VIDENOV & BLEVINS

[2015] FamCA 940

FAMILY COURT OF AUSTRALIA

VIDENOV & BLEVINS [2015] FamCA 940

FAMILY LAW – CHILDREN – Best Interests – Spend time – Supervision – Paternal Responsibility – Family Violence – Where the father makes allegations of violent and abusive behaviour by the mother – Where the mother has been convicted of breaching an Apprehended Violence Order made for the protection of the father and of assault against the father – Where the mother also made threats against the father’s current wife – Where the father did not comply with Family Court Orders providing for the child to spend time with the mother due to his concerns about the child’s welfare – Where the expert opined that the child is acutely aware of the parental conflict and expressed concerns about the mother’s apparent inability to control her behaviour – Orders made that the father have sole parental responsibility for the child and that the child live with him – Orders made that the mother spend supervised time with the child for a period of 12 months and then progress to unsupervised time once a month, with the opportunity for either party to bring a further application in relation to the mother’s unsupervised time.

APPLICANT: Mr Videnov

RESPONDENT: Ms Blevins

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 4856 of 2014

DATE DELIVERED: 2 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 September, 1 and 2 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Argyle Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: S Davitt Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

IT IS ORDERED

1. All previous parenting Orders be discharged.

2. That the father have sole parental responsibility for the child B (“the child”) born … 2009.

3. That the mother spend time with the child as follows:

   3.1For a period of 12 months after the making of these Orders for three hours each alternate weekend supervised at the D Contact Centre Suburb C (“D Contact Centre”).

   3.2Thereafter, one Saturday or Sunday each month (in the absence of agreement, Saturday) from 9.00 am to 5.00 pm with changeovers to occur at D Contact Centre.

   3.3The father shall pay any fees associated with supervision by D Contact Centre.

4. If D Contact Centre is not available to supervise the contact pursuant to Order 3 then the father shall, at his expense, provide a professional supervisor until D Contact Centre becomes available.

5. That each party forthwith do all things required to facilitate contact at D Contact Centre.

6. That the mother have telephone contact with the child in the following manner:

   6.1The mother shall provide a mobile telephone number to the father.

   6.2The father shall telephone the mother’s mobile number each Wednesday at 6.00 pm and ensure that the child speaks to the mother for no longer than 20 minutes.

7. That each party do all things required to ensure that both parties are provided with the child’s school reports and any other document issued by the school to parents.

8. That the father ensure that the mother is advised of any medical treatment prescribed for the child by any treating practitioner.

9. That the mother be restrained from:

   9.1attending upon or entering the child’s school;

   9.2attending upon or entering the father’s home or causing any other person to do so;

   9.3attending upon the father’s workplace, E Pty Ltd;

   9.4contacting or causing any other person to contact the father’s wife, Ms Videnov;

   9.5contacting the father by any means of communication except in the case of an emergency relating to the child in which case the contact shall be to the father’s mobile phone, in the first instance by text message;

   9.6posting any message on Facebook or other social media which denigrates the father or Ms Videnov; and

   9.7denigrating the father or Ms Videnov in the presence or hearing of the child.

10.That each party ensure that the other has his or her mobile phone number at all times.

11.That any application to vary or suspend Order 3.2 be listed before the Honourable Justice Rees.

12.That within six months of the date of these Orders, the father pay to Legal Aid NSW the sum of $3,284 being one half of the costs of the Independent Children’s Lawyer.

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4856  of 2014

Mr Videnov

Applicant

And

Ms Blevins

Respondent

REASONS FOR JUDGMENT

1. B (“the child”) was born in 2009. His parents are Mr Videnov (“the father”) and Ms Blevins (“the mother”).

2. The father was born in Country F. The mother is from Country G.

3. The parents commenced to live together in 2006 and separated after the child’s birth. There is a dispute between them about when they separated. The father asserts that they lived, separated, under the one roof for a period of time. They both agree that in April or May of 2012, the mother and the child moved into rented premises in Suburb H and the father remained in the premises formally occupied by the parties in Suburb I.

4. The father asserts that between June 2010 and May 2012, the mother lived variously at the Suburb I property where, he says, she slept on the lounge and for other parts of that period she lived with a relative at Suburb J and stayed for weeks at a time at other places.

5. Whatever may have been the precise nature of their living arrangements, and whatever may have been their individual understanding of the status of their relationship it would seem that they shared premises from time to time between about June 2010 and May 2012 and that after May 2012 the mother largely lived in the property at Suburb H.

6. The relationship between the father and the mother has been tumultuous.

7. The father’s affidavits contain extensive material in relation to his allegations of the mother’s violent and abusive behaviour. Those allegations are largely denied by the mother.

8. The father also alleges that at the time the relationship commenced, the mother told the father that she had been smoking marijuana since she was 12 years old. The father deposes to his belief that the mother continued to use marijuana throughout the time they lived together. He did not observe her to use marijuana but observed her to be affected. The mother, although she initially denied that she used marijuana both conceded in cross-examination that she did so, and continues to do so, and told doctors at K Hospital in the course of an admission on 30 November 2011, to which reference will be made later in these reasons, that she had been using “bush weed” since she was fifteen years old, using one joint per day. The mother told staff at K Hospital that she smoked when she was stressed and had been smoking for about three days each week.

9. The father in his affidavit describes an escalation of violent behaviour on the part of the mother from the time when the child was about two years old. It is his unchallenged evidence that on one occasion when the child was two years old he stood up from the table and the mother said in a loud voice “Sit the fuck down. What are you doing. Sit and eat your breakfast.” The father said “Sorry, I need a coffee.” The mother picked up his plate and smashed the plate and the contents into the rubbish bin. The father recalls the mother yelling and swearing at him.

10. The father gave unchallenged evidence of an occasion when the mother said:

    I was pushing the pram and this big Lebanese guy wouldn’t move off the wheelchair ramp so I could push the child down. He really fucken annoyed me. I went back up the ramp and left the child with some Island boys. I then went down the ramp and said ‘do you want to throw. Put your money where your mouth is.’ He didn’t try and hit me.

11. The father observed that the mother seemed to take some pride in recounting that event.

12. The father gave unchallenged evidence that in 2011 on separate occasions the mother kicked him in the knees, smashed a forty inch television set while trying to hit the father with a toy, smashed a plywood balance bike on him when trying to hit him on the head, threw a weight at him which smashed against the refrigerator and caused dents in the door, threw a mobile phone at him causing the phone to be smashed against the wall and then attempted to cut his jacket with a knife, and then threw his riding boots at a window smashing the window. The father says that the mother was yelling and swearing at him calling him “a fucking white cunt”, “a useless dick” and other such statements. This episode took place in the child’s presence.

13. On 27 November 2011 an incident occurred which resulted in the mother being involuntarily hospitalised at K Hospital. The mother disputes the father’s version of those events. The version of the events reported in the documents produced by the police is that they attended at the Suburb I property in response to a telephone call from the father who was afraid, as a result of telephone calls between him and the mother, that she intended to harm herself and the child. Upon arrival at the Suburb I unit the police saw a purple Jujitsu belt folded in half and attached with a hook to the ceiling of the living room. The father told police that the mother had attached the belt to the ceiling and told him she was going to use it to hang herself. The mother denied this version of events and said that the hook and the belt were used to hang the child’s “Jolly Jumper”.

14. When the police arrived the mother was not in the unit. The police asked the father to advise them when she returned. At 9.30 the next morning the police received a call from the father saying that she had returned to the unit at Suburb I. They arrived a short time later and found the father outside the unit with the child. The father advised that the mother was in the unit but he did not have a key and she would not let him in.

15. The police knocked on the door several times but the mother did not answer. Police saw the mother on the balcony and commenced negotiations with her to open the door. The negotiations continued for one hour and a half. A police rescue unit was called. The mother told police she was going into the unit to have a shower and walked away from the balcony. As she was inside the unit, a rescue officer set up a ladder on the unit balcony below and two police officers crossed the balcony to gain access to the unit.

16. The mother was apprehended, scheduled and conveyed by police to K Hospital. Blood tests were carried out on admission and the mother was found to have been using cannabis. The mother denied any thoughts of suicide or killing the child but admitted that she was angry. In a document entitled “Medical report as to mental state of a detained person” signed on 27 November 2011, medical staff note that the mother had not been sleeping or eating for the last three days, that she was agitated and talking in a fast manner and difficult to interpret. She was unable to give a clear account of herself. Nursing notes on 27 November 2011 note that the mother was “talking fast, difficult to interrupt [and] tangential at times.”

17. The mother claimed that the father was verbally and physically abusive, that the child was verbally abusive, that the father was financially abusive, that she was a world famous artist of Aboriginal and abstract art (the nurse noted that the mother was born in Country G and her father was Irish). The nurse noted that the mother was irritable, that her speech was pressured, that she was loud at times and that she was angry. Her affect was incongruent. The mother claimed that she had post-natal depression but was not being treated for that condition.

18. In an interview with social workers on 28 November 2011, the mother said that the father had been physically violent towards her, had given her a black eye, had choked her and had threatened to punch her. The mother told the social worker that the father demanded that she maintain the household to a standard which he found appropriate and was critical of her housekeeping.

19. On 30 April 2012, police were called to the father’s home. At about 9.30 pm both parents were at the premises with the child. The mother was yelling and screaming at the father. The father reported to police that she had been doing so for about five hours. When the police arrived at the premises the mother had left with the child. Both the police and the father made patrols of the area looking for the mother but did not find her. A short time later the father contacted the police and said that the mother had returned. The police went back to the premises. They spoke to the mother who was noted to be very upset and emotional. The mother told the police that she was very lonely and had no one to support her. She went on to say that the father had not been interacting with her and had not taken her out anywhere in the past two years. The police noted that the mother was spoken to for some time and calmed down.

20. On 4 June 2012 an incident occurred at the father’s home at Suburb I. The mother arrived at the home and began to argue with the father. the child was asleep in bed. The mother refused to leave the father’s home and he contacted the police. When the police arrived the mother was pretending to be asleep in the child’s room. The police asked the mother to go into the lounge room so they could speak to her and she refused. After several attempts the mother was taken to the lounge room. The records produced indicate:

    Police questioned [the mother] in relation to being at the location to which she continued to state, “Can’t I see my child at night.” Police informed [the mother] that due to the time of night and the fact that [the mother] has been asked to leave by [the father] she was to do so. [The mother] refused Police requests several times and subsequently restrained and forced to leave.

21. The mother was offered a lift home by the police but declined and was told not to return to the premises.

22. On 26 July 2012 an Apprehended Domestic Violence Order (“ADVO”) was made for two years for the protection of the father against the mother. The Order expired on 26 July 2014.

23. On 19 October 2012, the mother assaulted the father in L Street. The father was not cross-examined in relation to this incident. Notes produced by the police, record that the mother said sexually offensive things to the father about another woman, that she followed him down the street, attempted to grab his radio equipment, ripped his shirt causing the buttons to be ripped off, hit him four or five times on the shoulder and face and yelled and screamed at him. The mother was charged with common assault and contravening the ADVO. When interviewed by police the mother said “He pushed me and I ripped his shirt”. Police viewed the CCTV footage of the incident. When interviewed by police, the mother complained that, in the course of the assault on the father, she had hurt her hand which was swollen.

24. In November 2012 the father returned from work at about 2.00 am and found the mother asleep on the couch. All the lights were on, the bathroom heater was on and the balcony door was open. the child, aged two, was running around. The father formed the view that the mother had used an illicit substance. She denied that allegation but did not deny that the child was left unsupervised at 2.00 am.

25. On 17 November 2012 an incident occurred when the father collected the child in order to take him to a music lesson. After the father placed the child in his car, the mother got into the car and refused to get out. The father dropped the child at his lesson. After the lesson they drove back towards Suburb H, the mother berating the father and demanding money from him. The father stopped the car in Suburb H and asked the mother to get out. She refused and threw herself on top of the child. The father got out of the car and removed the mother from the car and put her on the nature strip. The mother jumped back into the car over the child and into the front seat. The father removed the child from the car as the mother got into the driver’s seat and the mother drove off. The father walked with the child to the mother’s home in Suburb H and found his car parked outside her home. The mother was interviewed. The police conducted a notebook interview and noted that the mother said “If he doesn’t want to be harassed he shouldn’t come see me. I have emotional issues and I get angry.” When the mother was fingerprinted it was discovered that she was in breach of bail conditions relating to a charge to appear at the Downing Centre Court on 14 January 2013.

26. During 2013 there were further incidents of a more minor nature about which the father gave unchallenged evidence. The mother sent text messages to the father threatening to ruin his business and to clients stating that he was not an appropriate person to do business with them.

27. On occasions the mother refused to hand the child over to the father saying “If you don’t give me any fucking money you’re not getting him”.

28. On occasions when the child was with the mother she telephoned the father and said “If you don’t have any fucking money for me tomorrow you’re not getting him back”.

29. The mother sent text messages to the father complaining that she would not let the father have the care of the child. The mother said to the father “I should be looking after him and not you. You won’t let me look after him, he’s my son”. There is a dispute between the parents about which of them was the child’s primary carer in 2013. The father’s evidence about these incidents suggests that the father was the child’s primary carer.

30. During 2013 the mother came often to the father’s home. The father said to her on occasion “…you’re not welcome here please go” and she replied “I’m here to see my fucking son. You’ve got no right to stop me seeing him”. Sometimes the mother left, sometimes she bashed on the door and sometimes the father let her in to see the child. The father observed that when the mother was hysterical and distressed, the child cried and hid in his room.

31. On 25 September 2013, there was a heated argument between the mother and the father at the father’s premises in the presence of the child. Police were called. The father refused to supply a statement to police who checked the premises. They then attended the mother’s residence and spoke to her. The records note “She appeared to be upset and wanted to tell police her whole life story and soon became apparent that she may have a mental illness. She is currently being treated by a psychologist.”

32. On 6 December 2013, the mother sent a text message to the father which read “I’m fucken coming to fuck u up so u can feel my pain and all the man can see the pig lying side of yours answer now or I fucken see I have my period this is what you do!!”

33. In December 2013 and January 2014 the mother and the child holidayed with her family in Country G. On about 24 December 2013 the mother telephoned the father and said “I had a fight with my dad and got kicked out on the street with the child. You need to send me money”. The father said “You should make up with your father and move back into the family house”. The mother replied (repeated verbatim as deposed in the father’s affidavit) “Shut the f**k up and send the f**king money c**t”. The father immediately sent $1,000. He travelled to Country G and spent two weeks with the mother and the child.

1. The father determined that it was impractical for him to live with the child in any proximity to the mother and decided to move.

2. On 15 April 2014 the police records indicate that police were called to the father’s home. On that day the father had been helping the mother move out of the property at Suburb H. The mother asked the father if she could use his shower since the shower at Suburb H was not working. The owner of the Suburb H property who was fixing the shower offered the mother the use of his shower next door. The mother refused. The father suggested that the mother use the shower at the gym but the mother insisted that she use the father’s shower. The father left and returned home. The mother followed him. The mother walked into the father’s home and straight to the bathroom. The father said to the mother “Just shower and leave then”. At the time of the incident the mother’s sister was at the unit looking after the child. The mother came out of the shower yelling and swearing at the father and making extremely offensive remarks of a sexual nature about her sister. She then returned to the shower. The police were called and arrived. They requested that the mother come out of the shower which she did after about ten minutes. She was then placed under arrest. The notes produced by the police indicate that the mother told the police in a recorded interview that she was aware of the ADVO and that she was not meant to be at the father’s unit. She was charged with breaching the ADVO.

3. Also in April 2014 the father moved to live in Suburb M taking the child with him. the child was enrolled at Suburb M Public School. The father did not know where the mother was living after she left Suburb H until late 2014.

4. On 25 May 2014 the mother sent a text message to the father which stated “U fucken pig I’m after my son … U lying fucken prick…” and “I hope u fall off ur bike n kill urself so I can be with my son in peace because I don’t any him to be raised in a [Country F] pig family…!! I’m sorry but I pray that u fall n drop dead you lying cunt pig...!! I hope u understand...!!”

5. On 25 May 2014 the mother sent a text message to the father which read:

   !!What the fuck do u and ur family think of me … [the child] is my son U low life smelly cunts … So what now lier …???

   My wish now is for you to fall off your bike n die so ur family can take ur dead body back to your smelly village and I be with my son peacefully …!!! Drop dead i cunt …!!

   Drop dead cunt that’s all …!!

   Lying cheating cunts deserve to die .. Don’t u think .. ?? I hate u for manipulating n brainwashing my son not to be around me … !!! You going to go home to your mother now what about [the child] .. He needs his mum too …

6. In response to a series of abusive texts the father sent a text to the mother which read “…stop causing problems. I did nothing to provoke this outrage today. Please stop harassing my family and friends. You are only making everything worse.”

7. On another occasion the father sent a text to the mother which stated “…stop being irrational and crazy. the child is afraid of you. Please control you (sic) anger if you want to see him.”

8. A text message, undated, was sent to the father by the mother which read:

   Fuck you u keep degrading me to other wog women and I fucken hate it and its makes me crazy … But I guess you enjoy degrading me so I’m just gonna get worse if you don’t stop … Keep pushing and fucken degrading and I will fuck you up everywhere … !!! I’m the mother of your son..  and u need to respect that … Coz I can fuck you up without cops nice and slow … I just want my son to live with me but instead you wanna play games and bad mouth me don’t worry I can embarrass you … You need to listen because you have taken my son and lonely … !!!!!

9. On 29 May 2014 an incident occurred at the father’s place of employment, E Pty Ltd. The ADVO made on 26 July 2012 was still in force. The mother came to the place of employment at about 5.45 pm.

10. The father’s version of that event is contained in his affidavit. Whilst the mother did not, in her own affidavit, give her version of what happened on that occasion she denied in cross-examination that the events had unfolded as the father alleged. The father gave evidence that he had arranged to deliver the child to his mother at about 5.00 pm on 29 May 2014. The arranged drop off place was a gym located on the N Street, Suburb O which was attended by the mother. The father was on his way to work. The mother did not arrive. Because the father had to go to work, he telephoned the mother and arranged for her to collect the child at outside his workplace, E Pty Ltd. The father arrived at E Pty Ltd at about 5.30 pm and requested his brother-in-law to wait with the child at the sandstone staircase leading to E Pty Ltd so that the mother could collect him there. The father then went to work. At about 5.45 pm, the mother approached the father with the child on the lower concourse of E Pty Ltd. There was then an argument wherein the mother verbally abused the father, chased him around his workplace and threatened an employee of E Pty Ltd whom she accused of having an affair with the father. the child was present during the whole of this episode. The mother hit the father on the right temple and eye. The police were called but the mother had left the premises when they arrived. The mother was listed as wanted in relation to breaching the ADVO and a charge of common assault. The police were unable to locate the mother immediately.

11. There was an exchange of text messages between the mother and the father in relation to the police attempts to locate her. The first message from the mother reads “U n those dumb police go get educated … Why they looking for me??? I went to court, they gave me community service n ordered me to see a top shrink to help me be strong go the family court n fight for my right … Please tell the police that or give me their number … Thankyou!” The father replied “Ok. Can I give them your address?” The mother replied “Read u dumb I asked for their phone number … Don’t call cops here coz this is not ur place n u don’t pay a dime here.”

12. The mother went to the father’s home on either 30 or 31 July 2014. She refused to leave and after two days, on 1 August 2014, the father called the police. The mother was arrested and charged with breaching the ADVO and assault. She was held for some days in the P Town Watch House.

13. In August 2014, the father commenced to live in a de facto relationship with his now wife, Ms Videnov (“Ms Videnov”).

14. On 19 August 2014, the mother was charged with contravening an ADVO and common assault. Bail conditions were imposed requiring her to report to Suburb Q Police Station once every Monday between the hours of 8.00 am and 8.00 pm until 12 November 2014. On Monday 18 August 2014, the mother failed to report to police and a warrant was issued for her arrest.

15. On 9 September 2014, the father took the child to have dinner with the mother. As the father was ordering, she picked up the child and ran away. The father gave chase for about 200 metres and caught her. He said “…why do you do this?” and the mother replied “This is between me and my son; it has nothing to do with you”. The mother let the child go and he ran to his father. The mother said to the child “I almost died giving birth to you”.

16. On 16 September 2014 the mother tended at Randwick Police Station to make a report about a video which she said she had found on her mobile phone. The mother stated that, sometime in 2011, when she and the father had been separated, she began to use a mobile phone which the father owned and located a video of the child. The police viewed the video on the mobile phone. The notes produced by NSW Police state:

    The recording shows [the child] squatting on a couch fully clothed whilst looking at a magazine with fully grown women in bikinis on motorcycles. The male voice is believed to be the father, he says “Where do you want to take these ladies?”, [the child] says “the beach”. The father says “Ahhh you playboy. Are you playing with yourself?”, “What are you doing there, what are you squashing with your hands?”. [The child] continually touches his genital region on the outside of his clothing a number of times throughout the conversation. The father says “Which lady do you like most?” whilst laughing in the background, he then says “What are you squashing there in your pants? Are your balls getting bigger?”…Police asked [the mother] why it has taken her three years to report an incident such as this if she was so concerned about it however no reasonable explanation was given.

17. The father was cross-examined in relation to the video. He agreed that he had made the video. He said that he thought at the time that the incident was amusing but that he now understands that it was inappropriate.

18. The mother in cross-examination denied that she had waited three years to show the video to the police but I prefer the version of events recorded by the police to the mother’s recollection.

19. On 19 September 2014, during school holidays, the father arranged for the child to spend time with his mother. The mother lived in a unit in the same block as her relative, Mr R. The father made the arrangements with Mr R. They agreed that the father would collect the child on 22 September 2014.

20. On 22 September 2014 the mother told the father that she would not return the child. She also said that she would change the child’s name and take him to Country G “next year”. The mother refused to allow the father to speak to the child when he telephoned each day. the child was due to go back to school on 7 September 2014.

21. On Thursday 25 September 2014 the father telephoned and requested that the child be returned. The mother said “So you want to speak with [the child]? What have you done for me lately? Where is my car? and “I want to see the woman playing mum to my son. You and Mole-ji can make your own children”. The reference to “Mole-ji” was a reference to Ms Videnov.

22. On 26 September 2014 the father filed an application for a Recovery Order which was made returnable on 14 October 2014.

23. On 2 October the father telephoned the mother and asked to speak to the child. the child had been invited to a classmate’s birthday party on the following Sunday. The mother took the phone and said “Fuck you, fuck you and fuck [the class mate]”. Later, the child told the father “When Mum said I couldn’t go to [the classmate’s] party I ran off to my bed and cried for a long time, by myself”.

24. On 3 October 2014, the father took matters into his own hands. He and Ms Videnov drove to the mother’s home. He called out to the child. the child came out onto the balcony. The father climbed the dividing wall and picked the child up. The mother had come out of the unit and confronted the father, trying to get the child. The child told the Family Consultant, Ms S “I thought they would wring me in two”.

25. In cross-examination about this incident, the mother acknowledged that the child was to be returned on 22 September 2014 but said that she changed her mind. She said that she showed the video to the police, enrolled the child at Suburb Y School and decided to keep him. When the mother was asked if she swore at the father in the telephone call she said “Of course”, but that the child was not in the room.

26. In 2014 the father and Ms Videnov married.

27. On 14 October 2014 Orders were made that the child live with the father and spend time with the mother on alternate weekends. The mother collected the child from school on 24 October 2014 and 7 November 2014. The father deposed that after the child returned from weekends with the mother he wet his bed, swore and refused to sleep alone. The father attributed this behaviour to the mother’s behaviour. Dr T was of the view that the behaviours were a reaction to the child being stressed.

28. On 26 October 2014 the mother was to deliver the child to the father at 6.00 pm after her weekend with him. There was an exchange of text messages. At 6.15 pm the father texted “Brin (sic) [the child] back…” The mother replied “No snake child abductor stranger will live with my son. I have a home to look after around here..Close to my son..! Why is molejan hiding…..By the way u can’t take AVO coz my child lives there n I have to pick n drop him. [Two named persons] want to see ur new cars…!!”. The mother referred to Ms Videnov as “from the internet” and as a “mole”. These messages appear to have been sent while the mother was outside the house. At 9.50 pm the mother texted “Criminal of fence to lie I said u were there I already send them photo of [the child] n I without white car…U will never break me coz I’m still the same n u become a compulsive lier…!!God bless” (repeated verbatim).

29. Ms Videnov deposed that when the child arrived he quickly walked inside despite the mother calling to him to come back. The mother walked towards the front door calling “Why are you hiding, come out of the house! Come out!”

30. At the home, the mother took photographs of the father’s and Ms Videnov’s vehicles and yelled “I will show the photos of your car to my friends”. The father interpreted that as a threat that the vehicles would be damaged. She yelled at Ms Videnov “I will not let a child abducting snake be with my son”. The father asked the mother to leave. She refused. She yelled “I am not going anywhere; I will have my criminal friends find her”. Police were called.

31. In cross-examination the mother agreed that she was referring to Ms Videnov as “mole” and that she was aware that was an offensive term and intended to be insulting. She also said that the relationship of Mr and Ms Videnov was immoral because they met over the internet.

32. On 7 November 2014,  Mr R sent a text message to the father which read:

    What the fuck is your problem? [The mother] is trying her best to stop you getting what you deserve but she can only do so much. Your [the child’s] father and you are a disgrace to the blood running through his veins. You climbed into my house and I have let it go because of [the mother] and [the child]. Just wake up to yourself. I have the power to get little system security audited, Thru ATO, ASIC with my connections …. ! We can all dob each other in

    I don’t owe a cent to anyone n nothing to hide .. ! Shame on you .. Head security of [E Pty Ltd] being protected n phoning cops on [the mother] everyday … ! By the way congrats for getting married .. New man New start .. ! [The mother] will get her son because she’s the mother!

33. On 12 November 2014, ADVO proceedings were listed in the local court. The mother pleaded guilty to the charges of assault and breach of ADVO arising out of the incident on 1 August 2014. Both the mother and the father were present at Court. An interim ADVO was made for the protection of the father and Ms Videnov. The matter was adjourned. Shortly after leaving the Court the father received a tirade of text messages from the mother commencing at 11.51 am and concluding at 3.19 pm. The messages recommenced the next day at 3.23pm. The messages were rambling incoherent and offensive. The mother referred to Ms Videnov as “Your Iranian Arab snake”. The mother made threats to the safety of Ms Videnov and demanded money. As a result of the text messages the mother was arrested and charged with a breach of the ADVO.

34. Further text messages were sent by the mother to members of the father’s family which were derogatory of Ms Videnov.

35. On 18 November 2014 the father and Ms Videnov reported breaches of the ADVO to the Police after the mother threatened and harassed Ms Videnov on Facebook. The father’s solicitor wrote to the mother’s solicitor:

    Our client is concerned about the psychological damage and trauma that [the child] will be exposed to if your client is arrested whilst [the child] is in her care. Our client is also concerned about [the child’s] supervision should she be arrested whilst [the child] is in her care. For these reasons and due to our client’s concerns for [the child’s] wellbeing and best interests, our client will not be facilitating contact with the mother and [the child] this weekend.

36. On 21 November 2014 when the mother arrived at the school to collect the child she was told that he was not there.

37. On 24 November 2014 the father filed an application to suspend contact which was returnable on 20 January 2015.

38. The mother and Mr R went to the school on 28 November 2014 and spoke to the principal.

39. On 5 December 2014 the mother went to the school to collect the child. The father picked the child up and left with him.

40. In December 2014 the mother and Mr R came to the father’s house. For two hours they called out for the child. Ms Videnov deposed that the child was upset and said “Just tell them to leave”. Ms Videnov called the police.

41. On 19 December 2014, Ms Videnov was contacted by a friend who told her that three men were at the gate of the home calling the child’s name. Ms Videnov and the child were out. Ms Videnov drove with the child to the father’s work place and waited for him to finish work.

42. The mother continued to send texts to family friends asking them to intervene on her behalf.

43. On 20 January 2015, Orders were made for the mother to spend time with the child each alternate weekend commencing on 30 January 2015. The father filed an application to review those Orders. The father did not deliver the child on 30 January 2015.

44. B’s time with his mother did not recommence until after the interviews with Ms S about which more will be said later in these reasons. The next contact occurred on the weekend of 13 February 2015.

45. The father and Ms Videnov reported increasing concerns about the child’s behaviour. He swore, was disobedient and reported numerous things he had been told by his mother that were derogatory of the father and Ms Videnov. He became increasingly resistant to going to his mother. On 16 April 2015 the child told his father that his mother tells him to tell his lawyer that he wants to live with her and that she “always talks about you and [Ms Videnov]”. the child had nightmares about being taken from his father and his father being injured. He wet his bed. He threw tantrums.

46. In September 2015 the father and Ms Videnov moved to Suburb U. He did not tell the mother. In his oral evidence he said that he preferred that she did not know where he lived.

47. The father deposed that, on a number of occasions, the child has said to him that he wished he was dead. The mother in oral evidence said that the child had also said that to her.

THE INCIDENT AT D CONTACT CENTRE ON 25 AND 26 SEPTEMBER 2015

1. On 9 April 2015 the Orders in relation to the time the mother was to spend with the child were varied to provide that changeovers were to occur at D Contact Centre at Suburb C at 5.00 pm on Friday and 5.00 pm on Sunday. Both parties attended the intake procedures at D Contact Centre. Both parties gave evidence that the procedure was designed to prevent the parents coming into contact with each other. The father entered through a side door. The mother entered through a front door. Neither entrance is visible from the other.

2. On Fridays the father was to arrive at the centre with the child at 4.45 pm. the child was then handed over to a worker at the centre and delivered to the mother. The father was then instructed by the worker to remain inside the centre for 15 minutes to allow the mother to leave with the child. On Sundays the mother was expected to arrive at 4.45 pm. the child was then handed over to a worker and delivered to his father and the mother was required to wait for 15 minutes so that the father and the child could leave.

3. Both of the parents in their oral evidence agreed that this procedure was very clear.

4. On the weekend immediately before the hearing commenced, the father arrived with the child at D Contact Centre at 4.35 pm on 25 September 2015 and left the child in the supervision of a worker named Ms V. He waited for about fifteen minutes and then was told by Ms V that he could leave.

1. At about 5.00 pm the father was walking along the footpath towards his parked vehicle when he observed the mother driving towards him in an erratic manner. When she reached the father the mother stopped the vehicle in front of him, blocking him from walking on the footpath towards his vehicle. The child was in the back seat and the father could see him crying. The mother yelled at the father aggressively saying “Fucking watch what you say to my son, he told me you’re talking nasty things about me”. The father said “Please focus on driving”. The mother said “I’m fucking going to take my best shot at you …”The father continued to ask the mother to be careful and focus on her driving and backed away from the mother’s vehicle. The father returned to D Contact Centre and told the staff what had occurred. The father asked for any CCTV footage but was advised that there was no camera. The father then made a statement to the police.

2. Notes produced by D Contact Centre record:

   The Father then came back to the centre and asked the CW if we have cameras that can see the carpark next to the centre. The CW told the Father that we don’t. The Father then sat (sic) that he walking on the footpath when the Mother stopped the car in front of him and cut him off. The Mother then started to yell at the Father for yelling at [the child]. The Mother told the Father that he isn’t allowed to speak to her son like that. The Father continued to say that [the child] was sitting in the back seat of the car with his hand over his face looking out the back seat passage (sic) side window. The Father then stated that this is reason we use this centre. The Father then left the centre.

3. The mother’s version of the event is a little different. The mother says that she attended at the contact centre to collect the child who appeared to be very upset when she saw him. The mother says that the child told her that he had asked the father to buy flowers for her as it was her birthday but had gotten into trouble from the father. That seemed somewhat surprising as the notes of D Contact Centre record:

   [B] arrived at the centre with the Father. [the child] walked in with a frown on his face and looking at the ground. The Father told the CW that he has just had a tantrum because he didn’t want to put on his raincoat and it is raining outside. The Father then knelt down and spoke to [the child] and told him to put a smile on his face as it was the Mother’s birthday … and he has these beautiful flowers for her.

4. The mother acknowledged that the child did give her flowers.

5. The mother says she and the child left the centre. The child was still upset so they stayed in the car as she was trying to settle and comfort him for about ten minutes. She then drove off to go home. The mother says the father was on the footpath of the driveway as she approached the driveway. He remained standing there and would not move to let her through. The mother says the father was shouting and swearing at her outside the car. The mother denies that she yelled or swore at the father.

6. The mother was cross-examined extensively about this incident. She was unable to explain why, knowing, as she did, that the father would be required to wait in the centre for 15 minutes after she left with the child, she did not immediately leave the area so that she would come into contact with the father. She offered no explanation other than that the child was upset.

7. The mother was very well aware of the procedures of the centre which were designed so that she and the father did not have to come into contact. She made a deliberate choice not to leave immediately. Whether she intended to have a confrontation with the father or not that was the effect of the mother’s decision. The father’s version of events is corroborated by the notes of D Contact Centre both as to the flowers purchased for the mother’s birthday and the father’s subsequent complaint. I prefer his version of events and I accept that the mother yelled and swore at the father in the manner which the father describes.

8. Unfortunately the child witnessed the whole incident.

9. On 27 September 2015, when the child was due to be collected by the father at D Contact Centre the father and Ms Videnov arrived at D Contact Centre on Sunday afternoon. Ms Videnov had not previously attended on the occasion of drop off or collection but on that occasion they had been doing errands and there was not time to drive back to their home, leave Ms Videnov and for the father to return to the centre.

10. Ms Videnov’s car was parked towards the southern end of the D Contact Centre building in front of the door where the father usually enters at the side of the building. Ms Videnov remained in the car and the father went inside. Ms Videnov was wearing a hat pulled down over her face and was looking at her mobile phone. She looked up and saw the mother walk past the entrance to D Contact Centre with the child. The mother walked past the door and straight towards Ms Videnov’s car. Ms Videnov looked down to avoid looking at the mother. When she looked up she saw the mother holding a phone in her hand taking photographs of her through the window of the car. The mother was standing on the footpath close to Ms Videnov’s vehicle. The mother was angry and appeared to be speaking towards Ms Videnov who could not hear what she was saying. the child was standing next to the mother. The mother walked away from Ms Videnov’s car when she saw the father come out of D Contact Centre and she took the child into D Contact Centre. The father and the child returned and got into the car. Ms Videnov then went into D Contact Centre and spoke to Ms V.

11. The notes which were produced by D Contact Centre state:

    The Father arrived at the Centre and spoke to the CW explaining that his partner is in the car out the front of the Centre and she is scared for her life and she has an AVO against the Mother. CW then suggested that if she is that scared it would be best for her to come into the Centre. Father rang and asked her if she wanted to come into the Centre, the father’s partner said no and remained in the car. The Father sat in a chair where he could see outside of the Centre and the Mother arriving, CW asked the Father to move chairs explaining the purpose of the Centre is to not have contact with the Mother. Father did not move. Mother showed up to the Centre, CW observed the Mother walk to the Fathers car and start taking photos with a camera. Father stated to the CW “look she is taking photos of my car, let me out, let (sic) out”. Father then left the Centre without the CW having time to respond. Mother and the child entered the Centre, whilst the child was in the bathroom the Mother began to discuss the incident on Friday stating that it had taken her 15minutes to calm the child down and when driving away the Father had abused her telling her to drive safely with his son, CW explained now wasn’t the time to discuss. As the Mother said goodbye to [the child] she stated “Mum is going to sort this all out.” Father let himself back in the Centre and the CW transitioned [the child] to him... The family then left the Centre. After the Family left the Centre the Fathers partner rang the bell, CW spoke to the Fathers partner through the intercom due to not knowing who it was. Fathers partner explained who she was and that she wanted to talk to the CW. CW stood at the gate whilst the Fathers partner asked if the CW saw what the Mother had done and was taking photos of her in her car. She pointed to the sign stated that the Centre is here to promote positive relationships and that it was not doing that.

12. The mother denied that she had acted in the way described by Ms Videnov.

13. The mother in evidence in chief deposed:

    I have read the statement of [Ms Videnov]. I deny her description of what happened. I do not understand why she would attend the handover if I caused her to be scared for her safety. I do not understand why she would sitting in her car near the entrance I use if she was worried about being attacked by me.

14. Tendered in evidence were photographs from Google Earth showing the location of D Contact Centre and the agreed location of the doors used by the parents. The door which was used by the father is at the side of the building. The door which is used by the mother is at the front of the building. The mother’s car had been parked on the right hand side of the building. She walked up the side of the building to the street frontage, turned right, walked past the entrance door to D Contact Centre and continued on past the entrance, with the child, to Ms Videnov’s car. The mother agreed that she had taken photos and indeed tendered in evidence a photograph of the father taken by her. There was absolutely no necessity for the mother to approach Ms Videnov. She went out of her way to do so.

15. As a consequence of this incident, at the conclusion of the evidence, the existing Orders for contact were suspended pending further order and an Order was made that the mother spend time with the child, supervised at the D Contact Centre, each alternate Saturday or Sunday.

CHILDREN AND PARENTS ISSUES ASSESSMENT

1. The parties and the child were seen by a Family Consultant, Ms S, on 5 February 2015.

2. In relation to the incident which occurred in September 2014 when the father removed the child from the mother’s care, the child told Ms S “I thought they would wring me in two.” the child was aware of the police being involved as a result of that incident.

3. Ms S reports:

   [B] clearly stated that he wants to continue living with his father and step-mother and to continue attending [Suburb M] Public School. He described his relationships with his father and step-mother positively.

   [B] initially stated that he does not want to see his mother. He says that his mother yells at his father and this makes him ([B]) cry. He seems to perceive that his mother denigrates his father and “brainwashes” him to think badly about his father.

4. Despite the child’s initial reluctance to see his mother he was observed with his mother and Ms S noted a sense of familiarity and warmth in their interactions. The mother was physically affectionate towards the child and he was mostly responsive to her. Ms S reported “[B] mentioned his father and step-mother and seemed a little nervous about how his mother might respond but [the mother] responded appropriately.”

5. After he had seen his mother the child indicated to Ms S that he would like to spend time with his mother but said that he does not want to be exposed to his mother yelling at his father.

6. Ms S concluded “Based on [the child’s] report, he appears to have been exposed to his mother yelling at his father and his mother talking negatively about his father and step-mother.”

EVIDENCE OF DR T

1. The Court was assisted by a report from Dr T, a psychologist in private practice. Dr T saw the family on 17 April 2015.

2. Dr T observed that the mother presented as “Quite verbose and her narrative was at times unfocused and rambling”. The mother’s presentation in cross-examination was as described by Dr T. Dr T noted:

   She also became quite emotionally distressed at different points in the interview. [The mother] made a strong case from the outset and repeated several times throughout the interview, that she believed the purpose of the report was to secure arrangements for [the child] to live with her which, in her opinion, is her right as his mother.

3. The mother disputed that she had any mental health issues or serious problems with anger management. Dr T reported:

   She asserted that it was living in a domestic violence situation that triggered any anger on her part. [The mother] claimed that it is [the father] who has a mental illness rather than her. She said [the father’s] allegations in 2011 that she was going to jump off the balcony with [the child] are a fabrication and all of his reports to the police are attempts to malign her and make her appear to be mentally ill. [The mother] claimed that the police have misinterpreted her actions in looking for her child as breaches of the A.V.D.O. when they have been child focused actions trying to locate her child. She added that, in comparison, the police view [the father] favourably because he is in the … business and he has employed some police. She claimed that the staff at the [K Hospital], her doctor and psychologists who have been involved with her over the years have all confirmed that she is of sound mind. She said that she continues to have sessions with [Ms W], Clinical Psychologist. In addition she has completed several sessions of the Keeping Kids in Mind program. She stated that she is taking no illicit drugs or prescribed medication and that any marijuana use in the past occurred in the company of her cousin and was a way of her dealing with stress.

4. The mother listed some of her skills which she considers make her a good mother as “taking [the child] to the park, giving him healthy food, not giving a child an Ipad before he was 2 years old and teaching [the child] to read and write.”

5. The mother told Dr T that the father was troubled because she was such a capable mother and that he was jealous of her parenting skills. She added that this was an area where he could not control her even though he still tries.

6. The mother was critical of the father on several counts and her criticisms are set out in full in the report. She said that the father and Ms Videnov should concentrate on having their own children and give the child to her. Dr T reports “She emphatically stated “I haven’t finished my job as a Mum. How dare these two take the credit for it” and added “that man is not moral.”

7. Both the father and Ms Videnov expressed their concerns to Dr T that the child’s behaviour deteriorates after he has spent weekends with his mother

8. B spoke positively to Dr T about his school. The child told Dr T that he does not like the arguments between his parents because they make him feel “scared”. Dr T stated:

   He commented that he knows his mother “hates” [Ms Videnov]. When asked how he knows, he replied “I can see it”. [The child] stated that he does not think [Ms Videnov] hates his mother.

   …He nominated his father as the person he would like to look after him if he is sick and the person who gives him the best hugs. He said he would turn to either his father or to [Ms Videnov] if he is sad. When asked what he might wish for, [the child] replied that he would like to live with his father.

9. Dr T stated (Italicised words added):

   [B] made a number of disclosures about what would happen if he did not live with his mother. He stated that she has told him that she will throw away his toys. He said that she has also told him that his father and [Ms Videnov] are likely to forget about him if they have another baby and they will probably “chuck” him away in the same way that they “chucked away her things”. (I note that one of the mother’s complaints about the father is that he threw away his personal possessions.) [The child] stated that his mother has promised him that she will take him to Skyzone every single day if he chooses to live with her.

10. When the child was observed with his mother she engaged in conversation which was critical of the father. Whilst the conversations were proceeding the child took a pencil and began to write. The child wrote that he loved his mother because she is his mother and that he loved his mother’s poodle but his favourite was the dog at his father’s house. Dr T noted:

    [The mother] continued to talk with [the child] but did not engage in any interactive play with him. [The child] had a toy in his hand with which he was trying to attract his mother’s attention but she kept talking with him about the family. She said that her nephew [X] came to Sydney to compete in a sports competition in December 2014 and she commented “[B] and his Daddy were nowhere to be found.” Eventually the child became quite restless and threw toys around the room. [The mother] did not intervene. [The mother] brought some photos to the interview with her and used them as prompts to talk with [the child] about Country G. She offered him photo to take with him and the child refused. She added “he’s not allowed too (sic).” Further into the observation, [the mother] asked [the child] whether he liked [Suburb Y] a lot or not much and whether it was cold at [Suburb M]. She also spoke about the child’s favourite movie Blue Lagoon which she said was filmed in [Country G]. She spoke asked (sic) [the child] “Do you want to go back to [Country G]? but [the child] did not reply.

11. After the session the mother was asked whether this was typical of the time she spends with the child and she responded “He is getting brainwashed by [Ms Videnov]”.

12. Dr T also observed the child interacting with his father and Ms Videnov. They became immersed in a game and she notes a spirit of co-operation and involvement. The child and the adults talked about everyday topics such as homework house duties and the dog.

13. In her evaluation Dr T noted:

    Some of [the mother’s] behaviour particularly her issues with abandonment, impulsivity and intense jealously (sic) in addition to her uncensored disclosures including those made in front of [the child], her imposition into the lives of others to expose [the father], and her emotional dysregulation which repeatedly seem to occur in front of [the child] would suggest some instability in aspects of her personality. [The mother’s] need for control is palpable and is demonstrated in the way she is unforgiving of any interest he might show in any other women, notwithstanding the disgust with which she speaks about him. The extent of her denial and lack of insight into the damaging impact of her poor capacity to control her emotions or express them in an appropriate way are significant.

14. Dr T commented that the father presented as the party who had more insight and capacity to appreciate the impact of the dysfunctional adult relationship on the child.

15. In relation to the mother, Dr T said:

    [The mother] feels an enormous sense of entitlement that [the child] should be in her care because he is her son and she gave the impression that nothing would stop her from achieving that end. She perceives herself to be a parent extraordinaire and [the child’s] primary care giver in the past and resents that [the father] and [Ms Videnov] might be taking the accolades for her investment in [the child]. Her position is highly problematic because her actions suggest a significant level of insensitively (sic) and lack of insight into how damaging her behaviour is to [the child]. Even in the observations for the preparation of this report she seemed to have a need to expose the shortcomings of [the father] and [Ms Videnov] by placing [the child] in a precarious emotional bind of answering questions and making disclosures that were critical of them. Given the hostility that has transpired in the various forms of communication between the parties, one would have to question how capable she is of containing her hate for [Ms Videnov] in [the child’s] presence. This is highly problematic for [the child] and may stand to jeopardise his relationship with his primary caregivers if it continues. It is noteworthy that [the child] identified that in his interview.

16. Dr T stated:

    [B] appears to have an attachment to both parents as well as [Ms Videnov], however, he nominated his father at the primary source of his emotional nurturance and the parent with whom he wishes to live. His physical, emotional, medical and educational needs are now primarily being met by [the father]. Given the level of hostility between the parties and their fraught communication, the question would need to be asked whether this is a matter where sole parental responsibility is warranted.

17. Dr T expressed a concern about the level of conflict that exists between the parties and significant others to which the child has been exposed and the fact that the child is acutely aware of the parental conflict and of being caught in the crossfire of his parents’ acrimony over many years.

1. Dr T in her report expressed the view that this is a case which borders very close to the child’s interests being best met by having supervised time with his mother.

2. In her oral evidence Dr T expressed her concern about the child’s vulnerability as a result of the acrimonious interactions between his parents.

3. Dr T expressed concerns about the mother’s apparent inability to control her behaviour, her propensity to breach orders in relation to domestic violence and a concern that “even though there are orders in place of the nature I’ve been speaking about, and the mother can’t adhere to them, then [the child] may well be exposed to the mother’s hysterical behaviour, even though there’s the existence of an order.”

4. In relation to future time for the child with his mother, Dr T expressed concerns firstly that the parties ought not to be brought into contact with one another in the process of changeover but secondly that the child is being exposed to denigration of his paternal family in the mother’s household and that could have serious effects on his psychosocial and cognitive development.

5. Dr T was given the opportunity to read the statements made by the father and Ms Videnov in relation to the contact which had occurred the previous weekend. She was concerned that although she had raised in her report clear concerns in which the way the mother behaves, the mother appeared not to have accepted or acted upon her concerns. When Dr T was told that the mother had been seeing a psychiatrist since 16 July 2014 and was currently seeing a psychologist fortnightly, Dr T commented that there was still a very palpable level of anger expressed by the mother towards the father. She said that counselling is a “work in progress, but that was very confronting and very evident”.

6. In cross-examination by counsel for the mother, Dr T was asked about the “rules” that the father had prepared for the mother. Whilst she agreed that there was an aspect of controlling behaviour in that incident, she said that the rules which the father had drafted were the sort of rules that she would hope families would try to create in their households because those rules were for behaviour which creates the ambiance that is conducive to children developing in a way that meets their emotional needs.

7. In relation to the behaviour exhibited by the child after returning from time with his mother, Dr T expressed the view that his behaviours were probably reactive to instability and stress.

8. At the conclusion of her oral evidence Dr T was asked some further questions. The questions and answers are set out below:

   HER HONOUR:   [Dr T], if I were to find that the events of last weekend were as [the father] and [Ms Videnov] have described them what – do I have any alternative to supervised access?‑‑‑

   [DR T]: Well, it’s pretty – it’s a – it’s a pretty flagrant – knowing that the matter was going to be in Court the following week I don’t know that – I don’t know what else I can suggest because it’s still – it’s very raw that something like that should happen in a week before the parties know they’re going to be in this Court.

   HER HONOUR: Well, would I be right in saying that it suggests that as the mother becomes more anxious her ability to contain her behaviour dissipates?‑‑‑

   [DR T]: That could be – that could be one of the – the explanations.  And certainly there would have been a lot of anxiety around the hearing.  I guess it’s also suggestive of how reactive (the mother) continues to be.

   HER HONOUR: If I were to make an order for supervised time would it be your view that there shouldn’t be any automatic progression from that to unsupervised time?‑‑‑

   [DR T]: I would – I mean this is a case where I would – I would really want to see progress and I think the notes of a supervisor would – particularly if it happens alongside a therapeutic intervention – I – it’s going to take a lot of insight on the mother’s part. 

   HER HONOUR: So from your point of view would you say that you would prefer to say see the notes of a year’s worth of supervision, reassess the position and decide where to go from there?‑‑‑

   [DR T]: That would be my preferred position.  I know at final hearing that’s probably not ‑ ‑ ‑ 

   HER HONOUR: Sometimes we have to cut our coats to suit our cloth, Doctor?‑‑‑

   [DR T]: Yes.  And the needs of a child. 

   HER HONOUR: Yes?‑‑‑

   [DR T]: And I think we have – you know, a very vulnerable little boy here who is really on the cusp of being, dare I say it, very damaged unless – unless this stops. 

CONCLUSION

1. There is no dispute that it would be in the child’s best interests to have a meaningful relationship with both of his parents. Whether that relationship can be sustained will depend largely on the mother’s ability to contain her behaviour.

2. Dr T has given extensive evidence about the need to protect the child from family violence perpetrated by his mother and the emotional damage consequent upon the child’s exposure to the explosive encounters between his parents.

3. B has told both Ms S and Dr T that he wants to live with his father and that he wants his mother to stop denigrating his father.

4. B’s primary attachment appears to be to his father whom he nominated as the primary source of comfort. He also nominated Ms Videnov as the person to whom he would turn if he were sad.

5. There is no doubt that he loves his mother but he is conscious of her intense negative feelings towards his father and Ms Videnov. Dr T categorised the interaction of the mother and the child as “strange”.

6. Neither party has encouraged the other to participate in decision making for the child. The father removed him from the school in which the mother had enrolled him and re-enrolled him at Suburb M without telling the mother. The mother enrolled him at Suburb Y without telling the father. On a day to day basis, the communication between the parents is characterised by vitriol and abuse from the mother.

7. Both parents have withheld the child from the other from time to time. The mother refused to return the child in September 2014. The father was not content to await the hearing of his application for a recovery order and forcibly took the child back. Ms Videnov was complicit in that event. None of the mother, the father or Ms Videnov appears to have appreciated the effect on the child of that event as he described it to Ms S.

8. The father withheld the child from the mother in November 2015 and he did not see his mother again until he saw her with Ms S in February 2015. the child did not see his mother at all over the Christmas holidays of 2014/15.

9. I accept the evidence of the father that he believed he was acting in the child’s best interests when he terminated the child’s time with his mother but he cannot criticise the mother for continually breaching ADVOs and not, himself, accept criticism for breaching Orders of the Family Court of Australia.

10. If orders are made for supervision of the mother’s time with the child, she will not have any opportunity to denigrate the father and Ms Videnov to him, nor the opportunity to try to persuade him that he should live with her. That may give some respite to the child from his current involvement in the hostility he perceives between his parents.

11. Both Dr T and the ICL urge upon the Court that the orders in these proceedings should be interim orders only and that the mother’s time with the child should be reviewed after a year of reportable supervision. The father opposes that position. He asks the Court to make an order re-instating unsupervised time between the mother and the child at the end of one year. He submits that the continuation of the proceedings will be costly and may prove unnecessary if the mother is able to modify her behaviour. Both positions have merit. The father, through his counsel, said that if he believes that the mother’s time should not be re-instated, he will make an application to the Court to that effect. I have some sympathy with the father’s position and propose to adopt a hybrid course of directing that, in the event that either party wishes to bring an application in relation to the mother’s unsupervised time with the child, at the conclusion of one year of supervision, that application should be listed before me. 

12. It is the capacity of the adults to provide for the child’s needs that is the most significant factor in this decision. Dr T, although conscious of the occasions when the father has not been supportive of the child’s relationship with his mother, said that the father had more insight and capacity to appreciate the impact of the dysfunctional adult relationship on the child. I agree with her conclusion. He has not always acted as he should have but he has always been aware of the effect on the child of the acrimony between the parents and has acted to avoid or minimise the child being involved.

13. The mother did not appear in her oral evidence to have any understanding or appreciation of the effect on the child of the interaction between her and the father and Ms Videnov. She excused her vile language towards both the father and Ms Videnov on the basis that she was angry – “I’m angry and I swear”.

14. She blamed the father, rather than her own conscious decisions, for her angry outbursts and physical violence.

15. The incident involving Ms Videnov on 27 September 2015, the Sunday before the hearing commenced, suggests that the mother is incapable of containing her hatred of Ms Videnov and will actively involve the child in her acts of hostility towards Ms Videnov.

16. Family violence by the mother is well documented. An ADVO for the protection of the father was granted on 26 July 2012. The mother was convicted of assault on the father and breaching the ADVO after an incident on 19 October 2012. The mother was arrested on 15 April 2014 after an incident at the father’s house. On 29 May 2014 there was a further incident at the father’s work place as a result of which the mother was charged. On 1 August 2014 the mother was arrested and charged with breaching the ADVO and assault. She pleaded guilty to those charges on 12 November 2014 when a further interim ADVO was made for the protection of the father. On 15 January 2015 the mother was sentenced for those offences and a final ADVO was made for the protection of the father and Ms Videnov.

17. There may be further charges arising out of the mother’s harassment of Ms Videnov on Facebook and the incidents on 25 and 27 September 2015.

18. Unless some steps are taken to prevent the mother from behaving in front of the child as she has done in the past, there will inevitably be further litigation that may well lead to her being denied any time with the child.

19. The mother either cannot control her behaviour or does not choose to do so. There is no moderating influence from her family. Mr R who gave evidence in her case, when asked about the language used by the mother, said that he had talked to her about letting her emotions get the better of her. He thought that the mother’s language was not inappropriate but “distracts from the message”. Mr R accompanied the mother when she went to the father’s house on 26 October 2014. He also sent threatening and abusive text messages to the father.

20. Since the mother is not constrained by an ADVO made to contain her behaviour, the only alternative left is to impose physical restraints on her association with the child by requiring that her time with him be strictly supervised. If she is able to demonstrate that she can and will control her behaviour, the time will become unsupervised. If she cannot, or will not, control her behaviour, no doubt there will be a further application. 

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 2 November 2015.

Associate: 

Date:  2/11/2015