Welchman-Rubie and Zawada

[2013] FamCA 862

FAMILY COURT OF AUSTRALIA

WELCHMAN-RUBIE & ZAWADA [2013] FamCA 862

FAMILY LAW – CHILDREN – With whom a child lives and spends time – serious allegations of physical and sexual abuse – findings against such allegations – mother asks Court in that light to find no unacceptable risk.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Ms Welchman-Rubie

RESPONDENT: Mr Zawada

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: ADC 3674 of 2010

DATE DELIVERED: 1 November 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Adelaide

JUDGMENT OF: Cronin J

HEARING DATE: 23, 24, 25, 26 September 2013; 25 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bowler

SOLICITOR FOR THE APPLICANT: R G Eckermann And Co

COUNSEL FOR THE RESPONDENT: Ms Lewis

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission Of South Australia

Orders

(1)That all extant parenting orders are discharged.

(2)That the father and the mother have equal shared parental responsibility for the child D Rubie-Zawada (“the child”) born … 2005.

(3)That the child live with his mother.

(4)That the child spend time with his father as follows:

(a)On each alternate weekend commencing 8 November 2013 from the conclusion of school on the Friday to the commencement of school on the following Monday morning and for a similar period in each alternate week thereafter; and

(b)From the conclusion of school on each alternate Thursday until the commencement of school on the following Friday morning commencing on 14 November 2013 and for a similar period in each alternate week thereafter.

(5)That the child spend time with his father during the following holiday periods:

(a)For one half of each of the school term holidays on dates to be agreed and failing agreement, the first half; and

(b)Failing agreement about a longer period or a different configuration to the contrary, for three separate periods of one week during the long summer school holidays, the first of which shall be the 7 day period immediately prior to Christmas Day, the second shall be the week commencing 2 January at 10 am and the third shall be the last week before school starts for the new year.

(6)That the child spend time with his father on the following special occasions:

(a)From 5 pm on 25 December 2013 until 5 pm on 26 December 2013 and for a similar period in each alternate year thereafter;

(b)From 5 pm on 24 December 2014 until 5 pm on 25 December 2014 and for a similar period in each alternate year thereafter;

(c)From 5 pm on the Saturday before Fathers’ Day until 5 pm on Father’s Day; and

(d)For a period of 2 hours from the conclusion of school on the child’s birthday if it is such a school day or a period of 6 hours at an agreed time on his birthday if it is a weekend and failing such an agreement, from 9 am on the Saturday until 3 pm that afternoon.

(7)For the purposes of paragraph 5(a), the school term holidays shall be deemed to commence at the moment school breaks up at the end of any term and to conclude at 7 pm on the night before school resumes for the next term.

(8)For the purposes of paragraph 5(b), the school summer holidays shall be deemed to commence at the moment school breaks up at the end of the last term of the year and to conclude at 7 pm two nights before school resumes for the next year and to the extent that the parties are calculating time, the days between 5 pm on 24 December and 5 pm on 26 December are to be excluded.

(9)For the purposes of paragraph 5(a), the father’s time is suspended on the Mothers’ Day weekend from 5 pm on the Saturday of that weekend until 5 pm on Mother’s Day.

(10)Paragraph 4 of these orders is suspended during the school term and long summer holidays and shall resume in the new school term as if the cycle had not otherwise been interrupted.

(11)Each of the father and the mother and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of their male child, D Rubie-Zawada born … 2005 from the Commonwealth of Australia and D Rubie-Zawada is hereby restrained from leaving the Commonwealth of Australia and IT IS REQUESTED THAT THE AUSTRALIAN FEDERAL POLICE give effect to the preceding order by placing the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of two years which period will expire at 4 pm on 1 November 2015.

(12)Upon expiration of the period referred to in paragraph 11 the Australian Federal Police will cause the removal of the child’s names from the Watch List. 

(13)Each party and the Independent Children’s Lawyer may provide a copy of these orders to the principal of any school at which the child attends.

(14)For the purposes of paragraph 4, 5 and 6 of the orders, if the handover of the child is not to occur at the school, it shall occur at the … Restaurant in …, North Adelaide.

(15)For the purposes of paragraph 2 of these orders, subject to any directions to the contrary by the school’s principal:

(a)Each parent shall be entitled to obtain school reports, newsletters and school photographs;

(b)Each parent shall be entitled to attend all events and functions normally attended by parents at that school;

(c)Each parent shall be recorded on the school’s records as a parent of the child.

(16)Each of the parties and the Independent Children’s Lawyer may provide a copy of these orders and the reasons for judgment this day to FamiliesSA, the Police Commissioner for the State of South Australia and the general medical practitioner who has the care of the child.

(17)Each parent keep the other informed of all contact details and the place at which the child will live whilst in their care.

(18)It is certified that it was appropriate and reasonable for the parties to brief counsel.

(19)That save as to issues of costs, all applications are otherwise dismissed.

(20)That 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.

AND THE COURT NOTES

A.No provision has been made in these orders for Easter on the assumption that parties will work those days out either as part of the school holidays or between themselves.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Welchman-Rubie & Zawada 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 MELBOURNE

FILE NUMBER: ADC 3674  of 2010

Ms Welchman-Rubie

Applicant

And

Mr Zawada

Respondent

REASONS FOR JUDGMENT

1.Mr Zawada (“the father”) and Ms Welchman-Rubie (“the mother”) were in a relationship for only a few months in 2004 from which the child was born in April 2005.

2.Final parenting orders were made in the Federal Magistrates Court in 2006.  There had been interim orders made in 2005 when the child was only five months old.  Those orders worked successfully until 2010 despite some minor disagreements between the parties.  In 2010, there was a radical shift leading to a number of events including the exclusion of the father from the child’s life, significant involvement by welfare authorities and charges being laid against the father for assaulting the child which were subsequently withdrawn.

3.The significant conflictual relationship between the mother and the father subsequent to 2010 has led to difficulties in the father having a consistent role in the child’s life.  That has led to these proceedings and a contested hearing during which the lives of the parties were trawled over right back to 2004.

The mother’s position

4.As the applicant, the mother initially sought that the father’s time with the child be restricted.  On the second day of the hearing which commenced in May 2013, she said that she would not seek to have the father’s time supervised.  When the hearing and her cross-examination resumed in September 2013, in cross-examination by counsel for the Independent Children’s Lawyer, the mother resiled from that position and sought orders that the father’s time continue but only on a supervised basis and for an indefinite future period.  When asked for an explanation as to the change of heart, she said that she only offered the unsupervised time because she was stressed at the time.  She said it was important that she now put her position because she was representing the child.  On 26 September 2013, counsel for the mother announced that he was instructed to put her position as four nights per fortnight.  Implicit in that “offer” was the indication that the mother was now not seeking the father’s time be supervised.  After a short contemplation, the father rejected the “offer”.   The mother’s various (but significantly different positions) made this trial long and difficult for everyone.

The father’s position

5.The father, as the respondent, said his primary position was that he wanted the child to live with him.  He said however that in the alternative, because he did not want to remove the child from his mother, his time should be from Friday after school until Monday morning in one week and from Thursday night until Friday morning on the alternate week.

6.The father also sought ancillary orders that I shall deal with later.

The Independent Children’s Lawyer’s position

7.Counsel for the Independent Children’s Lawyer began the case by indicating that there was no clear position.  At the end of the case, it was put that the appropriate orders were in line with the father’s position of four nights per fortnight.

Sexual abuse allegations

8.Significant allegations of sexual abuse and physical abuse arose in this case against the father.  The statements giving rise to them were made by the child.  Closely cross-examined, the mother indicated she believed everything that the child said to be true.  That said, she was ultimately insistent that the Court should not make a finding about any of the allegations.  As the trial progressed the mother gave evidence that the child had made complaints that had not been heard before.  She was unconvincing about a number of matters including these late revelations because of her emphatic belief in the truth of the statements.  It was put to her that this was an issue of fundamental importance to the child’s safety and her only response was that she was trying to work through the issues.  When asked how she would respond if the Court made an order for time to be unsupervised, she simply said she would deal with it.  If the child made similar accusations in the future, she said she would need to get help but she would ask the child what he wanted her to do.  If allegations were raised in the future, she said her response would be to say to the child to “suck it up”.  Yet, her final position was that time should not be supervised.

9.Almost mantra-like, the mother said that she was only standing before the Court because the child had asked her to do so.  I think she was saying that metaphorically. 

10.The mother’s pessimistic view was that one way or another regardless of orders, the matter would end up back in court.  She said she would continue to listen to the child and “act reasonably within the law”.  I have some concerns about what she will do in the future.

Outcome

11.Notwithstanding no party sought that there be findings in relation to the specific facts that gave rise to the allegation of sexual abuse, I do not doubt that the child made the statements that he did.  On the evidence, there is no plausible explanation for why he made the accusations.

12.On the evidence, I find there is no unacceptable risk of physical or psychological harm to the child in the care of his father.  There is every reason to think that the child should have a significant relationship with his father in the future.  There is no basis for that relationship to be supervised on the evidence that I heard.

13.I have significant concerns about the mother’s statement that she would support a relationship between the child and the father.  My pessimism is supported by the evidence of the family report writer Ms I.

14.That all said, it would not be in the child’s best interests to live with his father having regard to the nature of the relationship he has with his mother.  Leaving aside her undermining of the father’s relationship with the child, all of the evidence points to the fact that she is a competent parent who provides for the physical and psychological care of the child.  There is not enough evidence for me to be satisfied that the father’s proposal for a full-time care arrangement with him would provide for any stability in the child’s life.  The evidence supports the conclusion that the father is a caring and loving man whose time has been severely limited in recent years with the child and it is now appropriate that he be able to continue to spend leisure time which is not just distracted by supervisors and their children but also that he participate in the everyday activities of the child as well as those activities that are important to him personally.  That includes enjoying his Italian heritage.

15.The end result therefore is that the appropriate orders, and those which are in the best interests of the child, are the fall-back position of the father.

The parties as witnesses

16.The mother was defensive and loquacious.  It was difficult to get her to answer a question and she constantly justified her position.  She was often asked to respond to the question because she evaded it.  In respect of particular incidents in the early part of the relationship, I do not accept her evidence about the nature of the relationship with the father nor about the conception of the child.  I find her jaundiced view about the father has coloured her evidence.  In respect of more recent events, her statement about specifically believing everything that the child said was never reality tested and indeed, I find she has unwittingly as distinct from maliciously encouraged the child to such an extent that the child knew that he would find support from her even if his statements were untenable in the circumstances.  The mother had independent evidence of people who saw the nature of the relationship between the father and the child and its inconsistency with what she believed.  She unreasonably rejected that credible evidence.  I have therefore carefully looked at what she has said and whilst I have not preferred her evidence over that of the father, any assertion of fact requiring a finding has been carefully determined on the balance of probabilities.

The father as a witness

17.The father had the handicap of having to give evidence and be cross-examined where English was not his natural language.  Whilst he has been in Australia for a number of years, he endeavoured to be responsive in English even though he had a translator provided to him.  Because of the concern I had about whether he was understanding the questions and whether counsel and the Court were understanding his answers, much of his evidence was eventually heard through that translator. 

18.Nothing in the father’s evidence indicated to me that he was untruthful.  He was a man who was very excited about fulfilling the role of a parent to the child and nothing I heard would indicate that he had any other focus.  As an historian in most, but not all things, I found him equally reliable as the mother.

19.That said, there are a number of features about the father which I found concerning.  I accept that he has been traumatised and frustrated by not only being excluded from the child’s life but also accused of horrendous crimes and indeed arrested.  He has been involved in Youth Court proceedings unnecessarily not to mention significant litigation in this Court.

20.In his evidence he was asked why he did not accept the mother’s offer to resolve the matter after an indication was given by the Court that it was unlikely that he was going to receive an order that the child live with him.  He said that he wanted to hear the judge’s opinion and he would like a final written judgment on the matter.  That might have made him feel better but he has to factor in that he too contributed to much of the problem in 2010 by certainly adopting a belligerent approach at the handover in September.

21.In his evidence, the father explained the reason why orders were made was that the mother had little choice but to follow court orders.  During that period of time however, when interviewed by state welfare authorities, he used extraordinary expressions such as the fact that he believed the mother and the maternal grandfather had had an incestuous relationship.  I do not accept that that was said out of frustration.  It was unpleasant and untrue and it did him no credit.

22.Further, he accused the maternal grandfather of being the perpetrator of the awful things that the child was saying had occurred to him.  He justified that statement as being the fact that the maternal grandfather was the closest person to the child.  He said that as he personally had not committed these awful crimes, it must have been the maternal grandfather.  Similarly to what I earlier said, there was no justification for that statement.

23.The father accused the mother of placing the child in an environment which was not balanced because he lacked a father figure.  That too was an unfair statement bearing in mind how the relationship between the parties began many years ago.

24.The father was given an opportunity to understand how the mother reacted to the advice she was getting from the state welfare authorities who had interviewed the child.  His view was that the mother had reached her objective to have him accused of these crimes and that she only pretended to be worried.  I do not accept that it was that simple.  I accept that the relationship between the parties was so poor that their communication was completely shut down and I am critical of both of them for that.  That exacerbated the uncertainty as to why the child was saying what he was.

25.The father too said that the mother had instructed the child to say the things he said.  No evidence supports that conclusion to the extent that it points the finger at the mother. 

26.In an unusual period of months in 2011, the father declined to pursue supervised contact at a contact centre on the basis that the contact centre service would not commence without a copy of the relevant welfare authority reports.  The father chose to follow legal advice about that.  I have read the correspondence between the solicitors and I do not accept the father’s position having regard to the fact that he said that he would do anything to have time with his son.  It may very well have been however that the contact centre may have rejected the application on the very basis of the report of the centre.  However, that centre would have to take into account that the Court made the order knowing of the existence of those reports.  The father’s attitude was therefore one of pig-headedness.

27.The father too accused the mother of psychologically abusing the child by involving the child in all of the various interviews that he underwent.  Whilst I am critical of the mother, I do not accept that the father was right to call that psychological abuse.

28.The father had a very poor view of the mother.  To the state welfare authorities, he described the mother and her father as insane.  Whether that was used in its correct context, I am not sure but when challenged about it, the father said that it was indicative of the fact that the mother did not love the child to put him in that situation.  That was an absurd proposition.  He even went so far as to tell the welfare authorities that in a moment of craziness, the mother could kill the child.  These were considered words and whilst I am sure he did not believe them, they did him little credit in the sense that he knew that the mother was going to have some involvement in the child’s life.  I am critical therefore of the father in relation to his evidence.

The burden of proof

29.The standard of proof in this case is the balance of probabilities. Serious allegations were made against the father but as I have earlier indicated, the mother did not seek that I make such findings. She certainly asserted that the father had been physically violent towards the child but in my view, the evidence does not support such a conclusion. In relation to the standard of proof, I have been conscious of the requirements in s 140(2) of the Evidence Act 1995 (Cth) in relation to violence which she seemed to allege against herself. Where such an allegation has been made by the mother, I have approached it cautiously bearing in mind the consequences of a finding against the father. I am comfortable in finding on the balance of probabilities that the father’s version in respect of most of those matters was correct. I have taken the same approach to the parties’ evidence about the events where the child complained about the father’s conduct.

The preliminary hearing

30.The final hearing had a long gestation period but the parties had ample opportunity to gather evidence and test various propositions.  In addition, at a preliminary hearing, various positions were canvassed at a time before the parties’ final trial affidavits had been filed and before the expert psychologist had prepared her final report for the Court.  Thus, notwithstanding the evidence was trawled through and over, little more could be said than that which was presented to the Court.  The Court had the benefit of an Independent Children’s Lawyer and each party was represented by counsel enabling the evidence to be carefully tested.

Background

31.The father is a 52 year old health services technician who runs his own business.  He was born in Italy and came to Australia in 2001.  He obtained permanent residence by visa in April 2004.  He has re-partnered but D is his only child. 

32.The mother is a 48 year old executive who has a 13 year old daughter from an earlier relationship living with her and the child D.  The separation of siblings will not be a problem because I do not intend to make any order other than contact.

33.Eight year old D is in Grade 3 at a local primary school and appears to have no significant illnesses or difficulties in life except that at times, he reports dissatisfaction with seeing his father.  During the intervening period of May to September when the matter was adjourned, supervised time between the child and the father continued.  Both parties described that as having gone well but according to the mother, the child still indicated a reluctance to attend time with his father.  Between September 2013 and October 2013, over four unsupervised periods, there were no problems reported by anyone.

34.The very nature of the parties’ early relationship was in dispute and much of the mother’s evidence about that time would, at first blush, appear irrelevant.  However, she put her credibility in issue along with that of the father in relation to the minutiae including as to their sexual encounters and even the conception of the child.  That enabled the Court to focus on the truthfulness of both parties.  In relation to that early period of time, I doubt the mother’s truthfulness to such an extent that I would reject her version of events. 

The early relationship

35.The mother suffers from a medical condition as a result of which, she said, pregnancy became a high risk for herself and any child she was carrying.  That becomes relevant when I deal with the circumstances surrounding the conception of the child.

36.The mother and the father met for the first time in March 2004 but that was about all that they agreed upon.

37.The mother said that the father invited her to his birthday party at the end of April 2004 whereas the father had no such recollection.  The mother said there was discussion about relationship issues and they had sexual encounters during the period late June until middle July 2004 on two or three occasions.  The father’s version was that shortly after first meeting the mother, they met near where he was living and at his apartment, they had a sexual encounter.  The father said he used a condom during their first encounter.  In contrast to the mother’s evidence about sexual activity, he said they had frequent intercourse.  Curiously, when she began her evidence in chief, the mother’s counsel led the mother through precise denials of a variety of events deposed to by the father.  That was not one of them.

38.Albeit the time difference was marginal, it became significant because of the encounter that gave rise to conception.  In my view, because of my doubt about the mother’s evidence in relation to events at this time, I find it is more probable that the father’s version is the truth.

39.The mother said the first and subsequent sexual encounters were “quick and rough” with her being face down on a bed and the father holding her head down.  She described an encounter in late July 2004 where, in his “small” unit and with his friends just outside this unit, the father led her to his bedroom, spun her around, bent her over and “roughly penetrated” her whilst holding his hand over her mouth.  She said he zipped up his pants and walked back to his friends.  When tested under cross-examination, the mother was at pains to deny this conduct was violent.  At its highest, she described it as “uncomfortable”.

40.The father denied any such impropriety.  Even if the mother’s version was correct, I was puzzled to find such graphic details in an affidavit.  She was at pains to say that the father was not sexually violent and she had not intended any such inference to be so drawn from her affidavit.  In her affidavit however, she said she felt “cheap, disgusted and humiliated” and that she recalled thinking that “the incident had been like two stray dogs copulating”.  She went on to say that no-one had ever treated her like that before.  She said the father used no condom and she was distressed because he was aware of her medical condition.  Just what the evidence was meant to show in the context of this parenting dispute was hard to see.  Although it is not entirely clear, this incident gave rise to the conception of the child. 

41.One week after this incident, a further sexual act occurred in which the mother said the father penetrated her with his fingers and then claimed he could smell sperm.  Again the father denied any such incident occurred.  The mother said she was shocked and disgusted and screamed that he should leave her house.  Despite the graphic nature of this incident and her expression of disgust, the mother was at pains to say that the father had never been violent to her.

42.A further week later again, she said the father attended at her premises where after a discussion about trust and controlling issues, the father “swiftly shoved” her face forward onto the kitchen table and “attempted” to penetrate her anus.   She said she spun around and cursed him.  She said he accused her of smelling “sperm”, she yelled at him and he left.  Again, despite a number of opportunities to describe this as a violent assault, the mother maintained under cross-examination that this was not violent but just inappropriate because she did not believe in anal sex.  She was also at pains to point out that he “never got to” her anus.  She denied the evidence was led to prove violence but wanted the Court to know that she had not wanted to continue an intimate relationship.

43.In her evidence, no doubt carefully thought out, the mother said in respect of that last incident, the following:

I felt sickened and did not want to discuss the matters further.  I also blamed myself because I had let the father into my residence.  I felt like poor choices had given the father the opportunity to assault me…

Having used the word “assault” in that sentence, in the same affidavit, she referred to having contemplated whether to have an on-going parenting relationship with the father “given his acts of sexual violence”.

44.The mother said that she had not mentioned these details in any previous proceedings bearing in mind that there were proceedings in 2005 and 2006 because she did not want the prospect of her children and other people getting this information through a search of court records.  I found her use of words in her affidavit, prepared with the benefit of legal advice, very different from her stance in the witness box.  I found her professed position not only difficult to follow but also disconcerting.  I do not believe her about all of these events.

The pregnancy

45.Both parties pressed a very different perspective about the child’s conception.  The pregnancy was a different thing again.

46.It was the mother’s evidence that the father told her he wanted children and that she responded that she did not plan to have any due to her medical condition. 

47.In late August 2004, a home test confirmed the pregnancy and she concluded the incident mentioned earlier was the cause.

48.The father said that after their initial sexual encounter, he did not use a condom and that the mother told him she would stop the use of the contraceptive pill because she wanted to become pregnant.  In anticipation, according to the father, the mother told him she had stopped drinking coffee and alcohol.  He portrayed a picture of being content about the mother becoming pregnant with his child.  The mother pointed to a card she wrote and gave him congratulating him upon the pregnancy and said he deliberately spilled wine on it and appeared disgusted and angry.  That behaviour was all denied by the father. 

49.The father later wrote apologetically about his behaviour but explained that that his response had been clumsy in his questioning of the mother.  There is little doubt he was questioning whether he was the father of the child.  In his attempt to explain his reaction, he told the Court that he too had had a medical condition which would have made conception of a child not easy (but I note not impossible).  All of this was in the context of the mother’s evidence denying wanting to be pregnant and explaining that being due to her medical condition and age.  However, when challenged in pre-trial correspondence to provide her 2004 medical advice, her solicitor responded that a particular doctor (Dr S) advised the mother to desist from using the contraceptive pill.  That was untrue as Dr S did not begin treating the mother until some years later.  The mother’s endeavour to explain that discrepancy was that Dr S would have had the records from her earlier medical practitioner.  Having regard to her solicitor’s letter dated 2 May 2013 which I find was well considered and sent on instructions, the mother’s explanation was untruthful.  But the problem did not end there.

50.On 6 July 2004, a Dr P wrote referring the mother to an obstetrician Dr M.  The referral indicated Dr P’s perception about two important things.  First, Dr P said the mother was thinking of having another baby.  Secondly, Dr P wrote that the mother needed to switch drugs prior to conceiving.  The mother’s explanation in evidence was that she was investigating the situation.  That might be plausible except that Dr M wrote back to Dr P on 9 July 2004 that the mother had a new partner and was contemplating another pregnancy.  He recommended she cease the drug she was taking and the contraceptive pill and commence another drug for which he gave her a script.  That too might be consistent with the mother’s explanation that this was a longer term plan or an investigation but Dr M finished this letter saying:

I would be happy to see her when she conceives.  If she does not conceive in three months’ time, I would also like to review her at that point.

51.When litigation began in the Federal Magistrates Court in 2005, the mother, with the assistance of a lawyer, filed an affidavit and referred to the conception period by saying:

Prior to becoming pregnant [the father] and I discussed and planned the pregnancy together.

52.On the balance of probabilities and to the extent that it matters at all, I accept the father’s version about the conception of the child namely that it was part of a planned course of action.  This finding on that evidence gives me grave doubts about the mother’s truthfulness on a range of issues but unfortunately, it does not help me in relation to the question of the allegations of physical or sexual abuse.

53.Very shortly after the child’s birth, the parties met at a café where the father met the child for the first time.  Even about that, the parties had a dispute.  The mother said the father claimed that D was not his child.  The father denied that saying he was overwhelmed to have a child.  In cross-examination, counsel for the mother pressed the father as to why he refused to sign documents which would have amounted to an admission of paternity.  The unchallenged evidence of the father is that he did sign correspondence prior to the child’s birth acknowledging he was the father.  When documents were presented to him apparently after the birth, he sought advice.  He said the documents noted penalties for false information.  Having sought advice, the issue of paternity became what he described as a technical one.  In the meantime, the mother registered the birth without any reference to the father.  Ultimately, orders were made by the Court and all of those problems were rectified. 

The first proceedings

54.In the Federal Magistrates Court in September 2005 when the child was only five months old, agreement was reached on an interim basis for time to take place on Sundays and Wednesdays.  Although the father baulked at acknowledging that the mother was facilitating time, there is little doubt that it did take place and the mother was handing a very small baby over to the father.  When pressed, the father said that the problems around that time were small. 

55.Later in 2005, further orders were made which were consensual.  The father’s explanation as to giving the mother credit for cooperation was that he was happy to have a consensual arrangement at that stage because he was waiting on the final hearing.

56.The final hearing did take place in March 2006.  On that occasion orders were made.  They included that the mother have sole parental responsibility for daily matters but the parties have joint responsibility for long term matters.  There can be no doubt that the mother intended the father to have a significant role in the child’s life.

March 2006 to start 2010

57.Handovers began and the child exhibited separation anxiety but settled quickly.  By 2007, that anxiety was still occasionally evident and the child was physically resistant.  Again he settled.  These handovers occurred at a coffee shop.

58.By 2008, there were still handover problems so at various times, the parties along with the child and X sat together and the child ate an ice cream.  The mother then left with X.  To the extent that the child was distressed, the evidence of the father was that he quickly settled.  Importantly, there is no evidence of distress by the child during his time with the father nor any post-contact difficulty either.  However, that later changed.

59.When the father began spending alternate weekends overnight with the child, according to the mother, he began to resist even before attending the handover.  The father saw no signs of this distress and the changeovers went smoothly from his perspective.  The mother maintained a presence at the time of strapping the child into the father’s car which the father described as of assistance. 

60.Thus in these early years, there is little doubt that the handovers were not always straightforward but nothing I heard suggested that the problem was one other than a form of separation anxiety.  That separation anxiety was to reappear even between the mother and the child when he went to school.

61.Credit must be given to the mother during this period of time because she not only presented the child for all of the contact periods but she facilitated his attendance when the father’s mother was present from Italy.  That involved extending the periods of time allocated under the court order. 

62.According to the mother, the father spoke at times about a Ms M who was to eventually become a supervisor of the father’s time, claiming he was getting married to her and that the child would have a sister.  The father denied that conversation ever took place.   Ms M gave evidence denying any relationship with the father.  Her evidence was credible.  The evidence of the mother on that issue along with the earlier conception question and violence did her little credit and supports a finding that she embellished and exaggerated facts to get her way.

63.By 2009, according to the mother, the child was angry at home after the contact visits including being physically violent to X.  Despite that, the mother continued the handovers but also attended social events with the father.  Some of these events were controlled by the mother and she invited him.  She said in evidence that the child’s attitude remained unchanged but the father maintained there were no such problems.  I find it is more likely than not that there were no significant problems because the mother continued to involve the father.  Some of the activities included the child attending Tai Kwon Do lessons and swimming; others included family dinners.  I do not accept that the mother did that just because she felt it would not be appropriate to have the child saying that he hated his father. 

64.Throughout this time, no application was made to the courts for any alteration of the 2006 orders.  The mother’s explanation for that was that she was at a loss as to what to do but in cross-examination, she acknowledged she was frustrated.  Despite the problems, she acknowledged the father had done a “good job”. 

School starts

65.In 2010, the child started school and both parents were present on his first day.  The mother’s evidence was that the child avoided the father.  The father’s version was that a teacher took a photograph of the child and both parents.  The mother acknowledged that the child’s behaviour could have been first day nerves.  That said, there is no suggestion that the child did not then separate from his parents and go into the school.  Indeed, both parents then had coffee together and talked about a Queensland holiday.

66.At the first school assembly some days later, the parties perceived things again very differently.  The mother said that the child was distressed and kicking out at the father whilst the father said that the child was running around and playfully kicking at him.

67.The father attended school regularly after that and two important issues were raised in evidence by the mother concerning the father’s involvement with the child at school.  First, she said a teacher asked her why the father was following the children and taking photos.  The mother said the teacher described it as scary for the children.  In cross-examination, the mother described the father’s behaviour as “over-zealous” and she asked the teachers not to contact him.  That was not the impression conveyed by her affidavit.  Thus, it was not necessary for the mother to call the evidence from the teacher about this particular issue.  The second issue concerned the mother’s statement that the deputy principal told her that the father had been telling staff that he was a sole parent of the child.  Why the father would do that I am unsure having regard to the fact that both parents had been seen together at the very first week of the child’s schooling.  In any event, the father denied it.  Counsel for the mother put to the father in cross-examination a series of points set out in a letter written by the principal of the school to the Independent Children’s Lawyer.  The father denied the principal’s views were accurate.  The letter appeared to be looking at the child’s year retrospectively.  In particular, it addressed the principal’s concerns about separation anxiety generally.  The mother did not call evidence from the deputy principal.  I accept the father’s version of what occurred around that time because it is more plausible.

68.During 2010, the father attended assemblies and an open night.  The mother conveyed the impression that the child was resistant to speaking with or even acknowledging the father and was also even resistant to going to school because of a fear that his father would be present.  For his part, the father pointed to the exuberance of the child at the open night.  The child showed him a drawing that he had done of his father.  In his discussions with the teachers, the father said nothing indicated any of the fears as described by the mother.  Indeed in cross-examination, the mother conceded the school had no such complaints about the father.  On the contrary, the school was concerned about the child separating from her and she had been waiting until the child settled.  That was a subject of comment relating to separation anxiety by the school.

69.During the trial, counsel for the mother observed that the Court would be urged to find that all of this resistance by the child was as a result of a lack of parenting competence of the father.  I do not accept that.  In cross-examination, the mother agreed that up until September 2010, the father had put a lot of “effort” into the child and she thought that he had done a good job.  In her words, she thought it might be a problem within the child.

September 2010

70.Despite the fact that the mother maintained the child had been resisting contact with his father, on Father’s Day 2010, she facilitated the handover.  The child presented his father with two cards both of which appeared homemade but most importantly, contained a message written by the child.  The father was reticent in evidence in giving the mother credit for that but I find she had orchestrated it.  Thereafter, things went wrong.

71.On 9 September 2010, the mother took the child to a doctor where a temperature and virus were diagnosed.  The mother advised the father by text message.  Nothing in that chain of correspondence suggested any link with the problem that blew up in the next day.  Indeed, the mother took the child to school as usual. 

72.At the school assembly on 10 September 2010, both parents attended and again each had a differing version of what occurred.  The mother described the child as telling the father to go away and then physically attacking him followed by the father chasing the child.  All of that was denied by the father.  He said that the mother simply took the child back to his class.  Notwithstanding her written evidence, when cross-examined, the mother said she saw no aggression from the father.  When asked why she thought the child behaved as he did, she replied she did not know. 

73.According to the father, all of this incident occurred in the presence of parents, teachers and students.  As with my earlier observation, no objective evidence supports the mother’s position. 

74.On the same day as the assembly, a handover was to take place in the afternoon.  Upon arrival at the coffee shop, the child was described as gripping the mother and pleading with her not to make him go.  The mother asserted that the father yelled at the child to get into the car.  That was denied by the father.  X was also present and told the father that the child did not want to go with him.  I accept that the father waited.  This became something of a standoff until the mother called the police.  As she did so, the father began to video tape the conversation of the mother with the police.

75.In front of an already confused D, this scene did neither parent any credit but no plausible explanation was given why the child would react as he did. 

76.The mother’s description to the police was graphic about the child not wanting to go with the father.  The father interjected with comments and the mother said things that would not have helped.  She described the father as insane, that he was a stalker, that the school teachers had said he was scaring the children and following the children around and that this handover problem had been going on for years. 

77.One of the recorded statements of the mother to the police was that the teachers had “actually pulled” her in four times about these problems.  To the extent there was any evidence to support that allegation, it could only be found in the letter from the school principal used by the mother’s counsel in cross-examination of the father where the school expressed concern about separation anxiety.  This was a stressful day for the mother and my very strong impression was that her frustrations boiled over.  Unfortunately, it was in front of the child.

78.Upon arrival of the police, sadly, the child was taken aside where he was heard to say that the father was nasty and told lies.  The mother said that the father told the police it was all the mother’s fault but the father denied saying that.  No independent corroboration by the police of these discussions was provided.

79.I find both parents acted inappropriately and added to the confusion but there is no plausible explanation for what caused the child to behave as he did.  With the calming influence of the police, the child left with the father.  On the father’s own evidence, it took some time to calm the child down.

80.As to why things had changed after April 2010, leading to the dramatic events of September, the mother thought that the father had told the child he would be living with him and going away.  The mother’s belief appeared to be without plausible foundation because at that time, there had been no allegations of improper behaviour, no suggestion of court action nor indeed any desire on the part of the father to live overseas.  By this time, the father’s mother had been to Australia and the mother had not only been cooperative but also supportive of that relationship.  There was also direct correspondence between the paternal grandmother and the mother all of which was very pleasant.  When challenged about her fear, the mother responded that she believed that if the father obtained “100 per cent custody” he would go to Italy to live.  The implausibility of that lay in the connections of the father to Australia.  He had handed in his passport to the Court after the mother sought such an order.  Thus, I reject that concept as a basis for explaining why the child was resistant to the relationship with his father manifested in the handover problems from April 2010 to September 2010.

81.Later in September 2010, the child was distressed at school even when the father was not present.  That led to the attendance on Dr S.

Dr S

82.A week after the weekend just mentioned, the mother took both the child and X to her usual medical practice.  There she was attended by Dr S.  Ostensibly, this was because the problems of a temperature and virus diagnosed on 9 September had deteriorated.  Dr S took the child aside and spoke to him concluding that the child had an anxiety disorder and was developing a school phobia.  She recommended a referral to a psychologist but according to the mother, controversially, Dr S recommended a cessation of contact pending the psychological assessment.  When Dr S’s notes were put to the mother, no mention of any such recommendation was seen.  The issue of whether Dr S recommended a cessation of the father’s time was therefore contentious.  It was put to the mother that it was she who suggested she would cease the contact rather than any recommendation by Dr S.  There is support for that conclusion because Dr S noted that the mother was going to have her lawyers seek to suspend the contact.  Indeed, the chain of correspondence between lawyers was exactly that.  I find Dr S did not give the mother that advice as she alleged.

83.On 23 September 2010, the day before the next handover was to occur, the mother sent a text message to the father advising that she was asking for a suspension of his time because of the advice of Dr S.  It was the mother’s solicitor who then wrote “requesting” agreement to suspend time.  That request was rejected. 

84.The mother than made an appointment with psychologist Ms W.  Ms W was recommended by Dr Sen.

85.In the meantime, the father applied to the Court seeking that the mother reinstate the time that I find had been unilaterally stopped.  On 14 October 2010, Meade FM made an order that the parties jointly engage Ms W to provide assistance to the child.  Otherwise however, contact was resumed.  I deal with the evidence of Ms W in some detail below.

8 December 2009 Ms K becomes involved

86.In December 2009, the child began spending time in the care of Ms K whilst the mother was at work.  X was also present.

87.Ms K is a childcare educator who ran a care centre from her house.  I assess her evidence overall below.  For present purposes, Ms K initially thought the child a confident boy who was quite articulate. 

88.In January 2010, being aware that the child was spending time with his father, Ms K noticed his mood changed after a contact period.  She noted in her record that when asked, the child said he had a good time with his father.

89.The records of Ms K referred to throughout these reasons were the subpoenaed notes prepared by Ms K at the end of a particular day after she had had the children in her care.  She had a number of children in her care but took a particular interest in the child D.

90.In April 2010 when the child started school, he said to Ms K that he did not want his father to come to the school but he also referred to the fact that he hated his father.  The mother confirmed to Ms K that the child was saying these things.  Almost as part of her business, Ms K asked the mother whether she could teach the child protective behaviours.  In addition, she inquired whether the child had been to a counsellor.

91.Ms K then introduced the child to her inter-active computer program about protective behaviours.  That included identifying “private parts” which were defined as breasts, genitals, bottom and, unusually, the mouth.  Ms K decided that because of her concerns about the child’s dislike of his father and his resistance to contact, she should fulfil her mandated responsibilities and report the case to the child abuse report line.  She spoke to her coordinator as well.  She then extended the protective behaviours computer program to a work sheet arrangement.  This was a picture of a hand upon which the children drew.

92.Ms K expressed serious concerns about the child’s expressed fears and dislike to spending time with his father.  She spoke to the mother whom she described as worried.  The mother had a very different view about that.

93.Ms K took on a very significant advisory role as the months unfolded and as distressing events occurred Ms K provided not only comfort to the mother but hugs when she was distressed.

94.Ms K linked all of the child’s behaviour to his relationship with his father.  The first significant involvement of Ms K occurred around the time that the child commenced school.  There, the child was exhibiting signs of separation anxiety.  The person who most explained the behaviour as being linked to the father was Ms K.

95.Ms K made no record of problems between May 2010 and September 2010.  She acknowledged in cross-examination that nothing significant occurred in those months to warrant such a notation.  However, during those same months, the child spent a week with the father at Kangaroo Island.  Ms K was asked about that and despite not having recorded anything about it, she said that the child told her that he did not like being with his father.  Having regard to her methodical and detailed note taking, it was curious that there were no notes between May 2010 and September 2010. 

10 September 2010

96.I return then to the incident of the handover on 10 September.  After the child went with his father, the mother telephoned Ms K.  According to Ms K, the mother was distressed and wanting advice.  She was described by Ms K as crying and not able to get her words out.  This was only a very short period of time after the handover had taken place.  The mother and X then went to Ms K’s house where Ms K gave her the child abuse report line telephone number.  It was X who described much of what had occurred at the handover rather than the mother.  The mother telephoned the child abuse line but Ms K thought she was too anxious to wait to speak to anyone and simply hung up.  In Ms K’s words, all of this was very concerning.

13 September 2010

97.On 13 September 2010, Ms K collected the child from school as she usually did and engaged him in a conversation about his father attending the school.  In a conversation a little later, Ms K asked the child about the police involvement at the handover on 10 September.  She put in her notes many quotes but these were written later that evening.  It was not suggested by anyone that those notes were inaccurate.  I must question the wisdom of Ms K questioning the child, bearing in mind her limited understanding of what had occurred on 10 September had come from the mother and X.  It was clear from the tone of Ms K’s notes that she had a very biased perception about the father and she then took on the presumptuous role that should, if at all, have been undertaken by the mother.  Be that as it may, whilst Ms K was very concerned about the child’s safety, nothing was recorded in her notes to suggest that the child was being physically harmed at that time. 

98.On 14 September 2010, Ms K noted her own concerns again and said “things keep popping” into her head so she took some further notes.  She recorded that the child thought his father wanted to take him away from his mum.  She noted that his father slept with no pants on and the child thought that that was “gross”.  She noted that the child was biting his finger nails even to the point of bleeding.  She resolved in her mind to do more work on the protective behaviours program for the child.  She then rang the child abuse telephone line because as she described it, the child was crying out for help. 

99.Ms K also rang the child abuse hotline the following day because she was again worried about the child.

100.On 17 September 2010, the child went to Dr S.  At that point, it was clear that Ms K had spoken to him a lot about his problems with his father.  The comparison of impressions of Dr S and Ms K are interesting.  Ms K was very worried that the child was frightened while Dr S thought there was an anxiety problem.  The difference between the two may well have arisen from the approach each took and their professionalism.  As will become evident below, psychologist Ms W saw the child after all this again.  She had an even less heightened level of concern about the child than Dr S.  That all makes the views of Ms K questionable.

101.Ms K noted the mother’s concern that stopping the contact would be breaking the law.  In her evidence during cross-examination, Ms K made it clear that she was not troubled about that because where it came to the protection of a child, it was the mother’s duty not to provide the child for contact.

102.Later in September 2010, Ms K spoke to X and noted her complaints about the father from some years before.

X’s complaints

103.Throughout the evidence, considerable reference was made to X and to incidents of violence against her by the father.  These were mentioned in a letter that X wrote which the mother saw for the first time on her own computer but she also mentioned it to Ms K.  The incidents related to the father jamming X’s fingers between salt and pepper shakers but also cutting her fingers with a knife or scissors.  These were so remote in time as not to have much weight particularly as when the mother saw them on the computer, she only encouraged X to write down her thoughts.  Ms K on the other hand seemed to treat the statements as far more serious.  She described them as credible.  Because of my concerns about Ms K and her method of supporting the statements made by both children rather than reality testing them, I feel they must be largely ignored.

104.As I earlier indicated, in the latter part of September 2010, correspondence between the solicitors was starting over whether the father’s time should be suspended whilst the child was assessed by psychologist Ms W.  Ms K was of the impression that the father would be told his time with the child would be stopped.  That led to Ms K being worried that the father might attend the school in defiance of a request by the mother.  Ms K then began giving directions to the teacher about keeping the child in class until he was collected by her.

Ms W

105.With the difficulties arising out of the September handover at which the police were called, the child on the referral of Dr S, went to see Ms W.  Ms W is a psychologist who has practiced in that discipline since 2000 specialising in child and adolescent cases.  She saw the referral of Dr S relating to distress and aggression particularly with reference to the child’s relationship with his father. 

106.Ms W spoke to the mother after the initial interview with the child at which time, no issues of abuse were raised.  Her behavioural focus was on the September handover.  No suggestion of the child being at risk in the father’s care was raised by the mother.

107.Ms W then involved the father in her deliberations and observed that he was a bit distant.

108.It is important to note that Dr S had provided a mental health plan indicating the child’s developing phobia about school attendance.  Ms W did not have the impression that that was the problem at all nor that there was any anxiety disorder apparent.  At that time, whilst Ms W was doing the assessment, the child had had a break from the father because of the actions of the mother in not handing him over.  In assessing the child, Ms W thought that he had heard a lot of conversation about the father.  It was her view that the mother was concerned that the child was being sent to an abusive situation.  Of the father, Ms W found nothing concerning about his presentation other than that she thought he was trying too hard.

(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.

(2)     The order is taken to require the decision to be made jointly by those persons.

Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).

(3)     The order is taken to require each of those persons:

(a)to consult the other person in relation to the decision to be made about that issue; and

(b)to make a genuine effort to come to a joint decision about that issue.

(4)     To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

246.I have not been urged to make findings in relation to family violence or family violence orders and therefore do not do so.

247.These parties have litigated for years. It is time to stop and allow the child to settle into a routine. This is therefore a case where it would be preferable to make a final order.

248.The application also sought orders relating to passports. There is not sufficient evidence that would enable me to make any such orders.

249.The orders set out at the beginning of these reasons also deal with such things as what parents may do with the school and what information each must give to the other. It is important for the parties to understand their obligations under these orders. Those obligations will no doubt be explained by the lawyers. However, the document attached to the orders incorporates into the orders those obligations and each would do well to read it. I shall also not make any orders for costs at this stage but note there is a live application before the Court which I will not dismiss. Each party would need to carefully consider whether that application should be made which might otherwise incur further costs.

250.Accordingly, the orders set out at the start of these reasons are in the child D’s best interests.

I certify that the preceding Two Hundred and Fifty (250) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 November 2013.

Associate: 

Date:  1 November 2013