated [A] as a pawn in the way she did in taking this action.
100 [Ms T] was highly critical of what she regarded as errors and omissions in the reports provided by Relationships Australia. There is no doubt that any report prepared by a contact service is going to omit information that may be seen to be of importance under the scrutiny of cross-examination. It is almost inevitable there will be errors made in attempting to give a fair picture of the complex interactions that take place in an emotionally charged environment. [Ms T], even with the benefit of her tape recording, also made mistakes in her written evidence. For example, the recording demonstrates she (and her
witness [Mr B]) misquoted [Mr M] in the interchange that occurred on
16 July 2005.
101 The primary aim of contact services is to facilitate contact and promote the best interests of the many children who come through their doors. Their primary task is not to keep records and to provide meticulous reports. They are not funded to do so. I am perfectly satisfied that Relationships Australia and their staff acted in good faith in the best interests of [A] and endeavoured to provide an accurate assessment of their dealings with this highly dysfunctional family.
[A]’s therapy
102 As already noted, [A] was diagnosed by a paediatrician as long ago as 2002 as being an “emotionally disturbed little boy with severe underlying anxiety”. In the absence of expert evidence, it would not be helpful to embark on a consideration of [A]’s health at that time or the reasons why he may have presented as he did. I should say, however, that I consider it is now well established that early exposure to violence and conflict is likely to lead to anxiety and emotional disturbance in a child.
103 Apart from his involvement with health professionals in 2002, there is no evidence to suggest that [A]’s medical problems were out of the ordinary until 2005, when the supervised contact arrangements commenced. However, as soon as the visits started, [Ms T] began taking [A] to the doctor regularly. He had 10 visits to his local medical service from 12 May 2005 to 17 September 2005, mostly related to claims he had tummy pain. At the same time he commenced missing an inordinate amount of time at school.
104 The doctors were unable to find any organic cause for his complaints and referred him for assessment at the South Metropolitan Mental Health Service. [A] commenced seeing [Ms D] at that service in August 2005. [Ms T] provided [Ms D] with details of [A]’s symptoms and her version of his history, all of which can safely be assumed to have been highly embellished. [Ms D] was informed that [A]’s symptoms included abdominal cramping, moodiness, argumentative behaviour, sleep disturbance, night terrors, reduced appetite, diarrhoea, constipation and enuresis with intermittent soiling.
105 Having received this “information”, [Ms D] conducted her own assessment of [A]. She found he had difficulty “with affectual and behavioural regulation” – i.e. he was having difficulties expressing his
emotions in a healthy way and tended to express them by psychosomatic means. She also made a provisional diagnosis that [A] has Post-Traumatic Stress Disorder.
106 [Ms D] reported that during her discussions with [A] about [Mr
B], he had said:
“I used to see him when I was a baby, he hit me and mummy. He hit me on the shower wall and the normal wall…I don’t like seeing daddy because he hit me and scraped me on the ground”.
107 [Ms D] was firmly of the view that [A] had:
“witnessed or been exposed to a significant traumatic event or events that were threatening on his life, and from what I understand he was exposed to numerous incidents that were perpetrated by his biological father where both his mother’s life was threatened and he could have perceived his own life as being threatened”.
108 [Ms D], had she been informed, could also have gone on to speculate about other traumas [A] has experienced, apart from those involving his father. In this regard it would be reasonable to assume that [A] has had some exposure to his mother’s many other quarrels. One such trauma would undoubtedly be the occasion when [A] was allegedly squashed beneath [Ms T] whilst a policewoman “strangled” her in her own home. [A] is much more likely to have a recollection of that January 2004 incident than the much earlier incidents involving his father. His mother’s confrontation with the policewoman has affected [A] so badly that he is now apparently frightened of police officers and asks whether those he sees are the “good” or the “bad” Police.
109 [The Single Expert] took issue with significant aspects of [Ms D]’s findings. In particular he did not agree that a child needed to be exposed to a trauma to exhibit the symptoms of Post-Traumatic Stress Disorder. He said there was a “whole industry” around sons and daughters of Vietnam veterans who have “problems from their parent’s [post-traumatic stress] disorder”. Their problems occur not because they have been exposed directly to the traumatic event(s), but rather have been exposed to the behaviour of the person who has experienced the trauma. It is unnecessary for me to enter this debate. It is sufficient to say that being appraised of [Ms D]’s more recent observations of [A], [the Single Expert] accepts that [A] “is clearly
suffering from a degree of anxiety and stress and overall pressure from the situation he finds himself in”.
110 In light of what she had been told and what she observed in [A]’s behaviour, [Ms D] had serious reservations about the supervised contact arrangements continuing. She said that if the arrangements remained in place, [A] would remain “quite stuck and [would be] re- traumatised”. She said if the contact continued, [A] would need very regular ongoing therapy to support him through the process. [Ms D] was also of the view that [Ms T]’s own Post-Traumatic Stress Disorder would be exacerbated by a continuation of the contact arrangements, which in turn would have a negative impact on [A].
111 [Ms D] considers it will take a long time for [A] to be able to develop “the trust connection” with his father, which she acknowledged was “important”. She was of the view that [A] was not yet ready to establish that trust connection and that it would take months or years before he would be ready. She said that if the Court considered “[A]’s current needs and wishes [i.e. terminated the supervised contact arrangements], I think his condition will stabilise and he will progress developmentally and emotionally”.
112 Evidence provided at the conclusion of the trial indicated that [A] had stopped being taken to the doctor regularly at much the same time as the supervised contact visits ceased. In the period from 17 October
2005 to the conclusion of the trial in February 2006, he had been to the doctor only once. [Ms D] said that when she saw [A] on 24
October 2005 (about six weeks after the final aborted contact visit)
she noticed “a significant change in his affect where he presented as being a lot happier”.
113 [Ms D] gave her evidence in November 2005, before the trial had to be adjourned to February 2006. She continued to see [A] after she had given her evidence; however, she had been away on holiday and had not provided an updated report on the progress being made in therapy.
[A]’s best interests
114 I am required by the Family Court Act 1997 to make the order most likely to promote [A]’s best interests. In determining what is in his best interests, I must take into account the matters set out in s
166(2) of the Act.
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Anywishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes
115 [A] has expressed a strong desire to have no contact with his father. He has said so to his mother, to staff at Relationships Australia and, most recently, to [Ms D].
116 When [Ms D] asked [A] in 2005 what it was like seeing his father now that he had resumed contact, he said, “I don’t like seeing Daddy because he hit me and scrapes me on the ground”. He also said “no one listens to me. I don’t want to go [to the contact centre]”. [Ms D] said that [A] also reported “feeling scared because he didn’t want to see Dad”. When she asked [A] who he felt safe with during the contact visits, he said that no one made him feel safe and “nothing” could make him feel safe. During [Ms D]’s discussion with him on 24
October 2005, [A] made an unsolicited statement about feeling happier because he hadn’t seen his father for a while.
117 [A] had mouthed similar sentiments about his father when he saw [the Single Expert] in 2004. [The Single Expert] was struck by the fact that when [A] described the terrible things his father had allegedly done, he expressed “no change of emotion, his presentation was flat and unemotive”. His conclusion was that “[A] vocalises being concerned about his father but it is not matched by any appropriate emotion or non-verbal indicators”.
118 In seeking to explain [A]’s presentation, [the Single Expert] made a number of references to a book by Douglas Darnell, called Divorce Casualties. He concluded that [Ms T] fitted precisely the characteristics of what Dr Darnell has categorised as an “obsessive alienator”. Dr Darnell suggests that children living with such a parent will “parrot the obsessed alienator rather than express their own feelings from personal experience with the other parent”. [The Single Expert] concluded that:
“[Ms T] fulfils this criteria. The child mirrors her concerns and worries and parrots a multitude of claims that the mother makes but which he is too young to either remember or understand”.
119 Dr Darnell’s work was not critically discussed during the hearing; however, the quotations [the Single Expert] extracted from his book contain strong echoes of the controversial “Parental Alienation Syndrome” postulated by the late Richard Gardner. In my
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view, this case is not an appropriate one in which to consider the merits or otherwise of Dr Darnell’s hypothesis. Nevertheless, I consider [the Single Expert] was justified in drawing attention to the fact that [A] could not have independent recollection of the things he now mentions about his father. He was only a few days past his second birthday when he witnessed the last serious confrontation between his parents at [the marina]. He was only 2½ years of age when he last saw his father in an unsupervised environment. He was not yet three when his father broke into his mother’s home, whilst he slept. Although I do not in any way discount the possible/likely effect these events and their sequelae may have had subconsciously, I am satisfied the “recollections” [A] has of these things are those that have been painted and kept alive for him by his mother. The difficulty, however, is that he has lived so long with those pictures that they may as well be his own work. The added factor of importance is that there is more than a grain of truth in some of the things he has been told.
120 In assessing the weight to be attached to [A]’s wishes, I need to take into account the fact that he was only four years old when he saw [the Single Expert] and he is still only six. Ordinarily, I would not place any significant weight on the wishes of such a young child, especially in a case where those wishes have been inappropriately influenced. However, [A]’s wishes are based on his perception of the sort of person he has as a father. They are also inextricably intertwined with the relationship he has with his mother and his grandparents, which I will be considering under the next heading.
The nature of the relationship of the child with each of the child's parents and with other persons
121 [A] has lived with his mother his entire life and in most respects she has been an excellent caregiver. There is no doubt she is [A]’s primary attachment figure; however, it is contended by the Child Representative and [the Single Expert] that their relationship is a very unhealthy one and that they are “enmeshed”. I am satisfied there is a very strong basis for that assertion. [Ms T] could not have stated her attitude to [A] more clearly than she did in an affidavit in interim proceedings, in which she said “[A] is part of me, he is my flesh and blood, and he needs me more than he needs or wants any other person on this earth” (emphasis added).
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122 Although by no means the primary basis for considering that [A] and his mother are “enmeshed”, I note that [A] still sleeps in [Ms T]’s bed most of the time. I consider it likely that [A] does tell his mother he is frightened and prefers to sleep in her bed; however, I also consider it highly likely [Ms T] derives comfort from having [A] sleeping with her. She says [A] is frightened of his own bedroom because of “an incident” that occurred in it and has been scared to sleep alone since the telephone conversation in June 2002 when [Mr B] said they would be going away on a boat trip. However, it was not until the weekend prior to the trial that [Ms T] tried to move [A]’s bed into her room so they could sleep in separate beds (unsuccessfully as it turned out, since the beds would not both fit).
123 [A] also has a very close relationship with his maternal grandparents. They are very regular visitors at each other’s homes. In fact, [Ms T]’s father spends a lot of time sleeping at [A]’s home in order to protect him from [Mr B]. At the time of trial in 2005, [Ms T]’s father was staying with her two or three nights a week. Both grandparents have rigid views concerning [Mr B] and I have no doubt each would present a very negative picture of him to [A].
124 [A] has had little opportunity to develop a relationship with [Mr B]. They had no contact at all for the first 8 months of his life. Apart from the few supervised contact visits in 2005, he has not seen his father since June 2002. Before that, they had fairly infrequent contact and never alone (save for the one occasion when [A] allegedly observed his father taking drugs). I do not accept [Mr B]’s claim that during their early contact periods they became “closely bonded”, but even if a bond had developed it would have withered away by now.
125 Inevitably, [A] has been caught up in the milieu created by his mother and his maternal grandparents, all of whom loathe [Mr B] because of what he has done or is perceived to have done to [Ms T]. They are all fearful of [Mr B] and are particularly worried that one day he may abduct [A]. The extent of their concerns can be gauged by referring to the steps taken when they became convinced that [Mr B] had jumped over the school fence soon after [A] commenced kindergarten in 2004. [Ms T]’s father was so alarmed that for the rest of the year he stood guard outside the school where the kindergarten was located. He only ceased this activity in 2005 because he felt [A]’s new location was safer. [A] apparently felt no safer, as I note that in
a referral seeking help for him, [A]’s teacher observed that [A] is
“scared stiff that his father is going to take him away”.
126 In the article in the [media], it was claimed that [A] “tells people he is frightened his father is going to shoot his mother dead”. Under cross-examination, [Ms T] said [A] had told this to her parents. When asked where [A] might have got the idea [Mr B] might shoot her, [Ms T] proceeded to give a long, rambling and non-responsive answer, before she came up with:
“I heard something outside my house few days later [she was then describing events said to have occurred in January 2004] – it was a quarter past nine and to me it sounded like a gun shot and my son woke up screaming and he yelled out ‘Dad is out there – he is going to shoot me’.”
127 This sounded like a story dreamed up on the spot to give credence to what [Ms T] had told the newspaper. If it is true, it is an indication of just how terrified [A] has become of his father; however, it is surprising it did not find its way into [Ms T]’s comprehensive affidavit. Furthermore, [Ms T]’s mother was unable to recall ever hearing [A] say that [Mr B] was going to shoot his mother dead. When she was told that [Ms T] had already given evidence that [A] had, in fact, told her this, [Ms T]’s mother said she had possibly been told but had forgotten. [Ms T]’s mother was exceedingly antagonistic towards [Mr B]. She dissembled whenever asked a question that might elicit an answer favourable to him. I suspect if she had ever heard [A] say he was scared his father would shoot his mother, she would have remembered.
128 Evidence was also given by [Ms T]’s friend, [the Single Expert], that [A] has hooked up fishing lines around [Ms T]’s back garden so that his father or the “bad guys” would trip over them if they were trying to come in the back way to the house. [The Single Expert] gave his evidence by telephone, as he was too unwell to attend the Court. It was apparent he has romantic designs on [Ms T] and is poorly disposed towards [Mr B]. I was not persuaded all of his evidence was accurate, but I did accept his claim about the trap in the back garden.
129 I also find that [A] has told at least one of his young friends that his father is “bad” and that he did not want a “scary Dad”. This evidence came from [Mrs O], the mother of the boy in question. I
found [Mrs O] to be a very reliable witness and I accepted all of her evidence without reservation.
130 [A] has clearly adopted the concerns of his mother and grandparents as his own. He sees himself and his mother as allies against an unpredictable and highly threatening enemy. Although there is a rational basis for some of the concerns felt by [Ms T] and her parents, I am satisfied [A] would not share those concerns to the extent he does had they handled the difficult situation differently. Rather than acting in a way designed to make him feel safe, I am satisfied they have drawn [A] into their fears and made him more frightened of his father than he needs to be. For example, it was totally unnecessary for [Ms T]’s father, in [A]’s presence, to seek a guarantee from [the Single Expert] that [A] would not be abducted by [Mr B] during the assessment process.
131 I acknowledge that [Ms T] justifies her actions and those of her parents on the basis that:
“I will not lie to him…If I start making him promises that are unrealistic and promise him that he will be safe when I am not confident that he will be safe; what damage is that going to cause him in the event that he is harmed? I am not prepared to risk my child’s safety…I can not be so naïve as to hope for the best when I fear the worst.”
132 Regrettably, the inevitable outcome of such a parenting strategy is that [A] ends up as scared and unhappy as his mother claims to be. In this regard I note [Ms T] was reported in the press as saying, “It’s not a very fun life for us” and “I already consider myself dead”.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from
–
(i) either the child’s parents; or
(ii) any other child, or other person, with whom the child has been living
133 [The Single Expert] had initially recommended that the case be referred to the Department for Community Development, with a view to [A] being placed in foster care. Whilst in care, [A] would undergo counselling and have supervised contact with his mother. At the same time he would be gradually reintroduced to his father and allowed to
develop a relationship with him. During his oral evidence in chief (which was given a very long time after his initial involvement with the family), [the Single Expert] said his recommendation now was for [A] to reside with [Mr B]. He said this could only be achieved safely by placing [A] in foster care for two or three months to prepare him for the transition.
134 For reasons I will discuss later, [the Single Expert] resiled from his recommendation in the course of cross-examination. Before doing so, [the Single Expert] had acknowledged that [A] would be seriously traumatised if he was removed from [Ms T]’s care. He had only made his drastic recommendation because of his concerns about the long- term impact on [A] of being denied any meaningful relationship with his father. [The Single Expert] hoped that the long-term benefits of a change in residence would outweigh the short to medium-term harm. He anticipated that, with sensitive treatment and appropriate counselling, the transition away from [Ms T]’s home could be achieved in a way which would minimise the trauma to [A].
135 Whilst I understand and sympathise with [the Single Expert]’s reasoning, I am far from satisfied that [A] would ever recover from the trauma of removal from his mother’s care. He is not only very attached to her but considers she has been wronged by [Mr B]. I believe that he would not only be traumatised but also extremely angry about being removed and he would be worried about his mother’s welfare.
136 Apart from the trauma associated with leaving his mother, the other consequence of a change in residence would almost certainly be that [A] would have to change schools. [Mr B] would not advise where he would live if he gained residence, but there is no reason to assume it would be in close enough proximity to [A]’s school to make it practicable for him to remain there. The evidence suggests that his current school is now a happy place for [A]. If he had to move, he would be denied the company of staff and students with whom he has become familiar. This change would be likely to have adverse consequences, especially coming at the same time as removal from his mother.
137 I accept that the potentially positive impact of a change in residence is that [A] could develop a better relationship with his father, since I am satisfied there is no realistic prospect he will do so
whilst living with his mother. Whether this, in fact, would be a positive thing would depend in part on the quality of the care [Mr B] provided and the nature of the relationship they were ultimately able to develop. The positive impact would need to be weighed against the trauma that I have already mentioned.
The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
138 The Child Representative and [the Single Expert] propose that contact take place at a supervised contact centre and that [A] be taken to and from the centre by an employee of “Mother Hen”. The contact centre costs may be affordable for the parties; however the cost associated with a private agency transporting [A] to and from every contact visit is likely to be prohibitive. Although [Ms T] has apparently obtained part-time employment, it is likely her financial position is going to be extremely bleak, especially given the fact that she was not in receipt of Legal Aid for the long trial. [Mr B] also says his financial position is very bleak. He claims not to have regular employment and therefore would be unlikely to have the capacity to contribute to the costs associated with supervised contact.
139 A further difficulty associated with the proposal for supervised contact is that the Child Representative suggests it should again take place at Relationships Australia’s Contact Service. This would be highly problematic, since [Ms T] considers the staff of Relationships Australia have already let [A] down and she has accused them of lying. Matters have been compounded because Relationships Australia staff have given evidence that is highly critical of [Ms T]. Although Relationships Australia is prepared to continue to provide its services to the family, I consider there would be almost insurmountable problems associated with them doing so.
140 I accept the submission made on behalf of [Ms T] that in the event I determined that supervised contact was appropriate, it would be necessary to look to another service provider. There is no evidence of the availability of the only other viable service. I could take judicial notice of the fact that the other major service provider could probably provide some assistance, but I could not be satisfied on the
basis of judicial notice alone that the service could be provided on the long-term basis likely to be necessary.
The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs
141 I am satisfied [Ms T] can provide for [A]’s physical and intellectual needs. She has been providing a high quality of care for [A] to date. [A]’s pre-primary teacher, [Ms M], described him as a well-mannered and polite class member who gets on well with the other children. There were no disciplinary problems and he was making sound intellectual progress. He was clean, usually in uniform and always had lunch provided. Like many other children he was initially a little shy when he first came to school but he “came out of his shell”. [Ms M] described [Ms T]’s attitude to [A]’s schooling as positive. She said [Ms T] played an active part in his education and was always willing to lend a helping hand.
142 My only significant concern about [A]’s care (save for the matters discussed below) relates to the large amount of time he has spent away from school. By the time of trial in October 2005, he had already missed 82 half days, which his teacher thought was probably more than any other student in the class. The headmaster was of the view that such a level of absenteeism could put [A] at educational risk if it continued. Most of [A]’s time off school appears to have been associated with the tummy problems discussed above. There was nothing in what [A] said, or how he presented at school, which led his teacher to be aware of any link between his physical complaints and contact with his father. On the other hand, [Ms M] pointed out that when [A] comes to school, he has his friends and distractions and is in a different environment. He may therefore not make any reference to matters that were concerning him away from school.
143 [Ms T]’s capacity to provide for [A]’s emotional needs does not match her proven ability to provide for his physical and intellectual needs. She has shown she is incapable of shielding [A] from her own fears and she has allowed him to become unnecessarily caught up in the ongoing legal dispute. This was exemplified by the evidence given by her friend, [Mrs O], about the occasion when a process server attended to serve documents. [A], who was only about three at the time, was extremely persistent in his efforts to find out what the
documents were about. Notwithstanding his persistence, I consider it quite inappropriate for [Ms T] to have discussed the nature of the documents with [A], which I am satisfied she did. The behaviour of both mother and son on this occasion suggests that [A] has been permitted to develop a disturbing level of interest in matters that should never have been brought to his attention.
144 In considering her ability to provide for [A]’s emotional needs, it is pertinent to note that [Ms T] has also been diagnosed as suffering from Post-Traumatic Stress Disorder. The eminent psychiatrist who made this diagnosis after one consultation was not called to give evidence. In the absence of expert evidence, it would be inappropriate to speculate on whether there were always elements of [Ms T]’s psychological profile that might have impacted upon her ability to provide for [A]’s emotional needs. It would also be inappropriate to speculate on the extent to which [Ms T] may have exaggerated her symptoms when consulting the psychiatrist, who she saw in order to bolster her claim for criminal injuries compensation. It is also not known to what extent [Ms T] was truthful in disclosing other trauma to which she has been exposed, for example the time she says she was strangled by a policewoman. What can be said is that [Ms T] is a person who has been involved in far more than her fair share of conflict with a wide variety of people and is prone to pursuing vendettas whenever she feels wronged. These aspects of her make-up are likely to make her less emotionally available to deal with [A]’s needs, even if [Mr B] is removed from the scene. I am satisfied [the Single Expert] was right to conclude that “there is a significant indication [Ms T] is an emotional risk to her son”.
145 [Ms T] has recently enrolled in the “Mums and Dads Forever” program and has commenced some personal counselling. Ideally, these will improve her ability to focus on [A]’s needs and to provide more adequately for his emotional wellbeing; however, I have grave reservations whether they will make any significant difference.
146 It is difficult to comment on [Mr B]’s ability to provide for [A]’s physical needs, since he has never had to do so and has not even revealed where he proposes to live with [A]. Not even his best friends know where [Mr B] lives, and they have not known for some years. Although this is an unsatisfactory basis on which to consider an application for residence, I will proceed on the assumption that [Mr B]
would do his best to provide for all of [A]’s physical and intellectual needs.
147 I have serious reservations about [Mr B]’s capacity to cater for [A]’s emotional needs. Whilst the evidence suggests he shows skill in playing and interacting with young children, it is a different matter altogether to provide for the emotional needs of a young child on a long-term basis. I found [Mr B] to be a fairly rigid and uncompromising individual, with comparatively little empathy. If [A] did come to live with him, he would still be recovering from the trauma of separation from his primary attachment figure. I am not convinced that [Mr B] is adequately equipped by experience or personality to deal with a child with very high needs.
The child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant
148 The main matter of significance under this heading is that [A] is still a young child. He seems to be of appropriate maturity for his age. He is very closely attached to his mother and is easily influenced by her and by his maternal grandparents.
149 [The Single Expert] expressed the view that it is very important for boys to have a relationship with their father and that the absence of a father can cause difficulty with “male role modelling”. I accept the sentiments underlying this proposition, but the modelling provided can either be positive or negative. Some of the role modelling provided by [Mr B] in the past has been less than optimal.
The need to protect the child from physical or psychological harm caused, or that may be caused, by –
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed towards, or may affect, another person.
150 There is no suggestion that [Ms T] has ever caused [A] any physical harm. There is, however, ample evidence to suggest she has caused him psychological harm, for example by involving him
unnecessarily in the Family Court proceedings and exposing him unnecessarily to her fears about [Mr B]. Although there was a rational basis for [Ms T]’s concerns about [Mr B], it would have been possible for her to take appropriate steps for her own protection, whilst minimising the concerns felt by [A].
151 [Ms T] asserted that [Mr B] had hurt [A] on a couple of occasions – once when he pushed him over in exasperation, causing him to graze himself, and once when he knocked him over when opening a door. I was doubtful whether [Ms T] gave an entirely accurate account of what occurred on those occasions, but even if they were true they are not in the same league as the events [A] now recalls, such as him being thrown across a room. In any event, I am fairly well satisfied that if [A] were to live with [Mr B], he would not be subjected to or exposed to serious physical harm, although I would be concerned that [A] would be exposed to his bad temper.
152 [Mr B] has in the past exposed [A] to psychological harm. He did so on the occasion he assaulted [A]’s mother in his presence at [the marina]. He did so again when he broke down the door of his mother’s home. Even though [A] luckily remained asleep during the latter incident, he could well have become aware there had been some serious disturbance when he awoke to find the front door broken down. I am also satisfied there have been many other occasions [Mr B] behaved aggressively towards [Ms T] in [A]’s presence.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
153 [Ms T] has demonstrated a good attitude to the responsibilities of parenthood in many respects. The reservations I have about her have been expressed elsewhere in these reasons.
154 [Mr B] has not always demonstrated a good attitude to the responsibilities of parenthood. A fundamental responsibility of any parent is to ensure their child feels safe and secure. No child can feel safe and secure if he is exposed to his primary caregiver being physically attacked and threatened.
155 I am also unimpressed by [Mr B]’s financial support for [A]. He is an experienced tradesman who apparently is very good at his work; however, he claims to have had almost no work and he has paid very little child support. I appreciate that [Mr B] has been hamstrung to some extent by not having a driver’s license and by the demands of
these proceedings. Even so, I suspect he could have earned more income than he says he has and hence could have provided more support for [A].
Anyfamily violence involving the child or a member of the child's family
156 I have already noted my findings concerning [Mr B]’s violence and the extent to which [A] has been exposed to it. [Mr B] continues to minimise his behaviour and shows little remorse. This was demonstrated by the comments he made to [Ms C] when explaining to her “what women do to you”. He pointed out to [Ms C] that he did not have a criminal record until he met [Ms T], as if somehow she was to blame for his behaviour.
Any family violence order that applies to the child or a member of the child's family
157 [Ms T] still has a Violence Restraining Order against [Mr B], but this would not prevent contact taking place if it was ordered. The Intensive Supervision Order apparently contained provisions preventing contact between [Mr B] and [A], but the order expired in March 2006.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
158 I consider this factor to be of great significance in this case. In considering its importance, I concur with the assessment made by counsel for the Child Representative that the acrimonious relationship between [Ms T] and [Mr B] is at the very upper end of the range of cases coming before the Court. The trial itself occupied 12 days of court time. There were also numerous prior appearances dealing with interlocutory issues. There are ongoing proceedings relating to child support.
159 There is no reason to anticipate that supervised contact is likely to proceed smoothly if it is ordered again. I am quite satisfied there would be further proceedings if I made such an order. I am satisfied [A] would continue to express strong opposition to going on contact and would probably end up refusing to go. Such a refusal would be likely to lead to contravention proceedings and/or requests for warrants. [Ms T] would continue to claim that [A] was physically
unwell. He would be taken to the doctor regularly and miss even more time from school. [Ms T] would then apply to terminate the contact.
160 Litigation is very stressful for all of those involved. It is also time consuming. I am quite satisfied that further litigation in this case would be even more stressful and time consuming than average. [Ms T] appears incapable of being involved in a dispute such as this without it completely consuming her life. It seems she spends much of her “spare time” glued to her computer, preparing extraordinarily detailed correspondence, complaints and Court documents. She said on some occasions she had still been at her computer at 5.00 am or
6.00 am, preparing last-minute papers. She claimed this did not compromise her parenting, but I do not accept that could be so.
161 [Ms T] claims to have suffered “migraines, vomiting and loss of vision because of mounting stress”. Although I consider she has on occasions exaggerated the extent of her symptoms, I nevertheless accept that the stress of the proceedings has had an adverse impact on her health. The first stage of the trial had to be adjourned at one stage because [Ms T] had worked herself into such a state she could not continue. I am convinced it would not be in [A]’s best interest for his mother to spend the next 10 years involved in litigation, yet that is precisely what I fear would be the position if I were to order contact.
162 I acknowledge there could still be litigation in the future if I refuse to make any order for contact. Parenting orders are never final and it would always be open for [Mr B] to come back at some stage to seek contact. Realistically, however, it would have to be many years before it would be appropriate for the matter to be reconsidered if I did not order contact now. [A] would need to be a lot older and more able to deal with the pressures associated with being reunited with his father.
Any other fact or circumstance that the court thinks is relevant
163 A matter of major significance is the fact that [Mr B] is currently facing serious criminal charges. One of these is a prosecution under s
338B of the Criminal Code, arising out of his alleged threat to kill [Ms T]. He is facing a further charge of breaching the Restraining Order relating to the occasion when he served court documents on [Ms T]’s father. He also has pending charges for breaching the terms of his extraordinary driver’s licence. Although [Mr B] will defend
the serious charges, there is more than a theoretical risk he will be found guilty and sent to gaol. He has previously been warned that he faced almost certain imprisonment if he breached the Restraining Order again or broke the law in a substantial way. Some of these matters are unlikely to come to trial until 2007. I accept the submissions made by [Ms T]’s counsel about the undesirability of putting residence or contact arrangements in place, only to have them disrupted if [Mr B] is sent to prison.
164 [Mr B] appears to have little respect for the law. Apart from his history of breaches of Violence Restraining Orders (some of which I accept were not at the serious end of the spectrum), he also has repeated convictions for driving without a licence or in breach of his extraordinary licence, as well as for driving an unlicensed vehicle. He has a (spent) conviction for stealing the police officer’s shirt. He has used illicit drugs and, on his own admission, continues to use marijuana at least every few weeks. [Mr B] is now 41 years of age but there is no indication that with increased maturity he has decided to become a law-abiding citizen. His lack of respect for the law does not make him a good role model for [A].
Conclusion
165 [A] is a very troubled little boy who has been served poorly by the conduct of both his parents. He has never known what it is like to live with both his mother and father. His life has been filled with fear and anxiety. He has never known the carefree existence that is the right of all children.
166 Whilst both parents blame the other for the present state of affairs, each has to accept some responsibility. [Mr B]’s behaviour towards [Ms T] has on occasions been inexcusable. His continued inability to accept responsibility for his actions is a matter of grave concern. Although some of [Ms T]’s responses have been out of all proportion, it cannot be overlooked that she has been the victim of violence and abuse. In particular, she was entitled to be fearful because of [Mr B]’s unwillingness to let go of their relationship. However, many parents face great adversity in their lives. In my experience, few have handled their children’s exposure to such adversity more unsuccessfully than [Ms T]. Whilst I accept that [A] would inevitably have been adversely affected by his father’s behaviour and his mother’s propensity for conflict, I consider he could
have been shielded from the consequences to a far greater extent than he has been.
167 If [A]’s mother were of a different mind-set, it would be theoretically possible that the relationship between father and son could still be healed. At the very least, [A] could learn not to be so fearful of his father. If [A]’s father had more to offer him, it would be theoretically possible to consider a change in residence, as by this means [A] might grow up having a relationship with both his parents. However, [A] has the parents he has. There is no point considering what might have been if things were different.
168 Notwithstanding my poor opinion of her, I am satisfied it would be inappropriate to remove [A] from [Ms T]’s care. [The Single Expert]’s recommendation for this to occur was made with incomplete information and, in some instances, on the basis of misleading information. [The Single Expert] resiled from his recommendation when presented with more information during the trial. He had initially been very strongly of the view that [Ms T] was not only an “obsessive alienator” but also “delusional”. In light of the additional information put to him in cross-examination, [the Single Expert] accepted that [Ms T] was not delusional, although he remained of the view that she fitted “75% to 80% of the alienating parent profile”. Nevertheless, he acknowledged there seemed no alternative than for [A] to remain living with his mother.
169 In any event, I consider there was little prospect that [the Single Expert]’s original recommendations could have been implemented. His proposal was made on the assumption that a temporary foster carer could be found to look after [A] whilst he received counselling, either as a preliminary to return to his mother or in order to ease the transition to his father’s home. This would have necessitated the assistance of the Department for Community Development and there was no evidence to suggest that the Department would be likely to cooperate in finding an appropriate placement. As [the Single Expert] observed in his report, the Department has previously had involvement with [Ms T] and elected not to become further involved, preferring to leave the matter to the Family Court and being “somewhat intimidated by [Ms T]’s tendency to go to higher authorities if they slightly questioned or challenged her”. Even if a fostering arrangement could be made, it is notorious that there are disturbing variations in the quality of foster placements. There is no
reason to assume that the foster parent(s) would have the skill and sensitivity to deal with a child who would be experiencing the serious trauma that [A] would experience if he was removed from his mother.
170 [Mr B] says there is no need for an interim fostering arrangement and that [A] should simply be removed from his mother’s home and be placed with him. This was not his proposal at the time he saw [the Single Expert] in 2004. [The Single Expert] reported that [Mr B] “has no interest in residency of the child”. In any event, I do not consider [Mr B]’s proposal to be a viable option, since it would undoubtedly cause [A] enormous trauma, which would be likely to have a long- term effect on his emotional wellbeing. [The Single Expert]’s recommendation that [A] live with [Mr B] was predicated on the assumption that [A] would first live in some “neutral place” to get over leaving his mother, without focusing his anger on his father. I accept [the Single Expert]’s assessment that without this “safe period” in a neutral environment, it would be “very difficult” to move [A] into his father’s home. In any event, I would only have been prepared to contemplate such a drastic step if I had confidence that [Mr B] would be likely to provide a satisfactory and stable long-term home for [A]. I do not have that confidence.
171 This then leaves only the question of whether or not [Mr B] should have contact with [A]. The only way that such contact could possibly be reintroduced would be on a supervised basis. I agree with [Mr B]’s own assessment that supervised contact will not work and it would not fair on [A] to put him through what he has been through before. Such contact will not work because, as [Mr B] said, [Ms T] would be “relentless in her pursuits to stop me ever having a loving relationship with my son”. True, [Ms T] would go through the motions of appearing to encourage contact, but she would continue to give [A] the “non-verbal cues” that I am satisfied contributed so significantly to the previous arrangement being scuttled. He would once again develop his mystery ailments and he would again be kept away from school.
172 I accept that the type of arrangements proposed in the orders made in August 2005 (following the recommendations made by [Mr M]), have never been given a chance to work. Theoretically they might; however, it is my assessment that [Ms T] would find a way to undermine the process to achieve what I consider has been her longstanding objective (notwithstanding her consent to the supervised
contact order in February 2005, which secured the desired adjournment of the trial).
173 I accept [the Single Expert]’s opinion that if supervised contact led to [A] establishing a relationship with his father that could be a very positive thing; however, he also said “if there is going to be added pressure when he has that visit it is not in his best interests. Unless that pressure finishes it would be hard for him.” I am satisfied the pressure will not finish. When asked what likelihood of success there would be if contact was tried again, [the Single Expert] acknowledged there is a “very entrenched situation”. He said that although he believes supervised contact would be “worth a try”, it would not be worth it if [A] had to be dragged by the Police to ensure contact took place. It is my assessment that this is likely to be what would ultimately eventuate.
174 I am also satisfied that if I were to order any form of contact, I would be condemning both of [A]’s parents to an ongoing legal war of attrition. This would result in neither of them being able to devote their attention to [A]’s wellbeing – and history demonstrates that [A] would continue to be caught up in the conflict. It is my unfortunate assessment that the best I can do for [A] is to relieve him of being in the middle of what would be a never ending legal dispute.
175 In coming to my decision, I make clear I do not discount the recommendation of a Child Representative lightly. I acknowledge that the Child Representative’s proposals are based on entirely legitimate concerns about the impact on [A] of being denied a relationship with his father. However, many children, by reason of death or desertion, grow up quite satisfactorily in a “one parent home”. Therefore, the mere fact that [A] will be denied a meaningful relationship with his father does not mean he could not have a good outcome in life.
176 I accept that even allowing for the removal of the conflict and stress associated with managing a contact regime, there will remain grave cause for concern about [A] because of matters associated with [Ms T]’s personality and the enmeshment she has with [A]. I accept the prognosis of [the Single Expert] that the nature of the relationship between [Ms T] and [A] is such that there is a significant possibility that when [A] becomes much older and defiant towards his mother, “all hell will break loose”. I also share [the Single Expert]’s opinion
that [Ms T] is “setting up an extremely unhealthy lifestyle for this child” and I acknowledge the validity of his concerns about [A] living in fear of his father. The difficulty, however, is that many of these concerns are going to exist whether or not [A] is having contact with his father.
177 In reaching my decision, I have proceeded on an assumption that counselling and other therapeutic interventions are not going to make any difference to [Ms T]’s underlying personality and hence on her conduct. This is not an assumption I would ordinarily be inclined to make, since I have much faith in the range of expert services and programs that are available. However, it is my assessment that [Ms T] is highly unlikely to make the drastic changes that would be necessary to ensure contact could be made to work. She is a remarkably stubborn person. I consider it highly probable she has only accessed the programs she has to date in order to make a good impression on the Court, and possibly with a view to beefing up her claim for criminal injuries compensation. I share [the Single Expert]’s view that “the reality is [Ms T] will not change”.
178 Hopefully both [the Single Expert] and I are mistaken. If so, it will not require an order of the Court to allow contact to commence. If [Ms T] has a change of heart, it would be open to her to contact [Mr B] and a contact service and make arrangements for the reintroduction of contact.
Assumptions made by the Single Expert
179 I have mentioned above that [the Single Expert]’s original recommendations were based on incomplete and misleading information. For the sake of completeness, I consider it appropriate to record some of the matters I had in mind:
•[The Single Expert] had been misled into underestimating the extent of [Mr B]’s violence and stalking behaviour;
•He had been misled into believing that [Mr B] did not want to have an ongoing association with [Ms T], when the evidence clearly establishes that he did – and indeed he even told one of his best friends just before the trial that he still loved [Ms T];
•He was unaware of the extent of [Mr B]’s ongoing offending behaviour and hence did not have a full appreciation of the possible reasonable concerns [Ms T] might have in relation to her
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safety and that of [A]. He was also unaware, for example, of the warning [Ms T] had received from the facilitator of [Mr B]’s domestic violence program;
•He had assumed that [Ms T]’s parents were acting entirely on the basis of what they had been told by [Ms T] about [Mr B]’s behaviour, when in fact they had experienced some of it first hand.
•He was unaware of the innocent explanation of some matters on which he had placed weight – for example, the reason why [Ms T] had reported an incident at three different police stations;
•He relied (appropriately) on information that ultimately was not proven in evidence. This included, for example, the quite damaging statement provided by the director of the modelling academy attended by [A].
Other forms of contact
180 I have given consideration to whether or not [Mr B] should be permitted to have telephone contact with [A]. Such contact would not require [A] to come face to face with [Mr B], and he would therefore not need to have any concerns about his physical safety. [A]’s therapist, [Ms D], also contemplated the possibility of telephone contact.
181 I have regrettably determined that telephone contact would not be in [A]’s best interests. For it to work, [Mr B]’s conversations with [A] would need to be about entirely matter of fact issues. It would not be appropriate for [Mr B] to engage [A] in discussion about why they are unable to see each other, or to ask questions about [Ms T]’s private life. I would need to stipulate a number of conditions relating to the content of such telephone conversations. Even prior to the closing addresses, I had concerns about whether [Mr B] would be able to comply with orders detailing the way in which telephone contact could occur. I doubted that he would be able to handle such contact with the sensitivity required. [Mr B]’s inability during the closing addresses to obey instructions about not interrupting counsel for [Ms T] confirmed my view that he would not comply with instructions contained in any orders I might make.
182 [Ms T] is agreeable to providing [Mr B] with photographs of [A], details about his progress at school and information concerning his
health. Clearly, that is the bare minimum that is appropriate. [Ms T] and [Ms D] were initially also proposing what was called “benign contact”, which would have involved [Mr B] being able to send letters and gifts to [A]. During the closing addresses, I was informed that [Ms D] is now concerned about even that form of contact. Unfortunately, an up-to-date written report from [Ms D] explaining her change of mind on this issue was not available. Counsel for [Ms T] suggested that the introduction of such benign contact should be left to [Ms D], or alternatively for the matter to come back to Court for a review in a few months’ time after [Ms D] has provided a report on the further consultations she has had with [A] since she gave evidence.
183 It is not appropriate for me to delegate the decision on this issue to the therapist. I am not presently convinced that [A] should be denied the opportunity to receive cards and gifts from his father on at least his birthday and at Christmas. Nevertheless, I respect the fact that [A] has a well qualified therapist who is acting in accordance with his best interests. In view of the concerns she has apparently expressed, and given the length of time that has elapsed since she gave her evidence, I consider it is appropriate I give [Ms T] an opportunity to provide further evidence from [Ms D] if she considers there should not be such benign contact.
184 I will need fairly heavy persuasion that such contact should be denied, since if it is, [Mr B] will have entirely disappeared from [A]’s life. Ideally, he will be able to stay in touch, so that when [A] is older he can determine himself whether he would like to make contact with his father. With this in mind, I propose making orders that will ensure that [A] has a means of contacting his father should he ever desire to do so. I also propose to make an order directing [Ms T] to bring [A] to the Family Court Mediation and Counselling Service when he attains the age of 14 years in order to discuss the possibility of him contacting his father if he has not done so by that time.
Future therapy
185 At the time the trial eventually concluded in February 2006, [A] was still having therapy with [Ms D]. When she gave her evidence in November 2005, [Ms D] wanted to continue with her therapeutic plan for [A] and carry out a number of assessments. In my view, it would be desirable for [A] to continue to see [Ms D] for so long as she
considers it would be beneficial for him. Simply because [A] will not be having any future direct contact with [Mr B] does not mean that the level of anxiety he feels about his father will necessarily be reduced. Difficult as it may be to do anything about this whilst he remains exposed to [Ms T]’s fears, I consider it is imperative that there be ongoing therapeutic intervention to try to assist [A] to manage his fears.
186 I therefore propose to direct [Ms T] to continue to take [A] to therapy after these proceedings conclude. I also propose to direct her to comply with any recommendations made by [Ms D]. This would include her cooperating if at any stage [Ms D] determines it is appropriate for [A] to meet with his father in a controlled environment to assist in the management of his anxiety. [Ms D] will be at liberty to provide a report to the Court in the event [Ms T] does not cooperate with any aspect of her therapeutic plan for [A].
Orders
187 Subject to hearing from the parties and the Child Representative concerning the details, I propose making the following orders:
1. All existing orders for contact be discharged.
2. The Applicant, [Ms T], provide to the Respondent, [Mr B], on or about 1 January each year a current photograph of the child, [A], born December 1999, together with a copy of [A]’s school reports and information concerning his health. In providing such information, the Applicant be at liberty to delete any information identifying the school [A] attends from time to time.
3. The Respondent be at liberty to forward to [A] a gift and/or card at Easter, Christmas and on [A]’s birthday each year.
4. In the event the Applicant receives such gifts and/or cards, she shall ensure that they are given to [A].
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5. At the direction of the Applicant, such gifts and/or cards may be posted or sent by courier to the address of one of other of the Applicant’s parents or such other person as may be nominated by her, provided that the Applicant’s parents or such other person have first filed in the Family Court of Western Australia an undertaking to deliver such gifts and/or cards to [A].
6. The Respondent shall be restrained by injunction from including with any card sent to [A] any comments:
(a) denigrating the Applicant or her family; or
(b) expressing recrimination about his inability to contact [A].
7. The Respondent may include in any card sent to [A] his current contact address and telephone number and advice that he would welcome [A] telephoning him, writing to him or otherwise contacting him if [A] would ever like to do so.
8. The Applicant have liberty to apply to vary or discharge the order relating to the Respondent forwarding to [A] gifts and/or cards.
9. Upon [A] attaining the age of 14 years, the Applicant shall contact the Director of the Family Court Mediation and Counselling Service and:
(a)provide to him or her a copy of the reasons for judgment in these proceedings and a copy of this order; and
(b) arrange an appointment for [A] to see such counsellor or family consultant as may be recommended by the Director to discuss with [A] his wishes in relation to making contact
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with the Respondent and to ascertain whether [A] has received any cards and/or gifts sent to him by the Respondent.
10. The counsellor or family consultant shall be at liberty to:
(a)discuss with [A] such matters contained in the reasons for judgment as the counsellor or family consultant considers appropriate;
(b) prepare and provide to the Court and to the parties a report relating to the outcome of the meeting with [A]; and
(c)organise such counselling or mediation as the counsellor or family consultant considers appropriate.
11. The Respondent shall provide to the Director of the Family Court Mediation and Counselling Service his contact address upon [A] attaining the age of 14 years.
12. The Applicant shall ensure that [A] attends such therapy as may be directed by [Ms D] or the [Regional] Mental Health Service and shall comply with any requests made by [Ms D] or that Service in relation to [A]’s therapy.
13. [Ms D] shall have liberty to provide a report to the Court in the event that the Applicant does not ensure [A] attends therapy or otherwise fails to comply with any requests made by [Ms D] in relation to [A]’s therapy.
14 The Child Representative be at liberty to publish a copy of the reasons for judgment to:
(a) Relationships Australia;
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(b) [Ms D];
(c) [the Single Expert]; and
(d) The Department for Community Development.
15. The application and response be otherwise dismissed. I certify that the preceding [187] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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