Woolley and Dickinson

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOOLLEY & DICKINSON

[2014] FCCA 1819

Catchwords:
FAMILY LAW – Parenting – application on father’s liberty to apply after orders for no time-with – child’s best interests – effect on mother’s parenting capacity of orders for direct time-with – whether period of interim supervised time is appropriate and in child’s best interests.

Legislation:

Family Law Act 1975

A & A (1998) FLC 92‑800
Irvine & Irvine [1995] FLC 92-624
PST & CPR [2006] FMCAfam 36
Re Andrew [1996] FLC 92-692
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re L (contact:- domestic violence) (2000) 2 FLR 334
Rice & Asplund [1979] FLC 90-725
Sedgley & Sedgley [1995] FLC 92-623

Applicant:

MR WOOLLEY

Respondent:

MS DICKINSON

File Number:

DGC 4171 of 2008

Judgment of:

Judge McGuire

Hearing dates:

4 & 5 June 2014

Date of Last Submission:

5 June 2014

Delivered at:

Melbourne

Delivered on:

11 September 2014

REPRESENTATION

Solicitors for the Applicant:

Unrepresented

Counsel for the Respondent:

Mr Allen

Counsel for the Independent Children's Lawyer:

Ms Sweet

Solicitors for the Independent Children's Lawyer:

Macgregor Solicitors

ORDERS

That orders 2, 3, and 5 of the orders of 18 May 2012 be discharged.
That the child X born (omitted) 2005 spend time and communicate with the father as follows:
(a)Supervised at a contact centre for periods of two hours or otherwise as directed by the contact centre on one day per fortnight as arranged and directed by the independent children’s lawyer.
(b)That for these purposes the parents attend for interviews and execute all such documents as directed by the independent children’s lawyer or the relevant contact centre.
(c)That changeovers for the purposes of the above orders take place as directed by the independent children’s lawyer but, in any event, the father be and is hereby restrained from being present at or within 500 metres of the contact centre for 15 minutes prior to the commencement of the time-with and must remove himself by distance of not less than 500 metres immediately upon the designated completion of time-with.
(d)That the father be and is hereby restrained from communicating with or approaching the mother either directly or indirectly save through any solicitors on the record acting for her or through the independent children’s lawyer.
(e)That the father be and is hereby restrained from interrogating X or raising any issues with her in respect of the mother including but not limited to attempting to elicit details of the mother and X’s residential address and/or telephone numbers.
(f)The father be and is hereby restrained from contacting X directly or indirectly including attending at X’s school or any social or extra-curricular events involving X other than within the strict terms of the orders.
(g)That the father communicate by letter, card and/or gift with X as follows:
(i)On not more than one occasion in each fortnight;
(ii)At Easter;
(iii)At Christmas; and
(iv)On X’s birthday.
(h)That the mother provide each of the father’s communications with X to the child but that the mother be firstly permitted to inspect and read the communications and be permitted to edit or not hand such communication to X at her discretion provided that if any such communication is edited or retained by the mother then she forthwith provide those documents to the independent children’s lawyer.
(i)That the mother assist and encourage X to reply to the father’s communication with the same conditions as referred to in order 2(h) above.
(j)That for the purposes of communications with X the father send such through a third party or address as provided by the mother to the independent children’s lawyer.
That there be liberty to the parties, either of them, or the independent children’s lawyer to apply.
That all applications be listed for mention and directions in the Federal Circuit Court at Melbourne on 7 July 2015 at 9.30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 4171 of 2008

MR WOOLLEY

Applicant

And

MS DICKINSON

Respondent

REASONS FOR JUDGMENT

Applications

These proceedings concern the parties’ one child, X, born (omitted) 2005. X is just eight years of age, but this is the third trial between her parents in respect of parenting and living arrangements. In June 2009, Hughes FM (as she then was) made orders for the mother to have sole parental responsibility for X, with X to live with the mother. Interim orders were made in respect of X’s time with the father, Mr Woolley, as follows:
(i) that the child spend time with the father supervised by (omitted) Children's Contact Centre at (omitted) for a period of two hours per fortnight; and
(ii) that upon the father at his own expense attending upon a psychiatrist or appropriate mental health professional for assessment and treatment (such as (omitted) Problem Behavioural Clinic or with “(omitted) Group”) and UPON the father providing proof of such assessment and treatment by way of a report, the father have liberty to apply.
Mr Woolley exercised his liberty to apply in an application filed 22 February 2010, being some seven months only after her Honour’s orders. That application proceeded to trial over two days in March 2012 when I made the following orders:
(i) that all orders for time between the child, X, born (omitted) 2005 (“X”) and the father be discharged.
(ii) that there be no orders for “time with” or communication between the child, X, and the father.
(iii) that the father may send appropriate cards and gifts on X’s birthday, Easter and Christmas days and on two other occasions per year, with the mother to assist X to respond with a package for the father, including photographs and certificates from school and in respect of milestones.
(iv) that the father be able to make inquiries of X’s school as to her progress but not attend at any school event or function.
(v) that the father have liberty to apply in respect of spending time with and communicating with X conditional upon him filing affidavits, with any such application from the facilitator of a recognised behavioural change course certifying the father’s satisfactory completion of such course and from a psychiatrist providing an assessment that the father does not, in the opinion of the psychiatrist, present as an unacceptable risk to the physical or emotional welfare of X and for this purpose the assessing psychiatrist depose that he or she has been provided with copies of the following: (a) these reasons for judgment; (b) the report of Mr T prepared for these proceedings dated 11 June 2009 and 20 May 2012; and (c) the report of Dr T dated 13 March 2012.
Mr Woolley exercised that liberty to apply in yet a further initiating application filed 30 October 2012, being only some five months after judgment. Not surprisingly given both Mr Woolley’s obvious keenness, his assertiveness, and his willingness generally and regularly to ignore the detail of Court orders, he filed his application without first obtaining the necessary certification from a psychiatrist. Nevertheless, the application proceeded through its pre-trial and interlocutory process to the trial over two days on 4 and 5 June 2014.
Mr Woolley was self-represented throughout these proceedings and the trial, as he was in the previous proceedings. He was provided with an exposé of the procedure and copies of the relevant sections of the Family Law Act together with an invitation to request assistance from the Court in respect of matters of procedure at any time.[1] Unlike the previous trial, Mr Woolley on this occasion conducted some cross-examination of the mother but chose not to cross-examine her expert witness, Dr M.
[1] Re F: Litigants in Person Guidelines (2001) FLC 93-072
Given Mr Woolley’s lengthy experience in these courts, and from my observations of him, he understood the issues for the Court’s determination and the matters which will generally impact on the making of parenting orders. It is proper, however, that I comment that unfortunately Mr Woolley’s previous difficult behaviour in Court was repeated. He was aggressive in his responses, his mannerisms and his assertions both from the witness box and the bar table. He remained prone to raising his voice to and making improper personal and derogatory comments to counsel for both the mother and the independent children's lawyer. It was obvious to the Court that this behaviour in Court continued at times outside the Court door when Mr Woolley’s raised voice was clear to those inside the Court and was unbecoming and unnecessary of an applicant seeking orders allowing him to pursue a relationship with his young child. From the bar table and the witness box, Mr Woolley was observed as empowered, entitled, assertive, aggressive, arrogant and, at times, personally rude to counsel. I make these comments of my observations of Mr Woolley as they are relevant for the following reasons:
a)previous orders of these courts for Mr Woolley to satisfactorily complete anger management courses;
b)an issue raised in the previous orders and in respect of the liberty to apply in respect of Mr Woolley’s mental health and/or personality traits which provided for him to adduce psychiatric evidence prior to bringing any further application;
c)the history of this matter which involved serial stalking and threatening behaviour by Mr Woolley towards X’s mother;
d)the mother’s argument now which, in part, is that the father’s previous behaviour towards her was of such a consistency and magnitude so as to have a psychological effect on her and to directly impact on her parenting capacity for X;
e)with relevance to the father’s own case that he now has gained insight into his previous behaviour; has addressed that behaviour; and professes to be “a changed man”.

The Applicant Father’s Case

Mr Woolley’s position in respect of orders sought varied throughout the proceedings and during the trial. His initiating application from October 2012 sought the following orders:
(1)To have shared reasonable custody of X;
(2)To have time spent on school holidays, birthdays, Xmas Day and Father’s Day;
(3)To have considered input in decisions re schooling.
(4)To be able to [sic] vacation (when arises) on international scale (E.g. Disneyland);
(5)To be able to attend X’s [sic] schooling activities (re concerts, working bees, etc.).
In his trial affidavit filed 2 May 2014, Mr Woolley sought the following orders:
(1) To have fair visitation of my child;
(2)To have equal rights and decision-making in relation to my childs [sic] schooling, curricular activities, etc. (to jointly agree future schooling etc.);
(3)To have equal time spent with my child on school days, birthdays, Xmas Day, public holidays, Father’s Day, Easter. To have the right to vacation with my child to any destination (be domestic or international).
(4)To speak to my child at anytime, regardless of weather [sic] it is my spent time or not. (Via face-to-face, telephone, etc.).
(5)To have the right to go to my child’s school to participate in any activity that is available (weeding, work bee, etc.).
Despite the above, which I can only interpret as commencing the trial seeking orders for equal shared parental responsibility, equal time, and permission to take the child overseas for holidays, Mr Woolley’s position had diluted considerably by the end of the evidence. In his final address, Mr Woolley volunteered:
The orders: I would –my orders would be to start off with supervision and just gradually build up from there, as I stated yesterday.
He later, in those submissions, suggested that supervision be for a period of six months.
Mr Woolley concedes that his previous behaviour towards X’s mother was improper. He says that these issues and his behaviour has been addressed and will not be repeated. He says that he suffers from no psychiatric illness. The implication in much of Mr Woolley’s evidence and argument was towards his “right” to have a relationship with his daughter, and what he sees as the mother’s attempts to exclude him from X’s life.
Mr Woolley relied on a number of affidavits filed 5 March 2013, 23 October 2013, and 2 May 2014. He adduced evidence from Dr R, who is a consultant psychiatrist. Dr R prepared a report dated 10 September 2013, annexed to an affidavit filed 23 October 2013. Dr R swore a previous affidavit on 28 March 2013, annexing a report of 24 November 2012.
Dr R gave evidence and was cross-examined by counsel for the mother and the independent children’s lawyer. Dr R was also invited to sit in the rear of the Court during a small part of Mr Woolley’s cross-examination, and later asked to comment on his demeanour and attitude.
Mr Woolley’s affidavit sworn 20 February 2013 annexes a certificate of attendance from “LifeWorks”, saying that Mr Woolley had completed an intake assessment and a 12 session “Men’s Behaviour Change Program” on 11 December 2012.

The Respondent mother’s case

The mother’s case is that there should be no time between X and her father, and X remain living with the mother, with Ms Dickinson continuing to exercise sole parental responsibility.
The mother’s first argument is that the father has not “crossed the threshold”[2] in that his behaviour remains unchanged. She urges the Court to find that he remains aggressive, threatening and lacking insight into the needs of both X and Ms Dickinson herself as the child’s mother. She argues that any claims of insight and revelation by Mr Woolley are contrary to the evidence generally, and most evident in his behaviour in Court, his statements in evidence, and the nature of the orders that he has variously sought. Ms Dickinson says that in such circumstances, in any event, X’s best interests are not served by having a direct relationship with the father.
[2] Rice & Asplund [1979] FLC 90-725
The mother mounts a second argument, in that she says Mr Woolley’s historical behaviour towards her has been so concerted and threatening in its particulars and intent that she has a reasonable subjective and objective fear for X going into the care of the father, and that this fear impacts directly on her own parenting capacity for X[3].
[3] Sedgley & Sedgley [1995] FLC 92-623; Irvine & Irvine [1995] FLC 92-624; Re Andrew [1996] FLC 92-692
The mother relied on her affidavit filed 6 November 2013. She adduced evidence in a report from Dr M, psychologist, dated 3 November 2013, and under an affidavit filed 8 November 2013.
It is the mother’s case that she has always made X aware of her father and left open the possibility of time in the future. The mother says that X has photographs of her father. Mr Woolley is spoken of in the mother’s home, and X freely asks questions about him. The mother’s unchallenged evidence is that she provides Mr Woolley’s correspondence to X, despite it being significantly outside of the court orders and encourages replies from the child.

Independent children’s lawyer’s case

Counsel for the independent children’s lawyer, in her final address, argued that the father’s demonstrated personality traits and anger pose an unacceptable risk to X’s emotional welfare. Those submissions suggest that the independent children’s lawyer, at the very least, had an open mind at the commencement of the trial as to the possibility of direct time between father and daughter, albeit supervised. That option was no longer in the independent children’s lawyer’s repertoire by the end of the evidence. She proposed orders as follows:
(1)The father’s application filed 30 October 2012 be dismissed;
(2)Order 5 made 18 May 2012 be discharged (being the order giving Mr Woolley liberty to apply);
(3)The order appointing the independent children’s lawyer be discharged.

Background

The father is 40 years old. He continues to work in (occupation omitted) of a (employer omitted). There is no evidence that he has re-partnered. It is clear from the evidence as a whole that he is effectively estranged from his mother and his two surviving siblings.
Ms Dickinson is also 40 years of age. I have no evidence of her domestic or living arrangements, save that she is also the mother of an adult son. In the circumstances of the background to this application, further details of the mother’s circumstances are not considered relevant and it is entirely understandable that she does not wish to disclose such details to the father, and given their previous history.
On the mother’s version of history, the parties were separated even prior to X’s birth. Importantly, however, litigation has been ongoing either actually or in expectation by reasons of liberty to apply orders since 2008.
I have before me reports from Dr T, psychiatrist, from March 2012 and from Mr T, psychologist, from June 2009. Both experts gave evidence (although not cross-examined by Mr Woolley) in the previous trial. No updated independent reports were obtained. However, counsel for the mother tendered and asked me to read the previous reports for the purposes of this trial. I did so with the support of counsel for the independent children’s lawyer and without objection from Mr Woolley. Those reports make it clear that Mr Woolley had no diagnosable psychiatric condition. His more recent psychiatrist, Dr R, concurs.
Mr Woolley’s behaviour towards the mother is detailed in the reasons of 18 May 2012. Whilst it is Mr Woolley’s case now that these matters are irrelevant or of negligible relevance given his claim to insight and improvement, I am of the view that the factual history does remain relevant and certainly to the mother’s case.
The mother had a five-year intervention order with the father as respondent dating from 2009. Mr Woolley has admitted numerous breaches of those orders and including convictions. The breaches mostly involve communications with the mother by way of telephone, text message, email and/or Facebook.
Mr Woolley volunteered previously that he had seen a counsellor or a psychologist to deal with his tendency to become “agitated”.
It is common ground that in February 2010 the Court ordered supervised time between Mr Woolley and X was ended at the instigation of the (omitted) care contact centre and on account of Mr Woolley’s inappropriate behaviour where he is alleged to have sworn at X and to have become agitated and aggressive towards the child and contact centre staff. Alternative arrangements were made for X to spend time with her father supervised by his sister, Ms N. The relationship between Mr Woolley and Ms N also broke down.
In November 2011 the mother brought an interim application seeking a cessation of time between X and the father. She brought the Court’s attention to a litany of threatening and disturbing communications from Mr Woolley. Those messages involved suicidal ideation and direct references to murders or massacres in the United States. Significantly, the messages from Mr Woolley appeared relentless in their number, frequency and content. This behaviour was compounded and aggravated by Mr Woolley creating an alias and a false Facebook account in the name of a fictitious female in order to further stalk and threaten the mother. During his cross-examination in the previous trial, Mr Woolley eventually (but not initially or candidly) made admissions as to the particulars of his behaviour set out in summary above and in detail in my reasons from 2012.
It was argued, and I accepted the argument, that Mr Woolley’s behaviour was further aggravated by candid admissions to the experts acknowledging his behaviour and expressing regret and remorse, yet continuing such behaviour unabated and virtually to the time of the last trial.

In an affidavit sworn 19 February 2010 and relied upon for igniting his liberty to apply application from the orders of Federal Magistrate Hughes, Mr Woolley deposed at paragraph 18:
Having been through the Family Court process to date, having read the family report by Mr T and having undergone Counselling and therapy with (omitted) Psychology and Health, I properly accept that my behaviour towards the mother following separation and in the early stages of the Family Court proceedings was unacceptable. I do not wish to have any more contact with the mother and respect her right to live without any unwanted contact from me. I certainly do not intend to harass the mother in the future.
Ms Dickinson deposes, and was not challenged, that she continued to receive numerous correspondence and messages from Mr Woolley following his apparent revelation in his affidavit of February 2010. It was at this time that Mr Woolley conceived and used the pseudonym, “Ms S” in order to continue his stalking, harassment and threats to Ms Dickinson.
The mother’s unchallenged evidence was that she received approximately 90-100 text messages from the father between 15 and 29 September 2011. On 1 November she received the message that said simply “Mr S, Columbine”. It is not disputed that Mr S was a young American who murdered family members. The word “Columbine” is indisputably a reference to a school massacre.
The further unchallenged evidence of the mother was that X was receiving assistance in 2011 from a psychologist in respect of an anxiety disorder.
During cross-examination in the previous trial the father eventually admitted the particulars of his alleged behaviour and asked the Court to accept that it would not be repeated.
Mr T provided two family reports. Those reports are read into evidence now. He observed X to have good recognition of and be comfortable in her father’s care.
Mr T reported Mr Woolley as believing that an injustice had been brought upon him by the cessation of an open relationship with X. Mr T detected “dysfunctional levels of reaction to rejection and resentfulness in Mr Woolley”. His first report recommended only directly supervised time. He offered the same recommendation in his second report a year later.
Dr T, psychiatrist, also recommended only supervised time. Dr T was unable to provide a diagnosis of any mental illness in Mr Woolley. He did diagnose a “major depressive illness in remission”. He observed Mr Woolley as being a vulnerable individual with difficulties in establishing and maintaining personal relationships.
At the previous trial, Mr Woolley argued a case similar to that he now offers in that, whilst acknowledging his improper behaviour, he attributes blame to the mother in refusing him an open relationship with X and therefore causing him to become “agitated”.
Given the argument that there should be a change in circumstances of X or the parents of some substance, significance or materiality before there be further litigation in respect of X it is proper that I note some of the findings made in my previous judgments.
Firstly, I was satisfied then that the father’s behaviour had impacted negatively upon the mother [94].
I was unable to find that Mr Woolley suffered a mental illness [92] but that his threatening communications to the mother were calculated and deliberate.
At [93] I was satisfied that:
“the father’s admissions, acknowledgments and concessions as to his behaviour in Court and to the experts are unconvincing, disingenuous and self-serving and suggestive of lack of control. I found that they were calculated simply for him to achieve desired ends in his litigation and came unaccompanied by remorse or insight.”

Relevant Legal Principles

In determining parenting orders for X, I must have her best interests as my paramount consideration (section 60CA of the Family Law Act 1975 (“the Act”)).
Mr Woolley variously seeks orders that I interpret to be those for equal shared parental responsibility with Ms Dickinson for X. Notably, there is a current order vesting sole parental responsibility in Ms Dickinson. The Act[4] provides a presumption that parents will have equal shared parental responsibility for their children. That presumption, however, does not apply if there are reasonable grounds for the Court to believe that a parent has engaged in abuse of the child or another child being at that time a member of the parent’s family or in family violence[5]. The definition of family violence in the Act is a broad one[6]. Undoubtedly, given the historical allegations of the mother and the admissions of the father, Mr Woolley’s actions fit squarely within that definition, and, as such, the presumption does not apply. I must, however, proceed to consider Mr Woolley’s application for an order for equal shared parental responsibility on its merits and, effectively, as to whether such an order is in X’s best interests.
[4] Section 61DA
[5] Section61 DA(2)
[6] Section 4AB (1) of the Act).
I determine X’s best interests in the above respects by reference to section 60B of the Act and the mandatory reference of the probative evidence and the parties’ proposals to each of the factors set out in section 60CC(2) and (3) of the Act.
The mother in this matter mounts an argument that the impact of Mr Woolley’s historical behaviour on her is such that her parenting of X would be negatively impacted by an order that X spend time with the father. In Irvine & Irvine (supra), the husband had assaulted the wife, burned down her home, and allegedly made threats to kill her. The wife appealed an order of the judge at first instance allowing supervised time for the husband with three children aged 13, 10 and seven years. In allowing the wife’s appeal, the Full Court observed:
Given the extreme seriousness of the matters established against the husband in this case, and given the children’s custodial parent wholly opposed access, this seems to us to be a case where an access order ought only be made where there was compelling evidence that the welfare of the children required such an order to be made.
In deciding whether it would be in the interests of the children to grant access, the Court had to bear in mind the obvious effect the respondent’s conduct must have had upon the custodial parent.[7]
[7] Irvine & Irvine (supra) at p 82273
In Sedgley & Sedgley (supra), the mother alleged consistent, provocative and threatening behaviour from the father. She appealed an order giving the father time with a seven year old child. The appeal was allowed. The Court found at 82,259:
The test to be applied in access cases, whilst the subject of some significant discussion ... is ultimately that prescribed by s 64 of the Family Law Act, namely what order is to be made by regarding the welfare of the child as the paramount consideration.
Whilst the welfare of the child might require some continuity of contact with the non‑custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
Whilst the wife is haunted by the prospect of there being a refusal of access, she has elected to choose that option, rather than the one she chose before Smithers J. She has done so because of continued behaviour by the husband which has been reprehensible.
In Re Andrew (supra) the husband was convicted of assaulting the wife post‑separation and in the presence of the child. The husband had spent time with the child following separation. Butler J ordered supervised time on the basis that the wife’s caregiving capacity could be impaired if unsupervised access was permitted, and that the effect of the wife’s fear of the husband would be detrimental to the child’s welfare, outweighing any benefit of time‑with between child and parent. The husband’s appeal was dismissed. The Full Court noted a relevant consideration determining whether to order time‑with or not is the effect of such an order on the primary caregiver and must weigh that circumstance against other possible advantages to the child in a continuation of time‑with.
The independent children’s lawyer and the mother argue here that there is an unacceptable risk for X’s emotional welfare should there be direct time with the father. Notions of past behaviour, future prospects, and risk are necessarily complex and at times speculative. In PST & CPR[8], Walters FM (as he then was) observed the discrete and delicate nature of the investigation as:
In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such orders as it is minded to make in order to protect the child.
[8] [2006] FMCAfam 36 at [71].
Comments and principles developed by superior courts over many years often involve allegations of sexual abuse, but such principles, in my view, remain valid for considerations of unacceptable risk per se. The Full Court in A & A[9] stated:
The task which the Court was required to perform was to determine whether the evidence was such as to establish that there would be an unacceptable risk to the children if they were to have contact or supervised contact with the husband ...
The term identified by the High Court in M & M (1998) FLC 91‑979 as “unacceptable risk” provides the touchstone for such an inquiry. Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involved the assessment of the risk of future physical and/or emotional harm ...
... the primary question which the Court should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.
[9](1998) FLC 92‑800 at p 84959
Within this context, courts dealing with parenting issues have consistently emphasised that the making of an order to sever or cease the relationship between a parent and a child should be a decision of last resort and made only after the consideration of other options, including the placing of conditions such as supervision. It follows that the courts have acknowledged the tenor of the legislation which recognises prima facie the importance of relationships between children and parents. Significantly given the factual platform now before me, Dame Elizabeth Butler-Schloss , in the English decision of Re L (contact:- domestic violence) noted:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact on the child against the positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and to make genuine efforts to do so, will be likely to be an important consideration.[10]
[10] (2000) 2 FLR 334 at 338.
Potential risks to a child can be many and varied. Indeed, the cessation of time-with between a parent and a child may in itself pose a risk as serious as the potential harm. In U & U[11] the court accepted as “self-evidently true” that children benefit from developing and keeping good relationships with both parents and that such an entitlement of the child is displaced only if the balance of the best interest considerations favour otherwise.
[11] (2002) CLR 238 at 285
It was evident from the father’s evidence and many of his voluntary statements in court that he felt the need to “defend” himself against the various allegations. It is important, therefore, to recognise that the functions of criminal courts and these courts is entirely different.[12] Unlike a criminal court dealing with guilt and innocence, the task for this court is to determine, on the balance of probabilities, whether X’s physical or emotional welfare is placed at risk by spending time with the father and whether such risk is “unacceptable”.
[12] M v M [1988] 166 CLR 69 at 776
The distinction was noted by the Full Court in Napier & Hepburn[13], in observing the task for these courts being not to find a solution that will eliminate any chance of serious harm but, rather, to balance the harm that will follow if the risk is not minimised or removed as against a child enjoying a normal, healthy relationship with a parent and such relationship prospering.
[13] (2006) FLC 93-303

Section 60B of the Family Law Act

Section 60B provides the framework for the consideration for the court in arriving at children’s best interests. It sets out the objects and principles of part VII of the Act. It is relevant for me to set out section 60B in its entirety in these reasons as it provides in its language and tenor that any “rights” as there may be sit with the child rather than the parent. Unsurprisingly in the matter now before me Mr Woolley has often referred to his own “rights” and to issues of “fairness” for him. I do not criticise him in this regard as he represents himself, clearly feels aggrieved by the process, and should not be presumed to be intricately aware of the finities of the legislation.
Section 60B of the Act provides:
1) The objects of this Part are to ensure that the best interests of children are met by:
a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
b)protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d) parents should agree about the future parenting of their children; and
e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CC Factors

Section 60CC(2)(a) – the benefit to the child having a meaningful relationship with both of the child’s parents.

Such a consideration is clearly at the nub of the father’s case. The mother, supported by the independent children’s lawyer, seeks an order for no direct time between X and her father. She would agree to a continuation of written communications. The evidence is clear that letters between daughter and father have maintained for X a recognition of Mr Woolley as her father and an interest in him. Mr Woolley argued, of course, that such a relationship is not “meaningful”. He says that it does not provide any substantial benefit for X. He says that a successful relationship between he and X can only be achieved by orders for direct contact.
The mother says that there remains a relationship between X and her father. She is aware that Mr Woolley is her father. She has photographs of him. She inquires about him. The mother says that such a relationship can continue and that she remains open to the possibility of more direct contact in the future.
The question of determining orders which benefit a child having a meaningful relationship is both a prospective one and a qualitative one. That is, it is for the court to consider orders that are workable and successful into the future. The court must also consider the quality of that future relationship rather than simply allocating a quantity of time. In doing so, the court must obviously consider the current nature and quality of the child-parent relationship.[14]
[14] McCall & Clark (2009) FLC 93-405
The consideration of orders which benefit children having meaningful relationships with parents is one of the two primary considerations for the court. However, it assumes no hierarchical importance. As the Full Court in Champness & Hansen[15] noted:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make Orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make orders most likely to promote the child’s best interests. In seeking to achieve that objective, s.60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed, along with all of the other relevant factors.

Section 60CC(2)(b) – the need to protect the child from physical or psychological harm, from being subject to, or exposed to, abuse, neglect or family violence.

[15] (2009) FLC 93-407

Mr Woolley has been at pains to emphasise that he has never been the perpetrator of physical violence. The definition of family violence, however, goes much further in the Act where there are specific references to “stalking” or “repeated derogatory taunts”. Mr Woolley by his own admissions is culpable in each respect.
The mother says that the nature, content and consistency of Mr Woolley’s threats cause her fear for the physical and emotional safety of X in the father’s care. She says that she remains unconvinced that he has addressed his anger management problems. She says that she fears his ability to control his own “agitation” in certain circumstances.
Mr Woolley argues that he has acknowledged the fact and the effect of his previous behaviour. He says that there have been no instances of his stalking, threatening or denigration of the mother since the last court orders although he has had the opportunity to do so through the order allowing him written communication with X. The mother confirms that the letters to X have not contained improper comment or threat towards her.
The mother argues that her previous fears in respect of Mr Woolley’s behaviour remain real and objectively relevant. She points to the fact that he has flooded X with letters, numbering in the hundreds, since the previous orders whereby the order specifically limited his written contact with X to four times per year. The mother says that this indicates no change in the father’s empowered and aggressive personality. She says that he has previously and blatantly breached State court intervention orders. She says that he now breaks the orders of this court and hence she can have no confidence in him being willing or able to adhere to any protective court orders in the future.
Secondly, the mother alludes to Mr Woolley’s behaviour in court. He was easily agitated. He easily became aggressive in his attitude, demeanour and responses. He was personally confronting of counsel for the mother and the independent children’s lawyer. She argues that, despite his apparent successful attendance at an anger management course, his behavioural traits remain and are frequently exposed.
Thirdly, she says that, despite his apparent revelations, he continues to be the “victim” and to attribute blame to her for there not being a relationship between he and X with the inference being that he still does not accept his culpability in respect of his previous behaviour. Specifically she notes a reference in the report of Mr Woolley’s own psychiatrist of 10 September 2013, on page 2, where Dr R reports:
Mr Woolley’s attitude to his former partner, Ms Dickinson, has not changed since the initial assessment and he remains fairly critical of her and tried to portray her as mentally unstable.

Recent amendments to the Act stipulate that I am to place a greater weight on issues of abuse and/or family violence in my determination.

Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give the child’s views.

X is soon to be nine years old. There is no direct independent evidence of her current views. They, however, can be considered from indirect evidence.
The mother, to her credit, has never obliterated the father from X’s understanding. I am satisfied that the mother has passed on the father’s letters which habitually contain a photograph of him (perhaps always a copy of the same photograph?) and despite the fact that Mr Woolley has seriously exceeded my orders in respect of communication. Similarly, I accept the mother’s unchallenged evidence that X is encouraged to display photographs of her father in her bedroom.
I am satisfied that X is able to speak freely of Mr Woolley to the mother as, for instance, in apparently being able to quiz her mother as to Mr Woolley’s new residence and even inquire as to when she might be permitted to visit. An incident on a recent Christmas when X, together with her grandmother, was to deliver gifts to the father and, again apparently with the good graces of the mother. There eventuated a chance meeting on the doorstep between X and Mr Woolley. The meeting lasted only a matter of minutes, at most. Hugs and pleasantries were exchanged. Ms Dickinson was asked of X’s reaction on her return. She responded that “she was fine”.
On the basis of this evidence as a whole, and again to the great credit of the mother, I am able to find that X is not reluctant or hesitant in respect of the fact or notion of her father. To the contrary, she is inquisitive and may even be keen and have an expectation of some more direct relationship in the future.

Section 60CC(3)(b) – The nature of the relationship of the child with each of the child’s parents and other persons.

For obvious reasons, X’s primary attachment is to her mother. It is reasonable to suppose, on the evidence, a close, communicative and perhaps mutually dependant relationship. Interestingly, in respect of the question as to X’s reaction on return from the chance meeting with her father on Christmas Day, Ms Dickinson, whilst volunteering that X “was fine”, also said that the event had caused her some anxiety herself and continued:
...I thought it was a bad idea. I didn’t react in front of her (X). I was not happy that it happened.
Circumstances have seen X have minimal direct contact with her father now for some years. The nature of their relationship has more recently been through writing and photographs. Certainly, the relationship through the eyes of a six year–eight year old child must have been tested. It is interesting, therefore, to see an annexure to the father’s affidavit sworn 26 April 2014 attaching a Father’s Day letter and photograph from X to her father wishing him a happy Father’s Day and carrying a message:
Dad, I love you because...you are the best dad in the world even though I don’t see you that much.

Section 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions on major long-term issues in respect of the child; and (ii) spend time with the child; and (iii) to communicate with the child; and (ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.

Mr Woolley has been again challenged as to his lack of financial support for X. It is difficult to reconcile that he has a job, expresses profound concern as to his daughter’s welfare, wants a direct involvement in all aspects of her life, yet seems reluctant to accept his obligations in respect of child support. I conclude that he does not contribute child support because he feels that his “rights” of time with X have been impugned.
Mr Woolley cannot be criticised as being dilatory in pursuing time in a relationship with X. Indeed, he has brought the most recent application technically in breach of the conditions of the leave restored for him to make application given that it was filed before he had the requisite report from his psychiatrist. Similarly, his previous application was brought only months after her Honour’s orders.
Mr Woolley’s case continues to be mounted, at least in a large part, on his criticism of the mother’s lack of willingness and ability to facilitate and encourage his relationship with X. The implication is that she has actively discouraged that relationship and gone to great lengths to exclude him from X’s life. My observations above as to, firstly, X’s understanding and openness in respect of her father and, secondly, the comments by Mr Woolley to Dr R in blaming the mother, suggest otherwise.

Section 60CC(3)(d) – the likely effect on any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other person or relative.

The orders sought by the father will bring X into direct contact with him. She has been quarantined from his behaviour generally and towards the mother. Time for X with the father, even supervised, would leave open the possibility of further exposure unless, of course, Mr Woolley is true to his word that such behaviour will not reoccur. A positive change would be that X would have the potential for a full, direct and hopefully enjoyable relationship with her father. A relevant consideration is the effect, if any, on the mother and her parenting capacity should there be any order for direct time between X and the father.

Section 60CC(3)(e) – the practical difficulty and expense of the child spending time with and communicating with a parent and whether that practical time or expense will substantially affect the child’s right to maintain personal relations and direct contact on a regular basis.

This consideration is not relevant on the facts.

Section 60CC(3)(f) – the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs.

The ability of Mr Woolley to provide for X’s physical and material needs was not specifically raised as an issue, although I repeat some concerns on the evidence as to his willingness to contribute child support. Rather, it is Mr Woolley’s capacity and insight into X’s emotional needs and the importance of her relationship with her mother that is very much at issue.
Separate psychiatric assessments disclose no diagnosable psychiatric illness in Mr Woolley. Dr R in his report of 24 November 2012 noted a reported history of depression together with:
In the aftermath of the separation Mr Woolley developed a sense of pervasive sadness and helplessness and had transient suicidal thoughts. He saw a psychologist and tried an antidepressant, Lexapro for about a month and his depression resolved.
Dr R assessed Mr Woolley as having no subjective symptoms of depression and no suicidal thoughts. He observed:
He was cognitively intact. His thought content revealed some frustration with the prolonged Family Law proceedings and his inability to see X. He accepted some responsibility for creating these difficulties as a result of his previous depression and insufficient compliance with the process.
Dr R provided a “recent diagnosis” of Adjustment Disorder with Depressed Mood but “does not currently satisfy diagnostic criteria for any psychiatric illness”.
Whilst identifying some “maladaptive” personality traits, Dr R transgresses into sympathetic comment in respect of Mr Woolley as follows:
Concerns have been raised about his attitude and its impact on X’s emotional wellbeing. The observations with regard to his attitude have been made by people who witnessed the process of handover of X and were a third party to the process.
In such situations there is always a risk of controlling one’s behaviour for the purpose of convincing others of one’s own trustworthiness and reliability. Mr Woolley chose to be himself and expressed his frustration with the process and this in turn has been used as an argument against him.
One cannot ignore the fact that he was in a somewhat disadvantaged position as X spent a lot of time with her mother and probably regarded her father as an infrequent and transient visitor in her life. It is not hard to imagine that she would show signs of discomfort when being handed over from a full‑time mother to a visiting father.
Parenthood isn’t a skill that is either present or absent, rather it is an evolving experience that requires the gradual development of attachment, trust and proximity on both the part of the child and the parent. In other words it is something that needs to be learnt. Mr Woolley’s constant desire to establish a relationship with X suggests that he is willing to learn and from a psychiatric point of view there are no reasons to believe that he is unwilling or unable to participate in the process.
Dr R prepared a second report 10 months later in September 2013. He concludes:
In the last 10 months Mr Woolley has not experienced any depressive symptoms which would justify any changes to his psychiatric diagnosis. From a psychiatric point of view he had previously experienced adjustment difficulties which have now resolved and do not impact his functioning and don’t require any specific treatment.
Again, Dr R offered his observations over and above his diagnosis and as follows:
During Mr Woolley’s visits for the purpose of psychiatric assessment I got a better understanding of his personality. He may at times come across as rigid, uncompromising and with a sense of entitlement. This aspect of his personality is best understood in the context of his childhood traumatic experiences. Mr Woolley lost his brother and sister in two separate tragic accidents and he probably fears that people he cares about may disappear from his life at any time. For this reason he is probably more sensitive to perceived injustice and sees both his former partner and the justice system as standing between him and his daughter. I’m afraid that his attitude is going to be even more apparent since he dismissed his legal representation and decided to represent himself.
The previous reports of Dr T are essentially in accord with Dr R’s reports as to observation and diagnoses. Dr T diagnosed a major depressive illness in remission. He described Mr Woolley as “vulnerable” at page 8, paragraph 5 of his report of 13 March 2012. Dr T says:
Mr Woolley demonstrates a limited degree of insight in regard to the significant level of disturbance he demonstrated, the negative impact of those behaviours and their implications, both for Ms Dickinson and for X. Mr Woolley’s personality style was more than likely determined during his early years subsequent to the tragic deaths of his two siblings. His tendency to deal with significant inner conflict with denial leaves him with few tools to manage the complexity of intimate, committed relationships.
Whether or not Mr Woolley is able to manage the ongoing relationship with X in the absence of his previously disturbed behaviours, is a matter yet to be seen. At this time, the assessment conducted by Ms B in regard to his ability to manage previous periods of unsupervised contact, appears to have been overly hopeful. Mr T who has assessed all the parties and did so on two occasions, expressed considerable reservations as to Mr Woolley’s ability to exercise adult self‑control in the care of his daughter, and as a result, suggested supervised contact…
Mr Woolley’s inability to protect X from his disturbed behaviours and mental state led to X requiring a psychological assessment which was conducted by Dr J.
Whilst it is true that Mr Woolley has desisted from his stalking communications with the mother, many of the behavioural traits observed by the experts remained obvious in court. Mr Woolley became easily agitated. He became aggressive and assertive in his voice and his body language. Whilst again acknowledging the error of his own behaviour, he was still keen to attribute some blame to the mother for his lack of time with X. Generally, I had concerns as to his ability to control his own anger, frustration and agitation. These are of course traits which impact directly on his capacity to care for X’s emotional needs.
The mother’s capacity to care for X is also a major issue for consideration. She says that her parental capacity will be negatively impacted by her residual fear of Mr Woolley will be manifested if X is to spend time with him.
In support of this claim she adduced evidence from Dr M, forensic psychologist. Importantly, Dr M was not required for cross-examination by the father or the independent children’s lawyer. As such, her evidence is unchallenged as is her expertise and the methodology of her assessment and report. I must consider its weight accordingly.
Dr M noted the distinction in her assessment role as opposed to providing a forensic family report. She noted the report to be limited to:
…to assess Ms Dickinson (the mother in these proceedings) in the context of her allegations of family violence by the father in these proceedings, and specifically the impact of this family violence on Ms Dickinson if her allegations are indeed true, and the potential or likely impact on her if she is required to facilitate the child spending time with the father again, if this is what the court indeed orders.
Dr M set out her methodology, including clinical interview, behavioural observations, personality and cognitive evaluations and psychometric testing. She noted that accuracy may be dependent upon the veracity of self-reported information.
Dr M’s report suggests a version of history provided to her by Ms Dickinson essentially consistent with her historical affidavit material. She reported anger, abuse, threats, including threats to retain X, multitudes of text messages and calls and stalking. Consistent with her affidavits, Ms Dickinson reported a previous escalation of Mr Woolley’s behaviour.
At paragraph 29 of her assessment, Dr M says:
Ms Dickinson reported that she is wanting this Order (reserving time-with) to continue, whereby the father has no contact with X at all; as she does not believe he has changed, and she is scared that he will physically or emotionally harm X; and she maintains that it just scares her that X will be the one who suffers because of his inability to let things go…
She stated that even during the last trial it was noted that his focus was all on her, and on what she’d allegedly done to him; as opposed to X, and why he wants to see her, and/or that he loves her and wants a relationship with her, etc. She stated that she feels that the last nine years have been all about him trying to get at her through X; and she just doesn’t think he’s ever actually had a connection with X herself. She stated that she believes his motives are all about trying to hurt her; and she insists she knows that if he hurts X, or threatens to hurt her, that this is the only hold he has over her. She stated that it had been such a long time, but even so, it is clear to her that his strong resentment and extreme anger is still very much at the forefront, if you hear him talk; and she stated that it really really scares her that he just doesn’t seem to have any kind of connection with X.
Ms Dickinson reported that one of the things discussed/acknowledged in the trial was that she had tried everything she could to facilitate X’s relationship with her father; and he was allegedly so very angry at being prevented from having unsupervised time with X; but then when he in fact got what he wanted, and got this unsupervised time; it reportedly made no difference, and his behaviour, threats and anger in fact escalated … Ms Dickinson reported that the father was also supposed to have done an anger management course; and yet he allegedly showed no change during their most recent Court hearing; whereby he allegedly yelled at the barristers and even the judge; and was generally acting in a similar way as to before.
Dr M reported symptoms of anxiety but she “wouldn’t say it has been clinical or debilitating”. The extent and context of the mother’s alleged fear as reported to Dr M at paragraph 43:
Whilst she does not believe she has suffered any other mental health or emotional issues; she reported that she has suffered extreme fear and worry and anxiety over the father’s threats and behaviours over the years; and whilst she just tried to manage it whilst she was in the middle of it, for the sake of X...
At paragraph 44, Dr M observed that:
Ms Dickinson reported that she was finally feeling like she was able to get on with her life, and not think about the father and his threats anymore, and not worry about X in his care anymore; and now this has all been swiped away. She stated that since it has all started up again, it has made her start thinking about everything that happened before, and all the worry, pressure, stress, anxiety and fear has come up again, and she feels sick and horrible, and she is upset all the time, and she has been crying all the time, and she has just felt like it was all too much, and she has just felt so very stressed again. She stated that it was just all so good, and then it was taken away with his letter.
So she stated that she is having trouble sleeping again, and she gets jumpy and nervous and fearful whenever she hears noises again, and she startles easy, and she keeps looking out for him, and she is just on edges and constantly worrying again. She stated that for a long time she could never sleep a whole night …
Dr M says that Ms Dickinson’s experiences have:
…left her vulnerable to self-esteem issues, relationship issues and even disorganised and/or insecure attachments, because of the exposure occurred during a vulnerable period of child development (physically, psychologically and socially), and the child’s developing self and their sense of mastery of the world is impacted …
At paragraph 62 of the Dr M report concludes that Ms Dickinson is showing many of the signs and symptoms of trauma response and anxiety and that “formal testing is consistent with this” albeit:
…whilst Ms Dickinson’s symptoms are not in the clinical stage, they are elevated for the classic symptoms generally associated with an individuals having suffered a single traumatic experience, and/or a long term exposure to trauma/abuse.
Dr M concludes at paragraph 63:
…there is no doubt in my mind that if Ms Dickinson is Ordered to facilitate contact again between X and her father, that she will re-traumatised, and she will struggle to manage her natural, normal and seemingly warranted fears and anxieties, and she will likely live in a constant state of psychological arousal; and the reality is that this is certainly going to impact the quality of her life, and in nearly every facet of it, and it is certainly going impact the quality of parenting, and her emotional availability generally, as she struggles herself to come to terms with her daily fears and anxieties and the associated trauma related symptoms, as described above; and ultimately she may never be able to move on with her life, and she may always live in fear, and she may never be able to live a normal life whereby there is an expectation of privacy and security in your own home; and instead she is likely to continue to have nightmares, difficulties with sleep, a startle response to any noises, and constant fear that the father may have found her home through questioning X, and/or constant fear that he may follow through with some of the threats he has made previously.
At paragraph 65 Dr M anticipated that even supervised time between the father and X would re-traumatise the mother.

At paragraph 68 Dr M opined that Ms Dickinson’s own emotional and psychological welfare will be benefited in a psychological sense since she is able to distance herself from Mr Woolley and suggested (at paragraph 69):
…if she has to facilitate contact between X and the father; and so before such an Order is made, and possibly to such devastating effect to the mother, I would hope, and have no doubt that the Court will want to be completely satisfied that the father has indeed made appropriate change.
The mother volunteered in evidence that she had sought psychological counselling when confronted with Mr Woolley’s latest application. She attended only a couple of visits and certainly the counselling has not been ongoing or regular during the current proceedings.
I had the opportunity to observe Ms Dickinson give her evidence and be cross-examined by Mr Woolley from only a distance of a few metres. Undoubtedly this was a difficult and traumatic experience for her. At the beginning of her cross-examination she was obviously upset, teary and hesitant. Nevertheless, Ms Dickinson quickly settled and became calmer. She was able to respond to Mr Woolley’s questioning in a considered and focused manner. Significantly, she was able to say that she was open to the prospect of direct contact between X and Mr Woolley in the future. She seemed to me to be able to interact and respond to Mr Woolley with a degree of. However, when asked in evidence-in-chief as to her reaction the previous day when seeing Mr Woolley’s behaviour inside and outside the court, she replied:
Yes, I felt sick. I was stressed and worried that nothing has changed. It was just like déjà vu. He is just so angry. It’s exactly how I remember in the past. There was no glimpse of anything positive … It scares me that he can’t control it.
Significantly, Ms Dickinson in the witness box was able to maintain her objectivity. At one point she volunteered to counsel for the independent children’s lawyer that X “…loves him and misses him…”
Ms Dickinson agreed that she would be open to continuing counselling for herself if she or her doctors thought it appropriate.
When asked about the prospect of supervised time for X and the father Ms Dickinson responded that she would be “anxious. I fear that X and I will be controlled.”

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.

Insofar as they are relevant, these considerations have been subsumed elsewhere in these reasons.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child.

Not relevant.

Section 60CC(3)(i) – the attitude to the child, and the responsibilities of parenthood, demonstrated by each of the child’s parents.

The evidence is clear that Ms Dickinson has shown a responsible, protective and objective attitude to her responsibilities of parenting X.
The issue in respect of Mr Woolley is whether his focus is on his own perceived “rights” and “injustice and unfairness to him” or on the emotional needs of his daughter. His comments to X during an observed supervised visit at a contact centre a couple of years ago suggest difficulties for him in making this distinction. His evidence in Court suggests some enlightenment in this regard although, of course, counsel for the mother is at pains to point out that Mr Woolley has previously shown an ability to make statements of regret, remorse and acknowledgement whilst continuing his behaviour.
My observations of the tenor of his responses in the witness box show a continuing propensity to become indignant when challenged as to his objectivity in respect of his daughter. He still exhorts the same selfish traits of unfairness and injustice.

Section 60CC(3)(j) and (k) – issues of family violence and family violence orders.

These fundamental issues are dealt with throughout these reasons.

Section 60CC3(l) – whether it would be preferable to make the order that would be lease likely to lead to the institution of further proceedings in relation to the child.

This is an important consideration. It is worthy of further emphasis that the focus of the orders is on the best interests of the child and not necessarily the parents. The Court must make orders which benefit the child in her relationships and not simply make orders for their own sake.
The mother seeks orders at this time that any direct time-with between X and her father continue to be reserved. She does candidly, however, leave open the prospect of further contact and hence perhaps further court proceedings. I have no doubt that she traumatised by the court proceedings themselves and there is a vicarious effect on X.
Conversely, I am easily able to find, on his own admissions, that the father’s previous conduct towards the mother and occasionally to X was abhorrent, unacceptable and arguably criminal. He has previously expressed his remorse and apparent insight and acknowledgement only to continue and even escalate his behaviour. He makes similar statements of regret and apparent insight now. If time for X is to be reinstated and there be a repetition of his behaviour in any form then undoubtedly further proceedings would be instituted by the mother, and properly so.

Relevant Findings and Conclusions

I am satisfied that a relationship and connection has been maintained between X and her father. This is despite her young age at the cessation of direct time. She recognises Mr Woolley as her father. She speaks of him openly in her household. She receives very frequent and regular letters and photographs from him. The mother has encouraged photographs being displayed in her bedroom. X asks questions of her mother as to the prospects of seeing her father.
I am satisfied that X herself has no reluctance or fear in her relationship with the father and actively anticipates one. Importantly, X was in no way negatively impacted by the chance meeting with her father at Christmas 2012.
I find on the evidence that Ms Dickinson has not actively discouraged X’s knowledge of or relationship, such as it is, with the father. She herself is open and perhaps even anticipates a direct contact relationship in the future. Contrary to the father’s argument, I find that the mother has encouraged X to maintain a relationship with the father within the terms of the current orders and even over and above them.
I am satisfied that Mr Woolley’s previous appalling conduct towards X’s mother remains relevant to this determination in that, firstly, it is relevant to his capacity to contribute to the parenting of X and, secondly, it is relevant to the impact on the mother’s emotional and psychological state and hence on her parenting capacity. Insofar as there is a need, I am satisfied generally to the particulars of the father’s stalking, threatening and harassing behaviour towards the mother until 2012. I can easily conclude that this behaviour was accompanied by entrenched anger management issues in the father. The effect on the mother, personally and as a parent was traumatic and that she legitimately feared the father and his potential behaviour.
I accept that there have been significant improvements and positive action by the father in addressing his difficulties. He has satisfactorily completed an anger management course. He attended on a psychiatrist for an assessment. I am satisfied that he suffers no diagnosable mental illness but that he remains a vulnerable and solitary personality prone to agitation and seeing himself as the “victim”. In this sense, I am satisfied on the evidence that the father’s behaviour is based on his particular personality rather than any treatable illness. Previous experts and Dr R in his evidence in court alluded to the benefits for Mr Woolley of continuing the psychological assistance therapy. I am satisfied that there would be such a benefit to him generally and in understanding his relationship with X. Further, and in my view significantly, there have been no instances of direct harassment, threatening or stalking of the mother since my previous orders. Whilst it is argued that he has limited opportunity by reason of not knowing the mother’s address or contact details, he has had written communication with X delivered through a third party. The mother confirms that Mr Woolley has not abused this privilege in attempting to contact her or make comment to her either directly or indirectly.
There do remain, however, and despite the above positives, a number of concerns in respect of the father’s personality, attitude and demeanour. He has, in my view, blatantly and for his own selfish ends, breached the court order which permitted him a specific number of written communications with X. The breach not an insignificant one. It shows a lack of insight into the effect of his behaviour and entitled personally on the mother. The mother’s unchallenged evidence is that X receives “at least weekly” letters from her father. The orders provide specifically for only five communications in a year. Generally speaking, but particularly given the background of this matter, an incapacity or unwillingness to adhere to court orders must cause the Court (and the mother) some concerns.
Further, I have had the benefit of seeing and hearing Mr Woolley give his evidence in court. I am satisfied from my own observations that he remains prone to spontaneous anger and to a tendency to blame others for his own perceived misfortune. I am satisfied that he continues to attribute blame for that misfortune to Ms Dickinson. As such, I cannot be satisfied that the father has yet properly acknowledged culpability for his previous behaviour towards Ms Dickinson that any claimed remorse is genuinely held.
There is no evidence of any physical threat to X. There is however, a threat to X’s emotional welfare should Mr Woolley’s behaviour towards the mother be repeated.
By reason of it being unchallenged as to content, methodology or expertise, I place some real weight on the report, observations and recommendations of Dr M. Consequently, I am satisfied that the mother has been and remains, to a degree, fearful of Mr Woolley personally and for her daughter. I am satisfied that her fear has caused symptoms of anxiety and stress. Dr M’s evidence, nevertheless, does not place those symptoms at the “clinical stage” although she says they are “elevated”. However on a consideration of all of the evidence I am satisfied that the mother does retain a degree of stoicism. She seemed mentally strong in the witness box; she anticipates time between X and the father as a future prospect. I cannot, therefore be satisfied that time for X and Mr Woolley per se would so overwhelm her with fear and anxiety that her parenting capacity would be compromised.
On a balancing of the evidence I am satisfied that orders which provide for some direct time for X with her should be reinstated. I am satisfied that X herself would be comfortable in such a relationship. I am encouraged in that, whilst still troubled by some aspects of Mr Woolley’s behaviour, there have been real improvements and significantly no direct contact by him to the mother. I expect that the mother reasonably and understandably will harbour some fears and will, at least initially, be anxious for both her own and her daughter’s welfare. I accept her evidence and that of Dr M in this regard. Ms Dickinson’s anxieties are, however, “not clinical”. She has impressed me as a person of strong character and demeanour even under extreme provocation from Mr Woolley. She says, and I accept, that generally she still favours a relationship for X with the father and it perhaps being a direct one at some time in the future. She has previously enlisted assistance from a psychologist and this would remain available to her.
To assist the mother, X and also Mr Woolley, I intend to place some initial conditions on X’s time with her father which he should understand will be orders aimed at giving a successful relationship for him with his daughter into the future. He must, however, adhere to those orders.
As such, I intend to make interim orders whereby time for X and Mr Woolley take place supervised formally in a contact centre. The appointment of the independent children’s lawyer will remain and provide some monitoring role. The interim supervised time-with order will continue for not less than nine months whereupon I expect that the independent children’s lawyer would adduce evidence from the contact centre and perhaps other evidence as to the success or otherwise of the interim orders. I would then anticipate a Family Report and perhaps further evidence in respect of the mother’s response to these orders.
I am acutely aware that Mr Woolley has prima facie breached my previous order in respect of written communication with X. These reasons make it abundantly clear that X’s mother needs the opportunity to develop trust and confidence in the relationship between daughter and father. This will only occur if Mr Woolley understands and accepts strict compliance with my orders. They are not a base from which he can presumptuously take more time. Mr Woolley is firmly on notice in this respect and failure to comply will be likely to have ramifications for him. I stress that these orders are absolute and certain in their terms and not an invitation for Mr Woolley at his whim to seek our further or additional time or communication with X. X has effectively had no direct time with him for some years. She will need to assimilate and become comfortable with any new arrangement. Hence, the onus sits firmly on Mr Woolley. I intend to continue the written communication but it specifically being limited to letters or cards on a maximum of once per fortnight.
I will list the matter for mention and directions before me on a date some ten months from the date of these orders to allow review of material to be obtained. I will give liberty to the parties or the independent children’s lawyer to apply in the event that issues arise from these interim orders.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 11 September 2014

[2014] FCCA 1819

11 September 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies

Jurisdiction