Temple and Dobrovic (No 4)

[2010] FamCA 836

FAMILY COURT OF AUSTRALIA

TEMPLE & DOBROVIC (NO. 4) [2010] FamCA 836

FAMILY LAW – CHILDREN – interim orders – application by the mother seeking suspension of the child’s time with the father – where the mother alleges a long history of abuse of the child by the father – where judgment was recently delivered after a lengthy trial – where allegations of a similar nature were not established – where the mother continues to make further allegations of abuse – where investigations of alleged abuse are underway – where there is concern that the child is suffering from emotional abuse by the mother – where the parties are incapable of shielding the child from the dispute – where there is risk of child developing serious psychological issues in the future – best interests – orders that the child resume spending time with the father

Family Law Act 1975 (Cth)

APPLICANT: Ms Temple

RESPONDENT: Mr Dobrovic

INDEPENDENT CHILDREN’S LAWYER: Graeme Hemsley

FILE NUMBER: ADC 2920 of 2010

DATE DELIVERED: 7 SEPTEMBER 2010

PLACE DELIVERED: ADELAIDE

PLACE HEARD: ADELAIDE

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 7 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MS COCKS
SOLICITOR FOR THE APPLICANT:	ANN JOSEPHSON LAWYERS

COUNSEL FOR THE RESPONDENT:	MS DICKSON
SOLICITOR FOR THE RESPONDENT:	MELLOR OLSSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	GRAEME HEMSLEY
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	GRAEME HEMSLEY

Orders

IT IS ORDERED THAT:-

1. Further consideration of the proceedings, including the mother’s Contravention Application filed on 4 August 2010, be adjourned to 2.15 pm on Monday 11 October 2010 before the Honourable Justice Burr (allowing two [2] hours) with liberty to the parties and the Independent Children’s Lawyer to apply on the giving of forty-eight [48] hours notice to the others in the event that the South Australian Police (SAPOL) and/or Child Protection Services investigations reveal that the best interests of the child C (“the child”) born … September 2003 are not represented by the Orders made by the Honourable Justice Strickland on 22 April 2010.

2. The Magellan Registrar maintain constant communication with SAPOL such that the Court is able to report to the parties and the Independent Children’s Lawyer at the earliest opportunity as to the outcome of SAPOL’s enquiries and investigations into the mother’s recent allegations of physical abuse of the child by the father.

3. The father resume his time with the child as ordered by the Honourable Justice Strickland on 22 April 2010, such that it commences at the conclusion of school on Friday 10 September 2010.

4. Pursuant to Section 67U of the Family Law Act 1975 as amended a Recovery Order do issue authorising the taking possession of the said child C and the delivery of such child to the father Mr Dobrovic forthwith at … in the State of South Australia or at such other place as the father and the person effecting recovery agree to be appropriate UPON NOTING that the Recovery Order is to be suspended until 4.30 pm on Friday 10 September 2010 and only executed in the event that the child C is not delivered into the care of the father at the conclusion of school on Friday 10 September 2010 and in that event THE COURT REQUESTS that the Australian Federal Police execute the Recovery Order as a matter of urgency.

5. In order to give effect to paragraph 4 (c) of the Orders made by the Honourable Justice Strickland on 22 April 2010 the father spend time with the child from the conclusion of school on Friday 24 September 2010 until 5.00 pm on Saturday 2 October 2010 UPON NOTING that handover at the conclusion of such period is to take place at the B Children’s Contact Service.

6. Pursuant to Section 67U of the Family Law Act 1975 as amended a Recovery Order do issue authorising the taking possession of the said child C and the delivery of such child to the father Mr Dobrovic forthwith at … in the State of South Australia or at such other place as the father and the person effecting recovery agree to be appropriate UPON NOTING that the Recovery Order is to be suspended until 4.30 pm on Friday 24 September 2010 and only executed in the event that the child C is not delivered into the care of the father at the conclusion of school on Friday 24 September 2010 and in that event THE COURT REQUESTS that the Australian Federal Police execute the Recovery Order as a matter of urgency.

7. The paternal grandparents accompany the father at all handovers at the commencement and conclusion of the father’s time to be spent with the child.

8. At the earliest possible opportunity Dr J prepare a list of proposals and recommendations in the areas of therapy, counselling, psychological assessments, psychiatric assessments and general family planning processes which will reflect the child’s best interests and assist the parties in negotiating their parenting role henceforth.

9. Leave is granted to the Independent Children’s Lawyer to issue and serve subpoenas directed to:-

   (a)Dr F;

   (b)Mr L;

   (c)The B Children’s Contact Service;

   (d)Dr BL;

   (e)Dr CY; and

   (f)Dr E

   for the production of all notes, records of interview, reports and the like in relation to the mother, the father and the child C, and that such documents be produced at this Court on or before 4.00 pm on Thursday 16 September 2010.

10. Leave is granted to the Independent Children’s Lawyer to issue and serve a subpoena directed to Families SA for the production of all documents and the like relating to matters which have occurred since 27 March 2009 and that such documents be produced at this Court on or before 4.00 pm on Thursday 16 September 2010.

11. Leave is granted to the mother to issue and serve a subpoena directed to the Child Abuse Report Line for the production of all notes, records of interview, reports and the like and that such documents be produced at this Court on or before 4.00 pm on Thursday 16 September 2010.

12. If there is no objection and subject to any privilege claimed, leave is granted to the legal representatives of the parties and the Independent Children’s Lawyer to inspect and copy the documents produced pursuant to subpoenas issued in these proceedings UPON CONDITION that any copies of same are not to be provided to either of the parties without further leave of the Court.

13. Within seven [7] days of the date hereof the father file and serve an Affidavit:-

    (a)annexing a copy of the CD audio recording of the telephone conversation with the mother on 21 July 2010;

    (b)detailing his alleged conversation with the police officer(s) who instructed him to delete his video taping of his conversation(s) with the child and providing the names and contact details for each police officer and the date and approximate time upon which those conversation(s) occurred.

14. The father be restrained and an injunction is hereby granted restraining the father from:-

    (a)physically disciplining the child C and from permitting any other person to do so; and

    (b)video taping, audio recording or in any manner recording conversations or telephone calls that involve the child C and from permitting any other person to do so

15. A transcript of Dr J’s evidence given this day be secured by the Court at the Court’s expense and a copy provided to each of the parties and the Independent Children’s Lawyer.

AND IT IS FURTHER ORDERED, IN CHAMBERS, THAT:-

1. The mother be restrained and an injunction is hereby granted restraining the mother from permitting the child to take his mobile telephone with him during any periods of time that the child spends with the father.

2. The mother be permitted to telephone the child on the father’s landline telephone number for a period of time between 6.00 pm and 7.00 pm as follows:-

   (a)on the Saturday and the Thursday when the child is in the father’s care during non-school holiday periods;

   (b)on the Monday and the Thursday when the child is in the father’s care during school holiday periods

   UPON CONDITION that the father ensures that he and the child will be available to receive the aforesaid calls from the mother during the ordered times above.

IT IS NOTED that publication of this judgment under the pseudonym Temple & Dobrovic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2920  of 2010

MS TEMPLE

Applicant

And

MR DOBROVIC

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me today on an adjourned basis the mother’s Initiating Application filed on 4 August 2010.  In that Application she seeks a variety of orders, both on a final and interim basis, but they are to the effect that the father’s time with the child C (“the child”) born in September 2003 (and who is hence 7 years of age) be suspended.  The interim orders that she seeks are effectively to currently suspend all time and then ultimately in terms of final orders, she seeks that the father spend no time with his son at all.  This application follows upon very extensive proceedings already conducted in this Court and in the Federal Magistrates Court. 

2. As far as I am able to identify, the proceedings initially taken by the mother were commenced by her on 10 November 2005 in the Federal Magistrates Court.  After a Family Report prepared by Mr R on 17 September 2006, consent orders were made between the parties on 26 September 2006 resolving most issues with respect to the child.  That was probably the best time in the child’s life in that his parents appeared able to reach an accommodation and negotiated an outcome which they saw at that time as representing the child’s best interests.  It involved the child living with his mother and spending regular and generous time with his father.

3. Things though very quickly took a turn for the worse for the child and matters deteriorated rapidly thereafter which ultimately led to a multiple day trial before Strickland J in March and September 2009.  His Honour delivered his very comprehensive reasons on 22 April 2010.  His Honour was asked to determine a number of quite complex issues but specifically they related to allegations made by the mother that the father had sexually abused the child C and also sexually abused the child’s sister T.  Multiple interlocutory events followed the allegations resulting in a number of family assessments being prepared.

4. Prior to the trial of the proceedings before Strickland J, Families SA had provided a Magellan report dated 10 November 2008 in which they supported the recommendation of the Child Protection Services that there be no contact between C and the father.  Subsequently however, nothing came of the investigation and abuse was not confirmed.  Significantly, within the context of those proceedings and the proceedings before me now, I note from paragraph 52 of Strickland J’s reasons that he records:-

   “ … Families SA determined that the information provided by the mother was not accurate and a notation was placed on the file to the effect that any further notification by the mother would require external verification to be investigated.

5. On 27 March 2009 Strickland J delivered Ex tempore reasons in which he said, at paragraph 18 of same:-

   “I have said on now two occasions, and I confirm, that my preliminary view is that the evidence does not permit me to make a finding that [C] has been sexually abused by his father, nor, for that matter, a finding that [T], who is not a child the subject of these proceedings, but is a child of the mother’s has been sexually abused by the father.  Indeed, after having heard all the evidence and the submissions, it is also my view that the evidence does not allow me to make a finding that there is an unacceptable risk of sexual abuse to [C] from his father.  Thus, I put those issues aside for the purpose of this application.”

6. In his detailed reasons delivered on 22 April 2010 Strickland J made a number of very damning findings as against the mother as a witness and generally as to her character.  I will not repeat all of his findings in that regard but I include in these reasons the following:-

   “93.The mother was an interesting witness. I find that she is an angry and bitter woman presumably as a result of the failure of her relationship with the father and her dislike of him.  She is also vindictive and manipulative, and there is no doubt in my mind that she is domineering and controlling.

   94.I agree entirely with the assessment of the mother by Ms [D], and in particular I can relate to how Ms [D] found her “to persistently endeavour to control” the interview with her. Ms [D] remarked that:

   ‘[the father’s] comments about [the mother’s] controlling manner, verbal persistence and repetitiveness concurred with the writer’s experience during the interview, adding lucidity to [the father’s] accounts.’

   95.These traits were quite apparent to me when the mother was giving her evidence, and they are highlighted a number of times in the material before me.  Perhaps the best example is the letter that she wrote to Mr [P] before the interviews for the purposes of his report (see Exhibit F6). She commences the letter by saying that it is “not … an attempt to control (Mr [P]) or (the) assessment”, but then she proceeds to be just the opposite.

   96.The mother complains about people who do not do what she wants.  For example she complained long and hard about the process undertaken by Ms [D] and her assessment report, she likewise complained about Relationships Australia and the Children’s Contact Service allegedly not reporting observations of inappropriate behaviour between the father and the child.

   97.I consider that her controlling and domineering personality would have marked the time that she and the father were together, and I accept his evidence about this.  For example, I refer to paragraphs 13 and 14 of his affidavit of evidence in chief filed on 20 August 2008.

   98.Yet another example of her need to control and influence events and other people arose in the context of the allegations that the father indecently assaulted [T]. Exhibit F4 is a transcript of the police interview of [T] and it is littered with instances of the mother answering the questions posed by the interviewer to the child, and all obviously done in the presence of the child.  It is quite apparent that the mother saw the need to control the process and influence the outcome as well as influencing what [T] was able to say.

   100.The mother also presents herself as a victim in all this.  For example, a prime reason for her consulting Mr [O] was because ‘the system had let (her) down’.

   101.She also consistently blamed her solicitor for not including material that she wanted in her affidavit.  She also said that it was the solicitor’s fault that some material in the affidavit was inconsistent.  She said it was all rushed and she had insufficient time to read and check the affidavit.  Yet another example was she claimed that her solicitor “forced” her to negotiate the settlement that resulted in the orders of 26 September 2006 being made.  However, I do not accept these claims and find that she is unable to take responsibility for her own actions.  She looked to blame others when questions became too difficult.

   102.I also find that she made up answers when she was caught out in cross examination. For example, the ABC Child Care notes recorded that on 27 June 2007 [C] had tried to kiss another child.  When she was asked about this the mother immediately said that that had occurred just after the father had tried to kiss [the child] with an open mouth at a supervised contact session. However, when it was put to her that the father was not seeing the child at all at this time and indeed had not seen the child since October 2006, the wife said that [the child’s] actions must have been because of seeing his father with Ms [D] on 11 May 2007 for the purposes of preparing her report!

   103.There were also clear inconsistencies between her evidence that throughout 2006 the child exhibited disturbed behaviour as a result of the time spent with his father, and the report of Mr [R] of September 2006, the communications book maintained by the parties in that year, the reports from the two child care centres that the child attended, where these allegations of the mother against the father were not born out.

   104.Finally, I observed that the mother made what I consider to be a desperate attempt in or about September and October 2008 to have Families SA confirm that the father had abused [C], Families SA and SAPOL investigated the new/further evidence and found that the information given to them by the mother was not correct.  As a result, apart from finding that the allegations of abuse were unable to be substantiated, the following notation was made on their file:

   ‘Contact mother and advise of outcome and given that the info she provided is inaccurate future notifications would require some external verification to be investigated.’

7. Giving evidence before his Honour was a Mr Y, a case worker from Families SA who was assigned the file in relation to both C and T.  His Honour records at paragraph 117 a number of points which arose from a strategy discussion involving Families SA, the Child Protection Services (“CPS”) and the South Australian Police (“SAPOL”) on 16 November 2006 as follows:-

   -    [The mother] has regular contact with police.

   -    [The mother] has a tendency to exaggerate stories and conversations with police.

   -    [The mother’s] history with police has shown that she can be long winded with details and never leaves out any information.

   -    [The mother] spoke about [the father’s] aggressive behaviour and did not disclose the sexual behaviour until about 20 minutes into the conversation.

   -    [The mother] did not give all the information and detailed account to the police that appeared in the intake.

   -    [The mother] appeared to be more focused on giving details about the outcomes of the Family Court and her parenting assessment by the consultant psychologist ([Mr R]).

   -    [The mother] can be manipulative and exaggerate claims. The experiences that the police have had with [the mother] indicated that she would not normally leave out any information and would give lengthy explanations.

   -    The parenting assessment gave a good representation of the father’s parenting skills and negative representation of the mother.

   -    [The mother] feels that the parenting assessment was bias [sic] against her as [the father] and the psychologist shared a similar culture.

8. His Honour made further observations as to the mother’s presentation and as to her attempts to control and manipulate outcomes and to portray herself as the victim in all of these proceedings in paragraph 122 of his reasons as follows:-

   “The mother’s attempt to portray him as “controlling”, as someone who had an unpredictable propensity for violence and as someone who should be feared was unsuccessful. Indeed, as referred to above the mother was the one who I have found to be controlling and domineering. Certainly the father has been verbally abusive to the mother by calling her names, but I accept the father’s evidence that in that regard the mother “gave as good as she got”. In fact, given her evidence and her presentation I could not imagine her taking a backwards step, and as referred to above, I find that her portrayal as the victim in all this was not genuine.

9. His Honour also made some positive findings about the father, in particular in relation to issues of anger, temper and violence alleged of him by the mother and made those observations in paragraph 125 of his reasons as follows:-

   “Ms [DN] was not required for cross examination and thus her affidavit is before me unchallenged. She was the father’s house mate for approximately 18 months after the separation, and significantly she deposed that in that time she “never saw the father lose his temper or become angry or argumentative either with (her) or with anyone else”. Also, significantly she “frequently observed the father with [C]” and she described the father as “patient and gentle with [the child]”. She also had contact with the mother between May 2005 and August 2005 when the mother would visit the father, and she “never observed the father being verbally or physically abusive with the mother or with [T]” who would be there as well. This is clearly important evidence given the mother’s allegations in this case.”

   I must say though that I do not ignore the fact that the father was found guilty in the criminal Courts of assaulting the mother and so he certainly had issues of anger management and issues of violence and abuse that were addressed also by his Honour in his reasons, but not such that it inhibited his Honour from making his findings and making the orders that he did.

1. Mr R, one of the Family Consultants who undertook the preparation of a report early in the proceedings, spoke in glowing terms of the father and his parenting skills and ranked them as being equal with that of the mother.  His Honour made findings in that regard in paragraph 127 of his reasons as follows:-

   “Mr [R], who is a very experienced psychologist, was not required for cross examination and thus his insightful report of 17 September 2006 is before me unchallenged. That is significant because it puts the lie to the mother’s allegations that the father was unable to adequately care for the child and that the child did not want to see him or spend time with him. Indeed, Mr [R] was glowing in his comments about the father’s parenting skills, ranking them equal with the mother’s skills. He also observed a mutual attachment between the father and the child and there was no evidence of any fear or reticence in how the child related to the father. Yet, this was supposed to be a time according to the mother and the maternal grandmother when the child was exhibiting disturbed behaviour and presumably when the father was allegedly sexually abusing the child.

2. In further damning findings about the mother his Honour made reference to a number of what he called “outrageous allegations” about Ms D, one of the Family Consultants tasked with preparing a family report in the matter and in that regard I note his Honour’s findings as follows:-

   “132.The mother of course makes some outrageous allegations about Ms [D] including that she “fabricated” reports of their conversations. I reject allegations such as these and comment that it does the mother no credit and highlights again concerning aspects of her personality.

   133.It is quite apparent to me that because the mother was unable to control the process and because she was not able to get her own way, and because she does not like what Ms [D] has reported, she has mounted an extravagant challenge to the integrity and professionalism of Ms [D]. This approach is precisely in accordance with the evidence of the father as to how the mother has behaved towards him, and it is consistent with my assessment of the mother in the witness box.”

3. I believe too that it is important within the context of the decision I make today to recite additional paragraphs from his Honour’s reasons in relation to the conclusions and assessments of Ms D as follows:-

   “134.It is important in this regard that I set out in full paragraph 11 of Ms [D’s] report as follows:

   ‘11.[The mother] presented at interview accompanied by a support worker, Ms [W], from the […] Domestic Violence Service. [The mother] seemed, throughout the interview, to persistently endeavour to control the event. She continually manoeuvred to maintain the focus of the interview toward the topic of the alleged abuses perpetrated by [the father] against her and the children. Much of her verbal presentation was an exact reiteration of the material in her affidavits. During the interviews, she insistently sought to repeat her account of events. The pace of her speech and tone of voice escalated quickly and often during the interviews, and she seemed to become coldly angry at times, apparently when in her view the interview did not proceed in the direction she preferred. She expressed strong concerns when she was told that the assessment process would normally involve observation of the child with his father. She maintained that [the child] was very frightened of his father and that if the child came into contact with his father this would result in [the child] displaying very disturbed behaviour. It was clear that she was opposed to any observed interaction of the child in the presence of his father. The writer spent some time with the little boy and concluded that the observed interaction would be appropriate.

   135.Despite its length it is also instructive to set out in full Ms [D’s] assessment and conclusions as follows:

   ‘35.In the writer’s opinion, the overall indications from this assessment included that the relationship between the parents has been quite different from the picture painted by the mother. When they met, [the father] was a young man of 22 or 23 years, and [the mother] was 10 years older. [The mother] presented as a very domineering person, and there was little in her demeanour which really supported her reports of being systematically victimised by [the father]. [The father] presented as a young man who at the time of the assessment was apparently progressing well in his own field, and who was happy in his employment and his lifestyle. His accounts consistently contained relevant contextual detail. His statements included some brief reflections on his own behaviour in the past, and those reflections seemed insightful and intelligent. The information he provided about himself indicated a man who had taken responsibility appropriately for parenting the children while they were in his care in the past. It was difficult to reconcile the mother’s accounts of a man who was unrestrained and verbally abusive, with the man who presented at this assessment, whose manner and speech was consistent with the restrained and child-focussed communication which was in evidence from the communication book. It seemed clear to the writer that the relationship between these parents degenerated over time until it was very dysfunctional, and that the abusive sequences of behaviour were more likely to be mutually destructive and situational, rather than an indication, as presented by [the mother], of an abusive and violent man. [The father’s] comments about [the mother’s] controlling manner, verbal persistence and repetitiveness concurred with the writer’s experience during the interviews, adding lucidity to [the father’s] accounts.

   36.[The child] appeared to be very happy to see his father. The observed interactions indicated a close and loving father-child relationship, where [the father] treated [the child] in a manner which elucidated playful, humorous and intelligent commentary from the child. [The child’s] natural buoyancy and energy was matched in a spontaneous and gentle manner by his father. The child demonstrated that he had missed his father, by actively seeking to engage in past familiar play sequences with his father. There was no indication that [the child] had any fear of his father.

   37.[The mother] alleged a range of disturbing behaviours demonstrated by [the child], both in the past when the child had been spending time with his father, and following the observed interactions on the first day of the interviews for this assessment. In the view of the writer, if [the child] has shown signs of distress then it is possible that [the child] has been reacting from his grief and confusion about the interruption of his relationship with his father. [The mother] consistently referred to disturbance in [the child’s] toileting behaviour, and this was confirmed on the first day of the assessment by the Domestic Violence worker who accompanied the mother. It is important to point out that [the child], in the more neutral situation of the court’s Child Care, showed no sign of disturbance in this regard, and was reported to have independently and confidently gone to the toilet. The fact that [the child’s] rebellious behaviour around toileting has apparently only been expressed toward his mother raises the possibility that the child is acting out a childish power struggle. In the psychoanalytic literature about children’s behaviour, toileting behaviour is an area where young children routinely express aspects of their need to express their developing will in opposition to their caregiver’s control. It was also noted that [the child] demonstrated some signs in Child Care, that he may have some socialisation issues impeding his ability to develop relationships with other children.

   38.[T’s] presentation indicated clearly that [the mother] has inappropriately informed and included [T] in the dispute, raised a concern that [the mother] has not maintained healthy parenting boundaries in regard to her older child. [T] presented as profoundly influenced by her mother in her comments about [the father], and her commentary seemed disturbingly rehearsed. It was concerning, in the writer’s view, that [T] demonstrated an impoverished ability to reflect at all on her accounts of events, and that the child appeared overly dramatic and emotionally flat, almost disconnected, during her interview.

   39.In regard to the various allegations against [the father], the writer was left with some disturbingly unclarified contradictions resulting from [the mother’s] presentation. Included were the following:

   ·     the apparent contradiction in the reports about the paternal grandfather’s violence toward [the mother’s] family dog and the fact that she left the dog in their care for more than two years;

   ·     the lack of indication that [the father] had ever written in the communication book using abusive language and disrespectful suggestions about [C], as maintained by the mother;

   ·     the differing accounts provided about the violent incident leading to the Domestic Violence restraining order, of which in the writer’s view the father’s account seemed more coherent;

   ·     the lack of credibility in [T’s] presentation, in particular in regard to the indications that the child enjoyed a good relationship with [the father] for months after separation and subsequently provided an apparently distorted view of the past history of that relationship.

   40.Whether [the mother] has provided deliberately distorted accounts of events is a matter for evidence.

   41.In the writer’s view, it may be necessary to conclude that [the mother’s] interactions with [C] may at times have a corrosive effect on the child’s ability to develop his own opinions and views in a healthy way. Her interactions with the child in the context of the assessment included an exaggerated emphasis on the child’s security which could only be interpreted by this intelligent little boy as associated with the fact that his father was involved. She only perfunctorily shielded [the child] from her expressed fear of the father when the child was present. Even if [the father] was found to be guilty of sexual abuse of the child, then [the mother’s] tendency to convey a strong level of fear and negativity in this way is not likely to be in the best interests of the child. In the writer’s view, [the mother] showed signs which may indicate an attempt to control [C’s] experience and to interpret his behaviour in the light of her need to establish the father’s guilt.

   42.If [C] has not been sexually abused by his father, then the child would have been cruelly deprived of a loved parent for a long period of his life. In addition, the pressure on [the child], at three and a half years of age, of his mother’s strongly negative view of his father would be likely to cause the child deeply internalised stress. Stress of this nature in children can often be associated with children’s expression of contradictory views and difficult behaviour, and in the longer term is likely to cause disruption to [the child’s] development generally. The sign in child care that [the child] may have some difficulty integrating with other children was not able to be explored, and any information from his present or previous child care centres may be of interest.

   43.Unless it is the finding of the court that [the child] is at risk of sexual abuse from his father, it is the writer’s opinion that it would be in [the child’s] best interests to live with his father. In the circumstance it is also the writer’s opinion that for a period of time, [the child’s] time with his mother should be supervised, in order that there is neutral observation of the child’s behaviour and an opportunity for [the mother] to gain perspective on any issues arising from such behaviour and from her own responses to [the child’s] behaviour. To such end, it is recommended that [the mother] attend an appropriate programme of counselling in order to develop insight into various aspects of [the child’s] behaviour and the needs of the child generally. The writer’s recommendation is made cautiously, since [the child] has lived with his mother since the separation of his parents. But, if [the father] is innocent, then the indications from this assessment were that the mother’s parenting of [the child] is likely to be seriously compromised by her apparent unresolved issues in regard to [the father]. There was no indication from this assessment which caused the writer any concern in regard to the ability of the father to take on the primary parenting role for [the child], and to assist the child to adjust to the change in living arrangements. The indications from this assessment support a conclusion that [the father’s] parenting approach is likely to be more protective of [the child’s] overall needs than that of his mother.

   44.In regard to the issue of [the child’s] alleged sexualised behaviour and the recommendation in the Families SA report that the child attend the CPS Sexualised Behaviour Treatment programme, it is the opinion of the writer that unless clear independent information is presented to the court confirming the mother’s statements, such a programme would not be indicated for [the child].”

4. Whilst the reader will be able to glean the full text of Ms D’s recommendations from those reasons mentioned, the clear recommendation of Ms D was that unless the Court made a finding that the child was at risk of sexual abuse by the father, the child’s best interests would be represented by him living with the father.  Such was Ms D’s view of the mother’s role in the attempted alienation of the father and the child.

5. His Honour, as are all judicial officers engaged in this jurisdiction, was obliged to consider the relevant provisions of the Act and the most relevant of course is Section 60CA which requires the Court to make a determination of what is an appropriate outcome by viewing the child’s best interests as the paramount consideration.  In doing that a judicial officer is directed to Section 60CC, both as to primary considerations and additional considerations.

6. In considering the first of the primary considerations, namely:-

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

I recite paragraph 156 of Strickland J’s findings, namely:-

“There is no doubt that in this case the child would benefit from having a meaningful relationship with both of his parents. At the time of the hearing the child had a close and loving relationship with his mother, and it could easily be described as “meaningful”. However, because of the strictures of the order in place at the time it could not be said that [the child] had a normal relationship with his father. Whether it is “meaningful” or not is perhaps a question of degree. As I will elaborate on in a moment, from all of the objective evidence [the child] has been able to maintain a good relationship with his father but he deserves more.”

1. In paragraphs 162 to 165 inclusive of his Honour’s reasons he reaffirms his determination that the father had not been, on the evidentiary test appropriate in this jurisdiction, guilty of sexual abuse of the child and did not present as an unacceptable risk to the child.  His Honour then deals with that issue in some detail.

2. As can be anticipated in matters where an allegation of sexual abuse is made, the CPS is involved and on 8 December 2006 Ms A conducted a preliminary session with the child and interviewed the mother.   On 12 December 2006 Ms A conducted a formal forensic interview with the child.  That formed part and parcel of his Honour’s view that sexual abuse or unacceptable risk could not be made out.  In making those findings his Honour makes reference to deliberate attempts by the mother to undermine the father’s relationship with the child and to prevent him from seeing the child.  In paragraph 180 of his reasons, Strickland J had this to say:-

   “180.In this case the requisite standard of proof has not been achieved and I am not satisfied that the father has sexually abused [the child]. My reasons for this are as follows:

   180.1It must be appreciated that the allegations arose in the context of a bitter dispute over [the child] between his parents. I consider that the mother was doing everything that she could to punish the father for what she perceived as his poor treatment of her, and a vehicle for this was to obstruct and even prevent the child from spending time with his father. There had been an unsuccessful relationship which led to the father separating from the mother, a failed attempt at reconciliation which ended in violence, and in respect of which the mother only raised issues with the police after approximately six months when the father was about to commence unsupervised overnight time with the child, and then there was the mother, as she says, being forced to agree to final orders that she did not want in September 2006 following on a report from Mr [R] which she disputed. Clearly she felt that she was no longer in control and she took whatever opening there was to try and regain that control.

   180.2The mother did of course wait two weeks after the disclosures from [the child] and in that time she allowed the child to spend two further occasions of time with the father. Why she did this is unclear. She says that she was unsure as to what she could do, but I reject that explanation. Perhaps she was looking to gather more evidence, but whatever, she was prepared to place the child in an environment which she now wants this Court to find puts the child at risk of sexual abuse. Further, what of the child’s alleged protestations that he did not want to see his father and he did not like him!

   It is also worthy of comment that despite claiming that the child had an “extremely red anus” she did not seek any medical advice and she did not seek any explanation from the father. Indeed she sought no explanation from the father of any of the disclosures or of any of [the child’s] actions. The communication book is silent on these topics.

   180.3In any event, when she took up the opening that presented itself she raised everything that she could possibly think of to try and sink the father, and presumably change the orders made two months before. She raised allegations of violence which she had not seen fit to make any notification about previously and she alleged that the father had indecently interfered with [T] despite she not having done anything about that for 15 months.

   She says that she had been concerned for months about the child returning after contact with a red anus but she failed to include that in her affidavit of evidence in chief filed in August 2006 for the purposes of the trial in the Federal Magistrates Court in September 2006.

   Many of the allegations that she makes I find are simply not true. For example, I do not accept that the father indecently interfered with [T], I do not accept that the father hit [T] about the head such that she fell to her knees, and I do not accept that the Weet-Bix incident was as the mother described. Further, with the allegation that the mother makes as to the child not wanting to spend time with the father, not liking him, being “wary and secretive” upon returning from contact, taking time to settle down, being distressed at the prospect of spending time with the father, I consider that to the extent that they are accurate they are the product of the influence of the mother in attempting to turn the child against his father. I consider that the mother made it clear both directly and indirectly to the child that she did not like the father (or his parents), that she did not like [the child] spending time with his father, and the child has thought it necessary to say these things to his mother thinking that that was what she had wanted to hear. The fact of the matter was that the child at the time enjoyed the time spent with his father and wanted to see him. This is borne out not only by the report of Mr [R] in September 2006, but by the fact that the reports that were obtained for example from the child care centres that [the child] attended indicated there were no concerns about his behaviour. In other words, it was only with the mother (and the maternal grandmother) that the child exhibited any distressed behaviour and saw the need to make adverse comments about his father.

   180.4To return to the allegations of sexual abuse, I reject the submission of Mr Tredrea that the mother considered whether there were innocent explanations of the “disclosures”. There is no doubt that the father placed cream on the child’s bottom when it was red and when it was sore from diarrhoea. Indeed, the evidence is that the mother, through the communications book, asked the father to use cream on [the child’s] bottom when he changed his nappy, and also when there was redness. It must also be remembered that the child was only three years of age at the time of these “disclosures”, and although the mother suggests that the child made it clear that the cream was put “up” his bottom rather than “on” his bottom that does not render this a disclosure with a sinister connotation.

   The fact that [the child] told Ms [A] that his father had put his fingers up his bottom also does not take the allegation any further and exclude an innocent explanation. I have already set out my reservations about the assessment by Ms [A], but it is perfectly understandable that the child would say this given the questioning by his mother on this topic and the fact that he would have clearly gained the understanding that this was something his mother wanted him to say. His reticence to answer questions by Ms [A] about his father around that topic is also understandable given his divided loyalty. It certainly does not indicate that something sinister occurred between the child and his father.

   180.5It is also noteworthy that [the child] said to Ms [A] “make him, make my Daddy put his fingers up my bottom”. Now this highlights the unreliability of what a three year old child says. There is no explanation of why he said this or what it meant. Without more it indicates confusion of thought, something which would be expected in a child of this age subjected to questioning from his mother and grandmother and then being asked about it again by Ms [A].

   180.6To repeat, it is quite apparent that the mother created an environment where the child felt it necessary to make the sort of comments that he did. This is highlighted by the revelation during the course of the evidence that the mother would physically check [the child] before he stayed with his father and after he returned. She of course did not find anything, but clearly this behaviour left an impression on [the child] as to what he should say to the mother about the father. The mother said in cross examination that she “started to be suspicious around his toileting 6-8 months before the ‘disclosure’”. She said he would “return with a red bottom saying that his father had put cream on him.” She started to think something sinister was occurring and there is no doubt that she conveyed that message to [the child]

   180.7With the allegations involving [the child] kissing his mother and grandmother with an open mouth and using his tongue, and straddling them and rubbing up against them, there is no basis to suggest that that is indicative of [the child] having been sexually abused by his father, despite the mother saying in cross examination that there is no other explanation than that. There is no evidence to indicate from where [the child] has picked up this behaviour and what it represents.

   Certainly, much later, namely approximately 18 months later on 4 May 2008 during a supervised session at the Children’s Contact Service the worker records that the father “went to kiss [the child] with an open mouth”, but the context of this clearly was not any attempt at sexual abuse and there is no detail to indicate one way or the other whether it was appropriate or inappropriate at the time. Thus, I am not prepared to place any weight on this and specifically to link what happened in 2006 to this incident such that this indicates that the father has sexually abused this child.

   180.8As I have already indicated, I place great weight on the report and evidence of Ms [D], and in this context I specifically refer to paragraph 41 of her report quoted above in paragraph 135.

   180.9It seems that the mother is including as part of the basis for claiming that the father has sexually abused [C] the allegation made by [T] and the mother against him. However, no justification for this was set up by the mother, and in particular there was no reference whatsoever to or attempt to come within the tendency rule set out in s 97 of the Evidence Act 1995 (Cth). Thus, I could dismiss it out of hand as being irrelevant, but ironically my conclusion in relation to the allegations involving [T] highlights the vindictiveness of the mother and her controlling personality. It is also important because it is quite apparent that others have been influenced to at least suspect the father has sexually abused [C] by what is said to have happened to [T].

   The allegation is that in August 2005, after separation and while the father was visiting the mother and the children, he was sitting on a couch with [T], and the mother and [C] were sitting on another couch at right angles to the couch on which the father was sitting, and they were all watching a movie. The mother alleges that [T] was lying down with her head in the father’s lap and he was stroking her face and hair. She says that [T] sat up suddenly, and despite the father encouraging her to lie down again she refused. The father got up and went to the toilet and in his absence [T] allegedly told the mother that the father had had an erection, that he was holding her head and he was “rubbing and grinding it against her head and neck”.

   The mother said that she waited for the father to come out of the toilet but after a lengthy period of time she went in and confronted him with [T’s] allegation. She says that he denied the allegation.

   The father says that [T] was lying facing the television with her head resting against the side of his left thigh. As the movie was nearing the end he got up and went to the toilet. He finished and went to the kitchen where he found the mother. There was a discussion about putting [C] to bed and him leaving. However, [C] had already gone to bed and so the father left. The father says that nothing was said by the mother of any allegation of him sexually assaulting or indecently interfering with [T]. He says that the first he heard of the allegation was when he was contacted by a police officer in February 2007 about the matter.

   Having heard the evidence of both parties, and having observed them in the witness box, and taking into account my findings as to their respective credit, I have no hesitation in accepting the father’s version of this incident in preference to the mother’s. The first thing to note is that she did absolutely nothing about this for over 15 months, and no reason was proffered for that delay except her usual lame excuse that it was her solicitor’s fault, an excuse that I do not accept. She only raised the allegations when she made the notification on 15 November 2006 to Families SA of the alleged disclosure by [C], and the timing of that is highly relevant in understanding the mother’s motive. If it had happened as she portrayed, I have no doubt that she would have raised it well before she in fact did. I also observe that she did not include any reference to this in her affidavit of evidence in chief filed in August 2006 for the purposes of the trial in the Federal Magistrates Court set for September 2006. Again an extraordinary omission if the incident occurred as she claims. Of course, she blames her solicitor for not including this in her affidavits, including as well her affidavit filed on 10 November 2005, but as I have already said I do not accept this excuse.

   The child [T] was eventually interviewed by the police on 4 February 2007, but as I have already observed the interview was conducted in the presence of the mother and she very much controlled the same and influenced the outcome. Add to this the leading questions asked by the police officer conducting the interview, and I am not prepared to attach any weight whatsoever to this interview.

   I further suggest that the improbability of this occurring at the time and in the circumstances that it is alleged to have occurred is extremely high. If the father had wanted to abuse [T] there were ample opportunities for that occur in secret both before and after separation. It is simply incongruous.

   The unreliability of anything that [T] says about the father is reinforced by Ms [D’s] assessment of [T] and her presentation to her. For example, I refer to paragraph 38 of Ms [D’s] report quoted above. I highlight that the mother has had no compunction in involving [T] in the conflict between her and the father in a similar way to how she has involved [C].

   180.10Finally, there is the scepticism that the police initially had about the mother’s reports and which over time came to be the experience of Families SA. As referred to already at the strategic meeting held on 16 November 2006 it was recorded, inter alia, that the mother had a “tendency to exaggerate stories and conversations with the police”, and that she can be “manipulative”. (See Exhibit C3)

   This certainly accords with my assessment of the mother and for that matter with Ms [D’s] assessment of her.

1. I earlier mentioned the father’s conviction for assault upon the mother, quite clearly a disturbing action on his part at that time, but his Honour, in terms of a general propensity by the father for violence, had this to say:-

   “186.However, I do not agree with these submissions. I do not accept that the incidents the subject of the evidence demonstrate a pattern of behaviour or indicate that the father is prone to or has a pre-disposition to violence. It is quite apparent to me that the incidents that I accept occurred or may have occurred were isolated incidents. I accept Ms [D’s] assessment of the likely cause of these incidents and that there is no risk of repetition.

   187.The only commonality between the incidents is that they arose in the context of what Ms [D] described as the breakdown of a dysfunctional relationship. The parties argued, they were verbally abusive to each other, and the mother was no shrinking violet.

   188.The father has now attended an anger management course and the child is spending time with him unsupervised. Importantly Ms [D] observed in cross examination that the child did not demonstrate any fear of his father.”

2. His Honour then made some further damning findings about the mother in terms of her emotional abuse of the child and they are seen at paragraphs 190, 191 and 192 of his reasons as follows:-

   “190.Given my finding as to the mother’s allegations it is necessary to consider the issue of the psychological and emotional abuse of [C] perpetrated by the mother.

   191.I find that she has unnecessarily involved [the child] in the adult conflict between her and the father. Her notifications to Families SA on 15 November 2006 led to the child being interviewed at CPS. Prior to that, of course, [the child] was subjected to unnecessary questioning by his mother and his grandmother. Importantly, as a result of the notification, allegations and complaints his time with his father has been interrupted, constricted and the subject of scrutiny. [The child] has also had to suffer the mother’s negative view of his father and he has been made to feel that he should not be spending time with him.

   192.The impact of all this on [the child] is best summarised in paragraphs 41 and 42 of Ms [D’s] report, quoted in paragraph 135 above. I consider that the mother should be ashamed of herself for what she has done to [C].”

3. His Honour then observed the negative influence that the mother was having upon the child in terms of his relationship with his father in paragraph 195 as follows:-

   “The father conceded that there is no issue with the child’s relationship with his mother.  The worry though is that if she continues her negativity towards the father and [the child’s] relationship with him, that will eventually impact adversely on [the child’s] relationship with his mother.”

4. In the immediately following paragraph Strickland J observed that despite all of the mother’s attempts, the child and the father still enjoyed a positive relationship and that the only obstacle presently apparent as to it not being as close as it could be was the mother’s attitude.

5. His Honour then records a number of disturbing allegations made by the mother about the father’s parents, allegations which his Honour did not accept, as follows:-

   “201.With the father’s parents there has been a significant issue. The mother has made all sorts of allegations against them ranging from abuse of her to making threats to kidnap the child and saying that they would rather see the mother dead than she have residence of him. As a result, given that those allegations have never been tested, although they have been denied, the child saw very little of his paternal grandparents after separation. It was only when an order was made allowing them to attend some of the supervised sessions at the Children’s Contact Service that they have been able to re-establish any semblance of a relationship with [the child]. That proved to be successful and as a result of the interim orders that I made the grandparents were installed as supervisors of the time that the child spent with the father until he completed his anger management course, and thereafter there has been no impediment to the child seeing them as regularly as possible.

6. Further findings are then made by his Honour against the mother in terms of her willingness and ability to support the father’s relationship with the child as follows:-

   “202.The mother presumably believes that the father has sexually abused both of her children, and she says that he is a violent man such that there is a risk of harm to [C] in the future. However, her case was that after a period of supervised time, after the child has had counselling, after she has had counselling, and after the father completes an anger management course, there should be unsupervised time when a psychologist says that the child can cope with it. She says that she recognises the need for [the child] to have a relationship with his father as long as he is safe, but I am sceptical about her motives. I am not satisfied that she is entirely willing to facilitate and encourage a close and continuing relationship between [the child] and his father. To date she has done everything she can to prevent a normal relationship developing and I am concerned that that will continue. Indeed that accords with Ms [D’s] assessment. She felt that the mother was so concerned with her belief that the father was a threat to [the child] that she could not support a relationship between them.

   The impact on [the child] is poignant. The mother in cross examination said this:

   “[The child] says he misses his dad sometimes.”

   “He says he wants to have a daddy like everyone else.”

   “He says daddy did bad things to me but not any more.”

   “He says that if he (dad) is good can he have a daddy.”

   His Honour provided a rider though that he had hoped the father would not respond in kind by seeking to undermine the mother’s relationship with the child.

7. The issue which looms large for my determination again is primarily as to the child’s emotional needs and the possibility of emotional abuse of the child certainly by the mother but also, quite possibly, by the father.  The recorded telephone conversation, the transcript of which is annexed to the father’s affidavit filed on 26 August 2010, indicates an inability by both parties, but specifically on this topic by the father, to shield the child from the intense bitterness of the dispute between both parents.  It was the father who initiated the telephone call on 21 July 2010 which was really the genesis of all of the problems now facing the child again and presenting to this Court.

8. The most damning findings though as to emotional abuse of the child and an inability to meet the child’s emotional needs were found by his Honour Justice Strickland to be those on the part of the mother.  In paragraph 215 of his reasons, his Honour had this to say:-

   “215.I have serious concerns about the mother’s ability to meet the emotional needs of [the child]. I have already found that the mother has unnecessarily involved [the child] in the adult conflict, and she has placed him under enormous pressure to adopt her negative view of the father. Then of course there is the circumstance that the child has been unable to enjoy a normal relationship with his father because of the behaviour and attitude of the mother. Ms [D] describes the mother’s interactions with [the child] as at times having “a corrosive effect on the child’s ability to develop his own opinions and views in a healthy way.” Again, I refer to paragraphs 41 and 42 of Ms [D] report quoted in paragraph 135 above.”

9. In analysing the parents’ attitude to the child and to the responsibilities of parenthood, his Honour quoted some passages from Ms D’s report and I deem it appropriate to repeat paragraph 221 of his Honour’s reasons here, namely:-

   “221.At different times each parent has demonstrated positive and negative attitudes towards the child, and to the responsibilities of parenthood. With the mother I highlight the following:

   221.1I do not need to repeat it at any length, but the most disappointing aspect of this case is the pressure that the mother has placed on [the child] to adopt her negative attitude towards the father. She has attempted to instil fear in [the child] and has looked for comments and actions from him which are supportive and corroborative of her views about the father.

   As Ms [D] said in paragraph 41 of her report:

   “In the writer’s view, [the mother] showed signs which may indicate an attempt to control [the child’s] experience and to interpret his behaviour in the light of her need to establish the father’s guilt.”

   In this process the mother has been able to limit the time that [the child] has been able to spend with his father, she has prevented a normal relationship occurring, she has subjected [the child] to unnecessary questioning, and he has had to deal with a CPS assessment. She has clearly put his future development at risk.

   In addition, the mother does not seem to realise or appreciate the consequence of her actions beyond her own needs. The child’s interests have come a distant second in the wife’s household.

   221.2The mother has failed to take responsibility for her own actions. She looks to blame everyone else, and she has been presumptive about this, concluding without any discussion or reflection whatsoever, that the cause of any distressed behaviour by [the child] must be the father.

   221.3I do not believe the mother’s claim that she has “always been careful not to have anyone talk negatively in front of [the child]”. I find that at every opportunity she has denigrated the father to and in the presence of [the child]. I also suspect that [the maternal grandmother] has done likewise and the mother has permitted this.

   221.4The communication book used by the parties in 2006 was tendered and marked Exhibit F1. It was the only method by which the parties communicated about [the child]. However, a perusal of that book indicates quite clearly the mother’s propensity to control and dominate every interaction. She would invariably “have a go at the father” and very little of a productive nature would come of the discourse.

   221.5I have referred to this already but it is worth repeating. When the child was spending overnight time with the father in 2006, before [the child] went and after he returned the mother and the maternal grandmother would physically inspect [the child]. Now, neither the mother nor the grandmother saw any difficulty with this, and suggested that [the child] would not have associated this with seeing his father. This demonstrates a clear lack of appreciation of [the child’s] needs and his level of understanding.

10. Immediately following, namely in paragraph 222, his Honour records the very positive aspects of the father’s parenting, despite the mother’s attempts at undermining that relationship.

11. Finally, in his conclusions, his Honour summarised the most significant of his findings and how it was that they impacted upon the decision that he made in those proceedings. 

12. On 12 August 2010 I was obliged to make a number of preliminary findings in the matter based on the mother’s application before the Court.  In those brief reasons I flagged my concerns as to the actions now being taken by the mother and quoted at that time and will quote again here, paragraphs 241, 245 and 246 of Strickland J’s reasons:-

    “241.The issue then becomes with whom the child should primarily live. I can say that given my findings as to the mother’s behaviour and her attitude, and the impact that that has had on [the child] and his wellbeing, it would be tempting to provide that [the child] live with his father, but in the circumstance of [the child] having lived with the mother since separation, now some five years ago, and the dramatic changes that a new living arrangement would entail, I am prepared to give the mother one final chance to put the interests of [the child] ahead of her own. However, that said, it is important that the child is able to spend frequent and regular unrestricted time with his father, and it seems to me that the second alternative proposal of the father fits the bill. It leaves the primary residence of [the child] with the mother yet provides for the child to spend sufficient time with the father to allow for him to have a major role in his life and including in his schooling. I consider that it is both in the best interests of [the child] and reasonably practicable to put such an arrangement in place.

    245.The mother’s counsel in his final address suggested that the mother had only acted on the information that she was given by Families SA and by the CPS. For example, given the “substantiation” of the alleged sexual abuse of [T], the disclosures made to Ms [A] by [the child], and the consequent recommendation that there be no contact between [the child] and the father, it was not unreasonable for the mother to have acted as she did. However, I do not accept that submission. I find that the mother did not just innocently sit by. She was the protagonist, she did not like the father, and she set out to do whatever she could to punish him, and in the process she used their child [C]. She was not interested in innocent explanations, or indeed any explanations, and she pursued the father regardless. She simply had to be in control.

    246.As a result of these findings the issue became with whom the child should primarily live, and to repeat I have opted for the child living with the mother but with [the child] having frequent, regular, significant and substantial time with his father. However, for that to be in [the child’s] best interests the mother must change her attitude towards the father and his relationship with [the child]. This is the mother’s one and only chance to undo the damage that she has caused to [the child] and to his relationship with his father. To assist her she needs counselling and I note that one of the orders sought by her is just that. It would also be important that the counsellor have a copy of this judgment.’

13. In summary, at that point in time, the mother came extremely close to losing the care of the child.  Strickland J clearly struggled with the decision in terms of the mother’s appalling behaviour and alienating attempts but on balance, given all of the other matters that he needed to consider pursuant to Part VII, thought that it represented the child’s best interests to remain with the mother but on the basis of what his Honour effectively described as a “last chance” for the mother. 

14. Regrettably his Honour’s warnings in that regard appear to have fallen on deaf ears and the mother has now engaged in similar conduct.  I have before me a detailed report letter from Families SA dated 3 September 2010.  It was in response to an order made by me but it was my concern then only to receive information as to the more recent notifications and not to trawl over the very lengthy and agonising past of many years.  Regrettably, Families SA in that letter records a significant number of further notifications commencing on 19 March 2010 and effectively continuing right up to the present day.

15. In a notification of 31 March 2010 it is recorded that:-

    “[the child] allegedly said his father told him he would kill his mother and grandfather if [the child] told anyone he didn’t want to visit his father.”

16. In the interviews conducted by experienced Family Consultant, Dr J, as ordered by me on 23 August 2010, it was her evidence today that the child indicated that the father had telephoned and threatened to kill the mother.  Upon enquiry the child reported that the mother had told him of the threat and that he did not hear it himself.  That again provides some very stark and alarming evidence of the mother’s inability still to shield the child from the adult dispute and indeed, to influence his view of his father.

17. In the same notification (31 March 2010) Families SA record again reference to sexual abuse of the child by the father comprehensively dealt with by Strickland J and indeed it notes:-

    “[the child] recently allegedly disclosed that his father digitally raped him – it is noted that this has been previously investigated – records indicate CPS reported that [the child] was able to make a clear disclosure of sexual abuse, however when [the child] was asked further questions to substantiate the allegations, [the child] became distressed and the interview was terminated – abuse was not substantiated”.

18. The capacity to revisit the past and involve the child in additional trauma seems endless.  On 11 May 2010 there were yet again further notifications.  I might add that in none of the notifications was there any investigation undertaken except that which I will come to, namely of 14 August 2010.  I acknowledge that some of the reasons for that would appear to have been resourcing issues but nonetheless there was not a sufficient level of concern that it was elevated to a tier that required investigation.

19. The further list of notifications on 11 May 2010 are lengthy but one of them relates to the child alleging that his father “threw me across the room and smashed my arm against the wall” but it is recorded that the notifier was not aware of any visible injuries.

20. There is a further notification of 21 July 2010 which does indicate some alarming conduct on the part of the father.  In that regard I refer to a reference to him video taping the child and allegedly purporting to get him to retract any of the allegations or concerns he might have about being in his father’s care.  I am informed from the bar table today that the father, purportedly on the advice of the police, has deleted that video tape.  However his conduct in video taping in the first place is reprehensible.

21. Again, worthy of note in relation to the notification of 21 July 2010 is that a third mandated notifier was reported as indicating concerns about the evening of 21 July 2010, being the night of the infamous telephone call.  However, what is interesting is that the notifier indicated that they were aware that the police attended the father’s home and that everything was okay and that the child was fine.  Those same observations are recorded on page 4 of the Magellan report letter, namely both as to the father video taping the child and also as to SAPOL conducting a safety check and determining that:-

    “[the child] was up playing and appeared fine.  His paternal grandparents were also in the home.”

22. The past continued to stalk this matter in that notification of 21 July 2010 again where it is recorded as follows:-

    “the notifier alleged that the father’s father was a perpetrator of violence and (in the past) had made threats to murder [the child] and kill himself, if they were not granted contact with him”.

23. Earlier in submissions before me the Independent Children’s Lawyer was of the view that it was the child who had asked the father to delete the video tape.  There is substance for the view of the Independent Children’s Lawyer at the foot of page 4 of the Families SA report letter where it is recorded that “[the child] reportedly asked his father to delete the tape ...”.

24. Not content with the misery to which the child has been put over the years and not content with the findings of his Honour Justice Strickland after very lengthy trial proceedings, a notification is again included in those of 22 July 2010 to this effect:-

    “notifier stated that [the child] sees sleep therapist as he has extreme difficulty sleeping and is scared to close his eyes.  Notifier advised of prior child sexual abuse allegations and stated that the general belief is that the father may have abused [the child] at night.  [The child] also sees a court ordered psychologist, however he is having difficulty opening up to him”.

    The following dot point is also instructive:-

    “notifier advised that they have been involved with this family on a professional basis for several years and that [the child] is of above average intelligence for his age and speaks quite eloquently.  Notifier advised that it was their professional opinion that when this case went to trial in the Family Court that the mother was made to look like she was manipulating the situation and that it appears that the father was favoured by the judge”.

    Again, a further dot point of this notification indicates just the level to which this matter has descended by the perpetuation of previous issues and inaccurate observations and reporting:-

    “notifier further stated that the child was not assessed by a family therapist for nearly 3 years and that at his current age, he would have been quite able to articulate to a family therapist via the Family Court what his needs were, however this was never court ordered”. 

1. It is possible to surmise a number of reasons for that being the case but presently it might be inappropriate to express a view in the absence of any more definitive evidence.  Dr J described it as a “joyless interaction” but at the conclusion the child said that it was “okay” but that he did not want to spend any time with the father.  However, again somewhat instructively he would not elaborate as to his reasons.  By contrast the child engaged extremely well with the mother and Dr J observed an entirely animated, chatty, appropriate engagement and observed a very close relationship between the child and the mother.  That close relationship between the mother and the child of course imposes upon the mother even greater responsibility to ensure the child’s wellbeing by encouraging the relationship between the child and the father and supporting the child in his relationship with the father.  It is clear from all of the evidence over many years now that the child’s perspective in relation to his father is heavily influenced by the mother. 

2. In the end result, Dr J observed that the child was not openly rejecting of the father and that it was her view that intervention by the Court was essential and needed in order to both restore and sustain the relationship between the child and the father.  She further expressed the view though that the therapy being received by both the child and the mother was potentially inappropriate and was not achieving the relevant objectives and outcomes.  She kindly offered to give a good deal of thought to the matter and put together a package of proposals which hopefully will assist not just the child but also the parents in terms of the ongoing relationship they are going to have for as long as they remain the child’s parents, which is forever. 

3. Dr J indicated that she was not supportive of a change in the living arrangements for the child presently from the mother to the father, but clearly contemplated that such a possibility existed as the proceedings continued.  It is certainly a matter which the Court will need to consider as the matter progresses and if there is no obvious improvement in the relationship between the child and the father and more particularly, no improvement in the support of that relationship proffered by the mother.  In the absence of any matters of concern of serious abuse by the father of the child, then a change in the living arrangements may yet be indicated.  However, that is somewhere down the track and is not a matter in which it is appropriate that I express any further view at this stage, save to say that it was already a matter contemplated by Strickland J some time ago as can be gleaned from his detailed reasons.

4. In order to alleviate the stresses upon the child of exposure to the interaction between his parents at any handover, Dr J strongly recommended that any handover occur at the child’s school. She also accepted a suggestion proposed by Ms Dickson, Counsel for the father, that it would not be as much of a concern for a handover occurring at the conclusion of a period of time spent by the father with the child to be conducted at a CCS, as it would be at the beginning.  It is appropriate in my view to harbour those concerns given Mr L’s very strongly expressed views that the child should be given no choice in this matter and that the policies of CCS’s would impede the smooth delivery of the child on such handovers.

5. In the end result Dr J recommended that the present arrangement for the child to spend time with the father should continue provided that regard was given to her views about the handover arrangements. She also encouraged the involvement of the paternal grandparents in the handovers and in the time spent by the father with the child.  All of the evidence that I have seen suggests that in any event the father does involve extended family members and in fact it was a matter of some regret for him that the mother failed to comply with my earlier orders as it meant that interstate relatives missed an opportunity to spend time with the child.

6. Dr J also took the view though that a necessary component of the child being able to rather more enjoy his time with his father was that he not have his mobile telephone with him on the occasions he was with his father.  She supported the view that the mother ought to be able to say goodnight to the child given the child’s sleep difficulties, but quite pointedly remarked that that could be achieved by a telephone call to a landline.

7. I observe that the present times that the father spends with the child are from a Friday after school to the commencement of school on a Monday of one week and from Wednesday after school until the commencement of school on a Friday of the second week.  Thus school handovers are guaranteed by those arrangements.  Given Dr J’s urgings it would appear appropriate that the paternal grandparents are present at those handovers as well.

8. I should also say that Dr J supported the suggestion proffered by Ms Cocks for the mother, that before any of these things happened the issue of physical abuse of the child by the father needed to be addressed first.  I have already indicated my reasons why I believe it is rather more important to move now to endeavour to restore the child’s relationship with his father and shore up as much as possible his emotional health, as it is to receive any definitive findings in relation to any possible excessive discipline or physical abuse of the child.

9. In supporting her recommendations, Dr J made the observation that during her interview with him the child did not ask for his contact with his father to stop.  She expressed the opinion that the child indeed has a connection with the father that he had not wanted to sever.

I certify that the preceding seventy two (72) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr delivered on 7 September 2010.

Associate: 

Date:  15 September 2010