Wood and Wood

FAMILY COURT OF AUSTRALIA

WOOD & WOOD

[2007] FamCA 526

FAMILY LAW - CHILDREN - With whom a child shall live - With whom a child shall spend time

APPLICANT:

MR WOOD

RESPONDENT:

MRS WOOD

FILE NUMBER:

BRF

10168

1999

DATE DELIVERED:

23 February 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

19, 20 and 21 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McGregor of Counsel appeared for the Applicant Father

SOLICITOR FOR THE APPLICANT:

WP Lawyers

SOLICITOR FOR THE RESPONDENT:

The Respondent Mother appeared in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Burridge of Counsel appeared for the Independent Children’s Lawyer

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Dooley Solicitors

Orders

All previous orders be discharged.
The child, a son, born … August 1996 live with the father.
The mother spend time and communicate with the said child at all such reasonable times as shall be agreed between the parties and in default of agreement as follows:
(a)
by telephone each Tuesday and Friday between the hours of

6.00 pm and 7.00 pm (Tasmanian time) with the mother to initiate the calls to the number to be provided by the father;
(b)       the Tasmanian school holiday periods in June/July and September/October, for all except the last two (2) days of such holiday periods;
(c)       during the Tasmanian school Christmas holiday periods, for one half of each such holiday period, exercised during the period representing one half the holiday period concluding one week prior to the commencement of the new school year in 2007/2008 and each alternate year thereafter and for the first half of such holiday period, commencing on the Saturday immediately after school finishes, in 2008/2009 and each alternate year thereafter;
(d)       if the mother travels to Tasmania, then upon giving the father fourteen (14) days notice of her intention to spend such time, the mother may spend time with the child provided the time spent does not require the child to miss any school time;
(e)       The mother shall book and pay for the air fare for the child to travel to South East Queensland in the event the mother exercises holiday time in South East Queensland and shall provide details of the booking and the ticket to the father not less than six (6) weeks prior to the intended departure date. The father shall book and pay for the air fare for the child to return from South East Queensland to Tasmania in the event the mother exercises holiday time with the child in South East Queensland and shall provide details of the booking and the ticket not less than six (6) weeks prior to the return flight;
(f)       The parties shall ensure that the child travels in accordance with airline policies relating to the travel of children.
The father shall have the sole responsibility for the long term care, welfare and development of the child.

The parties notify each other of their current residential address and telephone number (and email address if applicable) and shall advise the other of any change in any of the same within seven (7) days of such change.

The parties shall keep the other fully informed of any medical condition or emergency suffered by the said child while in that party’s care (save for minor ailments) and shall authorise the medical practitioner treating the said child to provide the other party with any report or information requested by that party at the expense of the requesting party.

Neither party shall:

(a) discuss these proceedings with or in the presence of the child;
(b) denigrate the other or the members of his or her family to or in the presence of the child.

Each party shall be entitled to all information from the child’s school relating to the child’s progress and to that end each shall authorise the school to provide to the other all and any information appropriate to be supplied to the parents of children attending the school and each shall be entitled to copies of school reports and school photographs although at the expense of the requesting party.
The Father is to take the child to counselling recommended by the child’s school guidance officer and all such other counselling as the Father may select.
The Independent Children’s Lawyer be discharged.
Pursuant to Section 65DA(2) and Section 62B of the Family Law Act 1975, 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.

RECORDED : NOT TRANSCRIBED.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 10168 of 1999

MR WOOD

Applicant

And

MRS WOOD

Respondent

REASONS FOR JUDGMENT

“If ever there was a case where the parents' unwillingness/inability to come to a sensible understanding with each other has had an adverse effect on a child's composure and adjustment, this is it, I would say.”

That is a quotation from paragraph 13 of the report of the social worker, Mr P, which issued on 13 February this year.
The applicant is the father of a young boy born in August of 1996. He was represented by counsel in the proceedings before me. The applicant father seeks orders in terms that are to be found in a document handed up by his counsel in the course of final submissions. It is quite a lengthy document but in summary form, he seeks that the child live with himself, his intention if that happens is to relocate the child's residence from South East Queensland to Tasmania.
He proposes that there be provision for telephone contact, school holiday periods in June/July and September, save that the child be returned four days prior to the conclusion of such holiday periods to allow him to settle in for the school year, three weeks at Christmas, contact with the mother if in the event she is visiting Tasmania, provision for the mother to spend time with the child in Tasmania prior to the child going to South East Queensland for future holiday contact periods, provision for the costs of travel for the child visiting the mother to be shared.
The father also seeks that he have sole responsibility for the long term care, welfare and development of the child. And then there are standard provisions about the parties notifying of change of address, non denigration clauses, keeping each other informed of medical conditions and emergencies and things of that nature.
The orders as sought by the mother were initially set out in her response document which had been filed on 23 August of 2006. That was shortly prior to the trial date when this matter had been set down for hearing in September 2006, but the matter did not proceed at that time.
The mother's position changed during the course of the three day hearing before me. In handwritten submissions in the course of her final address the mother sought orders in the following terms:
(1)That the child [a son] born […] August 1996 reside in Queensland with myself the mother […].
(2)That the child visit the father in Tasmania for all June and half Christmas holidays, provided the child resides with [Ms G] and all contact with the father be supervised by [Ms G]. Travel costs to be shared by both parents. [The child] to return to the mother two full days prior to school recommencing. Christmas holidays to be the second half of the break (three weeks) in 2007 and the first half of the break and alternate years after that, thus allowing the child […] to spend Christmas with both parents in alternate years.
(3)Contact to be arranged between the parties should the father or [Ms G] visit the [Queensland] Coast, subject to [the child’s] school commitments.
(4)
Telephone contact to be Tuesday and Thursdays 4.00 pm to 5.00 pm, and Sunday evenings 6.30 pm to 7.00 pm Queensland time. The father to initiate such calls to the mother's mobile phone number. And at

10.00 am on special days, such as the child's birthday, the father's birthday, Father's Day, Christmas Day and Easter, if the father is not already exercising contact with the child. When the father is exercising contact with the child in Tasmania, the mother will initiate telephone contact as per the above.
In a document headed "Outline of Submissions on Behalf of the Independent Children's Lawyer", counsel for the Independent Children's Lawyer recommended that it is in the child's best interest that a parenting order be made for the child to live with the father and a further order should be made that the father seek professional assistance to help the child deal with such change.
In relation to the draft orders as proposed by counsel for the father, counsel for the Independent Children's Lawyer did not support the order for the mother to spend time with the child in Tasmania prior to the commencement of school holiday contact, nor did he support an order for the father to have sole responsibility for the long term care, welfare and development of the child.
Witnesses in the case. In the applicant father's case the witnesses were the father himself and his daughter Ms G. She is an adult daughter in her forties. She resides with her husband and two children in Tasmania operating a farm south of Hobart down near K.
In the respondent mother's case the witnesses were the respondent mother and her partner, Mr S. Mr S is the father of a child born approximately six months ago.
For the Independent Children's Lawyer the principal witness was Mr P, a social worker who has prepared six reports in this matter over a period of five years. Janet Peterson, a pseudonym, who is the coordinator of the G Contact Centre, had prepared a number of reports and she gave evidence by phone link. Reliance was also placed on a report dated 25 June 2002 by Mr C, a registered psychologist, who had assessed the intellectual functioning of the child at that time.
Documents were tendered from the Queensland Police Service and the Department of Child Safety. The Court was also supplied with the child's recent school reports, and there were a number of other exhibits, including a report from the M Medical Centre 31 January 2007, relating to the father's health.

RELATIONSHIP HISTORY

The father was born in 1938 in Australia. He was previously married and has three adult children of that relationship. He met the mother in the Philippines some time in 1995. The parties married in that country in December of that year, and the mother came to Australia shortly thereafter. The parties separated three years later in about December 1998. As I have noted, the child was born in August '96.
The mother was born in 1969 in the Philippines. Since separation she has sought domestic violence orders on four occasions. On three of those occasions the orders have been granted. Domestic violence orders were obtained against the applicant father in about October or November 1998, August 2002, the application made on 22 March 2004 was withdrawn in November 2004, a fourth application was lodged on 10 August 2005.
I would point out at this stage that annexing domestic violence orders to affidavits is essentially a fruitless exercise. The only really relevant context is the circumstances put forward by the aggrieved as to why the domestic violence order is sought. That was totally missing in the case of the mother's affidavit.

SIX REPORTS OF MR P

By any measure, the most subjective evidence of the dynamics of the relationship between the parents and the child is to be found in the observations made in these reports by the social worker.

THE FIRST REPORT DATED 9 APRIL 2002

Mr P commences his report by noting that he is very confused where the truth lies in this matter, with numerous allegations and counter-allegations. Mr P records the father, paragraph 16, informing him that it was largely a marriage of convenience to allow the mother to be granted residency status in Australia.
In paragraph 25 Mr P notes:
“[The child] remained with the mother after separation, but there is absolutely no doubt in my mind that from the point of separation and despite the ongoing attrition between the parents and the suspicion of the father about the mother's lifestyle, the father has been intimately involved with [the child] and has had regular and sometimes extended contact with him.”
In paragraph 26 he records a major crisis developed in August 2001 when the father discovered the mother had formed an intimate relationship with her present friend, Mr W. The mother and Mr W described the quality of the relationship which both had with the child up to the point that the child started to live with the father.
In paragraph 33 of his report Mr P noted that both parents refused to entertain the option of a joint interview. At this point in time the child was residing primarily with the father and seeing his mother on a fortnightly overnight basis. It is not precisely clear from any of the evidence how this situation came about, but I would be confident that the commencement of the mother's relationship with Mr W was a triggering factor. Whether the mother wished the father to care for the child while she developed this relationship, or whether the father became intensely jealous about another male father figure being in the child's life, I am unable to conclude.
The report writer observes in this first report, as he does on a number of occasions in subsequent reports, that the mother and the father are both over-indulgent of the child and over attentive. Mr P particularly comments about the mother's inability to set limits on the child's behaviour. The father seemingly is more adept at setting boundaries, but his parenting skills in this regard are still far from optimal.
In paragraph 61 Mr P observed that the child showed; "Some signs of immaturity and poor self control”. This is a recurring observation in the various reports.
Paragraph 76, Mr P makes reference to the affidavit of a process server, Mr V, sworn 9 January 2002. This affidavit is annexed to the wife's trial affidavit. Mr V describes himself as a trainee solicitor who at that stage was employed by R, Solicitors of S. As he attended at the father's residence some time in 2002 to serve documents on him he heard the father in a heated conversation on the phone presumably with the mother. He records the father as being abusive towards himself. Aggressive conduct has on occasions been displayed by each of the parents; I am more than satisfied of that.
In paragraph 89 the report writer describes the difficulty he had in separating the child from his father. The child indicated a negative reaction when told that his mother was coming to the interview. In paragraph 99 the report writer records the child as expressing a firm wish to stay with his father. In paragraph 104 it is recorded:
“It appears to me that [the child] did not wish to be outspoken in the expression of his feelings and was well aware that there was a serious dispute between his parents. It also appeared to me that he was taking his father's side and was opting to remain with the father under the present circumstances.”
In paragraph 128 when summarising his conclusion Mr P observes:
“In retrospect I consider it a pity that once the move to the father took place and Court proceedings started there was not an arrangement whereby the child could be more equally shared between the parents. I am aware that this is a regime which could not have lasted indefinitely, largely because of the poor working relationship between the two parents. But it concerns me that as a result of the mother's lack of comprehensive contact with the child she appears to have lost ground emotionally with him.”
I note that five years later, in the year 2007, the situation is completely reversed. The child has predominantly been in the primary care of his mother, and she has made great strides in alienating the child from the father and raising a real fear in the child that the father will take him down to Tasmania and he will never see his mother again.
I turn to consider the second report of Mr P dated 27 November 2004. Between the time of the preparation of the two reports the child lived virtually full time with the father. In January 2003 the father was holidaying in Tasmania with the child. The mother was invited to spend a week in Tasmania staying with Ms G. Ms G’s evidence was to the effect that she had lunch with the mother some time during the course of that week at the Wrest Point Casino. In her affidavit she details the conversation she had with the mother and how she subsequently arranged for her father to attend after the lunch. Ms G wrote out an agreement, apparently on a paper napkin, for the child to stay with the father, which the mother signed. Ms G says that despite extensive searches she has been unable to find this document.
I found Ms G a particularly impressive witness. I have no hesitation in accepting her evidence that such an agreement was prepared by her and was signed by the mother.
The mother denies signing such agreement, and said to Mr P, and later in evidence to the Court, "Well, where is the evidence"? The impression she gave was that she knew full well that the evidence could not be produced. Whether she had a hand in the destruction of the evidence, I am unable to say.
In the evidence before the Court the mother denied that any such luncheon took place. That is as I understood her evidence. I note in paragraph 64(o) of her affidavit where she was responding to the husband's affidavit she says:
“I agree that I went to the Wrest Point Casino for lunch in about January 2003.”
Mr P observes in paragraph 25 that he sighted correspondence between the parties and their respective solicitors which indicated that the parents had reached a satisfactory agreement.
The father returned to Queensland with the mother and the child in about January '03 after the signing of the agreement, but the child continued to live predominantly with him. It was at a later point in time that he moved to Tasmania. I would be confident that the mother did not consent to this move, but I assume the father believed he was authorised to do so by virtue of the agreement that had been signed by the mother earlier that year.
By about May 2004, as I understand the evidence, the mother had been granted Legal Aid and her solicitor sought and obtained a recovery order through the Magistrates Court at S. The taking of the child from the care of the father and Ms G at that time in the circumstances which occurred must have been extremely traumatic for all concerned, but particularly for the child. Thereafter, the Magistrates Court at S granted residency of the child in favour of the mother.
In paragraph 51 of his report Mr P surmises:
“I consider that [the child] does not know what his feelings are, but does not wish to hurt the father. It is my view that [the child] was somewhat confused and possibly alarmed when he appreciated that he was in Tasmania for a long time and that his hitherto frequent contact with his mother would be disrupted.”
Paragraph 54 of his report he records:
“I did notice that when the mother and father greeted each other in [the child’s] resence at the beginning of the interview the mother gave an unsolicited hug to the father.”
This would appear to be yet one more example of the ambivalent behaviour by the parties in the presence of the child, that they can display affection one moment and outright aggression shortly afterwards.
At paragraph 93 Mr P records the child as expressing a wish to reside with his mother. At paragraph 119 when Mr P was interviewing the father and son the father reported that on the previous weekend the child had asked him when he was going to live with him, "Week on and week off". Mr P notes that the child immediately sat upright and said, "I didn't say that". The child corrected his father by saying, "I said, 'How are we going to have it, week on and/or week of'"?

At paragraph 125 Mr P records:
“The child left me with an impression during this session with the father that he is uneasy at the prospect of living in Tasmania and being separated from his mother. This would be my interpretation of his presentation. I am sure that he enjoyed his time in Tasmania, but the separation from his mother was difficult for him.”

THE THIRD REPORT OF MR P DATED 2 AUGUST 2005.

The interviews for this report occurred on 1 August 2005. It is noteworthy that on 31 July 2005 the mother asserts that the child made disclosures to her of the father behaving in a sexually inappropriate fashion towards the child. As was noted by counsel for the Independent Children's Lawyer and counsel for the father, in these circumstances it is astonishing that the mother did not raise such an important issue with Mr P on the following day.
In par 35 of her trial affidavit the mother says:
“On 10 August 2005, after I had been trying to contact my solicitor in the previous week, I attended an appointment with him as a matter of urgency to explain that on 31 July 2005 my son had told me soon after returning from an interview with [Mr P], a social worker and report writer of the family reports in this matter, words to the effect that the respondent had masturbated himself in front of me.”
The mother was adamant in the course of cross-examination that the son had made the disclosure prior to the visit to Mr P. It was not the first time that such a disclosure had been made. JW11 is an annexure to the mother's affidavit consisting of typed diary form notes. It was not until 11 August 2005, not 10 August, that the mother requested Mr S to drive the child and herself to the P Police Station for the child to be interviewed by the Juvenile Aid Bureau.
Returning to Mr P's report of August, he notes that at the commencement of the interview on 1 August, the father had handed to Mr P a two page typed document prepared by him which made serious criticisms of the mother. The mother was to later engage in a display of intense anger at the father in the presence of the child. Mr P is very reproving of the mother for such conduct:
“I was left with the distinct impression that this was not an isolated occurrence in the conduct of the mother.”
In paragraph 17 of his third report, Mr P reiterates a recurring theme:
“This is clearly a very troubled boy who, given his level of immaturity, is not coping well with the dispute. What is confusing for him also is the fact that there are occasions when the parents seemingly engage in cooperative and even friendly behaviour with each other, only to return to acrimony and unpleasantness. This must be very confusing for [the child].”
Mr P records, paragraph 22, that once again during the Christmas 2004/2005 school holidays the father took the child for a two to three week holiday to Tasmania. Shortly after his return the child started to display considerable reluctance to spend time with his father. At paragraph 28 of his report Mr P observes:
“It is well within my professional experience to say that children who show this level of reluctance to have contact with even a loved parent figure are seeking to protect themselves and not give what they might consider offence to the custodial parent.”
It is to be borne in mind that at this point in time the mother was the custodial parent.
The mother's view in relation to the child's reluctance to go on contact is that it was the child's decision whether he went or not, but she told the child in Mr P's presence that she would go to gaol if he, that is the child, didn't go on contact. Paragraph 86, Mr P notes when interviewing the child:
“I asked him why he was now not going to have a sleepover at your dad's place. His answer was, with a rather wary look on his face, "Because I don't want to go to my dad three nights by myself".”
Paragraph 87:
“I asked him why this was and his answer was, "Because he might take me away". I asked him where this would be and he said Tasmania. I said, "He might want to take you to Tasmania for a holiday, and you told me that you enjoyed it". He agreed that this was so, but looked even more worried when he said, "He might keep me there".”
I am more than satisfied that the mother has instilled considerable fear in the child concerning the father's wish to take him to Tasmania, and when this occurs he will no longer see her. I am more than satisfied that this is a genuine fear held by the child.
In paragraphs 131 and 132 of the report under the heading "Conclusions", Mr P notes:
“It would not surprise me at all if in due course [the child] turns his back on contact with the father completely.”
In that regard Mr P was totally prescient. In paragraph 132:
“I do consider that this would be a great pity because the father is very committed to [the child], and [the child] has much to be gained by having contact with a loving and committed father figure.”
I turn to consider Mr P's fourth report, dated 26 November 2005. The father attended this interview by phone link from Tasmania. The father says in his affidavit it was in March 2005 that he first became aware the child had made a disclosure of inappropriate sexual behaviour on the father's part. In his evidence he corrected this to note that it was more likely to be about August '05, after the mother had attended at the Juvenile Aid Bureau on 11 August that year.
In about mid-September '05 the father returned to Tasmania, without having an interview, as requested by the Juvenile Aid Bureau on the Queensland Coast. Shortly afterwards, as I understand the evidence, he communicated the view he would not be pursuing the issue of physical contact. Whilst at first blush the father's conduct may seem to be a guilty reaction to the allegations raised, I am satisfied this was not the case. The father at that time was diagnosed with a brain tumour. It is not surprising he would give priority to his own health issues, it is not surprising he would return to Tasmania where he could rely on the support of his immediate family. He continued to pursue phone contact with his son. Since then, and his recovery from the brain tumour, he has continued to pursue his interests in this litigation.
The father and his daughter, ms G, both assert they were unable to have phone contact with the child when they used to attempt to communicate from Tasmania, and the reason for this was the mother would not permit it. The mother denied that she had not made the child available; she reported the child as saying he didn't want to speak to his Daddy. I am more than satisfied the mother has not been encouraging of phone contact and has gone out of her way to ensure the child is not available to speak to his father or to his half sister.
In paragraphs 29, 30 and 31 of this fourth report, Mr P records:
“In connection with the alleged abortive telephone calls, he (the father) said his daughter [Ms G] had wanted to ring him (the child) on his birthday, but although she had managed to speak to the mother, the mother allegedly told [Ms G] that [the child] was not available and would she telephone back at 3.30 pm on the same day.”
Paragraph 30:
“The father said that [Ms G] had telephoned back at 3.30 pm, but that [the child] was either not once again available on the telephone, or the telephone was not answered. I took this up with the mother who indicated to me, rather confusingly I must say, that there had been a mix up over the time that [Ms G] was to telephone back.”
Paragraph 31:
“I must say here that after speaking to the mother, particularly in the offices of Dooley Solicitors on 25 November 2005, it seemed to me that at the very least the mother was ambivalent about promoting and encouraging ongoing contact of any sort between [the child] and the father, or at worst was, as I indicated to the Child Representative, sending [the child] mixed messages.”
The social worker reports the mother not being accepting around that time of the father's medical diagnosis (paragraph 36).
Paragraph 37, in relation to the sexual abuse allegations, he records:
“She indicated that she believed that sexual abuse had been confirmed in respect of [the child], and that [the child] was now very scared of the father.”
The reality was the Juvenile Aid Bureau had found the sexual abuse allegations unsubstantiated. The child had never made any disclosure to any officer of the Police Service or the Department of Child Safety.
Paragraph 41, Mr P reports the mother as saying the father had not made any efforts to telephone the child. Mr P, in a masterly understatement notes:
“It does seem to me that this is not true.”
I note at this point in time that I formed a very poor view generally of the mother's credibility. In arriving at this conclusion I make every allowance for the fact that English is her second language; she has difficulties with the language and probably difficulties with cultural issues.
The fourth report largely relates to an attempt to engage phone contact between father and son. A recommendation was made for phone contact to take place at a contact centre. It is an indictment of the mother's negativity towards the father that this stage had come to pass. It is very rare indeed in my experience that contact centres are used for the purposes of supervising appropriate telephone communication between a parent and a child.
In paragraphs 93 and 94 of this report Mr P opines, somewhat optimistically:
“It does seem to me that the question of sexual abuse has now been discounted and set aside. However, here again the mother seems to be doubtful, and in common with her view about the father's medical condition, she gives an appearance of not being ready to believe the father's assertions.”
94:
“It seems inevitable to me that these negative views about the father would have been conveyed to the child.”
Mr P's fifth report is dated 12 May 2006. The interviews occurred on

10 May 2006. A notable feature of this report is the father had travelled from Hobart to Brisbane to attend the interview. He was unable to see his son as the son refused to meet with him. Mr P at the conclusion of the interview said to the child, "Please say goodbye to your Dad". And Mr P notes that the child with a cheeky grin replied to him, "You say goodbye to him". It is all very, very sad that this boy is expressing these views.
Mr P details the phone contact which had taken place at the contact centre in the time between the preparation of the previous report and this report, that evidence is also covered by the reports of Janet Peterson. In paragraphs 71 and 72 Mr P points out the inconsistency in the mother's attitude, where on the one hand she says she wants the child to have a relationship with his father, yet firmly believes the father has acted in a sexually inappropriate fashion.
Throughout the lengthy period this matter has been in the Court system, there is a consistent pattern of the mother seeking domestic violence orders or reporting disclosures of sexual misconduct immediately prior to or after Court events or immediately prior to or after interviews with Mr P.
I am satisfied the mother's conduct has been consistently duplicitous. I have not the slightest doubt the mother has used her utmost endeavour to instil in the child's mind his father has behaved in a sexually inappropriate manner towards him.
In the paragraphs 82 and 83 of this fifth report under the subheading "Conclusions", Mr P says:
“It does seem vitally important to me that there should be an unequivocal assessment of the quality of these sexual abuse allegations. If the professional view is that there is no substantiation in them then it seems to me that the mother's position that [the child] is at risk in the father's care is untenable”.
83:
“I would go further and say that if it can be established that there has been no sexual abuse then the mother's insistence and the influence that she is bringing to bear on [the child] in this respect can be probably assessed as emotional abuse of this boy because it is promoting a distorted image of a loving father figure who wishes to play an active part in the child's life. In this respect there are strong elements of parental alienation syndrome I would say”.
I accept the force of the opinion expressed by Mr P in these paragraphs.
Prior to considering Mr P's sixth and final report, which is dated a little over a week ago on 13 February this year, I propose to consider the important issue, whether the father has ever acted in a sexually inappropriate manner towards his son. I can say at the outset that I am more than satisfied the father has never acted in a sexually inappropriate manner towards his son. This view I note is supported by the Independent Children's Lawyer. My reasons for so concluding are:
(1)The mother says the child first made a disclosure to her in about February '05 or March '05. She did not raise the matter with the Department of Child Safety or the Juvenile Aid Bureau, or anyone else for that matter, for a period thereafter of about six months. The explanation for failing to do so, as I understood it, is she did not believe the child. Given the mother's hostility towards the father in the past and her readiness to seek domestic violence orders against him, I find such a claim by the mother to be fatuous.
(2)The mother says the child made further disclosures on 31 July '05, the day before the interviews with the social worker. As previously noted, it seems in her affidavit the mother is confused whether the disclosure was made before or after the interview with Mr P. It is but one example of many of the allegations being made prior to a Court event or an interview with the social worker. Again, if as she asserted in her sworn evidence that the disclosure was made prior to the interview, it is astonishing she did not raise the matter with Mr P.
(3)It is apparent from the police file and the Department of Child Safety file the child has at no time repeated the disclosures to an officer of either Department.
(4)The mother kept contacting the police through her solicitor saying the child was now ready to make a disclosure. The obvious inference to be drawn is she had continued to discuss the issue with the child. The mother admitted she had questioned the child for five days prior to the attendance at the police station.
As counsel for the Independent Children's Lawyer observed in his written submissions:
“2.5 The only evidence that supports the mother's allegations is that of herself and her partner. Their repeated questioning of the child robs their evidence entirely of reliability or value and is suggestive of coaching.”
I wholeheartedly agree with that submission.
At a further interview with the Juvenile Aid Bureau on 26 September 2006 - it is to be borne in mind, this is a matter of days after the aborted trial of this matter in that month - the police report says:
“It was ascertained that in fact what the suspect apparently does is adjust himself or fix up his underwear or genital region while walking around. The complainant states he does this while walking to the shops, getting out of the car, going to the letterbox, changing the channel on the television, anywhere or any time. The suspect is always clothed and the complainant has never seen his penis. It appears as though the complainant feels this is rude and indecent, however, being such a common act that the majority of males in the community would also do does not indicate it would be criminally indecent per se. This was explained to the complainant and she was happy with that. No further action to be taken, and the original CRIS modified.”
Notwithstanding this, in the fifth report of Mr P at paragraph 66 he notes:
“I indicated to the mother that I had been aware in the Child Representative's briefing letter that there had been new disclosures from the child in respect of sexual abuse. I told the mother that this mystifies me because the child has not had any contact with his father since August '05. Once again the mother seemed to have no answer to this but referred me to two welfare professionals, [Mr A] of the Department of Child Safety, and [Ms R] of Juvenile Aid Bureau, who would say, according to the mother, that [the child] had made disclosures and might even make more disclosures in the future.”
The evidence is rubbish. Those officers have never heard any disclosures by the child. I note that the interview with the Juvenile Aid Bureau was in September '06 and the fifth report is dated May '06. But it is still indicative the mother is prepared to tell Mr P information that was simply not only unreliable, it was untrue.
At paragraphs 36 and 38 of the final report Mr P summarises his concerns in this matter:
“The current situation is that the father and his adult daughter continue to be profoundly concerned about [the child’s] progress in practically every aspect of his life. For example, they consider that his disrespectful and sometimes rather silly and immature attitude can be directly attributed to the mother's poor attention to setting guidelines and asserting discipline.”
Paragraph 38:
“So far as the mother is concerned she is now legally unrepresented and seems to have come to a conclusion that [the child] does love his father and she is prepared to encourage holiday arrangements between [the child] and his father which could include the father visiting [the child] on the [Queensland] Coast and also [the child] going to Tasmania for holidays.”
At paragraphs 128 and 133 Mr P observes:
“On the question of where [the child’s] long term educational and other needs would be served, I would say that the father's and [Ms G’s] plan is an attractive one.”
Paragraph 133:
“As I have said, this boy is rapidly approaching a stage in his life when he needs to be settled, where he needs to be exposed to parenting which is much more authoritative than the present one.”
I turn briefly to consider the credibility of the parties. I have previously made my comments about the mother's lack of credibility. The mother denied committing acts of fraud as set out in the criminal history sheet, exhibit 2. The Court appearance was in the S District Court on 9 May 2002. No certificate of conviction was tendered pursuant to the Commonwealth Evidence Act, however, I appreciate that the criminal history is some evidence and is normally in my experience reliable evidence of the matters contained therein.
It is concerning to me that the mother denied any such Court appearance. I note that no conviction was recorded, but she totally denied having had to pay restitution, she denied having to do community service, she denied the Court appearance at all. It is a worrying aspect of the mother's evidence. I refuse to believe that the mother's memory could be so poor that she would not remember appearing in a District Court as recently as five years ago.
The other observation I make is that the mother totally lacks insight. It is likely she questions in order for the child to tell her what she wants to hear. She then tells her solicitor, who tells the police, and so it goes on. The mother strikes me as someone who knows how to use the system. She knows how to obtain DVOs to put pressure on the father, she has made allegations of sexually inappropriate conduct, which have been the result of persistent questioning of the boy, she has set about to constantly frustrate a normal relationship between father and son by preventing phone contact and interfering with physical contact.
She has constantly involved the child in the proceedings; I am more than satisfied of that. It is a measure of the mother's insight that even after the session with the police on 26 September 2006, to which I have previously made reference, she still says she believes the father engaged in sexually inappropriate behaviour. I would assess she believes it because she wants to believe it, but her belief is against all the evidence and against common sense.

In relation to the father's credibility, I expect he has understated the extent to which he has acted or reacted in an aggressive fashion towards the mother. I accept that it is likely she has acted in a similar fashion. In relation to Mr S’s evidence, I accept the child said to him what he reports in his affidavit, but it is likely the child only did so after persistent badgering by his mother. As I have previously noted I found Ms G was trying her utmost to be neutral, to be extending a hand of friendship to the mother. She was a particularly impressive witness, being both sensible and insightful. I have no reason to doubt the reports of Janet Peterson.
I turn to consider the matters I am required to do under s 60CC. The first matter is under the heading of "Primary Considerations", and that is the benefit to the child of having a meaningful relationship with both of the child's parents. What decision does a Judge make? Parliament tells the Court to make a decision to place a child in a situation where it is likely that he can have a meaningful relationship with both parents. I noted from the six reports of

Mr P the child has swung from wanting no contact with the mother to wanting no contact with the father, and various stages in between, such as saying he does not want to see his father, but subsequently giving him a hug and a kiss.
I am satisfied the mother is unable to promote a relationship between father and son. I am satisfied the father will do his best to promote a relationship with the mother, particularly with the able assistance of his daughter Ms G. I was particularly touched by the words of Ms G when she arrived at C Airport to enable the child to attend in Tasmania at Christmas 2006, when she said to the mother, "We're not the enemy". The evidence is redolent with examples of the mother's efforts to frustrate the relationship between father and son, and Mr P has made his observations to this effect.
The next aspect I have to consider under primary considerations is the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Mr P was of the view that the mother's conduct amounts to emotional abuse. Counsel for the Independent Children's Lawyer in helpful written submissions, paragraph 3, noted:
“The evidence supports a finding that the mother has emotionally abused the child:
3.1 The mother and her partner repeatedly questioned the child to the effect the father had sexually abused the child.
3.2 The mother presented the child for multiple interviews by the police and child safety officers.
3.3 The mother conveyed to the child over a significant period of time that the father had abused the child and was a bad person.
3.4 The mother encouraged the child directly or indirectly not to exercise the child's right to spend time with the father or otherwise prevented the child from spending time with the father.”
Under subparagraph 3 "Additional Considerations" the Court is required to take into account any views expressed by the child and any factors such as the child's maturity or level of understanding that the Court thinks might be relevant to the weight it should give to the child's views. As I have noted the child has expressed different views at different times in different situations. They are all reflected in the reports of Mr P. On occasions I note that his conduct has not been consistent with his words. I am satisfied the child has been subjected to such intense pressure from his mother, no reliance could be placed on his wishes as expressed, or as being the freely expressed wishes of a 10 year old boy.
I have to consider the nature of the relationship of the child with each of the child's parents and with other persons. In this regard I note that the child's behaviour has on numerous occasions been simply appalling. He has been violent; he was violent over Christmas to Ms G. He has been rude, aggressive and violent to his mother. His behaviour at school as reported has been poor on occasions. His marks at school, in my view, leave a good deal to be desired. Having regard to the assessment by Mr C back in 2002, the child is either average or above average intelligence. The child was caught stealing during a recent period in Tasmania.
I am satisfied, as is Mr P, that the father's household can offer greater discipline. The father's household can set limits on the child's behaviour to a far greater extent than occurs in the mother's household. I find this a very significant factor in arriving at the conclusion that I have. In addition, I am satisfied the child would not be subjected to questioning and coaching in the father's household, as has clearly happened in the mother's case.
The next matter I have to consider is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. I have previously canvassed aspects of this. I reiterate that the father is much more likely to encourage a positive relationship with the mother than the mother is with the father. Although, as Mr P has noted, neither side is beyond criticism.
I have to consider the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents. The child has a half sister who I understand is about six months old. There is no evidence of close bonding, there is considerable age difference. The child does mention to Mr P that he does hug the child and nurse her. I note that the child will not be precluded from developing a relationship with his younger half sister. He has a form of relationship with Mr S, I am not satisfied it is a completely close relationship. The mother has not normally resided in Mr S’s premises, nor he in hers.
I have to further consider the practical difficulty and expense of any arrangements of spending time with the child. The parties have agreed finally that the costs of any travel, whatever the result of this case, should be shared. The parties, to their credit, have also agreed on reciprocal orders for the non primary parent to spend time with the child. There is no evidence that either parent has been violent to the child. Even in the mother's domestic violence applications, as best I understand, I have not got the contents of those, but from her own affidavit material 99 per cent of her complaints relates to verbal abuse or harassment by the father.
The decision I have reached accords with the recommendations of Mr P, an experienced social worker who has had dealings with this case over a period of five years. It also accords with the recommendations of the Independent Children's Lawyer.
I note that Mr P pays tribute to the actions of the Independent Children's Lawyer and members of her staff on a number of occasions in the course of his reports. It would appear the Independent Children's Lawyer has engaged in conduct over and above the call of duty. She will be discharged with the thanks of the Court, and a special commendation for the work carried out on this file over a lengthy period of time in a difficult environment. I would ask counsel to pass on the Court's compliments for her talented and conscientious dealings with this matter.
Other issues that were not agreed to involved the important issue of whether there should be joint long term care or sole long term care. I noted that counsel for the father when cross-examining the mother elicited from her the difficulty in communication between the parties, difficulty in reaching any form of consensus or agreement. As the child will be living with the father in Tasmania, the view that I take is that it is better that he have the decision making power. I note and respect the views expressed by the Independent Children's Lawyer that it should be an order for joint long term, but I do not see that as workable.
The periods the child is to spend with the other parent, as I have said, are agreed. It seems the father is proposing three periods a year, in June/July, in September and at Christmas. The mother's proposals, as I understood it, were for two periods. The cost of air travel for the children are to be shared. I will adopt the methodology put forward by counsel for the father, namely that if the child is to travel from Tasmania to Queensland the mother pays for that fare, the father be responsible for organising the fare for return. I do not propose to make orders that the first periods of contact be in Tasmania. I accept that the orders for spending time with can commence in June this year.
Before concluding I have to record that I have grave concerns that the orders of this Court come too late. The matter has been delayed five years in the system, it has been delayed for a host of reasons, many to do with the allegations of sexually inappropriate conduct, also the fact that the mother said in September last year she was not well enough to proceed to trial.
As I have noted, I expect that in the period the child has been with the mother in recent times she has instilled a real fear in the child that the father will take him to Tasmania and she will not see him again. It caused me great concern that the mother expressed the view that she would not be able to afford any of the fares, and unless the Court ordered the father to pay the whole of the fares she simply would disassociate herself from her son. If that was to happen it would be a very sad day indeed.
I have concerns the child will act out, today, next week, next month, and for some time to come. It is likely that phone contact and holiday contact will exacerbate his fears. I have taken these matters into account when considering the most appropriate orders to make.

ORDERS DELIVERED

RECORDED : NOT TRANSCRIBED

I am not familiar with the situation in Tasmania, but it seems to me eminently sensible and mandate the father to do that.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

RECORDED : NOT TRANSCRIBED

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate:

Date: 23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WOOD & WOOD

[2007] FamCA 526

23 February 2007

Key Legal Topics

Areas of Law

Family Law

Evidence

Civil Procedure

Legal Concepts

Procedural Fairness