Weiss & Arnold

[2010] FamCA 270

FAMILY COURT OF AUSTRALIA

WEISS & ARNOLD [2010] FamCA 270

FAMILY LAW – CHILDREN – WITH WHOM A CHILD LIVES AND SPENDS TIME – Where the mother seeks orders that the child live with her, she have sole parental responsibility and there be no communication or time between child and father – Where the father seeks orders that the child live with him – Concerns of psychological and emotional harm from father’s influences and explicit criticisms of the mother – Where the child expresses a desire to spend time with the father – Whether a meaningful relationship with the father can be said to be of benefit to the child – The child to spend no face to face time with the father and the mother to have liberty to check the content of any written communications from the father – Upon the child turning fifteen years the child and father to spend such time as they may agree

FAMILY LAW – SINGLE EXPERTS – Consideration of the role of report writers – Where statements go beyond the expert’s role in scope, language or intent – Role of the trial Judge to make determinations of fact – For the court to determine weight to be attached to opinion evidence

Evidence Act 1995 (Cth) ss 55, 79
Family Law Act 1975 (Cth) ss 4, 60CC, 61B, 61C, 61D, 61DA, 65AA; 65DAA, 65DAC, 65DAE, 68B, 69ZT

AIF v AMS (1999) 199 CLR 160
C & J (1996) FLC 92-697
Carpenter and Lunn (2008) FLC 93-377
CDJ & VAJ (1998) 197 CLR 172
Chappell and Chappell (2008) FLC 93-382
Cotton v Cotton (1983) FLC 91-330
G v C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
H v K [2001] FamCA 687
Mazorski v Albright [2007] FamCA 520
McCue v Costa (2009) FLC 93-405
Neil v Nott (1994) 68 ALJR 509
Newlands and Newlands (2007) 37 Fam LR 103
Noetel v Quigley (2005) FLC 93-230
RG v JR [2006] FamCA 293
Secretary, Department of Health and Community Services v JWB & SMB (1992) 175 CLR 218
U v U (2002) 211 CLR 238

APPLICANT: Mr Weiss

RESPONDENT: Ms Arnold

INDEPENDENT CHILDREN’S LAWYER: Judith Olsen

FILE NUMBER: NCF 941 of 2005

DATE DELIVERED: 13 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Newcastle

JUDGMENT OF: Murphy J

HEARING DATE: 20-22 April, 30 November,
& 1-2 December 2009

REPRESENTATION

THE APPLICANT: Appearing in person

COUNSEL FOR THE RESPONDENT: Mr Connor

SOLICITOR FOR THE RESPONDENT: G & D Lawyers

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr Harper

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER Boyd Olsen

Orders

1. THAT the mother have sole parental responsibility in respect of major long term issues (as defined in the Family Law Act 1975) for Z  born … July 1998 (“Z”).

2. THAT Z live with the mother.

3. THAT save as is otherwise agreed in writing between the mother and the father, Z spend no face to face time with the father nor communicate with him except in accordance with the succeeding paragraphs of these Orders.

4. THAT the mother shall provide to the father, at not less than six-monthly intervals at least five photographs of Z, included in which shall be at least one portrait and at least one of him engaging in his ordinary out-of-school activities.

5. THAT until 31 July, 2013:

   (a)The mother shall facilitate any and all such written communications by Z to his father as Z might desire;

   (b)The father shall send any response to any such written communications from Z to the mother and shall not otherwise respond to Z;

   (c)The mother shall be at liberty to read any such communication from the father and, should it contain any  threats or intimidation of any type, material critical of the mother, her partner or their parenting, or material critical of Z or his siblings,  she shall be at liberty not to pass it on to Z but, otherwise, shall forward to Z all such communications sent by the father to Z;

   (d)The mother shall retain securely any communication not passed on to Z by reason of the application of the previous sub-paragraph of these orders;

   (e)The mother shall inform Z of the fact of each such communication from the father; of her decision in respect of same and reasons for same, and of the fact that the communication shall be retained by her in accordance with these orders.

6. THAT until 31 July, 2013 the father shall be restrained from applying for parenting orders in respect of Z without first obtaining the leave of this court and any such application for leave:

   (a)Shall be made in the form required by the Family Law Rules 2004 supported by an affidavit deposing to the facts and circumstances said to support leave being granted;

   (b)Shall be served on the mother in accordance with the Rules, but shall be heard, in the first instance, ex parte; and

   (c)Shall, if possible be heard and determined by Murphy J.

7. THAT on  and from 1 August, 2013:

   (a)The father shall spend time with Z at all such times as he and Z might agree;

   (b)The father shall be at liberty to communicate with Z at all such times, and in such manner, as he and Z might agree;

   (c)The mother shall hand to Z any and all communications retained by her in accordance with paragraph 5(d) of these orders.

8. THAT the independent children’s lawyer shall explain these Orders to Z in language considered appropriate by her given his age and level of maturity and IT IS RESPECTFULLY REQUESTED that a family consultant at the Newcastle Registry of this court render such assistance to the independent children’s lawyer as she might request and is considered appropriate.

9. Consequent upon compliance with the preceding paragraph of these Orders, the independent children’s lawyer be discharged.

10. All extant applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

11. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCF941 of 2005

MR WEISS

Applicant

And

MS ARNOLD

Respondent

REASONS FOR JUDGMENT

1. Between about January 2004 and March 2007, three children of the mother in these proceedings lived with the applicant father.  The applicant is the father of the youngest of those three children, Z, who was born in July 1998 (referred to by the parties in these proceedings as “Z”).  It is only Z who is now the subject of the current proceedings.

2. The path that led the parties to the final hearing before me is somewhat tortuous.  In order to give proper context to these reasons, it is necessary to set it out at some length, including reference to some of the history of the proceedings themselves.

What Have the Children Experienced in the Last 5 Years?

1. The parties had a relatively brief relationship commencing, it seems, in about October 1997.  At that time, the mother had J and B in her care (aged about 4 and 12 months).  The parties married in May 1998 and Z was born a couple of months afterwards.  The parties separated for about three weeks in September 2000 and, in 2002, they moved from Western Australia to the Newcastle area.  On 3 January 2004, the parties finally separated.  At that time, the children remained living with the father.  The separation of the parties was acrimonious.

2. There was conflicting evidence about the circumstances of that separation and its aftermath.  It is common ground, however, that the mother moved to Sydney not long after separation. She saw the children about four to six times in the ensuing four months or so.  The mother did not then see the children for a period of time which is contentious (somewhere between 12 – 16 months), but there is no controversy that it was for a substantial period of time.

3. The mother says she was unaware of the children’s whereabouts during that time.  I very much doubt that is true.  In any event, I consider her evidence in respect of her commitment to finding the children and establishing contact with, and engaging in a relationship with, the children is indicative of a parent engaging in conduct inconsistent with that which might be expected of a parent seeking to maintain a meaningful relationship with her children.

4. I find that the mother was content to allow the children to remain in the care of the father for that period of time.  The mother says that after about 15 months, a friend handed to her the address of the father and children “on a piece of paper”.  Without notice, she and a person who she refers to as “a friend” (who the husband asserts is a “bikie” and who the mother says rides a motorcycle but is not a bikie) arrived unannounced at the father’s home.  There was an unpleasant scene.  It occurred in front of the children. 

5. The mother says that, with the wisdom of hindsight, it was the wrong thing to do and that she realised that “10 minutes after it happened”.  I don’t believe her.  I consider that the mother accompanied herself with a person who she thought would intimidate the father into handing over the children.  I am not convinced that she had second thoughts about the lack of wisdom of her actions either 10 minutes after they occurred or, indeed, at all.

6. The circumstances just described led to Court action.  It seems that there were orders made with respect to Family Violence legislation in the State Courts and, on 27 May 2005, interim orders were made that the three children, J, B and Z, live with the father and that the mother have contact with them at a Relationships Australia Contact Centre referred to during the proceedings as “The Rainbow Contact Centre”.

7. Interim orders made in this Court on 31 January 2006 provided that the three children live with the father and for the mother to have time with the children, unsupervised, but not overnight. In about February 2006, the mother commenced a relationship with her current partner, Mr M.  They commenced residing together in about July 2006. At that time, the father had just commenced his relationship with his current partner, Mr W.

8. The absence by the mother from the children’s lives led, in part, to a subsequent opinion by the court-appointed single expert, Ms S, that the mother’s “… attachment to [the children] is attenuated, as indicated by her behaviour following the separation and her diminished grief / anguish when she was separated from them for 16 months, with no knowledge of their whereabouts or well-being”.

9. However, other opinions expressed by that same court expert can be seen as having been instrumental in the making of interim orders by Mullane J, on 15 March 2007, by which all three children came to live with the mother and spend no time with the father.     Examples of those opinions include:

   §The degree of manipulation of these children by [the father] … represents severe emotional abuse of them;

   §… the father has quite vindictively since that time consciously enacted a programme to have the children reject their mother in the most overt way;

   §The father talks to the children very denigratingly  of [the mother] in front of them; he encourages them to report the most negative things about her (violence, sexual activity, drugs) and he offers  no reassurance about their safety with her;

   §[The father] appears to encourage the children to disrupt the visits through phone calls with him and encourages the children to report alleged ‘assaults’ on them to others (Police, Counsellor, D.O.C.S., Helpline).

10. Nearly 12 months subsequent to those orders, the father filed an application, on 8 January 2008, seeking supervised time with Z.  Orders were made by consent on 11 February 2008 that the father have supervised time with Z at the Rainbow Centre.  The time commenced in April 2008 and the orders have applied since. 

11. Procedural orders were made by Mullane J ahead of his Honour’s retirement from the Court, readying this matter for a final trial.  The trial commenced before me on 27 April 2009.  

12. On the third day of that final hearing, the father did not attend.  Unsuccessful attempts were made to contact him by telephone.  Shortly prior to 10 o’clock, a letter was received from the father (which became Exhibit A in the proceedings) indicating that he was suffering from a significant exacerbation of his depressive condition (for which he had been receiving psychiatric treatment), which he attributed to the stress of participating in the proceedings. 

13. Ultimately, for reasons given by me at the time, the final hearing of the matter was adjourned part-heard.  I was sitting in Newcastle as a visiting Judge and other commitments meant that the earliest dates upon which the final hearing could resume were many months later on 30 November 2009.  On that date, the hearing of the matter proceeded and continued until 2 December 2009.

14. Until the filing of an amended application on 15 October 2008, the father sought orders that all three children live with him.  The amended application seeks an order only in respect of Z; the father confirmed at the outset of the final hearing that no orders are sought by him in respect of the other two boys.  The mother, too,  seeks no orders in respect of the older two boys.

15. In contemplation of the final hearing of this matter, a further report was prepared by Ms S.  She records a dramatic change in the presentation of the older two boys and a dramatic change in things said by them about each of the parties.

16. The father takes significant issue with both of the reports prepared by Ms S.  Among other things, he insists she has recorded him (and his partner and, probably, the children) inaccurately; he says she “slanted” things said by the children and each of the parties and their respective partners to be favourable to the mother and unfavourable to him.

17. In the course of asserting significant (positive) changes in, particularly, each of the older two children, the court expert records a number of statements made by each.  Examples are:

    §From J (then aged almost 15): “We were afraid of [N] [i.e. the father].  We had to say what he said … He told us to say good things about him and bad things about Mum.  He told me to say that she locked me up in cupboards, beat me up and assaulted us on weekends”

    §Again from J:  “… We always had to be sure we were saying the right things or else he’d flog us.  …With  a dustpan and brush; broom handles or whatever he could get his hands on. … [he flogged] me and [B].  He left [Z] alone.  He favoured him”;

    §Ms S reports that she asked him how this made him feel and, in response, he “looked sad and said: ‘I was caught in the middle of it and I didn’t know what the hell to do’”.

    §Ms S asked J what it was like now living with the mother and he is reported as having told Ms S:  “It’s more relaxed.  We get more freedom.  And we don’t have to worry (now) what we say at Court meetings”

    §As to his attitude toward the father, J is reported as saying: “I honestly don’t want to see him, ‘cause he made me say all that stuff.  And I have my (own) Dad now.  But [Z] does want to see him.  He misses him.  We used to hear him cry, but after a while it stopped” [emphasis in original].

    §B (then aged 12.3) on how it was living with the father is reported as saying: “At times [things] were okay but [Z] was treated best.  He’d get his bike repaired and I didn’t … because he was [N’s] [i.e. the father’s] son”;

    §Ms S reports that she said to B that there had been quite a change in him since she saw him last.  She reports him as responding: “In front of [N (the father)], if we said a good thing about Mum, we’d get punished when we got back from Mum’s.  And he’d tease us and say ‘If you like her so much, go and live with her!’ . It made us feel guilty.  … That we were hurting [N’s] feelings (when) we should feel good about him ‘cause he looked after us for 4 or 5 years.”

18. The father agrees that, if the statements of the children just referred to (and others also included in the reports) can be accepted as accurate of what has occurred and what the children genuinely felt, they are indicative of emotional abuse of the children of a very serious kind.  The father asserts that the statements cannot be so accepted; in particular, he asserts that the children have been “programmed” to say those things by the mother and/or her partner.

19. Clearly enough, the issue so circumscribed is a central issue in these proceedings (albeit that these proceedings relate now only to Z), particularly given that Ms S’s ultimate central opinion is expressed thus: “It seems that even under supervised contact conditions, [Z] will continue to be manipulated as a pawn in the father’s ongoing campaign against the mother”.

20. That issue has added complexity because of an additional central opinion of Ms S (accepted by the mother) that “[Z] loves his father and desires more contact (shared care) with him under unsupervised conditions.  However this needs to be weighed against the ongoing atmosphere of continuing (and in my opinion) false claims of abuse which are unlikely to cease, and will likely impinge on his relationship with his mother and his general relationship development”.  The reference in parenthesis to shared care takes up Z’s expressed desire to have “month about” with each of his parents.

21. Z, too, has made a number of statements to Ms S that can be seen as reflective of his views.  Reference will be made to those statements later in these reasons.

22. In affidavits filed only a fortnight or so before the commencement of the final hearing (in April 2009), the mother and her partner each assert that, on 30 November 2008, J said, in the presence of both of them, “[N] [i.e. the father] raped me”.  A report to police followed the next day. 

23. At the time of the proceedings in April 2009, there was a police investigation. Documents were produced by the Police pursuant to subpoena.  They included a DVD containing a police interview.  That interview was not viewed by me at that time for reasons given in an ex tempore judgment delivered on 22 April 2009.  That DVD was subsequently admitted into evidence in the resumed hearing of the matter in November/December (and was, later, viewed by me a number of times).

24. The father denies that specific allegation and further denies any sexual impropriety of any sort that could give rise to any such comment. 

25. The fact that such a statement is made by a then 15 year old is obviously of profound concern. 

26. However, also of considerable significance, is that, in about August 2006, a letter was written by solicitors acting for the mother (Exhibit “ICL 2”) which, among other things detailed alleged statements by J (then aged 12.9), including: “The cops will be around soon so enjoy your life while I enjoy mine” and “… my thinking says you get charged … because  you verbally assaulted me … you [i.e. the mother] raped me .. .I know I am telling the truth.  You raped me”.  That exchange will be referred to in detail below.

27. In addition, it emerged during the father’s cross-examination by counsel for the Independent Children’s’ Lawyer (ICL) that – in circumstances still far from completely clear – the mother’s sister had accused the father of raping J, in “about 2002/03”, when the parties and children were living in Western Australia.  The father alleges that the sister took naked photos of J, including photos of J’s anus.

28. The final hearing resumed some 7 months later, in late November 2009, at which time the police had carried out further investigations in respect of the allegations just referred to.  By then, J had moved out of home and indicated that he did not wish to proceed further with any criminal complaint against the father.  The father has not been criminally charged.

1. That the father might pose an unacceptable risk of sexual harm to Z by reason of those allegations made by Y is, obviously enough, an issue in these proceedings. 

2. The facts and circumstances just briefly outlined highlight issues which find clear reflection in the statutory Considerations which this Court must take into account in arriving at a decision about orders that best meet the best interests of Z (s 60CC).  Plainly, those Considerations must be considered in light of the Objects and Principles enumerated in Part VII of the Act of which, I am, of course, aware.

What Are The Parties’ Proposals For Z’s Care?

1. The core differences in the proposals of the parties could not be more stark.

2. The father seeks an order that Z should live with him and his partner and spend alternate weekend and shared school holiday time with the mother.  The time thus suggested is the only time that Z would spend with his siblings.

3. A number of orders with a specific focus are also sought. Examples include:

   29. Mr [F] be named as co parent in regards to [Z] born […] July 1998.

   35. The mother shall get consent from the father before attending any school activity or school event for the children before attending.

   36. The mother is responsible for paying 50% of school fees and excursions for the child.

   38. Should the child require a passport the father is to keep the passport at his home should it be used by the mother she is to return with the children at end of the trip.

   39. Should the child be needed for a longer time than time spent with each parent shall agree but no more than 7 days over of the normal time spent with the mother.

   40. The father and mother need are to advise each other of any intention of leaving the state with the child and if so where they will be attending and for how long and return dates.

4. The mother seeks orders that would not only see Z live with her, but would see him neither spend time with, nor communicate in any form with his father.  In a similar vein, she seeks an order that she have “sole parental responsibility” for the child.  The mother’s position is supported by the Independent Children's Lawyer. Additional orders are sought by the mother in respect of special days and the like. 

5. The ICL, as well as supporting orders congruent with the mother’s position, also sought an injunction that “The father … be restrained from coming into contact or communicating in any way with [any of the three children]”.

6. Orders are also sought by the mother and the ICL that the mother have “sole parental responsibility” whilst the father, in effect, seeks an order for equal shared parental responsibility.  The issue of parental responsibility bears further consideration which will occur below.  First, though, it is necessary to examine the central role of best interests – an issue which, also, ultimately bears upon parental responsibility.

Principles Applicable to Ascertaining Best Interests

1. The Act mandates the consideration of specified matters in ascertaining best interests, and, upon the application of the presumption of equal shared parental responsibility, mandates consideration of specified periods of time and, in turn, mandates specific matters to be considered in respect of each such specific type of time.

2. As the Act reminds the Court more than once, (eg s 60CA; s 65AA), findings as to best interests are at the heart of the decision and the task is to arrive at orders which best promote the best interests of this particular child in his particular circumstances.

3. That findings as to best interests lie at the heart of every parenting decision is reinforced by the Act providing that those findings are the servant of many masters within the Act, including those that can be seen as central to Part VII.

4. Indeed, a central component of the Part - the statutory presumption of equal shared parental responsibility - is, ultimately, governed (in part) by an exception based on findings as to best interests.  So, too, the mandatory consideration of specified periods of time can be seen to be subject to an ultimate consideration of best interests.  (See the coda to each of the sub-sections of s 65DAA.)

5. Ultimate findings about best interests specific to the case before the court rest on a fact-finding exercise performed within a mandatory statutory framework.  In particular, the Act prescribes the means by which best interests is to be determined; the heading to s 60CC is “How a court determines what is in a child’s best interests”.

6. Clearly enough, that section, together with complementary provisions of the Act, including the Part’s Objects and Principles, are each central to the court’s role and the orders made by it.  In my view, the Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, in respect of the latter, eg. Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 at 270-2).

7. The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted.  That the enquiry remains a broad one is evident from the section itself (s 60CC(3)(m)).

8. Furthermore, ascertaining best interests by reference to those mandatory signposts and that broad enquiry must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).

9. In my view, then, it is necessary to commence the application of the statutory process by examining, and making findings about, the issues specific to the best interests of Z arising from the proposals for his care put forward by the parties (or, subject to procedural fairness, any alternative proposal which the court considers better meets his best interests – see U v U (2002) 211 CLR 238). Those findings can then be used to inform the statutory requirements.

The Evidence – Issues, Veracity and Credibility

The Single Expert – Ms S

1. The Full Court in Carpenter and Lunn (2008) FLC 93-377 held (at pars 225-227), in relation to the reports of a court-appointed expert in a parenting case:

   … We do not, of course, suggest that an expert has failed in their duty to give “an objective and unbiased opinion” [in accordance with the relevant Rule] simply because their views are firmly expressed and are highly prejudicial to one party.  We must say, however, that the Court Expert’s views here were expressed with a forcefulness of language that we found surprising and in a way which invited suggestion she had not provided her opinion in the objective and impartial manner mandated by rule 15.59(3)(a).  Furthermore, we are not persuaded that the Court Expert’s strongly expressed opinions were based on her “specialised knowledge” gained from “training, study or experience” as a psychologist, but rather were based on her assessment of the veracity of the parties and [the maternal grandmother]. 

   Whilst it is inevitable that a Court Expert will form views concerning the veracity of those they interview, it is nevertheless important for experts to appreciate it is unlikely they will have all of the relevant information and that they do not have the opportunity of observing the parties and witnesses under cross‑examination.  The following observation made by the Full Court in Hall and Hall (1979) FLC 90‑713 concerning reports prepared by court counsellors has equal application to Court Experts:

   [T]he counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross‑examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.

   These remarks highlight the fact that it is the task of the trial judge and not the Court Expert to make findings concerning the credibility of the parties and their witnesses.  As a minimum, the observations in Hall and Hall demonstrate why it would be desirable for an expert, pending determination of the facts by the trial judge, to consider the possibility that any view they may have on credibility could be mistaken.  Eileen Munro in her work on child protection has observed that “[t]he single most important factor in minimising errors is to admit that you may be wrong”: Munro, E, Effective Child Protection, SAGE Publications, London, 2002, at p 141. 

2. I would, with respect, adopt the language used by the Full Court in that case with respect to aspects of the reports prepared by Ms S here.  Examples from Ms S’s first report include:

   §In my opinion, the father has gone to extraordinary lengths to manipulate these children to reject their mother in order to alienate these children from her;

   §In my opinion, the father has quite vindictively since that time consciously enacted a programme to have the children reject their mother in the most overt way;

   §He appears to encourage the children to disrupt the visits [with the mother] through phone calls with him and encourages the children to report the mother’s alleged “assaults” on them to others (Police, Counsellor, D.O.C. S., Helpline);

   §[The father’s] exploitation of the children in this way has been conscious, well planned and quite malicious;

   §[The father’s] presentation of himself as the passive, submissive “victim” of domestic violence seems absurd.

3. Further examples infiltrate Ms S’s second report:

   §Despite these orders [changing the residence of the children] being made over a year ago, which resulted in such dramatic changes for all family members, [the father] does not appear to have changed at all in his attitude or behaviour.  He continues to claim that he and the children were victims of domestic violence at the hands of the mother.  He continues to make multiple reports to DOCS, some of these exaggerations of occurrences at the Rainbow Centre visits and some seemingly untrue;

   §Thus even under supervised contact conditions, [the father’s] campaign against the mother is continuing [emphasis in original];

   §[Z’s] reports to me of “abuse” by [the mother’s partner], which appear to be distortions of the “grain of truth”, are eerily resonant of the “grain of truth” allegations which [the father] repeatedly makes;

   §[The father] continues to turn benign issues which occur during these visits into the basis for continuing allegations of child abuse, which in my opinion are quite unfounded.

4. Ms S also purports (in the first report) to give a psychiatric diagnosis of the father  by reference to the DSM-IV (“Narcissistic Personality Disorder”) and then, having so “diagnosed” him, goes on to purport to assess behaviour by reference to the purported diagnosis:

   This Personality Disorder has markedly impinged on his relationships with others, in that he is dominating / bullying of others; can easily con / manipulate / exploit others; and has been quite stridently litigious in a number of arenas in order to benefit from this.  In a relationship sense (as opposed to a physical sense), [the father] is therefore quite a dangerous person.

5. Ms S claimed in oral evidence to have the expertise and training to make a psychiatric “diagnosis”.  I am not convinced about that.  Be that as it may, a more important issue is why, in the first place, Ms S considered it necessary to make any “diagnosis” at all and why, having done so, it was then necessary to extrapolate from it as if it was an established fact and to found opinions upon it.  The “diagnosis” is used in a form of ex post facto reasoning to justify opinions which, as it seems to me, are not related (at least directly) to her own observations or which emanate from data otherwise identified by her.

6. Earlier decisions of the Full Court (see eg Noetel v Quigley (2005) FLC 93-230; Carpenter v Lunn, above and the decisions there cited) have had as a primary focus the admissibility of expert evidence which transgresses appropriate boundaries.  The position there discussed must, in that respect, be now seen in the light of Division 12A of the Act and, in particular, s 69ZT.

7. Evidence previously inadmissible by reference to the Evidence Act 1995(Cth) may now be admissible in ‘child related proceedings”, under the Family Law Act 1975 (Cth), albeit that evidence so admitted may be given such weight as the court deems fit (s 69ZT(2)). Equally, the court can deem the evidence to be inadmissible, but the capacity to do so is legislatively constrained; for example, there must be a finding that the circumstances are “exceptional” (s 69ZT(3)).

8. Admissibility is one thing; weight is another.  I consider it proper to ensure that evidence which might sound in consequences having potentially grave consequences for the rights of children (and the rights of parents) has about it appropriate probative indicia and rigour before attaching significant weight to it.  Speaking broadly, such a consideration can be seen to have particular importance in respect of opinion evidence emanating from a single expert where a case involves allegations of serious misconduct toward a child or children.

9. Experts in the position of Ms S occupy a particular position in parenting cases.  First, they are court appointed.  Whilst no weight does, nor in my view should, attach as a result of that fact alone, for litigants (particularly those representing themselves) their evidence can be seen as having the, as it were, “imprimatur” of the court.  Secondly, and very importantly, single experts are frequently (as here) the only person providing evidence genuinely independent of the parties.

10. A rationale for the use of single experts by courts (and it might be observed that courts generally are increasingly adopting the use of single experts) is that their use prevents the scourge of “experts for hire” whose opinions, it can be argued, might be swayed (consciously or unconsciously) by the commercial considerations attaching to their appointment. 

11. In children’s cases, this issue can have a particular, albeit non-fiscal, application.  For example, treating health practitioners, including mental health practitioners, are often in a relationship of trust and confidence with their patients (which, of course, can include the children the subject of the proceedings) and often those relationships are of long standing.  Evidence from those health practitioners can often be helpful to a court but such evidence can also be attended by influence arising from (appropriate) sympathy or empathy arising from the relationship. 

12. As a result, it can be seen that a court might, in parenting cases in particular, be significantly assisted by single expert evidence that is not only expert and which has as its sole focus the best interests of the subject children, but which is also unaffected by any pre-existing relationship between the reporter and the parents or children. 

13. But, if a single expert is to occupy such a position, it is in my view fundamental that they do not go beyond their role in scope, language or intent. 

14. Helpful though court-appointed single experts can be, they do not decide cases and must not purport to do so.  That is the statutory responsibility of judges.   Nor should those experts purport to determine factual issues – that, too, is the sole ultimate responsibility of a judge.  In my respectful view, family reporters – particularly those undertaking broad-based assessments of family dynamics, children’s developmental needs and the like - need to be particularly cautious about giving “opinions” on matters that are, ultimately, matters for determination by this court.

15. Obviously enough, the distinction can frequently be blurred: as has been remarked upon above, opinions about, ultimately, best interests involve values as well as facts and each can be interwoven with opinions that might be seen to be “value judgments”. The task is, it must immediately be acknowledged, an extremely difficult one, made no easier where a matrix of facts, sometimes overlapping and contradictory, is involved. 

16. Yet, striking the right balance and the necessity for court experts to delineate carefully the boundaries of their expertise, and to delineate carefully, on the one hand, clinical judgment based on clinical observation from, on the other hand, determinations of fact and expressions of non-clinical opinion, is an important part of the expertise which sounds in their appointment in the first place.

17. In my respectful view, many of the comments and opinions of Ms S in each of her reports, exemplified by those earlier quoted, either go beyond that which Ms S’s expertise allows her to express, or can be seen as determinations of fact or are the expression of non-expert opinions.

18. That said, not only is it open to me to accept some opinions of Ms S and reject others (so much is axiomatic) but also to find that some opinions are infected with the considerations to which I have just made reference and others are not.  

19. I am conscious that the father seeks to attack the evidence of Ms S in its entirety.  The factors just discussed do not, in the circumstances of this case – and taking the reports and evidence of Ms S as a whole - lead to that conclusion.  I record, however, that I have sought to be particularly careful in assessing and analysing the opinions expressed by Ms S and her evidence generally.

20. Counsel for the ICL submitted that, even if I had reservations about the evidence of Ms S similar to those which I have expressed, I ought nevertheless attach significant weight to, in particular, the observations of Ms S.  Those observations, it was submitted, constitute important evidence emanating from an expert witness of considerable experience and many of those observations ought inform the ultimate findings to be made. Counsel for the Independent Children’s Lawyer submits that, not withstanding any such considerations, Ms S’s observations and assessment and opinions based on the former are valuable and should be accepted.  As will be obvious from parts of the ensuing discussion, I accept that submission.

The Parties

(a)      Factors Potentially Impacting on the Father’s Evidence

1. I am mindful that self-representation (and the father preparing his own material) may create for him disadvantages. 

2. I have sought to be particularly careful when assessing the parties’ evidence (and submissions) to bear that in mind.  (I have in mind, for example what the High Court said in Neil v Nott (1994) 68 ALJR 509 at 510). It can, I think, be fairly said that, to use the words of the High Court in that case, the father’s case was, to a certain extent, “… obfuscated by [his] own advocacy…”

3. A corollary of the concern about self-representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things from a party that otherwise might be shrouded in the expertise of their representation.  Mr Justice Wilson (UK) said, in his Atkin Lecture in 2002 entitled, “The Misnomer of Family Law”):

   … I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent; let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress … one sees him cross-examine the mother … [T]he father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.

4. Here, I consider that the father’s self-representation provided an opportunity (albeit a relatively limited opportunity in an unusual environment) to “discern the quality” of his capacity to parent, including his attitude to Z’s co-parent and to the “responsibilities of parenthood” exhibited by him.  An important aspect of each is the manifest disrespect he had for the mother who, it must be emphasised, is the co-parent of his child.

1. In this case, in addition to the matters referred to by Wilson J above, the father’s self representation provided the opportunity to observe the nature, type and extent of the questions asked by him of the mother and to observe in particular, the extent to which those questions reflected his capacity to focus on Z’s needs as distinct from his own.  This too, I consider important in assessing his capacity to parent, the nature of the relationship he has with Z and the responsibilities of parenthood. 

2. I am also acutely aware of an additional factor which, in my view, I should also take into account when assessing the evidence and demeanour of the father, including in the context just mentioned.

3. In the present case, the mother (who is represented by solicitor and counsel), and the ICL (also represented by counsel) ultimately seek orders which, in substantive content, are similar.  Further, their approaches to the case had similarities.   In those circumstances, the “spotlight” of the hearing can shine brighter on an unrepresented party in the father’s position. Because the spotlight of enquiry shines brighter, any flaws tend to be all the more vividly exposed.

4. I have all of those matters in mind when assessing the evidence in this case.

(b)      The Evidence of the Parties Generally

1. I consider each of the parties’ evidence has significant deficiencies.

2. I assess the father and his partner as each being extremely immature, self-centred and narcissistic.  I consider they each filtered their evidence through perceptions of what they would like to be true as distinct from a clear account of what is true.

3. The mother, too, I consider to be a less than satisfactory witness.  I have already made mention of my specific findings with respect to her evidence about her asserted attempts to find the father and children and her evidence of the events leading up to, and of the day upon which, she attempted to obtain possession of the children.

4. Generally, then, I treat the evidence of each of the parties with considerable caution.

5. I am similarly circumspect about the evidence of the father’s partner, Mr W.  I consider him to be an immature and vulnerable person significantly influenced by the father and the father’s view of events.  I consider that similar considerations apply to the mother’s partner Mr M, but from a different perspective.  Whilst I don’t consider Mr M to be, as it were, under the influence of the mother, I do consider that his accounts of events are coloured by his alignment with her position.

Best Interests – Issues and Considerations

How Do the Primary Considerations Apply to this Case

1. As is frequently the case in parenting issues in which parents have abdicated decisions about parenting arrangements to this court, the Act’s two primary considerations can be seen to come into conflict  when seeking to determine Z’s best interests.

2. Z plainly seeks a meaningful relationship with his father and would benefit from it if, in fact, the relationship circumscribed by the parental attitude, capacity, co-operation exhibited by Z’s parents and the circumstances otherwise pertaining admit of a relationship that can be described as “meaningful”. 

3. One of the circumstances applicable to that determination in this case, and a critically important one, is whether a relationship that might otherwise present itself as of benefit to Z nevertheless raises an issue of protecting him from physical or psychological harm or being subject  to, or exposed to abuse, neglect or  family violence. 

4. Although “abuse” is a defined term (s. 4), the importance given by the legislature (and, irrespective of specific legislative provision, this court) to protecting children from harm of all types is, in my view, plainly sufficient to posit, as a primarily important consideration, protection from psychological harm.  As will transpire, I consider that very important in this case.

The Risk of Harm – Sexual, Emotional  and Physical

1. No allegation is made against  the father that he has ever engaged  in sexually inappropriate behaviour with Z.  However, the mother’s eldest child, J, has made allegations of sexually inappropriate behaviour by the father toward him. It will be recalled that the three children lived with the father for some time during which the mother had no contact with them.

2. Even in the absence of particular allegations of sexual behaviour toward the child the subject of the proceedings, a finding that the father has “raped” a child whilst in his care, or may have, is plainly likely to have significant ramifications for a parenting order in respect of another child the subject of the application.

3. A DVD of an interview given to the police by J contains his allegation. I have listened carefully to it. J was nearly 16 at the time of that interview. Accordingly, what he has to say during that interview ought be accorded significant prima facie cogency.  He clearly alleges inappropriate sexual behaviour by the father toward him.

4. There is evidence from the expert, Ms S, that J’s disclosure of sexually inappropriate behaviour by the father is “a credible disclosure” and weight ought be attached to it. I very much doubt that, absent s 69ZT, this evidence would be admissible. I consider, for example, that the evidence would not come within the exception to s 79 of the Evidence Act 1995 set out in sub-section (2)(b) of that section. While Ms S has specialised knowledge within the meaning s 79(2)(a), evidence permitted to be led pursuant to s 79(2)(b) should, in my view, nevertheless be carefully distinguished from evidence that opines as to veracity or credibility. Indeed, that is a distinction of a type that the section itself seeks to draw.

5. I myself doubt that, in any event, s 69ZT renders the evidence admissible; it is by no means clear to me that this opinion is evidence which “if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”  (s 55 Evidence Act 1995).  

6. Even if that view is wrong (and in light of the father’s self representation, it was not raised and no argument was sought in respect of it), I do not, in any event, attach significant weight to that evidence of Ms S in relation to the “disclosure” made by J.

7. Equally, I am not greatly assisted by the evidence of Ms S more generally in respect of the issue of possible sexual abuse of J.

8. When pressed in the witness box, Ms S admitted that she would need to be possessed of data additional to that which she had before determining whether or not there had in fact been abuse (as she clearly suspects). 

9. The earlier comments made about Ms S’s process and the ultimate “opinions” reached by her have resonance here.  I find it difficult to see how Ms S’s opinion about the credibility of J’s disclosure is not, at the least, very significantly infected by the adverse opinions that she had about the father, his veracity and conclusions she has drawn that allegations of varying types made by the mother about him are made out.

10. Ms S did not at all consider a number of other factors which, to my mind, are highly relevant when considering the veracity, or reliability of J’s comments. 

11. For example, it has already been noted that J had made a previous allegation that his mother had “raped him”.  There can be no doubt that, on any view, J is a very, very troubled adolescent boy who (through no fault of his own, but through the “fault” of others) is well practised in saying things which might affect the behaviour of others towards him and in expressing views which might be coloured to favour the views of those who surround him. 

12. It seems to me that Ms S did not at all consider the fact that the statements made by J in the police interview have, as an important part of their context, other, earlier statements by him which also pertain to sexually inappropriate conduct.  For example, as well as the direct allegation just mentioned, J had also made allegations that, in his mother’s care, he had been inappropriately been exposed to forms of sexual activity (for example, the evidence about “threesomes” and the evidence about a “dildo”). 

13. The allegations are each denied by the mother.  Thus, on the mother’s case, J has made serious allegations about sexual impropriety involving her, which are utterly false.

14. J, having moved out of his mother’s home, has decided not to proceed with police action in respect of his allegations.  The matrix of facts surrounding the relationship between these parties is redolent of children seeking attention from their mother and being caught in the middle of highly polarized and conflicted parents, neither of whom, in my judgment, have exhibited the responsibilities of parenthood that might be expected of appropriately nurturing parents.  

15. Significantly, as it seems to me, the mother, in oral evidence, did not seek to make out a specific case that the father presented a risk (of any sort) to Z. 

16. First, in answer to a question about her attitude should Z want to live with his father, she said “if that’s what [Z] wants … but I wouldn’t be very happy about it”.  Further, when asked if Z was at risk of physical harm in his father’s care, she said he was not at risk “in any way, shape or form”.

17. I accept the submissions made by counsel for the mother that the mother is not a sophisticated person and that she was seeking to emphasise that she was aware that Z loved his father and that she supported that.  But, I nevertheless find it odd – to say the least – that the mother of this still relatively young child would say such a thing – and say it in the manner in which she did – if she considered that the father represented a significant risk to Z.

18. It will be appreciated, then, that a number of competing factors pertain in assessing what risk of sexual harm (in the broadest sense) might be presented to Z in the care of his father. 

19. J is of relatively mature years and has been prepared to say the things contained on the DVD in a formal interview with persons in authority.  Yet, I have significant concerns about the context and content of the “disclosures” made by J on the DVD and the opinions expressed by Ms S which, as it seems to me, fail to consider a number of important contextual aspects that might have been significant influences on J saying what he said in that interview. 

20. I do not consider that the evidence before me is anywhere near sufficient to make a finding that the father committed any form of sexual impropriety toward J.  Similarly, I consider the evidence falls significantly short of what is required to find that the father spending time with Z is attended with Z being at risk of sexual harm from the father.  Counsel for the mother effectively conceded as much in his final submissions.

21. But, a conclusion that no finding can be made about the integrity of the allegations as proof that improper sexual behaviour occurred, does not mean that the fact that J made those statements is irrelevant to the broader issues in these proceedings.  Indeed, the fact that a 16-year-old is prepared to make serious allegations in circumstances where he has spent a considerable period in the father’s care has the potential to say much about the potential benefit for Z of a relationship with his father and other considerations underpinning the ultimate findings.

Emotional or Psychological Harm

1. I am profoundly concerned that the children, when in the father’s care, have made statements directly reflective of the father’s appalling attitude towards the mother and that those statements by the children were made because they clearly reflected things said overtly by the father about the mother (and by the father’s partner about the mother) in the presence of the children. 

2. The troubling telephone conversations recorded by the mother contained in Exhibit ICL 2 are a good example of what I consider to be the overt pressure on the children in that respect.  They include J making an assertion (in 2006) that the mother “raped him” (which, for all the reasons just identified, I do not accept occurred):

   J:        Hello, don’t call me sweetheart.

   M:Oh, darling, please, you really need to think about what you’re doing, mate.  Honestly.

   J:        I’m not … I’m thinking.

   M:      And what are you thinking?

   J:        And my thinking says you get charged.

   M:      Why?

   J:        Because you verbally assaulted me.

   M:How did I assault you, darling?  What did I say to you, [J]? What did I say to you?  Did I insult you?

   J:        (unintelligible) … never did it.

   M:No, I didn’t insult you, did I?  See?  Mate, honestly, you really got to think about these things, hey?  OK?  Coz, I know you’re doing what Dad wants you to do.

   J:Ulbrick [the mother’s then solicitor] is going away because you did do it.

   M:      You’re going away because I did do it?

   J:        No, Ulbrick is.

   M:      Is he? Ok.

   J:        You raped me.

   M:      I what?

   J:        I know I am telling the truth.  You raped me.

   M:Ok, mate.  Stop, that’s all right.  Stop.  You really need to think about what you’re …

   J:        And tell … that you said so.

   M:You really need to think about what you’re saying, mate.  I’m telling you.

   End of call.

3. My observations of the father and the evidence generally (including his many complaints to a variety of public bodies to which reference will later be made) lead me to strongly suspect that, at the very least, the children were not dissuaded from expressing highly negative comments  about their mother and, more likely, were overtly encouraged to do so.

4. The father appears to exhibit no understanding at all that doing so to young children is highly damaging of them.

5. I accept, then, the submission of Mr Harper, counsel for the Independent Children's Lawyer, that, whilst the mother is “not without responsibility” in a process that resulted in children having highly polarised views about their parents and them expressing those views, nevertheless, the children found themselves in circumstances where they were in “a psychologically unhealthy place” in the father’s care. 

6. I also accept the submission of Mr Harper that their father didn’t “see the need to stop them from doing that or [to discourage] them”.  Mr Harper goes on to submit that the evidence reveals that those considerations – evident in the observational data contained within Ms S’s first report – ought be contrasted with the observations made in the second report.  Counsel submitted that the children were “in a much more psychologically healthy place in terms of their interactions with each other, their interactions with each of their parents, or [Z] with the father”.  I also accept that submission.

Does Mr M Present a Risk of Physical Harm?

1. Z made statements to Ms S suggestive that the mother’s partner engages in behaviour that is either intimidatory or physically excessive.  Ms X records a conversation with Z in her report dated 25 September 2008.  Included among the things Z said to her are:

   [Z]:Sometimes when I turn around and [Mr M] is behind me and I get scared [Mr M] will hit me.

   Reporter:       Has he hit you?

   [Z]:                He sometimes hits me.

   Reporter:       What with?

   [Z]:                With his hand.

   Reporter:       Whereabouts does he hit you?

   [Z]:                On the back of my head.

   Reporter:       What does Mum say?

   [Z]:                She’s not there.

   Reporter:       Does anyone else get hit?

   [Z]:                No, just me.

   Reporter:       Why only you?

   [Z]:                Because I’m not the smartest.

   Reporter:       Can you tell me about one time when he hit you?

   [Z]:I didn’t do the dishes properly and he hit me on the back of the head and hit me with a crutch, but apart from that, life is good there …

2. The report writer went on to mention the father in the context of that conversation:

   Reporter:       Does your dad, [N], know this happens?

   [Z]:I don’t want to tell him ‘cause he’ll use it against me being with mum.  He’ll say they are flogging me.

   Reporter:       Why are you telling me this?

   [Z]:‘cause you asked.  If I tell you, I’ll go back to dad.  I just want to spend a month with my dad and be a month with my mum.  In that way, I don’t miss my dad and I don’t miss my mum …

3. Ms S opines of this conversation:

   [Z] has made allegations of abuse by [the mother’s partner] to both myself and the Rainbow Centre counsellor.  He told her that he was fearful [the mother’s partner, Mr M] might hit him but that he had not done this yet, only that he wanted to.  He initially told me, too, that he is scared [Mr M] will hit him, but this was later changed to claims that [Mr M] had actually hit him with his hand on the back of his head and with his crutches. [emphasis in original]

   [Z’s] affect when making these claims was very incongruous.  As well, he claimed [Mr M] would be “shocked” to know he had hurt [Z] i.e. that while he reported this behaviour of [Mr M’s] as abuse, he did not see that [Mr M] viewed it like this.  One could thus suggest that [Z] had used the familiar “games” [Mr M] plays with the boys (the CSI ‘head touch’ and the crutches play) as “evidence” of abuse even though he acknowledges this not [Mr M’s] intent.

   [Z’s] reports to me of “abuse” by [Mr M], which appear distortions of the “grain of truth”, are eerily resonant of the “grain of truth” allegations which [the father] repeatedly makes.

   [Z] was quite overt telling me of his “idea” which appeared pre-meditated, that if he made these allegations to me, it would result in the judge giving him more time with his father.  Sadly, [Z] has had long experience of seeing his father manipulate the legal / welfare / mental health system by allegations of abuse against the mother and her partner.  [Z’s] vulnerability in the future to further act out these wishes of the father (by continuing to make allegations) is considerable.

4. The passage there cited contains (starkly in my view) an example of the matters which cause me concern about Ms S’s evidence to which I have earlier referred.  Nevertheless, I accept the accuracy of the actual observations and the accuracy of the recording of statements by Z.  I consider that the observation of incongruity to be both within expertise and an accurate description of Z’s comments.

5. Furthermore, I consider that, like J, Z, too, is only too well aware of the highly polarised position of his parents and his place within the conflict.  He, too, (despite being younger than J) is in my view well practised in saying those things which might serve to achieve ends which accord with what he thinks is fair or which might be seen to avoid further conflict between the parents.

6. Finally, I consider the evidence of the mother’s partner about these allegations to be truthful and plausible. 

7. I particularly refer to his evidence (which I accept) that physical interaction occurred in a non-violent and non-threatening manner (for example, in the context of the “CSI game” about which specific evidence was given during the hearing).

Benefit of a Meaningful Relationship

1. In the context of a legislative environment, different from that which now pertains and over 20 years before the concept of “meaningful relationship” found its way into statutory Considerations, Nygh J said this:

   … It was at one stage the view that a parent had a right of access to their children of which that parent could only be deprived in extraordinary circumstances. That, of course, was language which suggested that a parent had a property interest in a child …That language was abandoned well before the present Act came into force, and Judges started to speak of the right of children to access to a parent … The test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration, which is, in my view, the one and only principle to be applied.  It means that in each case, the Court must make an independent investigation of what the welfare of the child requires, and a Court is not very much assisted by recourse to general principles other than that principle.  It is true that we can fall back on general accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions and presumptions which can only be displaced by evidence to the contrary.

   One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents.  It is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated …

   However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child.  It is not, in other words, a question of contact for contact’s sake.  If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact.  That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.  Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to do positive harm to the child – it is the emotional relationship which counts and not the inherent harmfulness of the parent as such:  thus, I can well imagine that in certain circumstances, a woman who leads a totally immoral life, such as a prostitute, may have something to offer her children.  On the other hand, it may be that a person who leads a life which, to the general observer, is one of a pillar of rectitude has nothing to offer to his children …(Cotton v Cotton (1983) FLC 91-330 at 78,252)

1. Ultimately, I have come to the conclusion that what is best for Z is for him to be left free of the influences and pressure from his father, to which I have just referred, until such time as he is of a sufficient age and maturity to allow his views to predominate the consideration of his best interests. There is, of course, no precise answer to the question of when that should be, but I have chosen when he is about 15 (having taken account of his assessed immaturity) as an appropriate time.

2. In my view, the restrictions contemplated will come at some cost to Z.  But, greater harm would be done to him in my view by his exposure to those influences and his father’s unwillingness or incapacity to prioritise Z’s needs above his own.

3. I will make orders that Z spend no time with his father.

4. I will, though, leave the door open for Z and the father to communicate, albeit in a restricted manner.  That allows for the possibility of Z drawing his own conclusions about the relationship with his father over time, and for the father to have the opportunity to examine his own attitudes and demonstrate an appropriate form of commitment to Z (albeit curtailed as to its form). At a future time when he is of sufficient maturity to do so, Z can begin his own relationship on his own terms. 

5. I am persuaded to this course, rather than “shutting the door” completely as the ICL and the mother would have it because primarily of Z’s views which, if maintained, ought be allowed to bear fruit when he is of sufficient maturity to commence making his own judgments about whether his parents meet his then needs and also because of the mother’s evidence that she will support those views if appropriate.  Protection for Z is required, though, until he reaches that stage.

6. I will also seek to provide to Z (and to the mother and her partner) a sense of stability and security by ensuring that no further proceedings in respect of Z are instituted in this court without leave.  I make it clear that I make such an order by reference to s 68B(2) of the Act (and not s 118).  It is an order which, by reason of the matters earlier discussed and findings earlier made, I consider to be in Z’s best interests.

7. I will also order that the mother provide a variety of photos of Z to the father no less frequently than at six-monthly intervals.

8. I will also ask the Independent Children’s Lawyer to explain these Orders to Z in language considered appropriate by her and with such assistance from any family consultant as the Independent Children’s Lawyer might consider appropriate.

9. I order accordingly.

I certify that the preceding two hundred and twenty two (222) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate: 

Date:  13 April 2010