Family Court of Australia
Last Updated: 23 February 2011
 FamCA 1197
FAMILY LAW ACT 1975
IN THE FAMILY COURT
AT BRISBANE No. BR6845 OF 1996
IN THE MATTER OF: P.
BEFORE THE HONOURABLE JUSTICE LINDENMAYER
DATES OF HEARING: 18-22 JANUARY, 1999 13-16 SEPTEMBER, 1999, 17 MARCH, 2000, 28MARCH, 2000 & 22-25 MAY, 2000
DATE OF JUDGMENT: 29 AUGUST, 2001
REASONS FOR JUDGMENT
Appearances: Mr Smith of Counsel (instructed by Kelly & Agerholm, Solicitors, Arana Legal Centre) for the Father
Mr McGregor of Counsel (instructed by Bennett Carroll & Gibbons until 17 March, 2000 and then by Frank Carroll, Solicitor) until 16 September, 1999, and thereafter Mr Long of Counsel (instructed by Frank Carroll Solicitor) for the Mother
Mr Waterman of Counsel (instructed by Legal Aid Office) for the Child Representative
CHILDREN – Parenting Orders – Residence – ss60B; 68F(2); 65E Family Law Act – B and B: Family Law Reform Act 1995 (1997) FLC 92-755; Re David (1997) FLC 92-776
CHILDREN – Parenting Orders – child, aged 9, resided with the mother for his whole life – mother made unfounded allegations against father of ill-treatment and sexual abuse of child – mother’s continuous efforts to thwart contact and alienate child from father – change of residence – status quo – Raby and Raby (1976) FLC 90-104; Jones v Jones (1960) 77 W.N. (NSW) 682; P v P  VicRp 55; (1964) 5 F.L.R. 452
CHILDREN – Contact – Dr Gardner’s “ Parental Alienation Syndrome”
EVIDENCE – Failure to object to hearsay – ss59, 190(1)and 190(3) Evidence Act
EVIDENCE – Credibility Rule s102 Evidence Act – s108(3)(b) Evidence Act – Court grants leave to adduce evidence of a prior inconsistent statement nunc pro tunc
1. This is an application for final orders, under Part VII of the Family Law Act 1975 ("the Act") with respect to, firstly, the residence of and, secondly, in the event that that application is unsuccessful, defined contact with “the child”. The application concerning contact was originally filed by “the father”) on 2 July, 1996 and then, in an application filed 17 March, 2000, he changed his position and sought residence of the said child. The orders currently sought by the father make provision for the child to reside with him, in conjunction with complementing contact arrangements in favour of the current resident parent, who is “the mother”.
2. On 28 March, 2000, pursuant to my orders, the hearing of the application for residence was joined with the father’s initial and longstanding application for defined contact, which has been amended on a number of occasions throughout the lengthy and unfortunate history of this matter. In a Response filed on 24 March, 2000, the mother sought an order dismissing the father’s application for residence, with costs. Over the course of the proceedings, the mother has consistently contested the father’s applications for physical contact with the child.
3. The father has not had unsupervised contact with the child since 1996, and such attempts as have been made to re-establish the relationship through supervised contact have been singularly unsuccessful. The child has resided with his mother, step-brother and step-sister throughout the entirety of his life.
4. The mother was born in 1959, and is currently aged 42. The father was born in 1962 and is therefore currently aged 39. The parties commenced what became a rather stormy relationship in June, 1990. Essentially the association was marred by numerous separations and confrontations, until the parties ultimately ceased their relationship in early 1995.
5. The child of the relationship, S., was conceived, according to the mother, on Melbourne Cup Day, namely 5 November, 1991, when the father allegedly had sexual intercourse with the mother, without her consent. The father denied this allegation of rape. He further contended that conception actually occurred as a result of sexual intercourse between the parties which occurred on or about 21 November, 1991, which was unprotected because the mother falsely and deceptively informed him that she was already pregnant, as a result of their act of intercourse on 5 November, 1991.
6. S. was born in August, 1992, and is currently aged 8 and was, at the time of the trial, in grade 3 at a Christian School. After S.’s birth, the parties commenced cohabitation proper on 15 September, 1992, but this arrangement only lasted a few weeks before the father moved out of the home. The mother subsequently re-partnered, in late 1995, commencing a relationship with Mr. A.. As at 19 April, 2000, the father had a girlfriend who is a nurse. I shall say more about both of these people later in these reasons.
7. Throughout the history of these proceedings the father has been employed as a tradesman and in the arts. However, as at 19 April, 2000, the father claimed that he had not worked for a period of 18 months and was on long service leave, but was undergoing a training course to become a tour guide. However, the father did stipulate that he was a full time artist. The mother, at the time of a psychiatrist’s updated report for the proceedings, worked as a pay roll manager and was studying to be a counsellor.
8. In an affidavit filed 19 May, 2000, the mother claimed that the father had opposed and evaded paying child support for S. all along and that review hearings had taken place in 1993, 1996 and in April, 2000. It was the mother’s evidence, in an affidavit filed 20 July, 1998, that the father had threatened that she had better co-operate in decreasing the amount of child support payable by him in the 1993 review, or he would put a bullet in her. In addition to denying that specific allegation, the father, in paragraph 30 of his affidavit filed 24 December, 1998, stated that throughout the whole of this period he had paid substantial child support to the mother. There is no independent evidence of the level of child support paid by the father from S.’s birth, in August, 1992, up to March, 1996, when his contact with the child ceased. However, exhibit 30 is a Child Support system Transaction Statement, provided by the Child Support Agency, for the period 29 February, 1996 to 14 July, 1999 which shows that during that period (which is approximately 175 weeks) the father paid total child support for S. of $30,413.43 (or an average of $173.80 per week) against a total liability for that period of $30,393.93.
9. On 25 October, 1993, after both parties received independent advice as to its consequences, content and effect, they executed a Child Agreement which was registered the next day. The Child Agreement provided, inter alia:
10. The father subsequently enjoyed regular contact with S. until about March, 1996. According to the father’s evidence, from about the time S. was two and a half years old, the parties had agreed to extend the hours of contact so that they were from 8am Saturday until 5:30pm Sunday, on alternate weekends, and for one full day midweek every seven weeks, coinciding with the father’s work schedule.
11. However, the mother’s evidence was that, from at least 1994 to 1996, contact had occurred against a background of constant arguments and dissension between the parties, and harassment of her by the father, to all of which S. was often exposed.
12. In an affidavit filed 20 July, 1998, the mother stated that she was concerned about the father’s interaction with S. as early as December, 1993. She deposed that when the family was at the beach together, the father had dragged S., who was then 18 months old, through the water on a “boogie” board at running speed until he was flung off. The mother claimed, but the father denied, that the father laughed when this occurred, and that the parties then argued about the incident. The mother further stated that it was not until December, 1995, that S. would go to the beach and swim again. The father claimed that the mother had greatly exaggerated the nature of this minor incident and its effect upon S..
13. In the same affidavit, the mother recounted arguments that she and the father had engaged in over pornographic material allegedly being left around his unit for the children to read. The father denied this allegation. The mother further claimed that from early 1994, after S. returned home from contact, he would be exhausted and bad tempered, throwing himself on the floor, biting his older brother, or banging his head on the walls or floor if he did not get his own way. The mother claimed that it was from that time that S. commenced stuttering. The father and his parents, who often saw S. during contact weekends, denied observing any such conduct by S. at any time, and said that he stuttered only for a brief period about the time he was being toilet trained.
14. The mother claimed that on 5 April, 1994, she was assaulted by the father. The father denied this, and said that it was the mother who assaulted him, including by hitting him in the eye with a vase, and he sought only to protect himself from her assault. Neither of the parties’ applications for protection orders, which were made following this incident, was pursued.
15. The mother alleged that numerous abusive and vulgar telephone calls were made by the father to her residence from about October, 1994 through to August, 1996. The mother further claimed that these abusive phone calls sometimes amounted to as many as 10 in one day. She produced tape recordings of some of these calls which were recorded on her telephone answering machine, and included transcripts of them in her affidavits. Whilst the father did not deny making a number of these calls, and accepted that they were extremely abusive, vulgar and belittling of the mother, he claimed that they were confined to a much shorter period than the mother claimed and were provoked by her deceptive and manipulative behaviour towards him in relation to, firstly, her relationship with him, secondly her relationship with Mr A., and thirdly his (the father’s) contact and relationship with S..
16. The mother has 2 children, named M. and Sc., from a previous marriage to a Mr D.. The mother explained in her affidavit that, in an attempt to maintain amicable relations with the father for S.’s sake, as she had been able to achieve with her former partner for the sake of the children of that marriage, she agreed to see the father once a week. On one such occasion, the mother maintained that when the father arrived at her home to take her to the movies, he tried to force himself sexually upon her. This was alleged to have occurred on 9 June, 1995, in S.’s presence. The mother asserted that during the assault, S. ran to his room screaming and crying and that he refused to come out whilst the father was still there. The father denied the mother’s account of this incident, and denied any assault of her except that he admitted squeezing her leg (which she had stretched across him whilst they were seated together on a couch talking) when she made a suggestion that she could keep company with him and Mr A. at the same time. At about this time, the mother claimed that she made it clear to the father that their relationship was terminated and that, following this declaration, he then started monitoring her behaviour and seriously harassing her by breaking into her apartment and leaving notes throughout her home, tearing pages from her diary and listening to her answering machine. The father, on the other hand, contended that the mother continued to give him mixed messages about their relationship, at times encouraging and at other times discouraging him, and that she manipulated him to suit her own purposes. He claimed that the parties remained engaged to be married throughout this period (having become engaged in late 1993) and continued to engage in consensual sexual behaviour up until early December, 1995, including one “sexual romp for four days” in late October, 1995. The mother denied this, and said that the last occasion when there was any type of sexual contact between the parties was in late October, 1995. She said that on this occasion the father arrived at her home, distraught, at 4.30am, threatening suicide, so she let him in, and he eventually fell asleep downstairs, following which she went back to her bed, where she fell asleep, only to awaken to find the father in her bed attempting to engage in cunnilingus with her. She said that she stopped him and asked him to leave, which he did.
17. It is the mother’s evidence that on 22 October, 1995, whilst returning S. from a contact visit to her home, the father became violent and abusive, smashing pot plants and banging on doors. It was asserted that the Police attended that night and that all 3 children who reside with the mother were terrified and upset as a result of the incident. The father gave a different account of that occasion, claiming that after being provoked by the mother’s conduct, in snatching S. from his arms, falsely accusing him of being late with his child support payments, and reneging on an earlier agreement for him to take S. to a basketball game, he became angry and broke some hanging garden baskets which he had previously given to the mother. He denied all other allegations of violence or abuse by him on that occasion.
18. In an earlier incident on 12 June, 1995, the mother alleged that sometime after midnight the father arrived at her home intoxicated and proceeded to gain entry into her home through a closed window. She further stated that the father told her he had attempted to slash his wrists. Even though the police arrived that night and took details, the mother deposed that the father spent the night at her home in a spare bed. The father did not deny this incident, except that he denied breaking into the mother's residence and claimed that she let him in, and he denied having slashed his wrists.
19. When M., the mother’s daughter from a previous marriage, approached the mother with concerns regarding S.’s behaviour on 28 March, 1996, a statement was made by the then 15 year old girl to the Queensland Police Service on 2 April, 1996. In that statement M. delineated, in effect, that she had caught S. masturbating in his bedroom and when she confronted him about it he had told her “Daddy does this.” Whereupon M. asked him “Where does Daddy do that?,” to which S. replied “at his place.”
20. Following this conversation with M., the mother ceased the father’s contact with S.. It is the mother’s evidence that about the same time, S. masturbated in front of her friend Mr A. and, in the same period, made the following disclosures:
The father denied each of those allegations (except that he admitted S. may have heard him call the mother a “fucking moll”) and denied ever having masturbated in front of S. or touched, or encouraged the child to touch, his own penis except in the course of instructing him about proper male urinating practices. He was deeply offended by the allegations, which he described as “disgusting”.
21. The mother then listed numerous other occasions on which S. allegedly displayed similar sexualised behaviour, including his refusal to wear clothes to bed, as he said his daddy did not wear clothes to bed, and his suggestion that his brother should touch his “wee wee”. In conjunction with his use of foul language and bed-wetting, the mother stated that S. also stuttered at this time. The father and his parents, denied any such behaviour in his household, or theirs, and said the child’s mild stuttering occurred only during his period of toilet training.
22. On 8 May, 1996, the Magistrates Court of Queensland at Beenleigh granted a protection order in favour of the mother, with respect to the father, which was to continue in force for 2 years up to and including 7 May, 1998.
23. The mother’s cessation of contact in March, 1996, led to the father initiating proceedings on 2 July, 1996 for final orders regarding contact, in conjunction with orders providing for contact to occur in the interim period between then and the final hearing of the proceedings.
24. In the foregoing outline I have touched briefly on a few of the major points of conflict between the parties as to the relevant history of their relationship. A more detailed and informative summary of their differing accounts and/or perceptions of that history, up to early 1997, is contained in paragraphs 9-28 of the report dated 5 March, 1997 of Ms H, Social Worker, which is annexure A to her affidavit filed by S.’s Child Representative on 7 March, 1997. I shall have occasion to refer to other aspects of Ms H’s report later in this judgment, but for present purposes I think it is useful to set out that historical summary in full, since it is based upon what the parties then told her and is generally consistent with their evidence in the proceedings. That summary is as follows:-
“C. RELATIONSHIP BETWEEN THE PARTIES
9. [The mother] stated that she and [the father] met in 1990, 6 months after she separated from [Mr D.] who is the father of her older two children, M. and Sc.. [The mother] advised that [the father] broke off the relationship three times in the first 12 months because he wanted ‘space’ and disliked sharing the weekends with her two children. Having broken off contact, [the father] would then pursue [the mother] for a reconciliation yet was frequently unfaithful throughout the relationship. [The mother] stated there was only one occasion when she initiated contact with [the father] after a period of separation. [The mother] believed they would have terminated their unsatisfactory relationship much sooner but for S.’s birth.
10. [The mother] alleged that [the father] assaulted her on a number of occasions throughout the relationship and boasted of assaults on other people. She alleged that S. was conceived after she was raped by [the father]. [The mother] said that she was shocked and confused and avoided contact with [the father] for some time. When informed of her pregnancy with S., [the father] was allegedly threatening and later became antagonistic over Child Support payments. [The mother]’s detailed affidavit sets out her concerns about [the father]’s behaviour.
11. [The mother] recognised that the relationship was destructive but alleged that when she tried to set some limits, [the father] would not accept the situation and harassed her. [The mother] said that she persisted in trying to establish a friendship for S.’s sake but regarded the closer relationship as having finished by April 1994. Around that time, police applied for a Protection Orders on [the mother]’s behalf and [the father] made a cross application. [The father] advised that on 26.4.94 both parties agreed that the respective applications be discharged.
12. [The mother] alleged that [the father] was extremely jealous and that his harassment of her and unstable behaviour escalated after she formed a new relationship with Mr A. in 1995. [The mother] alleged that Mr A. was also victimised by [the father] and she applied for another Protection Order in April 1996. [The mother] advised that [the father] was subsequently convicted of two breaches of the Order because of abusive phone calls.
13. Currently, the parties do not have contact and [the mother] has stated that she is frightened of [the father]. She has alleged that there have been further abusive phone calls to her home, and other suspicious incidents (including a Break and Enter of her home) have occurred since Family Court proceedings commenced. [The mother] believes that [the father] is responsible. She has submitted letters from [the father] to S. which imply criticism of her.
14. [The father] has largely rejected [the mother]’s account of their relationship and stated that she was possessive and controlling throughout the relationship and pursued him in bizarre ways after temporary separations. [The father] alleged that [the mother] badgered his neighbours and ex-girlfriend for information about him, stole his address book, stalked him, assaulted him and publicly humiliated him with displays of her jealousy.
15. [The father] acknowledged that he had other relationships and alleged that after catching him out, [the mother] had retaliated by returning the other woman’s jewellery in a dismembered state, and assaulting him with a trophy. He further alleged that during a later period of estrangement, he had suffered a bout of severe food poisoning and believed that [the mother] may have been responsible.
16. [The father] stated that they had separated prior to [the mother] falling pregnant with S. but she ‘tracked (him) down’ to a Hotel on Melbourne Cup Day 1991 and they returned to his residence and had consensual sex. He denied any sexual assault and believed that [the mother] tried to entrap him with the pregnancy. He agreed that child Support payments were a contentious issue and believed that [the mother] was both greedy and unreasonable in rejecting a private agreement with him, particularly as they continued in a relationship, (albeit a stormy one), over a few years. [The father] believed that [the mother]’s lack of agreement contributed to an undermining of trust in the relationship.
17. [The father] denied that he was violent to [the mother]. He stated that conflict was consistently provoked by [the mother], and he had acted to physically restrain her from assaulting him or damaging property. [The father] stated that after S.’s birth, their relationship continued to be volatile and [the mother] used S. as an emotional weapon against him. He alleged that [the mother] was capable of irresponsible behaviour towards S. (and M. and Sc.) and could be excessive in her use of physical discipline. When confronted, [the mother] would justify her behaviour with quotations/references to her religious beliefs. [The father] said that [the mother] tended to give priority to her relationships with male partners over the needs of the children.
18. [The father] rejected [the mother]’s account of the relationship ending in 1994 and stated there were subsequent periods of reconciliation, and sexual contact, after [the mother] commenced a relationship with Mr A.. [The father] stated that [the mother] had never declared their relationship over and had always conveyed a sense of hope about the future as long as he attended counselling. [The father] said that while continuing to interrogate him about his movements and contact with other women, [the mother] lied about the nature of her relationship with Mr A.. [The father] acknowledged investigating (and confirming) his suspicions and said he felt humiliated and betrayed by their hypocrisy.
19. [The father] indicated that the whole situation became overwhelming and he acknowledged feeling angry, distressed and depressed. He was prescribed sleeping tablets but denied threatening suicide, or threatening to shoot anyone else, [the father] also denied specific allegations of harassment made by [the mother] but acknowledged that on one occasion after returning S. home, he entered [the mother]’s house in her absence (Sc. was there), read her diary and tore pages from it. [The father] said he knew it was wrong but was angered by the negative and allegedly self serving portrayal of past events in [the mother]’s diary.
20. [The father] stated that he regretted making the abusive telephone calls to [the mother] after contact was suspended but was enraged by the allegations of sexual misconduct and [the mother]’s actions in suspending contact.
21. [The father] believes that [the mother] is motivated by a desire to punish him by denying his contact with S., and wants him ‘off the scene’ to please Mr A.. [The father] described [the mother] as an accomplished schemer and believed she was capable of staging malicious incidents such as the Break and Enter of her own home to incriminate him and create further mischief in Family Court proceedings prior to the interim hearing. [The father] alleged that contrary to her stated fears of him, [the mother] and associates had been seen by himself and a neighbour congregating and drawing attention to themselves outside his residence.
D. HISTORY OF CONTACT ARRANGEMENTS
22. [The mother] stated that despite relationship problems, she wanted [the father] involved in S.’s life and hoped for the type of cooperative relationship she had been able to establish with [Mr D.]. While S. was under 12 months, contact was exercised at her home. [The mother] stated that she needed to remain vigilant as [the father] could be irresponsible with S. e.g. throw him in the air while he was still very young. She said that [the father] constantly pushed for more contact believing that he was entitled to more because of the amount of Child Support he paid. She said that his parents encouraged him to approach a solicitor and Consent Orders were filed in October 1993.
23. By early 1994 [the father] was exercising day contact with S. and [the mother] was concerned that S. was coming home exhausted and cranky, and the ‘head banging’ behaviour commenced. [The mother] alleged that she felt threatened by [the father] and was ignorant of legal matters. She was encouraged to believe that he was entitled to a standard regime of contact irrespective of her concerns. [The mother] allowed overnight contact to commence when S. was 2 years old and acceded to [the father]’s demands for day contact during the week. However she stopped week day contact following an incident when [the father] allegedly ignored S.’s ill health and took him to a park in windy weather. [The mother] stated that she always had to be careful of how she offered advise to [the father] about S.’s care because of his potentially volatile reaction.
24. [The mother] alleged that over this period of contact S. was often sick, aggressive, and developed a nerve rash and a stutter. He had disturbed nights and wet the bed until mid 1996. Added to this were [the mother]’s concerns about [the father]’s harassment of her and his uncontrolled behaviour which was witnessed by S.. She believed that [the father] denigrated and threatened her (and Mr A.) to S., and interrogated him about her movements. The final straw was [the mother]’s belief that [the father] had modelled inappropriate sexual behaviour to S..
25. After suspending contact, [the mother] took S. to a psychologist [...] for advise on how to manage his behaviour. She said that prior to that she had sought the advise of [...] a doctor when concerns about S.’s post-contact behaviour had arisen.
26. [The father] stated that when his relationship with [the mother] was ‘good’, he had liberal contact with S., and [the mother] had used him as a babysitter for all three children. He said, however, that [the mother] was always very controlling and had initially refused to allow him to take S. to visit his parents thereby prompting him to seek Consent Orders. [The father] said that contact visits went very well and he complied with [the mother]’s demands about S.’s routine for S.’s sake and to avoid potential conflict with her. He said that neither he nor his parents had observed any disturbed behaviour in S., and had only noticed a temporary stutter around the time he was being toilet trained.
27. [The father] rejected [the mother]’s allegations of inappropriate behaviour towards S. and although he acknowledged that S. was exposed to parental conflict at contact handovers, he alleged that conflict was instigated by [the mother]. He said that [the mother] often prevented him from leaving the property by locking the gates or putting her foot behind the car tyre while she continued to berate him and dramatise events for the benefit of the neighbours.
28. [The father] denied refusing contact with S., or with holding S. unless he and [the mother] reunited. He said that because he was angry with [the mother] and Mr A., he discouraged S. from talking about them but acknowledged that he had asked S. on at least one occasion whether Mr A. had stayed at [the mother]’s place overnight.”
THE HISTORY OF THE PROCEEDINGS:
25. As a result of the institution of these proceedings, orders made by Warnick J on 24 September, 1996 made provision for:
Consequently, all forms of physical contact between the father and S. were suspended in the interim period between that day and November, 1996, when the matter would be dealt with in the Judicial Duty List.
26. The Family Report previously referred to was then prepared by Ms H on 5 March, 1997, and was filed 2 days later. At the time of the interviews conducted for the report, S. was aged 4 and had not had physical contact with the father since March, 1996. During the interviews it was recorded that S. referred to his mother as happy and his father as grumpy or angry all the time.
27. In paragraphs 47 and 48 of the report Ms H noted that, after waiting with his mother whilst his older siblings were being interviewed, S. had informed her that “Daddy pulls his pants down when he went to bed.....Daddy left me alone and went to the shops.....and Daddy said he would kill [J] (ie Mr. A.’s dog) with a stick and shoot P. (ie Mr A.).” Ms H reported that S. appeared nervous whilst disclosing this information, and that he had then laughed and said “I can’t remember everything.” Following this disclosure, upon rejoining his mother, S. repeated the statement “I couldn’t remember everything.”
28. In a further interview with S., Ms H asked him how everyone at home felt about his father, to which S. responded “no one likes Dad except me.” Upon being asked if he would like to see his father in the presence of Ms H, S. replied that he would not like that to happen, as the father may break the toys.
29. Earlier in that interview S. had told Ms H that his father was
“naughty” because he had called his mother a “fucking
moll”, had pulled his own (i.e. the father’s) pants down while lying
on the bed, and played with his “wee wee”
(and, when asked in
relation to that matter whether anything else happened, S. responded
“that’s it”). He had
also told her the
(1) “Daddy said put my finger in my bottom and smell it”.
(2) “Daddy left me at his place during the day and went to the shops”.
(3) “Daddy woke me at night and scared me (with loud noises while the lights were off)”.
(4) In response to a question whether anything sacred him at his mother’s house, that “sometimes she smacked (him) for nothing”, but that “his father did not smack him or yell at him when he was naughty and had not hurt him”.
(5) In response to a question about how his parents felt about each other, that they “don’t like each other”.
(6) In response to a question about whether his parents asked questions about each other, that his mother did, “but only about the naughty things that happened”.
(7) That his father “called his mother a ‘fucking moll’ on the answering machine”, and when asked how he knew this he first responded “I saw him” but later said “someone told me”.
30. The father then met with S. in the presence of Ms H on 28 February, 1997, and at the request of the mother (who had been “reluctant to allow S. to attend the meeting because of his stated feelings towards contact”), M., S.’s older sister, was also present. Ms H noted that M.’s dislike of the father was obvious on occasions and would have been apparent to S.. However, she further noted that even though S. was less inclined to initiate the activities himself, he was quietly responsive to the father. She stated that their interaction was quite good given the period of time that had elapsed since they last had contact and the intervening events.
31. After referring to S.’s siblings’ opinions (i.e. M. and Sc.) that the household was more peaceful without contact; the mother’s ex-husband’s (ie Mr. D.) evidence that S. had been aggressive and would stutter following contact, but that behaviour had ceased in the past 12 months; the father’s former neighbour’s evidence (ie Mrs G.) that the mother was often at the father’s residence when he was not home and had requested the neighbour to inform her of any silly things done by the father; the evidence of the father’s then current neighbour (ie Mrs B.) and of the paternal grandparents that S. had not ever behaved in their presence in a manner to indicate the problems alluded to by the mother; and the report of the Director of the pre-school which S. had attended since February, 1996 that she had not observed any aggressive, sexual or crude behaviour or language in S. and that he was a “gentle and placid child” who is “co-operative, listens and follows instructions, speaks well and has a good understanding and vocabulary”, but who had “made significant gains this year” [i.e. 1997], Ms H stated that S.’s improvement in recent times was probably due to normal development and the absence of parental conflict at handovers.
32. Ms H noted that it was difficult to determine “whether S.’s attitude to contact is based mainly on his independent memories of events, and his perception of his father’s behaviour, or whether the lapse of time and anxiety/hostility of other family members has significantly coloured his perceptions”. However, she further noted that S. did not appear to have become alienated from his father at that stage.
33. In paragraphs 98 and following of her report, Ms H first identified the “two types of concerns raised about [the father’s] behaviour which could impact on S.’s physical and emotional well being”, namely “abusive behaviour directed towards [the mother], and indirectly S.”, and “irresponsible and sexually inappropriate behaviour directed towards S.”. In relation to the latter, after noting that some of the behaviour described by the mother “appears to be crude rather than sexually abusive while other behaviour suggests an inability to observe appropriate boundaries”, and that the father “denied all allegations of sexually inappropriate behaviour and alleged that [the mother] coached S., and influenced others, into making statements about what they heard and saw”, Ms H said that she could not take that matter any further but was “more concerned about” the former type of behaviour.
34. In relation to that, Ms H expressed the opinion that there was “evidence to suggest that [the father] has acted inappropriately towards [the mother] and S.”, but that the degree of inappropriateness and whether it was continuing were both points disputed by the parties. After referring briefly to the parties’ conflicting accounts in relation to those points, she expressed the opinion that it was “a positive sign that [the father] has formed a new relationship and feels himself less vulnerable than when contact with S. ceased last year”.
35. In conclusion, Ms H recommended that should the re-introduction of contact be found to be appropriate, then it should commence with short periods of supervised contact with handovers taking place at a neutral location. She further recommended that the arrangements should preclude direct contact between the parties and that should any doubts exist as to the father’s stability, a psychiatric assessment may be helpful.
36. On 10 March, 1997, before Smith JR, the parties consented to orders providing for them to attend a psychiatrist selected by the Separate Representative for assessment. Furthermore, the application for interim contact was adjourned, once again, to a date to be fixed by the Court.
37. Accordingly, the parties then attended upon psychiatrist Professor N. The Professor’s report was signed on 17 September, 1997 and subsequently filed, as an annexure to his affidavit, on 2 October, 1997. In the introductory paragraphs of the report, Professor N explained that the purpose of the assessment was to evaluate both parties and advise whether either party suffered from a psychiatric disorder and, specifically, whether the father could be dangerous. He recorded that the sources of data upon which he relied were: Warnick J’s order of 24 September, 1996; various applications, responses and affidavits of the parties; affidavits of other witnesses in the proceedings (which he identified) including that of Ms H with her annexed report to which I have already referred; copies of some letters from the father to S.; and interviews of about three hours total duration with the mother and about three and a half hours with the father.
38. After outlining the history of the proceedings and the various allegations and concerns raised by both parties, gleaned from a review of the documentation and from his interviews with them, Professor N concluded his report with the following discussion and summary of his opinion:-
Despite their apparent differences, the stories told to me by [the mother] and [the father] complement each other. They represent polarized viewpoints concerning the meaning of the particular events. In essence, after the initial meeting, [the mother] became infatuated with [the father]. She pursued him, energetically. [The father] was reluctant to have more than a casual relationship, initially, because he was concerned about assuming responsibility for [the mother]'s two children by a previous marriage. However, he was flattered by her persistence, and an "on-again, off-again" relationship evolved. [The mother] proved intensely jealous of his relationships with other women.
After the relationshop had apparently been called off, [the mother] pursued [the father] and fell pregnant to him. Whether the pregnancy is the result of rape or a consensual relationship is a point of difference. [The mother] apparently continued to hope that a more permanent relationship would eventuate. [The father], for his part, remained hesitant, to say the least. After suggesting an abortion, which [the mother] hotly refused, [the father] attempted to beat down the price of maintenance, and was reluctant to pay more than half the cost of S.'s delivery.
The couple attempted to live together after the child was born, but the relationship broke up in disarray. Nevertheless, unable to stay apart, the couple continued to see each other. Matters took a decided turn for the worse, however, when [the father] had his suspicions confirmed that [the mother] was having a sexual relationship with another man. He was particularly concerned because, at [the mother]'s behest, he had entered counselling at a Christian counselling centre. It was at this point, that [the father], in his own words, "lost the plot." He felt humiliated, belittled, deceived, and manipulated. Seeking retribution, he telephoned [the mother] incessantly, using profane and threatening language. He also entered her apartment, interfered with her personal possessions, and, in effect, "stalked" her and Mr A.. There is a quality of "tit-for-tat" in this behaviour, as some of [the father]'s misbehaviour apparently echoed [the mother]'s behaviour toward him on a previous occasion. The disintegration in their relationship culminated in allegations against him of sexually inappropriate behaviour toward his son. These allegations of sexual abuse were never substantiated; nevertheless, they continue to becloud the current situation.
1 think it most likely that, without sexual intent, [the father] has made innocent and, at times, vulgar comments to his son. [The mother]'s tendency to regard these comments as indicative of sexual abuse may be affected by her own experience of abuse as a child, presuming that [the father]'s account of this is accurate.
There is no evidence that [the mother] is psychiatrically abnormal. She was certainly infatuated with [the father], and behaved toward him in an intrusive, manipulative, and partially deceptive way, She ultimately came to fear [the father], and her expressions of this fear to me appeared genuine.
[The father] exhibits no evidence, at present, of psychiatric disorder. An egocentric man, accustomed to being the cynosure of feminine attention, he allowed a relationship about which he had mixed feelings to result in a pregnancy he did not want. However, after his son was born, he became intensely attached to the boy. It was when he became aware that [the mother] was developing a relationship with another man, and that he might lose the affection of his son to another man, he was precipitated into an emotional crisis. In this crisis, he behaved in a threatening, invasive, and retributive manner which led to his parental access being barred. Over the subsequent year, he has recovered from this emotional crisis. Before and during the crisis, [the father] received counselling at a Christian counselling centre associated with [the mother]'s church. However, from his description, the counselling had a fundamentalist, pentecostal quality that was unacceptable to him
Therefore, with reasonable medical certainty, my opinion is as follows:
1. [The mother] does not suffer from a psychiatric disorder.
2. [The father] does not currently suffer from a psychiatric disorder.
39. After a conciliation conference with Bowler DR failed to reach a resolution on 6 March, 1998, further directions for hearing were made providing for the Child's Representative to file any expert reports that she intended to rely on by 5 May, 1998.
40. On 3 June, 1998 further directions were made by Smith JR with respect to the filing of affidavit material and the inspection of subpoenaed documents.
41. In the meantime, due to the following two reasons:
the Child's Representative referred the case back to the psychiatrist, Professor N, for the purpose of giving an opinion as to the advisability of contact between the father and the child. At that time, the last contact visit between the father and the child had been in March, 1996.
42. Accordingly, Professor N prepared a further report dated 2 June, 1998, which was filed on 22 June, 1998 as an annexure to an affidavit by him sworn on 17 June, 1998. After reviewing the relevant affidavit and other material provided to him, the report summarised some of the evidence contained therein. He referred to the affidavit of Mr E., a neighbour of the father, who deposed that the mother and her friend, Mr. A., had been seen wind-surfing on a beach directly outside the father’s residence on 20 October, 1996, whilst a domestic violence order was in place. Mr E. stated that he was concerned that they were trying to “set up” the father for a breach of the said order. Professor N also referred to the evidence of Ms S. and Ms B., who deposed that they saw the mother verbally abuse the father and seize S. from him whilst they were in the park on 12 July, 1995.
43. In the interviews conducted for the purpose of the report, it was recorded that the mother complained that since September, 1996, people, including both men and women, had continually harassed her on the telephone, apparently berating her for not being a good Christian and the like. The mother stated that numerous calls had been traced by Telstra to public phones in the area where the father resided and to his place of employment. She further complained that in March, 1997, her friend, Mr A., had found sugar in the fuel line of his truck. When asked if she truly believed that the father was a homosexual paedophile, the mother replied that she could not rule it out.
44. Whilst the father admitted that he had made abusive phone calls to the mother in the past, which he agreed was unacceptable, he claimed that more recently he had not placed “silent” calls to her home. He further stated that some of his friends had done it to do him a favour, however he maintained that upon discovering this he had told them to stop. The father stated the belief that if the mother was really scared of him, she would arrange a silent phone number and that, in fact, she pretended to be scared of him for dramatic effect.
45. At the commencement of his interview with S., Professor N asked him why he had come to see him, to which the child responded:
"'Cause my Daddy is naughty. He sleeps with nothing on and plays with his wee-wee. He says, 'Fucking Moll'. He smashed Mum's window and Mum's pot-plants a bit long ago."
The child also said that he and his father do not speak on the telephone. He said his mother had gone to the police station to tell the police "things about Daddy" which were "naughty", and when asked to draw his father he said he could not, but eventually "depicted a figure with a large head". In respect of his father he also said: "He put handprints on Mum's things, the cookie jar". When asked if he missed his father he said "I don't know" and then changed the subject.
46. Professor N concluded, in his report, that the manner of S.’s "recitation of the bad things his father had done" was "strongly suggestive of priming or coaching" and that whilst he was unable to assess the veracity of the mother’s allegations regarding harassment with phone calls and other incidents, if they were true even in part only, they represented "serious misbehaviour" by the father.
47. The doctor further concluded that the father was "clearly obsessed with what he sees as the injustices done to him" and resentful of the fact that another man should have such a significant influence in his son’s upbringing. He stated that the father accurately perceives the mother "as trying to expunge him from his son's life" and that whilst supervised contact would not, itself, be harmful to S., it would receive a hostile reaction from the mother, and it was "from this that harm, if any, might be sustained by the child".
48. Ultimately, it was the doctor’s conclusion and recommendation that S. would not be harmed by having supervised contact with his father for two hours every second week, but that as the mother's allegations of harassment of herself and Mr A. were serious a decision regarding supervised contact could reasonably be delayed until the police investigations regarding those allegations were concluded.
49. When the original protection order, granted in 1996, expired in 1998, the mother made a further application to the Magistrates Court for another protection order, which was settled by both parties providing undertakings to the Court that they would not contact each other, other than in accordance with the orders of the Court and, in the case of the father, he undertook not to contact Mr A. as well.
50. On 29 July, 1998, the mother brought an application for leave to enable the child’s step-sister, M., to swear an affidavit for the purpose of the proceedings. A supporting affidavit sworn by the mother’s solicitor was filed on the same day, generally indicating the nature and contents of M.’s evidence. This affidavit was eventually filed on 18 December, 1998, after M. had turned 18, and essentially it described the disclosures made by S. to the daughter and recounted by her to the mother about S. masturbating, and corroborated the mother’s evidence about certain other events.
51. On 30 July, 1998, at the request of the father, which was agreed to by the mother, Warnick J ordered the adjournment of the final hearing of the contact matter back to the Pending Cases List and vacated the trial dates of 3–7 of August, 1998 which had been previously fixed. His Honour further granted the father leave to file an application for interim contact on the same day.
52. Accordingly, the father filed an application on the following day, 31 July, 1998, for supervised contact to occur at a Contact Centre each alternate Saturday for a period of 2 hours, in conjunction with weekly telephone communication and continued written contact until the final hearing.
53. On 5 August, 1998, after dismissing the father’s application for interim supervised contact, Warnick J ordered, firstly, that the mother cause S. to respond to each of the father’s letters and, secondly, that she make the child available for telephone contact by the father at a specified time, each week, and by the father and his parents at specified times on the child's birthday. In coming to this conclusion his Honour stated that, given that physical contact had not occurred since 1996, he felt that should the Court, upon finally determining the matter, refuse to order a regime of contact between the father and the child, the re-institution of contact in the interim would potentially be emotionally confusing for the child.
54. On 2 September, 1998, the father filed an application complaining of the mother’s contravention of Warnick J's order through, firstly, failing to make S. available for telephone contact on six different occasions and, secondly, through failing to cause S. to respond to three of his letters. The mother's case, as it has subsequently emerged is that although she has tried to encourage S. to speak to his father on the telephone, when he calls, the child has steadfastly declined to do so.
55. The affidavit of Ms. C, which was sworn on 9 October, 1998, but not filed until 18 January, 1999, disclosed that she was a counsellor who knew both the mother and the son. Indeed, she had previously been involved in counselling the mother and father about their relationship, about which I shall say more later. Ms. C stated that on 5 August, 1998, she had received a phone call from the mother who claimed that she was having difficulties with S. who was upset and did not want to speak to his father on the telephone. Ms C maintained that she spoke with the child who allegedly cried and protested that he did not want to speak to his father.
56. On 22 September, 1998, the father filed an amended application for final orders regarding contact, seeking alternate weekends and half of the school holidays as periods throughout which he be entitled to have contact with S..
57. On 12 October, 1998, consent orders were entered into between the parties, which suspended telephone contact by the father with S. on an interim basis. Furthermore, it was agreed that the contravention proceedings instituted by the father pursuant to s112AD of the Act, should be adjourned to a date to be fixed, and that an updated Family Report and psychiatric assessment should be prepared for the final proceedings. The order further provided that the father be at liberty to send to S. a birthday and Christmas present, provided that he did so by registered post to the mother's address, and obliged the mother to advise the child of the source of the gift.
58. The final proceedings between the parties then commenced before me on 18 January, 1999, and proceeded over the next four days to January 22, 1999.
59. Preparatory to that hearing, the Child's Representative arranged for the preparation of a further social worker's report, to update that of Ms H of 5 March, 1997, to which I have already referred. However, as Ms H was to be overseas on leave at the time of the hearing, the Child's Representative arranged for the updated report to be prepared by another social worker at the Legal Aid Office, Queensland, Ms ME. That report, dated 24 December, 1998, based upon interviews conducted and observations made by Ms ME during December, 1998, was before me as an annexure to an affidavit of Ms ME filed on 11 January, 1999.
60. In the introduction to that report, Ms ME noted that she was "unable to persuade [the mother] to avail S. of being observed and interviewed with [the father]". Accordingly, that report, and any conclusions reached in it by Ms ME, need to be evaluated with an awareness that one potentially important source of relevant data was denied to the report writer.
61. The report of Ms ME recorded that she had not read any of the parties' affidavits filed in these proceedings, but had been "made aware generally of their contents from [sic.] the child representative". The report indicates the sources of Ms ME’s information, which consisted of several telephone conversations with both parties, a two hour office interview with the father, and two home visits to the mother's residence. The first of those home visits was of three hours duration, during which Ms ME interviewed and observed the mother, S. and Sc., in various contexts. The second home visit was of two hours duration, during which Ms ME interviewed and/or observed S., Sc., M., M.'s boyfriend (unnamed) and the mother.
62. In section C of her report, under the heading "Current Situation and Nature of Dispute", Ms ME noted the following matters of significance arising from her interviews:-
62.1 M., who started university that year (1998) had moved out of the wife's house "related to some conflict of ideas" and was living with the mother's parents. However, she kept regular contact with her mother, her brothers, Sc. and S..
62.2 The mother and Mr A. had become engaged, and were planning to marry "into 1999" but were still living separately, and Mr A. stayed overnight with the mother "on rare occasions, and usually because of convenience when they have been out late". Both were continuing "to actively pursue their respective studies etc with their church", and S. had completed grade 1 at his religious school.
62.3 The father was continuing to reside in the Brisbane coastal area, was "not pursuing" and "not seeking" any "partnership relationship". He was then on long service leave from his employment as a tradesman, but continuing his periodic work in the arts.
62.4 The mother was continuing to resist face to face or telephone contact between the father and S., her stated reasons being:
(a) the father's "continued harassment of her and her fiance for many years (abusive phone calls, early morning hang-up calls, break-ins in which her photo had been defaced, deliberately kicking and breaking plant pots on her verandah, reporting her to Centrelink and the local City Council, getting bogus women to leave messages on Mr A.'s answering machine to inflame jealousy) ...", of some of which the mother claimed "direct knowledge" that the father was the perpetrator, and as to the balance she was "convinced in her own mind that he committed";
(b) the father's violence since her pregnancy with S., which, although "less physical and more intimidatory since the litigation began", left her "fearing for her safety" if the father (who had "talked about plotting to kill her") did not "secure what he wants at the trial";
(c) her "failure to believe that [the father] is interested in S." and her belief that he "is even inclined to be cruel (malicious, teasing) and possibly sexually abusive to S.";
(d) her "belief that S. had been adversely affected by having [the father] in his life"; and
(e) the father's "flouting the limits imposed by the orders" of the Court (for example, by "sending gifts to S. outside the set times") which she said "reflects his destructive motivation to antagonise".
62.5 The father only accepted having left "very offensive messages" on the mother's answering machine "about two years ago", which he regretted, but refuted "ever committing any of the other offences of [sic.] forms of harassment as alleged" although he admitted "ripping the plant pots off the wall and reporting [the mother] to Centrelink once". He apparently emphasised that the mother "does not have proof".
62.6 The father said that he expected S. would "readily adjust to him as before" and that "any sign of resistance will be short-lived". He was "prepared for contact to recommence for a number of months at the Contact Service" if that was some reassurance, but was "not expecting S. will have to be forced". Ms ME said that the father had "little appreciation that S. may feel stuck regarding loyalties and is likely to feel stressed, in the least, by the conflict", and that he was "unable to nominate a time or age upon which S.'s wishes ought to be respected if they were adverse to contact".
63. After identifying the "salient issues", which she saw as:
(a) whether the father "is as deviant and destructively motivated as alleged";
(b) whether S. is "capable of independently relating with [the father] knowing the extreme mistrust and negativity his household feels" toward him; and
(c) "S.'s coping and views",
Ms ME proceeded, in section E of her report to record her understanding of events which had occurred since the previous report of Ms H.
64. In paragraph 13 of her report, Ms ME recorded that the father "has not seen S. since March, 1997". It is not clear whether the reference to 1997 is a typographical error or indicates a misunderstanding by Ms ME of the history recounted to her by the parties, because it is clear from all the evidence that at that time the father had not seen S. since March, 1996.
65. In relation to the father's attempts to maintain contact with S. through telephone calls (in accordance with Warnick J's order of 5 August, 1998) Ms ME reported that he was unsuccessful in making contact with S. from 5 August, 1998 to 7 October, 1998 despite telephoning weekly. She said: "Everyone agrees the usual scenario involved someone else answering the telephone and enquiring of S. if he wanted to speak to [the father], whereupon S. always refused". As I recall the father's evidence, I do not think that he accepted that S. was always asked whether he wanted to speak to him, but only that he (the father) was always told that he did not want to do so.
66. In relation to the father's sending of birthday and Christmas gifts to S., in accordance with the consent orders of 12 October, 1998, Ms ME reported that this too had "proved contentious", the father claiming that some of his gifts had been refused, and the mother claiming that he sent gifts at times other than those stipulated in the relevant order. For example, the mother said that "despite S.'s birthday being in August, presents came this year in September, October and November" and that she accordingly "refused some". The father said that he bought a number of birthday presents (a watch and books) for S. and parcelled them together, but the mother kept the watch but returned the rest. However, Ms ME further reported that the mother said, "and some document by [the father] reveals", that he sent these items separately and some time apart. She further reported that the father's view was that his weekly correspondence with S. (pursuant to Warnick J's order of 24 September, 1996) could be written on anything, "thus some of these gifts were meant to be viewed as correspondence".
67. Ms ME next recorded, in section F of her report, her assessment of the father. The following relevant matters are included in that assessment:-
67.1 The father presented as "talkative, friendly and persuasive" and "determined in respect of securing contact with S." to whose wellbeing he believes "he poses no threat". He maintained that the mother was "acting out of malice or so she can secure Mr A.'s fathering role in S.'s life". He strenuously refuted the allegations of sexual abuse in respect of which he felt "set-up", and "the victim".
67.2 The father claimed "no further interest in reconciling with [the mother] or feeling embittered and out-of-control as he had when he made the offensive telephone calls", and said that "he just wants the past to be forgotten". Ms ME commented that, having read excerpts from the transcript of his offensive telephone calls, she considered that he "seemed overly preoccupied with matters sexual" and that "he minimises the impact of such ... verbal abuse, given its highly offensive nature to anybody".
67.3 The father refuted being violent to the mother in any form, claimed she had initiated violence to him, and was never scared of him. Ms ME considered that his "attitude reflects, at least, great insensitivity to the real potential for fear arising from what he revealed about himself in the incidents of abuse he acknowledges".
67.4 The father was "confident in his abilities to adapt in the face of any resistance expressed by S.", by "deflecting the conversation away from any confrontation of him" and "keeping him well occupied". Ms ME observed the father's presentation as being "calm, smiley and fun" and that he conveyed he would respond to S. "in kind" (which, in the context, I take to mean in the manner described).
67.5 The father said that his having contact with S. was important so that S. "is not cheated from his father's influence, without which [he] could become wayward in later life". He also said that he considered the mother had been "physically abusive" and that he would therefore "like to monitor S.'s well being during contact ... and report [the mother] to the Department of Families, Youth and Community Care if need be". Ms ME expressed the view that such comments by the father suggest "some motivation for control and a real likelihood of there being ongoing conflict which will be apparent to S.".
68. Ms ME then recorded, in section G of her report, her assessment of the mother. The following matters of relevance appear in that section:-
68.1 The mother presented as "capable, independent, talkative and worried" and as "very determined to protect her son from exposure" to the father, seeing "no value in S. forming a relationship with him". She refuted being motivated by revenge or by "any desire to exclude [the father] so that Mr A. can assume the fathering role" in her household. However, she expressed the hope that Mr A. will be more significant to S. than the father.
68.2 In relation to the suggestion, in Ms H’s report, that she may have "influenced S. to raise concerns" with her, the mother was "adamant that she was not coaching S." but rather had explained to him "that he had her permission to say the things that he had previously said for which she had taught him not to repeat in their house". However, Ms ME recorded that she became aware in the mother's household that the mother's concerns about the father "would be well known to S." because the mother "was not vigilant" in relation to S.'s proximity when discussing these issues with her and because "any expression from a sibling" about the father would, in Ms ME’s opinion, "convey, in the least, as adverse inference".
68.3 Ms ME assessed that, for the mother, the "biggest issue" is "her
inability to hold trust" in the father in any way, so that she
"would find it
hard to accept any view that he had changed". She further expressed the view
that the mother's concerns about protecting
S.'s wellbeing were "so profound"
that it was "hard to envisage contact working, let alone contact ever being
69. In the next section of her report, Ms ME described S.'s presentation, and expressed views about his coping capacity and his needs. The following relevant matters are included in that section:-
69.1 S. presented as "a gentle, somewhat shy, and well-behaved boy" who looked for and received guidance from his mother (his "primary carer") which was consistent with Ms ME’s observation of her care for him and "appropriate to S.'s age". S. offered no information about his father or the dispute. Whilst he was receptive to Ms ME’s interaction while they played a game together, he "answered minimally" once she broached the subject of his father and, "after 20 minutes in total, said 'I've had enough now'" and started "edging away", whereupon Ms ME terminated the interview. He indicated to her that the only aspect of contact with his father he could accept was receiving gifts.
69.2 Ms ME observed "a warm and involving relationship" between S. and his siblings and that he and they "interacted comfortably" in a game.
69.3 Ms ME assessed S. as "a sensitive and young boy who appeared inward in his coping", was not "particularly emotionally robust", but "exhibited reasonable assertiveness in extracting himself from our interview".
70. Ms ME concluded her report with the following "Conclusions and Recommendations":-
"33. I consider this is a very difficult matter in which the outcome for contact hinges on the view the court makes of [the father]'s motivation, and thus potential for acting maliciously to [the mother] or (directly or indirectly) to S..
34. If the court considers that [the father] has maintained harassment, then I consider there is little positive for S. to gain and more to lose by having [the father] more prominent in his life. In this contingency, [the father]'s correspondence ought to reduce and be limited to 2 occasions of gift giving each year.
35. If the court considers that [the father] has not perpetrated any such a campaign of harassment, then the question arises as to S.'s capacity to independently and comfortably relate to [the father] in the face of knowing that his household views [the father] quite negatively.
36. In my view, the scope for S. to feel extreme stress is a given, despite [the father]'s known capacity to interact in a fun-loving way. In my view, [the father] underestimates what it takes to really permit S. to experience peace of mind.
37. I consider the contact options in this second contingency are to introduce short and supervised contact indefinitely where the parents have absolutely no contact (e.g at [the] Contact Centre), or to limit contact to no more frequently than monthly correspondence until such time that S. can feel sufficiently independent to access the type of relationship he wants with [the father].
38. In any scenario, I consider there is little value to S. in compelling him to reply to any correspondence."
71. On 21 January, 1999, in the course of the hearing before me, in consideration for the father agreeing not to pursue his contravention application against the mother, the mother agreed not to pursue proceedings against the father under the Domestic Violence (Family Protection) Act 1989 (Qld). On 28 January, 1999, the father was provided with a certificate under s128 of the Evidence Act with respect to the evidence that he gave in the proceedings on 21 and 22 January, 1999.
72. On 22 January, 1999, the matter was only part-heard and, given the absence of an appropriate period of time, in the then current Judicial calendar, during which the hearing could be concluded before me, the proceedings were adjourned to a date to be fixed for further hearing. Accordingly, on 25 May, 1999, the parties were advised that the hearing would recommence on 13 September, 1999, the dates allotted being from 13 to 20 September, 1999.
73. During this period of time, after the hearing of the proceedings had recommenced, and after Professor N had given oral evidence, on 16 September, 1999, the parties entered into consent orders. In summary these orders provided:
74. After making these orders by consent, I adjourned the part-heard matter until 17 March, 2000 for mention, it being the expressed hope of both parties, the Child's Representative and the Court that by that time the conflict between the parties may have been sufficiently resolved to enable final consent orders to be made which would determine the proceedings.
75. When the matter was then mentioned on 17 March, 2000, unhappily it had not been resolved and the father filed the application for final orders to which I have already referred, which sought an order for residence of the child in his favour with the mother having contact with S.. In adjourning this application to 28 March, 2000 for a directions hearing, I also adjourned the father’s application for defined contact pending the final determination of the proceedings to the same date and made other directions regarding the filing of material. On 24 March, 2000, the mother filed a response to the father's application for residence seeking that it be dismissed with costs.
DEVELOPMENTS SINCE THE CONSENT ORDERS OF 16 SEPTEMBER, 1999
76. The father’s affidavit filed on 17 March, 2000, disclosed that in accordance with the consent orders made on 16 September, 1999, he had had supervised contact with S. at the Contact Centre on four occasions without any major difficulties.
77. It is the father’s evidence that on the fifth visit, which was on 16 January, 2000, his contact with S. was shortened by half an hour because the mother and Ms. C (the counsellor to whom I have already referred) wasted time explaining to the supervisor that he was a very violent man. The father deposed that he was later informed by the staff, including Ms. U, that the purpose of the meeting was to try and stop the visit. Ms. U, the manager of the centre, filed an affidavit on 16 March, 2000, deposing that the purpose of that meeting was to discuss the management of S.’s contact with the father.
78. In an affidavit filed 19 May, 2000, it was the evidence of Ms. C, that at this meeting S.’s concerns about contact were being discussed with the staff and that the staff were there to listen to both her and the mother encourage S. and make him feel comfortable with the supervised contact arrangements. She further deposed that on 29 October, 1999, and again on 2 January, 2000, she had met with S. and observed that he had been distressed, fearful and anxious, on the first occasion, by the prospect of having to spend time with the father in close quarters, and, on the second occasion, because he had been “tricked” by the staff at the contact centre into seeing his father.
79. The subsequent contact visit was to be on 30 January, 2000. However, the mother aborted contact on that day as the child was allegedly unwell. The father claimed that he drove past the mother’s residence later on the same day and witnessed S. playing in the front yard with his brother.
80. It was Ms. U’s evidence that on 6 February, 2000, she received a phone call from the mother stating that all future contact was going to be suspended. This message was relayed to the father on 11 February, 2000.
81. Following this, on 14 February, 2000, Ms. U faxed a letter to the father that she had received from a Doctor P, dated 30 January, 2000. A copy was annexed to the father’s affidavit and essentially it stipulated the following:
“In view of the degree of anxiety and psychological distress S. seems to be going through in the lead up to his access visits, I feel it would be advisable to suspend them for the next few weeks – at least until the situation has been reviewed by the supervising Psychiatrist later this month.”
82. Essentially, when the matter was then mentioned before the Court on 17 March, 2000, the father had not had contact with S. since the shortened visit on 16 January, 2000, and, furthermore, the father claimed that he had not received a phone call from the child either since 16 September, 2000.
83. On 28 March, 2000 I then resolved the issue of whether the father, as sought by him, could have contact with the child, in the presence of the paternal grandparents, in the intervening period between that day and the final determination of the proceedings. I rejected that application, for reasons which I then gave. On the same day, I suspended the operation of those parts of the orders of 16 September, 1999, as provided for personal contact by the father with S. and also made an order joining the final hearing of the contact matter with the father’s recently filed application for residence of the said child. I then adjourned the proceedings for further hearing in May, 2000.
84. The hearing of these proceedings then recommenced on 22 May, 2000 and concluded on 25 May, 2000, whereupon judgment was reserved.
FURTHER EVIDENCE AT THE RESUMED HEARING
85. In an affidavit filed 19 May, 2000, the mother deposed that since the last substantive hearing before the Court, she had continued to suffer nuisance behaviour at her residence, including vandalism and telephone calls in which the caller did not identify himself or herself, but merely "hung up" the phone after the call was answered. She further stated that Mr A.’s residence had been broken into and damaged on several occasions. The inference was that the father was responsible for this further harassment of the mother and her family, but there was no direct evidence linking him to it and he steadfastly denied any knowledge of or responsibility for such events, if, indeed they did occur.
86. Consequently, another Protection Order was sought against the father in favour of Mr A., the mother and the 3 children. At the interim hearing of that application on 27 March, 2000 the matter was listed for a full hearing on 16 June, 2000. However, an interim order until the June hearing was not granted.
87. In his further report dated 8 April, 2000, which is annexure "A" to his affidavit filed by the Child's Representative on 3 May, 2000, Professor N identified the focus of the evaluation which he had undertaken on 6 April, 2000 to be:
88. He then identified the sources of data for that report, which included medical reports from a Dr P and a Dr L, reports from the Contact Centre about the father's contact with S. there over the period from 7 November, 1999 to 30 January, 2000, further affidavits of the father, mother and Ms C, a document relating to a meeting on 16 February, 1998, of the Parents and Friends Association of the school attended by S., and interviews of one hour's duration with each of the parties and two interviews with S., each of half an hour's duration.
89. That report then contains, under the heading "A. Review of Documents", a useful summary of the Contact Centre Reports and of the more significant parts of the affidavits of the mother, the father and Ms C. That summary is as follows:-
"1. Notes from [the] Contact Centre indicate that S. was consistently reluctant to interact with his father. He kept himself at a distance from his father and was unwilling to speak with him. He was reluctant to take gifts from his father. ('Mum told me not to take anything from him.') On 5/12/99 he said, 'Mum said not to talk to him (his father) at all. Not one bit.' On 10/12/99, S. said, 'Mum said the court said I don't have to see him if I don't want to.' Interestingly, after his father had left on 10/12/99, he said, about his father, 'He likes me doesn't he?' On 2/1/00 S. repeated, 'Mum said the court said I don't have to see him if I don't want to ... Mum said that you have to phone her when I was ready to go.'
2. On 30/1/00, S. said that he had a sore stomach and was feeling sick. He said repeatedly that he wanted to go home. He was taken home. Subsequently, his doctor provided a certificate. There has been no further contact since that time.
3. In her affidavit (28/3/00), [the mother] gives reasons for her opposition to [the father]'s mother having anything to do with S. or supervising contact between the father and S., on the grounds that the paternal grandmother and her household were hostile toward S. and [the mother], [the father’s mother] is a deliberately violent person, [the father’s mother] has been cruel to S., [the father’s mother] is manipulative and dictatorial, and S. has no relationship whatsoever with his paternal grandmother. [The mother] goes on to assert that S. has become emotionally disturbed since the contact visits with his father began, and that he has manifested bed-wetting, anger, and fear. S. has apparently complained to his mother that his father calls him to look at 'pooh' in the toilet, is always sitting on the toilet with no clothes on, was often lying on the bed playing with his 'wee wee', and on one occasion put him into a taped cardboard box which was placed in a cupboard. Furthermore, S. is said to recall his father having thrown a toy at his head, and being hit in the face and knocked to the ground.
4. In her affidavit, [Ms C], who describes herself as an 'acredited (sic) counsellor' stated that she was asked by [the mother] to assist her in calming S. on 29/10/99. Ms [C] apparently encouraged S. to realize that he had a choice as to whether or not he wished to stay at visits with his father. On 2/1/00 Ms [C] reassured S. that he would not be coerced into doing things he did not want to do. On 12/1/00, Ms [C] encouraged S. to 'speak of his own views in regard to why he was scared.' S. told Ms [C] how his father had smashed his mother's potplants and sought to get into their house. On 16/1/00, Ms [C] attended [the Contact Centre] with the mother and S..
5. In his deposition of 27/3/00, [the father], amongst other matters, points out that he was in Sydney on the date when Mr A. alleges he attempted to break and enter Mr A.'s garage. Furthermore, on 30/12/99, when a second breaking and entering of the garage door was alleged, he arrived at Pottsville Beach from Sydney in the company of friends, staying late in the constant company of his parents until lunchtime on 30/12/99. He asserts that the allegations concerning Mr A.'s doors have been maliciously concocted."
90. In referring, next, to his interview with the mother, Professor N described it as "a tense interview" during which the mother "was stressed, concerned about the amount of information she wished to transmit to me, and worried that she might come into contact with" the father. He described how the mother "planned to play a number of tapes for me in order to demonstrate to me [the father's] malignancy", but that as the tape she actually played, of the father "using profanity and threats in reviling" the mother, "dated from 1996", was one of which he was already aware (having previously read a transcript of it) he told her that "they added little to what I already know".
91. He then recorded how the mother, after referring back to events which had occurred prior to the consent orders, responded to his request to “move on to what had happened since” then, as follows:-
“She said that Mr A.’s garage door had been jimmied [sic.] open on two occasions (27/12/99 and 30/12/99). On 31/12/99, his front security screen door was damaged. No property was stolen on any of these three occasions. In January, 2000, a post next to the garage door was removed from Mr A.’s home. [The mother] said that her home had been ‘egged’ on two occasions. The daughter of one of [the father]’s friends is said to have acknowledged to [the mother]’s daughter, M., that she had ‘egged’ [the mother]’s house. Her mother is said subsequently to have telephoned in order to apologize. [The mother] said that her hot water system had been interfered with, S.’s window had been banged on at night, and her sprinkler was missing. (It was subsequently found on the roof of her garage.) A patio light was damaged, and live wires exposed. [The mother] showed me a photograph of the damaged light and produced the bill for its repair ($76.50, dated 13/3/00).”
92. Professor N then recorded (in paragraphs 12 and 14 of the report) what the mother told him of S.'s reactions to his recent contact with his father, in the following terms:
"12. On 10/12/99, S. is said to have complained that he did not want to go back to visit his father's house [in the Brisbane bayside area] because 'bad things' would happen again. For example, his father had put him in a taped up box and placed the box in a cupboard. His father had left him in the unit alone. His father had smacked him in the face and knocked him to the ground. His father had thrown a toy at his head."
"14. Reportedly, since recommencing contact with his father, S. has manifested bed-wetting, crying, sleepwalking, stuttering, screaming, and violence. He throws toys at his brother and overreacts emotionally if things do not go his way. He has complained of abdominal pains, diarrahoea and lack of appetite. He has become unresponsive to discipline, displaying no remorse or repentance. He is currently attending a psychologist for play therapy. He was referred to the psychologist through the school counsellor because other children were referring to him as 'psycho'."
93. In relation to his interviews with S., Professor N reported, inter alia, as follows:-
"16. When I asked him the reason for his coming to see me, his demeanour changed. He said: 'To tell you what [the father]'s done. He's been rude. He plays with his rude parts in bed. He came into the toilet to look at my rude parts, when I was 4 or 3.' S. said that he gets bad feelings in his tummy before contact visits. ('I don't want to go. I don't like my father. He's been naughty and rude. He locked me in a box, put tape on the top, and I couldn't breathe. He threw a toy at my head. We were playing at a basketball hoop and I shot the basketball at his window. He got angry and slapped me in the face. He's always like this.')
17. At the Contact Centre, reportedly, S.' s father behaves himself. ('He's trying to be nice in front of the ladies. He tries to walk with me, follow me. I don't want to be with him ... he just wants to get me to his place and hurt me. He broke the potplants on Mummy's verandah- He bashed down Mum's doors. He's robbed our house two times. He left a note that said "S. I ate the cookie, signed Dad"'.
18. [Mr A.], in contrast, is 'nice'. ('He takes me to places. He doesn't lose his temper.')
19. When I told him that I would ask him to see his father in my office, he said:. 'I don't want to talk to him or say anything. I don't want to hear anything about him.' He then changed the subject."
94. In paragraph 21 of his report, Professor N described the interaction between S. and his father in his presence as follows:-
"21. S. froze as his father entered the office. [The father] showed S. a letter he had written him and photographs that had been taken when S. was playing with a skateboard his father had purchased for him. S. did not look at his father but drew listlessly with his pencil on paper. [The father] produced a number of interesting balls, placing them on the table next to S.. S. listlessly and idly flicked them off the table. He smiled faintly at one ball which was designed to make a giggling sound. After about twenty minutes I terminated the interview and took S. back to the room where his mother was waiting."
95. In relation to his interview with the father, Professor N reported that he was "obviously distressed at S.'s resistance to him" and indicated that his contact with S. at the contact centre was not what he had expected, the child being "very guarded" and "withdrawn" although he had "sneaked looks" at his father. The father told him that at the first visit he had promised to buy S. a skateboard for Christmas, and at later visits the child had said "I don't want to talk of Skateboards" and eventually "was reluctant to accept the skateboard" saying, "Mum said I'm not allowed". The father said that "one after the other, the contact visits deteriorated", with S. refusing food and making it clear that he did not want to see him. The father also expressed concern at Ms C’s apparent involvement "at the last visit" because she was "wont to 'talk in tongues'", and had counselled the parties earlier when "he was deterred by her pentecostal approach". He also said that although the mother signed the consent orders she "never really agreed to them" and he "speculated that she agreed to sign [them] in order to avoid further cross-examination but ... had decided to sabotage the contact visits".
96. In relation to his own circumstances, the father told Professor N that he had ceased working as a tradesman 18 months before, was now engaged in the arts full time and training as a tour guide, and has "a girlfriend who is a nurse". In his subsequent evidence the father identified this person as Ms Bu.. No evidence was adduced in the proceedings from this woman, although she did participate in an interview with a social worker, Ms Q, who prepared a report about the father's parenting capacity at the request of his solicitors to which I shall subsequently refer.
97. In relation to the mother's allegations against him, as recorded in paragraph 9 of Professor N’s report (see paragraph 91 above) the father told Professor N that she and Mr A. "collude to make false allegations" and that he "had heard nothing about the damage to Mr A.'s doors until 3 months after the alleged events". He also said that on two of the three occasions of alleged damage he was in Sydney. He admitted "that, in 1996, he made offensive telephone calls 'because of untruths'". He further admitted "that his brother on one occasion telephoned" the mother but claimed that "he knew nothing about it and subsequently remonstrated with his brother". He also admitted that his mother telephoned the mother on one occasion, but refuted the allegations of his having put sugar in the tank of Mr A.'s Coca Cola truck, describing these acts as "working class revenge" which he said were "ridiculous and dumb". He denied that the mother is frightened of him, saying: "She's full on with harassment. She wants me harmed. She makes more and more up."
98. In discussing his plans for the future, the father informed Professor N that he had applied for residence of S. because he was "convinced that, even if contact is ordered in future, [the mother] will sabotage it". He said that he would accept the mother having residence of S. if he could have regular contact but also said that he knew "it will never work".
99. Professor N pointed out to the father that if S. were placed in his care he would be "a very disturbed child", and asked him "if he was confident that he could handle such a degree of disturbance". Professor N reported that the father responded to that question by saying:
"For sure. I've proved myself. I've now got a long fuse",
and by adding that his parents would help him with child care. He then proceeded to outline his plans to work from 9.30am to 2.30pm as a tour guide and fit his intermittent acting roles into S.'s school time. He said he would either leave S. at the Christian School which he was attending or place him in a college near his home. He would encourage S. to continue his religion despite being "not particularly religious himself".
100. In paragraph 31 of his report, Professor N referred to a "Child Behaviour Checklist" completed by the wife, which, he said, "indicates that S. suffers from a moderate to severe degree of emotional disturbance associated with oppositionality, aggressiveness, and emotionality".
101. In discussing the data provided to him since the making of the consent orders of 16 September, 1999, Professor N concluded that the situation had not really changed and, if anything, had deteriorated. He stated that S. was now convinced that his father was "a dangerously violent, malevolent, sexually abusive man", with whom he wanted to have nothing to do. Professor N doubted the allegations by S. regarding his being placed by the father into a taped box that was then placed in a cupboard, and noted that this alleged incident was "suspiciously like something that was reported in the newspaper to have happened to another child in the recent past". .
102. He further stated that S.’s allegations "may well be exaggerations or misrepresentations of innocent events" but in any event are "grist to [the mother's] mill", being "entirely consistent ... with her jaundiced view" of the father, whom she wants "out of her life and out of her son's life". He considered it was apparent that she did not plan to co-operate in the contact visits, undoubtedly reinforced S.’s resistance to contact and had enlisted the help of people such as Dr P, Dr L and Ms C to assist her in doing so. He went on to conclude that both the mother’s and the child’s feelings and behaviour towards the father would not change in the near future, even with contact orders. Professor N explained that the situation was one of "classical parental alienation" in which the mother, "undoubtedly sincere in her beliefs concerning [the father's] malevolence", has "clearly alienated her son from his father". He further explained that parental alienation is extremely difficult to change unless there is some degree of reconciliation between the parents, which in this case is most unlikely.
103. Professor N then postulated three possible courses of action
realistically open to the Court in the circumstances as he perceived
(1) to continue the contact visits by the father;
(2) to cease the contact visits and review the possibility of their recommencement in one or two years; and
(3) to switch residence of S. from the mother to the father.
He then proceeded to consider the pros and cons of each of those alternative courses.
104. In relation to the first, he advised that it was not likely to be effective because it was "quite improbable, given [the mother's] hostility to the arrangement, that S. will ever settle at contact visits". Thus the child's "current emotional disturbance will continue and be continually reinflamed by his mother's hostility to the arrangement".
105. In relation to the second postulated course (cessation of contact with review after one to two years), Professor N opined that in that event "S.'s emotional disturbance will undoubtedly settle", and as he settles "his mother's tension will settle, and the home situation will be more placid". However, he advised that it was unlikely that the alienation would have abated within the next 5 years so that S. would be denied contact with his male parent and it was "inevitable that his alienation from his father and his distorted view of him as a monster will continue into adulthood". This, he said, was likely to have a "deleterious" effect on S.'s personality.
106. In relation to the third postulated course (a change of residence) Professor N expressed doubts about the father's capacity, as a single parent, to raise S.. Whilst noting some favourable factors (namely, his love for the child, his adequate housing and the support of his parents) he also noted some unfavourable factors, including the father's lack of a "benign female partner to help him in child rearing", his "little appreciation of how difficult S. is likely to be" (which he described as "a handful") for at least the first six months after the change of residence, and the insufficiency of his income to support a child unless he were to receive "a Sole Parent's Pension".
107. Finally, in summarising his opinion, Professor N, after stating that he was "not convinced that, at the present time, [the father] would be able to provide adequate parental care to his son", recommended that "the Family Court undertake an evaluation of [the father's] parental capacity with a view to whether it would be feasible to have residence of his son, and the kind of help he would require to do so".
108. Professor N also gave further oral evidence at the hearing before me in May, 2000, to relevant aspects of which I shall subsequently refer.
109. Further expert evidence relied on by the mother included an affidavit, with annexed report dated 19 May, 2000, of Ms MO, who is a psychologist. Her assessment and treatment of S. arose as a result of a referral by the school psychologist at the Christian School, attended by S.. At a home visit on 18 February, 2000, the mother informed her that she was "concerned about her son's deterioration in emotional well being and an increase in behavioural problems since ... S. was ordered to have supervised contact with his natural father". The mother indicated that she was specifically concerned about S.’s "eating problems, aggression, tantrums, night fears, lack of appropriate moral awareness, [and] inappropriate sexual play with peers".
110. Before interviewing S., Ms MO administered to him a "Trauma Symptom Checklist for Children" to assess whether the behavioural symptoms described by his mother were evidence of a post-traumatic stress disorder. She reported his responses to that checklist as follows:-
"S.'s responses showed a significant elevation on the clinical scale for anxiety, revealing the presence of generalised anxiety, hyperarousal and worry, specific fears (afraid of being killed), episodes of free-floating anxiety, and a sense of impending danger. His score on the anxiety scale is consistent with the anxious hyperarousal associated with post-traumatic stress disorder. The content of this scale involves multiple references to danger and high scores are associated with previous victimisation or with having witnessed violence against others."
111. Following that initial assessment, Ms MO saw S. "for 11 sessions of play therapy on a weekly basis" to which she said he "responded well". She recorded that during those sessions S. "confirmed instances of frightening times with his natural father, of being shut in a box, locked in a cupboard, of having his genitals touched both in his bed and his father’s bed when his father was naked, of having something thrown at his head that frightened him and of having his face slapped". Ms MO further reported that when asked about his father, S. said “I don’t call him Dad, I don’t like him.....because of what he did to me,.....I don’t want to get letters from him,.....I don’t want to see him.”
112. Ultimately, Ms MO recorded that on the basis of her observations and S.'s disclosures, in her opinion, he was “clearly suffering from internal conflict and anxiety as the result of overwhelming experiences beyond his capacity to cope with and process".
113. Additional expert evidence relied upon by the father took the form of a written report dated 19 May, 2000, and oral evidence by Ms Q, a qualified and experienced social worker, who interviewed the father and others (referred to below) at the request of the father's solicitors, following their receipt of Professor N’s report of 8 April, 2000, for the purpose of assessing the father's capacity to parent S., in the event of a change of residence being ordered by the Court. No doubt Ms Q’s engagement by the father's solicitors was prompted by the reservations which Professor N expressed in his report about the husband's parenting capacities.
114. For the purposes of her report Ms Q interviewed the father at his home, on 11 May, 2000. In addition, she spoke to Professor N by telephone on 8 May, 2000, interviewed Ms Bu. (the father's friend) at Ms Q’s office on 15 May, spoke to a teacher at the Special School on 15 May, and spoke to the father's parents by telephone on 16 May, 2000. She approached the mother's solicitors enquiring of her preparedness to participate in the assessment, but her consent was not forthcoming.
115. Ms Q recorded, in section 3 of her report, headed "Potential Capacity to Parent" the information which she obtained from each of the sources referred to in the preceding paragraph under seven sub-headings, namely:
"(i) Living and Work Arrangements";
"(ii) Personal Background";
"(iii) [The father]'s Partner - Ms Bu.";
"(iv) [The father]'s Attitude to [the mother]";
"(v) [The father]'s Attitude to Parenting S.";
"(vi) [The father]'s Attitude to S.'s Transition"; and
"(vii) [The father]'s Parents".
116. Whilst it is neither necessary nor appropriate that I set out in detail, or attempt to precis, all of the information and observations recorded by Ms Q in that section of her report, I think it useful to highlight some of that information and of those observations which, although undoubtedly taken into account by Ms Q, in forming her ultimate conclusions to which I shall later refer, are not specifically referred to in her expression of those conclusions.
117. In the section headed: "(i) Living and Work Arrangements", I note the following of relevance:
117.1 Ms Q found the father's two bedroom flat to be "well maintained, tidy, clean", having "a homely and comfortable ambience" with "many family photographs throughout" and the second bedroom "organised and furnished for S. ... cheerful and scattered with a range of children's toys and pieces".
117.2 The father told Ms Q that he had previously worked for a short time at the Special School (which caters for children with special needs, many of whom are autistic) close to his home, and that he had recently been approached by one of the teachers to return. He said he had immediately visited the school and "will be commencing soon".
117.3 Ms Q was informed by (the teacher at the Special School) that whilst he worked there the father "interacted well with the children and staff", he "was often in charge of toileting the older children and feeding", and "displayed patience with the more challenging student (sic.)". The same teacher further informed her that the father "did not display 'anger, frustration or aggression at any time', 'always was pleasant and had a smile'", and was "very caring with dealing with children with behavioural problems". She told Ms Q that, "given his past performance, she would be very happy for him to return".
118. In the section headed: "(ii) Personal Background", I note the following of relevance:-
118.1 The father told Ms Q he remembered his childhood "with fondness, describing his parents' love of fishing and a household that seemed always to be full of children". He also described his parents' relationship as "close" and "good", and said that they had "unlimited capacity to support and nurture the children".
118.2 Although he claimed to have no criminal history, the father acknowledged "that he was twice breached in relation to a Protection Order", having telephoned the mother "after he had been denied contact with his son". He admitted that on the second occasion "he had been drinking".
118.3 The father referred to having been heavily involved in Surf Lifesaving, and said he now tries to maintain fitness by walking and occasional swimming; that he does not use illegal or prescribed drugs; and that he rarely drinks alcohol during the week, but has "one night out a week, when he usually consume[s] about five or six pots of beer".
119. In the section headed: "(iii) [the father]'s Partner - Ms Bu.", I note the following of relevance:-
119.1 Ms Q was advised that the father had formed a relationship with Ms Bu., who "is an enrolled nurse ... currently upgrading to obtain registration" and is "also a children's entertainer and make-up artist for film and television".
119.2 Ms Bu. informed Ms Q that the father had been "candid about the allegations against him and told her at their first meeting that he was involved in a protracted family law dispute". She also said that although she was initially "uncertain about his credibility" she "quickly became confident about his sincerity and innocence" and her views were "affirmed when she learnt that [the mother] had made an allegation against [the father] that she knew for fact to be false" since she was with him "at the time the alleged incident occurred".
119.3 Ms Bu. said she had seen the father with children and he "always interacted with them in a natural and spontaneous" way, and "he had never used such language [i.e. his ‘tradie patois'] in front of children". As an instance of her observation of his interaction with children she referred to a recent occasion on which he had helped her with her entertainment commitments by "dressing up in a bunny suit" to entertain children at a hotel and at a hospital.
119.4 Ms Bu. told Ms Q that the father "frequently spoke to her about S. and of what he might need to do to help S. make the transition to his home" and about "how S. might feel and what he could do to make S. feel comfortable and safe". He had also spoken to her "about broader issues such as education and life goals for S." and "preoccupied himself with domestic minutiae, in terms of considering useful routines and expectations".
119.5 Ms Bu. told Ms Q that the father spoke to her "about his accessing professional advice so that he could be as prepared and equipped as possible to help S.", and that although he "had been devastated about the allegations raised against him and about being denied contact with S." he "seemed more concerned about S.'s well being and mental health than his own suffering". She also expressed, what Ms Q took to be "perplexity", that, the father "had not become 'bitter and twisted' by the events of the last four years", a conclusion which she drew from the fact that "she had not heard [him] talk about [the mother] in any malicious or sinister way".
119.6 Ms Bu. told Ms Q that the father has "a long fuse", and she had never seen him become impatient or angry.
119.7 In response to a question by Ms Q, Ms Bu. said that "whilst she would like to automatically say that [the father] has all the qualities that a person might need to have to assume full time parenting of S., she did not know [him] long enough to offer such unqualified support". However, she did say that she considered the husband to have "many strengths" and that "despite the tragedy of the past few years, he had emerged a completely 'decent, kind and sincere person'".
119.8 Ms Bu. said that if the father were to assume sole residency of S., "she would try to be as supportive as possible". She acknowledged such an event might put their relationship under pressure, but "appeared more positively focused and hopeful" that the father's "many attributes and his commitment to S." and "her own experience with children (from both privileged and dysfunctional backgrounds) would hold them in good stead". She said that although she and the father had spoken of living together, they had "both acknowledged the importance of waiting and that their priority must be whatever is in S.'s best interests".
120. In the section headed: "(iv) [the father]'s Attitude to [the mother]", I note the following of relevance:
120.1 The father admitted to Ms Q that "he behaved very inappropriately" in 1996, when he was "extremely distressed and acted uncharacteristically". He said that since then he had "tried to contain his feelings" but "acknowledged that he contacted [the mother] in 1997 on two occasions when he was denied contact" thereby breaching the Protection Order.
120.2 In response to questions from Ms Q about his feelings towards the mother, the father said that what she "had done to him and his relationship with S. was terrible" but he added "'I can't harbour those thoughts for me or S.'", because of the damage which would be caused to him and his potential relationship with S. if he were to "allow himself to dwell on the hurt, the loss and injustice that he believes S. and he have suffered".
120.3 The father said that he would be "guided by the experts" about how to help S. maintain a relationship with his mother in the event that he were to come to live with him. He appeared to have "no fixed or firm views about the nature and frequency of S.'s contact with his mother" but was "prepared to be guided by 'professionals' and S.'s needs".
120.4 The father said that "he would respect the Court's decision, whatever the outcome", but "would continue to write to S. each week" and "would always remain hopeful that S. will one day contact him and that maybe there will be some opportunity to be a part of his son's life". He said he felt compelled to pursue a claim for residence "because of his fears that S. will be irrevocably damaged if he continues to live with his mother who holds such malignant beliefs about him".
120.5 Ms Q observed that although the father blames the mother for his estrangement from S. "he does not talk about her maliciously" and that in fact his tone when talking of her "was almost dispassionate".
121. Under the heading: "(v) [the father]'s Attitude to Parenting S.", I note the following of relevance:
121.1 The father spoke to Ms Q of his hopes and aspirations for S., including his desire to give him "the type of upbringing that he had enjoyed", and his belief that it was "imperative for [S.] to have the experience and knowledge of his father as a parent who was genuinely concerned and committed to his son's welfare". He also spoke of the "importance of S.'s having goals", and his need "to be encouraged to participate in those activities that he enjoyed". He said he would maintain S.'s involvement with the cricket and soccer teams with which he was associated.
121.2 The father said he "did not expect to have all the answers regarding how best to parent S." but would "always try to put S.'s interests first" and seek professional help or support and advice from family and friends when needed. He said he was "not into hitting kids" and that his method of discipline "would depend upon what S. did". He described a range of possible disciplinary methods, none of which involved physical punishment. He said that he thought S. was more likely to "withdraw" as opposed to "acting out" as a response to discipline.
121.3 The father spoke to Ms Q about the need to establish "a domestic routine that included an initial attention to any school commitments" of S., having noted that his school report had previously indicated that S.'s homework was not always completed. He also spoke of establishing a relationship with S.'s school to facilitate co-operation.
121.4 The father told Ms Q that he regarded it as important that S. "have the opportunity to enjoy a relationship with both his parents" and added that "he would always want S. to have contact with his mother". He also spoke of his "many supportive friends with children and a wonderful family" who were keen to be part of S.'s life, and of the many opportunities provided by the local community for children and young families.
122. Under the heading: "(vi) [the father]'s Attitude to S.'s Transition", I note the following of relevance:-
122.1 The father said that he appreciated that if S. were to live with him he would "undoubtedly experience a period of adjustment" but he "had difficulty estimating how long it may take S. to settle into his new home". He hoped it would be "less than the six months predicted by Professor [N]", and thought that "twelve months would probably be a good signal" of how successful or otherwise the change had been. He said that he considered the transition for S. would be made easier for him "once he's out of that environment". He said that if necessary he would seek professional counselling for himself and S., mentioning particular practitioners and eagerly noting details of a "Positive Parenting Program" mentioned by Ms Q.
122.2 After initially indicating that he thought S. should have regular contact with his mother, the father, when appraised of Professor N’s thoughts about "appropriate contact" said, again, that he would be "guided by the experts". He said he would not want to convey to S. that he would never live with his mother again and that he would tell him only that "you'll be living with me for a while", and would reassure him that both his parents love him.
122.3 The father told Ms Q that although he preferred living in the bayside area, he was prepared to relocate to be nearer to the mother, if he thought that would be "in S.'s best interests". He said that he had recently made some inquiries about the cost of housing there.
123. Under the heading, "(vii) [the father]'s Parents", I note the following of relevance:-
123.1 Both the father's parents told Ms Q that they "unequivocally supported their son and would do whatever they could to help him and S. re-establish a relationship", including making themselves physically available, even if that required their spending periods of time in the bayside area, in Brisbane, and away from their home which is now in northern New South Wales. They said that as they are now retired, they have both the time and the financial resources to do that, if needed, on short notice.
123.2 Although both of the father's parents expressed "sadness and disappointment at what had transpired over the past four years" neither gave any indication of harbouring any malice or vindictiveness towards the mother, and said they would never "show any animosity towards his mother for S.'s sake".
123.3 The father's mother said that her son had always been "a placid person", that she considered he had become "a better person" despite the events of the past few years, and that "she expected his gentle temperament would allow him to be perceptive and sensitive to S.'s needs".
124. In the final section of her report, headed: "Assessment and Conclusions", Ms Q summarised much of what she had recorded in the earlier segments of her report with which I have already dealt sufficiently. I think the salient features of this assessment and Ms Q’s conclusions are contained in the following paragraphs:-
"4.1 As indicated earlier, neither [the mother] nor S. were able to be interviewed in the preparation of this report. My assessment therefore must be seen in the context of this limitation."
"4.3 [The father] seemed to be within the range of 'normal intelligence' and his cognitive and perceptual processes appeared to be normal. His behaviour and affect also appeared to be normal. He was generally relaxed, co-operative, candid, expansive and courteous."
"4.7 [The father] has thought about a range of issues associated with S.' s possible transition and how he might help S. adjust to his new home. [The father] has considered broader issues such as education, life goals and life skills, but he has also pondered the minutiae of domestic routines and the exigencies associated with raising children.
4.8 [The father]'s views about discipline, routine, education, and the myriad of factors that go to raising children, appear to be well considered and now, well formulated. He does not however maintain fixed or rigid views and he is open to advice and learning from experience.
4.9 [The father] appears to have had a stable and nurturing upbringing. His close relationship with his family and their continued support of him suggests that they are a close family, with an enduring commitment for mutual support.
4.10 Despite [the father]'s secure and comfortable upbringing and his later accomplishments as a champion sportsman, he remains with his feet planted firmly on the ground. He has a wide circle of friends from diverse backgrounds, he works in a variety of employment, maintains a good home and does not appear to display any of those less flattering characteristics, sometimes seen in the more privileged and publicly recognised.
4.11 [The father] recognises that the task of helping S. change residence and the commitment required to be a primary parent will be a challenging one. His positive attitude and what appears to be his naturally optimistic temperament, perhaps allows him to underestimate the challenge. However, this optimism does not originate from insightlessness or arrogance or any lack of effort in considering the range and complexity of issues.
4.12 Perhaps what has been most striking about [the father] has been his attitude to [the mother] and how he has emerged after four years of protracted litigation in which he has seen himself vilified.
4.13 [The father] does not appear to hold feelings of anger, bitterness or malice towards [the mother]. It is as if he has trodden the emotional rollercoaster and found a level playing field from where he can find perspective and balance. This is not to say that [the father] does not have strong feelings about [the mother], but he in no way presents as if they overwhelm, control or dominate him.
4.14 An indication of this emotional plateauing, has been his preparedness, indeed his assumption, that S. would have regular contact with his mother. The idea that S.'s contact with his mother might be initially significantly curtailed had not occurred to him. His response to this suggestion was not one of opportunistic support or agreement, but rather a willingness to be guided by advice.
4.15 [The father] does not, portray himself as the 'best' parent he does not promote himself in any competitive or comparative way. He appears open about his foibles and indiscretions and keen to better himself and provide a home for his son.
4.16 In summary, [the father] demonstrates a number of important qualities that would stand him in good stead if he were to assume parenting of S.. He has himself experienced a stable, loving and nurturing upbringing, which he is trying to emulate."
"4.19 He is open to professional advice and has demonstrated that he has a good measure of insightfulness and sensitivity to the needs of a child, who is likely to require the skills and commitment of a special type of parent.
4.20 In my view [the father] has the capacity to become a competent, committed and caring parent."
OTHER EVIDENCE RELIED ON BY BOTH PARTIES
125. Apart from their own highly conflicting evidence (to the salient features of which I have already referred, either directly or by referring to or quoting from the reports of experts to whom they repeated their allegations, counter-allegations, denials and explanations), each party relied on the evidence of a small army of supporters (mostly family members or friends) to either corroborate their own account of relevant events or to provide further criticism of or narrative about the other party, perceived as being either helpful to the case of the party relying upon the evidence or harmful to the case of the other. It is appropriate, at this point, that I identify at least the more significant of those other witnesses, the nature of their evidence, my perceptions of them as witnesses, and any findings of fact which I am prepared to make based on any of that evidence.
The Father's Witnesses
126. The father read and relied upon two affidavits by his father, (one filed on 20 September, 1996 and the other filed on 8 October, 1998), and four by his mother, (filed on 20 September, 1996, 8 October, 1998, 15 January, 1999 and 23 March, 2000). Both of his parents attended for and were cross-examined by counsel for the mother on 19 January, 1999, and [the father’s father] was also briefly cross-examined on the same day by counsel for the Child's Representative.
127. The gist of the evidence given by the father's parents was that from when S. was about six months old (which would be in February/March, 1993) until regular contact between the father and S. ceased in March, 1996, their son brought S. to their residence quite often when he had contact with him and that, except for a mild stutter which manifested itself only during 1994 when he was being toilet trained, S. never displayed any disturbed or abnormal behaviour such as "temper tantrums or any anti-social behaviour" in their presence, but always presented as a "normal, well adjusted, happy child who did not stutter" and who "really loved mixing and playing with his cousins, aunts and uncles" who were often present on those occasions. They both also deposed to having unsuccessfully attempted to speak to S. on the telephone on occasions since March, 1996, including on his sixth birthday in August, 1998 following Warnick J's order of 5 August, 1998, referred to above. Although in their affidavits they both said that "on each occasion" when they attempted telephone contact with S. the mother "refused that contact", under cross-examination by the mother's counsel, they were not so definite about that, and [the father] conceded that he was sometimes told (by whoever answered the telephone) that S. did not want to speak to him.
128. Both of these witnesses also deposed to the closeness of S.'s relationship with the father, and also with them, up until March, 1996, and the paternal grandmother spoke of the love which she and her husband feel for S. and of their willingness and capacity to act as supervisors of contact between their son and S. if considered necessary by the Court.
129. I found the paternal grandparents to be basically honest witnesses, doing their best to give a truthful account of events as they perceived them, and endeavouring to support and assist their son to re-establish contact with his son and their grandson, whom they love and miss very much. Like most grandparents who find themselves in their position, much of their evidence was very subjective, and cross-examination of the paternal grandmother, in particular, revealed that in relation to factual issues other than those which I have referred to above, she was prepared to swear to facts of which she had no direct personal knowledge based upon information conveyed to her by the father. The fact that many of those hearsay statements were made in such a way as to give the appearance of being based upon her own personal knowledge was no doubt due to the fact that the relevant affidavits were drafted by the father, without benefit of legal advice or assistance.
130. The father also read and relied upon an affidavit of his brother, filed on 28 July, 1998. Large sections of this affidavit, which was also drafted by the father, and was largely designed to discredit the mother in various ways, were struck out by me upon the objection of counsel for the wife, on grounds of inadmissibility at law. What remained of the affidavit was of limited relevance to the determination of the ultimate issue in these proceedings, its main relevance being to the credibility of the parties.
131. In the opening paragraphs of this affidavit, [the father] sought to convey the impression that, in the early days of the mother's relationship with his brother, in late 1990, it was she, rather than he, who was the instigator or perpetuator of the relationship, and that she pursued the father, frequently turning up unannounced at his residence (which the brothers then shared) at any time of day or night, accompanied by her two young children, and often driving past the residence without calling in, as if "checking up" on the father. He further asserted that the mother put her own needs, as regards her relationship with the father, ahead of the needs of her two young children. I place little weight upon, and attach even less significance to this last evidence.
132. In addition to that rather general and highly subjective evidence, this witness deposed to observations which he claimed to have made relative to three particular incidents which were the subject of considerable dispute between the parties. The first of those incidents occurred in about May or June of 1991 when the father, having entertained another woman at his residence late at night, was subjected to what I think could fairly be described as an invasion by the mother, and her friend Ms Sg., which resulted in some damage being done to a fly screen and to some garden plants at that residence, and the removal (by the mother) and subsequent destruction (by her or Ms Sg.) of some women's jewellery inadvertently left at the father's residence by the other woman he had been entertaining there when she left before the invasion occurred. The second incident occurred in September, 1991 when the father was hit in the face by a metal trophy, thrown by the mother, thus sustaining a significant laceration to his lip which required immediate medical attention, including several stitches and which left him with a permanent scar. The third incident occurred on 5 December 1992, when each party alleges that the other assaulted him or her at the father's residence.
133. In relation to the first of those incidents, the admissible evidence of this witness is quite neutral, and offers no corroboration of either party's account of the events of that night, any more than of the other's, and the same applies to his evidence in relation to the second incident. I shall refer to the parties' conflicting accounts of those two incidents later.
134. In relation to the third of those incidents, although what this witness said in his affidavit was marginally more supportive of the father's version of this event than of the mother's, his answers given under cross-examination by the mother's then counsel (Mr McGregor) on 19 January, 1999, in my view tended to be marginally more supportive of the mother's version, as corroborated in part by the evidence of her daughter, M., in her affidavit filed on 18 December, 1998. In particular he agreed that in the course of the incident the father abused the mother with frequent use of the word "fucking", that M. did enter the unit at some point during the incident, and that he heard her call out something like "Get your hands off my Mum", and the father say something like "look what your Mum has done to me". The father's version of this incident had the mother's two children outside the unit throughout the physical confrontation between the parties, and that they were in the act of returning to it only as he was walking out the door at the end of the incident. He also denied that M. had called out "Get your hands off my Mum".
135. In the end result, I find the father’s brother's evidence in relation to the incident of 5 December, 1992, of little assistance in resolving the conflict between the parties about it.
136. This witness also gave evidence, not challenged in cross-examination, of a visit by the father and S. to his residence in January, 1996, during which S. "conversed easily and enjoyed the visit", and neither stuttered nor made "any sexual remarks".
137. Finally, this witness deposed to having telephoned the mother's residence on occasions (which, in cross-examination, he identified as being about three in number) asking to speak to S. (after identifying himself as "S.’s uncle R."). He said that on each such occasion whoever answered the telephone would go away, then come back and say "S. doesn't want to talk to you", before hanging up the telephone. A little oddly, perhaps he then added (in the penultimate substantive paragraph of his affidavit) the following:
"I can say that I have been tempted to phone [the mother] and express my disgust at the way she has treated [the father] and S. in this matter but have refrained from doing so at [the father]'s request."
138. When cross-examined by the mother's then counsel about that statement, this witness first said that he had been so tempted "probably at times of frustration in the way that [the mother] was treating [G.] (sic.) [the father]", and when pressed for specificity as to when those times were, he said that the last time he could remember was around the time he swore his affidavit (which was sworn on 26 July, 1998). He agreed that at that time he "definitely felt like" giving the mother "a mouthful of what [he] thought of her" because of his feeling both frustrated and disgusted with her. He maintained his denial of every having telephoned the mother "to abuse her", but admitted that there was "probably one occasion" the timing of which he was unable or unwilling to clarify, on which he rang her "simply to annoy her".
139. On further questioning it emerged that what he was admitting to was not, himself, telephoning the mother to annoy her, but procuring a female friend to telephone the mother's residence and ask to speak to her finance, Mr A., in order that she might experience "some jealous feelings" and thus know "what maybe she'd done - done to [G.]". He denied having made or procured the making of other nuisance telephone calls to the mother's residence and denied a specific enquiry whether he had done so between 11.30pm and 12.40am on the night before his attendance to give evidence. He said that in relation to the one occasion on which he had admitted procuring his girlfriend to telephone the mother to annoy her, he had told the father of his action, the following day, and was told by him not to do it again. He said he regretted having done it on that one occasion, and explained that it occurred after he had had "a few drinks".
140. I found the evidence of this witness on the issue of the telephone calls to the mother less than convincing. He appeared to me to be at pains to make some of his answers as vague as possible, so as not to be tied down, and I thought he was particularly evasive about the timing of the one call he admitted instigating, possibly because he had sworn as he did in the paragraph of his affidavit which I have previously quoted, and had a consciousness that what he had then sworn was not quite true. By the time he came to give evidence he may also have been aware that his brother (the father) had already admitted to Professor N (as recorded in his report of 2 June, 1998) that some of his friends had made nuisance telephone calls to the mother in order to do him "a favour" but without his permission. In addition, his assertion that the one admitted call was not made by him personally, but by his girlfriend, seems inconsistent with what the father told Professor N, as recorded at p.8 of his report of 8 April, 2000, namely that "his brother on one occasion telephoned [the mother]" for which, when he subsequently learned about it, he "remonstrated with his brother".
141. The father read and relied upon an affidavit by Ms McL. filed on 2 March, 1998. Ms McL. (who was not required for cross-examination by counsel for the mother or the Child's Representative) spoke of being in an intimate relationship with the father for about 20 months up until about August, 1997, and deposed to his having stayed overnight at her residence on 8 February, 1997 (that being a night when the mother claimed to have received an anonymous telephone call at about 10.25pm, after having heard banging on her garage door at about 9.45pm). Ms McL. did not say in her affidavit at what hour the father came to her residence that night, so her evidence does not constitute an alibi for the father in relation to the matters alleged by the mother to have occurred that night.
142. Ms McL. further deposed that on 9 February, 1997, she attended a function with the father, which they left at 9.30pm returning to his residence, where she and her daughter spent the night. However, she said that the father went to work (he was working shift work) at 10.30pm that night, returning home at approximately 7.00am on 10 February, 1997. This evidence was clearly tendered in an attempt to refute an allegation made by Mr A. that some person (inferentially, the father) had put sugar in the tank of his work vehicle whilst it was parked outside his residence overnight on 9-10 February, 1997. However, given the father's absence from his home and Ms McL.'s company between 10.30pm on 9 February and 7.00am on 10 February, 1997, her evidence provides no alibi for him in respect of that allegation.
143. The father read and relied upon an affidavit of Mr E., filed on 2 March, 1998. Mr E. was not required for cross-examination by counsel for the mother or the Child's Representative. He deposed to being a friend and next door neighbour of the father, and to witnessing S.'s interaction with the father during his contact visits there prior to March, 1996. He described S. as "a normal happy little boy who conversed freely" and whom he never heard stutter. He said he often saw the father playing with S. in the park near their residences. He also deposed to an occasion on 20 October, 1996, when he was talking to the father whilst the latter was attending to his boat on the beach in front of his residence, in the course of which the mother approached them from the sea on her sail-board, prior to joining Mr A. who, in the meantime, had approached the beach from the land side and taken up a position behind where the father and Mr E. were standing. He further deposed that on 27 October, 1996, from his residence he observed Mr A. conversing with a male youth whilst pointing at the father's residence.
144. It was the father's contention that the actions of the mother and Mr A. on those two dates, were provocative and/or part of a scheme by them to "set up" the father for a possible breach of the Protection Order which the mother had obtained against him on 8 May, 1996. He also contended that the mother's conduct in deliberately bringing her sail-board in so close not only to his residence but to where he was standing on the beach gave the lie to her claims to be in fear of him.
145. The mother and Mr A., whilst not denying the substance of the evidence of the father and Mr E. about their actions on those dates, disputed some of the finer details (e.g. as to the proximity of the mother's landing on her sail-board to the father's position on the beach on the first day and as to the pointing by Mr A. to the father's residence on the second) and denied any intention either to provoke the father or to "set him up" for any breach of the Protection Order. The mother asserted that she was merely exercising her right to wind-surf at a location where she had often done so previously, secure in the knowledge that she was protected by the Protection Order from direct harassment by the father in a public place.
146. Given the fact that Mr E. was not required for cross-examination by counsel for the mother, I accept the substance of his evidence, which corroborates the father's evidence about the conduct of the mother and Mr A. on the two dates in question, which I therefore find to have been provocative to the father and ill-advised. I make no finding of any intention by either to "set up" the father for a possible breach of the Protection Order, but the mother's conduct on the first day does suggest fairly strongly that she was not then personally in great fear of the father at least in the physical sense, and in a public place.
147. The father read and relied upon an affidavit by Mrs Br., filed on 1 May, 1998. Mrs Br. was not required for cross-examination, and her evidence therefore stands unchallenged.
148. In her affidavit, Mrs Br. identifies herself as a neighbour of the father, occupying, (together with her daughter and then six year old grandson) another unit in the same block of units as that occupied by the father for three and a half years up to the date of her affidavit (which would mean from about January, 1995). She speaks of observing the father's interaction with S., and S.'s behaviour both towards his father, and generally, including his interaction with her grandson, during periods when S. was having contact with the father over that period up until March, 1996. She described S., from her observations, as "a bright, happy and contented little boy who had an obvious strong bondship [sic.] with his father", was polite, and who never stuttered in her presence nor "made any crude or sexual comments". She described the father as "very caring and attentive towards S." and said that she often saw them "sharing activities in the park and on the beach" opposite the unit block. She further deposed to S.'s cleanliness during his visits, and to "the priority given to the routine of naps and meals necessary to the well-being of S." by the father.
149. I accept that evidence of Mrs Br., but in doing so take cognizance of the fact that her observations were made as a casual lay observer, who was a friend and neighbour of the father and who had no particular reason, at the time, to scrutinize S.'s behaviour closely. I therefore regard her evidence as an honest account of her general impressions rather than of any detailed and carefully made observations.
150. I have already made brief reference to the affidavit of Ms U, the manager of the Contact Centre which was filed and read on the father's behalf. That evidence, which was not challenged by cross-examination on behalf of the mother, adds little to the father's case. It merely records that the father had contact with S. at the centre on five occasions (7 November, 21 November, and 12 December, 1999, plus 2 January and 16 January, 2000) pursuant to the consent orders of 16 September, 1999; that on two of those occasions S. was dropped off by his sister M.; that on the occasion of 16 January, 2000, the mother, Ms C and Mr A. all attended with the child, and the mother and Ms C had a meeting with Ms U and the contact supervisor before the commencement of contact "the purpose of which was to discuss the management of S.'s contact with the father" and the effect of which was to curtail the father's contact on that day by 30 minutes; that on the next date for contact (30 January, 2000) it did not occur because the mother attended and said S. was not well; that on 6 February, 2000, she received a telephone call from the mother informing her that future contact was suspended; and that she subsequently informed the father of this and sent him a copy of a letter which she received from Dr P dated 30 January, 2000. I have already set out the terms of that letter in paragraph 81 hereof.
151. Other lay witnesses whose affidavits were relied upon by the father and who were subjected to cross-examination by counsel for the mother, were:
Mr M.; and
152. Apart from one paragraph of Ms B.'s affidavit, which speaks in fairly glowing but general terms of her observations of the father's interaction with S., both Ms B. and Ms S. depose to their observation of an incident which occurred on 12 July, 1995, on the foreshore in front of the father's residence, and which involved the father, the mother, S. and Ms S.. Ms B. was not involved in the incident, but claims to have witnessed at least part of it from the front balcony of her unit, which was situated on the third level of the same block of units which contains the father's ground-floor unit. The incident in question was the subject of considerable dispute between the parties as to the precise events which transpired between them. The evidence of Ms S. is strongly corroborative of the father's version of that incident and strongly contradictory of the mother's, whilst that of Ms B. is also corroborative of the father's account but less strongly so than Ms S.'s.
153. It was common ground between the parties that the father had contact with S. on that date (which was a mid-week day when the father was off work) by agreement, and that in the course of the day he went with S. to the park opposite his residence for the purpose of having a bar-b-cue lunch. It was also common ground that he invited Ms S. to join them for lunch, and that whilst he was cooking the lunch on the bar-b-cue hot-plate Ms S. was minding S., who was playing on a nearby swing. It was further agreed that at that point the mother came on the scene, unannounced, approached S. and Ms S. at the swing, exchanged some words with Ms S., removed S. from the swing, walked to where the father was cooking and, after exchanging some words with him, left the park with S. and took him to her home, thus prematurely terminating the father's contact. Thereafter, the mother refused to allow the father to have any further mid-week contact with S., although his alternate weekend contact continued until March, 1996, when it too ceased in the circumstances to which I have previously referred.
154. Where the parties differed in their accounts of the events of that day was this:
155. As I have already indicated, Ms S.'s evidence about the events of that day is strongly corroborative of the father's and equally strongly contradictory of the mother's. Cross-examination did not significantly weaken her evidence, except that she retracted the assertion, in paragraph 14 of her affidavit, that after S. ran to the father following the mother's outburst at the swing, the father picked him up to cuddle him, and the mother had to tear him from his father's arms to take him away, which the child resisted. Under cross-examination she said that the father did not pick S. up, but that S. was standing beside him clinging to his leg, when the mother "grabbed him and picked him up and walked off to the car".
156. Despite that retraction, I found Ms S.'s presentation satisfactory, and her evidence credible. No reason has been advanced, nor am I able to perceive any motive for her to lie. She is not and was not then an intimate friend of the father's, but rather the girlfriend of a male friend of his. The father's invitation to her to join S. and himself for the bar-b-cue lunch was spontaneous and casual, following a chance meeting in the street when he went to buy the meat for lunch. Her acceptance was equally spontaneous. She had never met the mother before and it was not suggested in cross-examination that she had ever met or had any dealings with her since, such as might be likely to prejudice her against her. I am therefore inclined to accept her evidence in relation to the events of that day at least to the extent of finding that it provides a much more reliable account of those events than does the mother's evidence.
157. Ms B.'s evidence, particularly after cross-examination, was far less supportive of the father's version of the events of that day than Ms S.'s. Nevertheless, it offers some corroboration of both the father's and Ms S.'s accounts, as opposed to the mother's, particularly in relation to the demeanour of the mother in the park. There is some further slight corroboration of the father's and Ms S.'s accounts of that days' events in the meteorological reports which are annexure B to Ms B.' affidavit. Those reports show that the weather in Brisbane on that day was mild, with a temperature of 19.2°C at noon, and with a generally westerly wind of between 11 and 28 kilometres per hour over the period from 9.00am to 3.00pm. Ms S. said that there was "not a breath of wind" on the foreshore, because it is "protected from the Westerly wind" by the hills to the east which overlook the bay, and I accept the general thrust of that evidence, although "not a breath" may be a slight exaggeration.
158. As to whether S. was or was not ill on that day, and whether the father had agreed with the mother to keep him indoors for that reason, there is little if any corroboration of either party's evidence.
159. The mother sought to draw some support for her contention from a medical certificate issued by Dr L on 14 July, 1995, which is annexure "A" to an affidavit by that doctor filed on 20 July, 1998. I shall have something more to say about Dr L’s evidence later when I come to deal with the other witnesses relied on by the mother, but for present purposes it will suffice to say that the terms of her certificate of 14 July, 1995 are so vague and non-specific as to offer no corroboration of the mother's claim about the state of the child's health on 12 July, 1995. Indeed, the failure of the certificate to assert that S. was, on the day of the certificate, suffering from tonsillitis or any other illness, might be seen as corroborative of the father's claim that the child was not ill on 12 July, 1995, since, if he were ill two days later, one would have expected Dr L to say so in her certificate, and perhaps also to express an opinion about the likely date of onset of that illness.
160. The father, for his part, sought to draw some support for his contention that the child was not ill, from the evidence of Ms S. (who describes herself in her affidavit as a nurse) that S. "did not appear to be sick at all" and that her training as a nurse would have alerted her that he was sick if such were the case. However, under cross-examination Ms S. conceded that she is an assistant nurse, and that she does not know the symptoms of tonsillitis and would not have known if he had been suffering from that illness. Nevertheless, if the child had been obviously sick, in terms of being lethargic and/or febrile, I think it is reasonable to infer that she would have noticed, and as she did not, I think it is more probable than not that he was not ill to that degree.
161. On the other hand, the mother's explanation for arriving on the scene that day was that she was uneasy about the contact, due to S.'s illness, and drove to bayside Brisbane, in effect to check up on him, only to find "my son in the park, in the wind, on a swing with a stranger". If he were not at least off-colour, before going on contact, it is difficult to conceive any motive for the mother's visit to bayside Brisbane, unless she were checking up on the father's movements, rather than on her son's health and well-being.
162. My conclusion about all this is that, on the balance of probabilities, S. was a little off-colour on that day, but not very sick; that the mother was (perhaps unnecessarily) concerned about his health and asked the father to keep him indoors; and that the father, for the sake of peace, agreed to do so, but when he got to bayside Brisbane, and judged for himself that S. was not very sick, thought there would be no harm in a bar-b-cue lunch on the foreshore, where it was fine and warm, with little wind. When the mother, not trusting the father to follow her instructions, arrived at the vicinity of his unit to check up on him, she became enraged to see not only that the father had disobeyed her instructions but also that he was apparently enjoying an outing with another woman, who was also interacting directly with S.. The mother thereupon descended upon that woman, giving vent to her emotions (which may have included jealousy as regards both the father and S.) with some quite abusive and vindictive language directed towards her, before turning upon the father, and then dragging S. off unceremoniously, thus bringing the father's contact to an abrupt and traumatic end.
163. All this, I think, reflects poorly on both parties, but much more so on the mother than on the father. Whilst the father may have been at fault in failing to honour his agreement with the mother about how S. should be managed on that day, I am not at all satisfied that what he did posed even the slightest risk to S.'s health. On the other hand, the mother's response was quite disproportionate to the offence of the father, and amounted to acting out behaviour of a kind which was not only quite unjustified in terms of her conduct towards the father and Ms S., a woman whom she had never met and knew nothing about, but more importantly in terms of her parenting of S.. It displayed a complete lack of concern for his feelings, and of how her conduct might affect his relationship with his father, and an inability to subjugate her own need to give vent to her anger towards the father and to intimidate and belittle Ms S., to S.'s needs for a quiet and pleasant visit with his father.
164. I shall have regard to the above findings, and give what I regard as appropriate weight to them, when I come to draw my ultimate conclusions in relation to the relevant matters referred to in s.68F(2) of the Act in the process of considering what is in S.'s best interests which, by s.65E, I am bound to regard as the paramount consideration in my determination of these proceedings.
165. Ms L.'s affidavit sworn on 3 April, 1998, was very brief. After identifying herself as a friend of the father's for the past nine years, and disclosing that they "shared a casual relationship from late 1989 to early 1992", (which, under cross-examination on 22 January, 1999, she agreed was an "intimate" relationship) she proceeded to recount having telephoned the father's residence on Melbourne Cup Day, 5 November, 1991, at between 3.30 and 4.30pm, only to have the telephone answered by a woman. This woman told her the father was asleep and that "he was her boyfriend now", and identified herself by her first name before hanging up the telephone. This evidence relates to the issue between the parties about the events of that day, which I have touched on briefly in paragraph 5 hereof, and of which I shall say more below.
166. In oral evidence-in-chief given, by my leave, on 22 January, 1999, Ms L. swore that in August, 1998, at the request of the father, she delivered a package to the mother's residence, which she understood to be an intended birthday gift for S.. She said that she had met the mother at a hotel, some years before, prior to Melbourne Cup day 1991, and had heard her voice then. She said that as she walked up the stairs to the "balcony" which led to the front door of the house, she saw the mother inside the house, looking at her, but that when she knocked at the door, no-one answered for a few minutes, until she knocked again, when the door was answered by "a young boy" who was "probably a teenager, maybe 12", to whom she then gave the package, saying "This is for S.". She said that the mother then approached the boy, took the package from him, and said to her something like: "I can't accept this. Here take it back", to which she responded: "No, look, I don't really want to take it back. I've been asked to deliver it, so it's now yours". She said that as she turned to walk away, the mother said something to the effect that she (Ms L.) "shouldn't be giving this present to a minor" and that she then "chucked it over the balcony" onto the ground below. Ms L. said that she then retrieved the package from the ground, before leaving the premises in her car.
167. Under cross-examination by counsel for the mother, Ms L. did not depart significantly from her evidence-in-chief, as contained in her affidavit and oral evidence. She conceded that she had been shocked that the mother answered the telephone at the father's house on 5 November, 1991, because the father had previously told her his relationship with the mother was over. She further conceded that the floor of the verandah ("balcony") of the mother's home, from which she had "chucked" the gift which Ms L. delivered there in August, 1998, may only have been about waist height (3 steps) above ground level and that the mother may have "dropped" rather than "thrown" the gift over the hand-rail of the verandah onto the ground.
168. I considered Ms L. to be an honest witness, doing her best to give a truthful account of events which occurred, in one instance several years ago, and in the other only about five months ago. With the usual reservations about the capacity of a witness to accurately recall past events, particularly ones which occurred some years earlier, I accept the general tenor of her evidence. In particular, I accept that she did telephone the father's residence on Melbourne Cup day 1991, before 5.00pm (at which time she ceased work) and that the telephone was answered by the mother, who told her the father was asleep. I do not necessarily accept that the mother said precisely what Ms L. deposed to, and find that Ms L. may have drawn her conclusion about the mother's view of her relationship with the father as much from her manner and the circumstances of her answering the telephone and the tone of her voice as from any words she actually used. Nevertheless, her evidence about that telephone call which I do accept is important, since it is not consistent with the mother's account of having been raped by the father at his residence on that occasion, but much more consistent with the father's account of a consensual sexual encounter between the parties.
169. Mr M.'s affidavit, sworn on 4 January, 1999, is also very brief. In it, he identifies himself as a friend and former workmate of the father. He said that he first met the mother "in about 1991" when, following a brief telephone call, she turned up at his residence unannounced and uninvited, introduced herself as "a friend of" the father, and proceeded to tell him, tearfully, that she loved the father but that "he didn't want her". He said that after he invited her in for a cup of coffee in an attempt to "console her", she said to him, in the course of conversation, that she thought the father would "settle down" if he became a father, and that "he would make a good father". He said that she later enquired where he was going for Melbourne Cup day, and that he told her that he and the father were going to a function at a Hotel. He further deposed that when they attended that function at that hotel (which was the "Tradies Picnic", which was then always held on Melbourne Cup day) he saw the mother approach the father in the bar, when he was talking "to several women", and that soon after she spoke to him, she and the father left together.
170. The point of Mr M.'s evidence was to provide support for the father's evidence that it was the mother who pursued him in the early stages of their relationship, not the converse (as asserted by the mother), and that in particular she sought him out at the Hotel on Melbourne Cup day, and suggested that they go to his residence for sexual intercourse, thus making her tale of rape on that occasion highly improbable. Mr M.'s evidence of the mother's tearful visit to his home (which, in cross-examination, she admitted) and her statement in that context that the father would "settle down" if he became a father and that he would make a good father (the latter of which she also admitted during cross-examination) was offered to add credence to the father's claim that the mother, far from being raped by him on Melbourne Cup day, set him up to have sexual intercourse with her in the hope of becoming pregnant to him in order to "trap him" into a permanent relationship with her, and to his further claim (supported by some other evidence to which I shall subsequently refer) that she did not become pregnant as a result of their sexual encounter on that day, but rather as a result of a subsequent act of sexual intercourse which the father took part in without taking any precautions against pregnancy because he believed the mother's false claim that she was already pregnant to him as a result of the Melbourne Cup day encounter.
171. My impression of Mr M., as a witness, was that, understandably perhaps, his memory of the precise detail of the events deposed to in his affidavit was at best vague, and that he could well have been influenced in his recent recall of those events by his natural desire to assist his friend, the father, and even by discussions which he had had with the father over the years about aspects of his relationship with the mother. In short, whilst I certainly do not reject his evidence entirely as lacking credibility, I treat it with caution, and would certainly not rely on it alone, or even principally, to arrive at any conclusion about contested issues. However, it is at least a feather in the scales weighing in the father's favour on the alleged rape issue, and to that side of the scales must also be added Ms L.'s evidence, to which I have referred, and to which I give somewhat more weight than to Mr M.'s evidence.
172. Mrs G., in her affidavit sworn on 9 January, 1999, identified herself as having been (together with her husband) a neighbour of the father from December, 1992, to May, 1996, during which time she came to know him, the mother, S., and the mother's other two children. She said that the mother "would visit my residence and constantly phone my residence for the purpose of checking up on" the father, and that she "would seek out and confide to me personal details of her relationship" with the father. In this respect, it may be noted that I have previously referred (in paragraph 31 hereof) to the fact that the social worker, Ms H, reported, in March, 1997, that Mrs G. told her something similar to this at that time.
173. Mrs G. further deposed to observing the father's interaction with S., between February, 1993 and March, 1996. She said that the father "was in his element when S. was with him" and that she and her partner witnessed the father taking S. to the beach, park, and other various excursions". She described S. as "a jovial, happy and pleasant natured child who obviously loved his father". She said that he "spoke confidently and did not stutter", was "very polite and courteous", always saying "hello" when he passed her doorway, and never cried in his father's company.
174. In her oral evidence on 20 January, 1999, Mrs G. said that in the period from 1993 to 1996 she saw the mother either driving past or parked in her car near the father's unit on "numerous occasions". She said that on these occasions she was sometimes alone and sometimes accompanied by her children, and on the occasions when she was parked outside the father's residence she appeared to be "just sitting there". She also said that on occasions when the father was wind-surfing off the beach opposite his residence, she saw the mother go across the park to that area of the beach. In cross-examination she agreed that that particular part of the beach was a popular place for wind-surfing, and that the mother also wind-surfed there.
175. Nothing emerged in the course of Mrs G.'s cross-examination to cause me to reject or seriously doubt her evidence, and I accept it, whilst bearing in mind that her observations of S., and his relationship with his father, were obviously only of a casual nature and made some years ago.
176. Mr J. deposed that he has known the mother since 1991 and the father since 1992, that his ex-wife is "an associate" of the mother, and that his children are "friends with" the mother's children, having attended the Christian School together and been associated with them in sporting activities. He is involved in the coaching and umpiring of children's cricket. His affidavit deals with two main issues. The first issue relates to the father's whereabouts during the period from 26 to 31 December, 1999, a period when the mother's financèe, Mr A., claims that his home was subjected to some vandalism which the mother asks the Court to infer was perpetrated by the father. The second issue relates to some contact between the mother and the father at two cricket games which Mr J. was umpiring, the first on 3 October, 1999, and the second on 6 February, 2000.
177. In relation to the first issue, Mr A. deposed, in paragraphs 18 to 21 of his affidavit filed on 16 May, 2000 (to which I shall make further reference below), to three events which he said occurred at his residence in December, 1999. Firstly, he said that when he returned home on 27 December, 1999, at about 6.30pm, he found his garage door had been forced open, breaking it, and that his dog was missing. He said the dog was found later, and "appeared to have been injured by being hit around the head". Secondly, he said that on 30 December, 1999, his garage door had again been forced open, and his dog let out. Thirdly, he said that on 31 December, 1999, he found that the front security screen door of his home was damaged (although it had not been locked) and blood "placed over and around" his front door. He said that on none of these occasions was any property stolen, and that he could think of "no other person than [the father] who could be responsible for these senseless acts".
178. The father denied any involvement in any of the events alleged by Mr A. (if, indeed, they occurred at all, a fact which he challenged), and said that in fact he was absent from Brisbane, interstate, at the time of the first two events, and at the time of the third was celebrating New Years' Eve with friends at a Hotel, in Brisbane.
179. Mr J. swore that he, and a friend (Mr CO) travelled by car from Brisbane to Sydney on Boxing Day (26 December, 1999) departing Brisbane at about 4.00am on that day, and that, by arrangement, they picked up the father at his parents' residence (on the North Coast of New South Wales) on the way. He said that he, the father and Mr CO spent the next four days continuously together, whilst travelling to and staying in Sydney, specifically at G, where they visited his daughter, who resides there, and engaged in sight-seeing around Sydney, before leaving at about 12 noon on 30 December, 1999, to drive back to Queensland. He said that they dropped the father off at his parents' residence at about 12.30am on 31 December, 1999, following which he and Mr CO drove on to the Queensland Gold Coast.
180. In relation to the second issue (attendance at cricket games) the mother alleged, in paragraph 14 of her affidavit filed on 19 May, 2000, as follows:-
"The applicant father turned up at a cricket match involving my older son Sc. in October 1999 (but prior to the commencement of supervised contact in November), beckoning to the child to go across to him. The Applicant father's activities brought that social outing to an end and left my son S. very upset."
181. In paragraph 8 of his affidavit filed on 16 May, 2000, Mr A. said that the father turned up at cricket matches played by the mother's elder son, Sc., in October, 1999 and February, 2000. Both the mother and Mr A. mentioned these events as occasions or examples of the father's on-going harassment and/or provocation of them, in the same vein as his alleged nuisance telephone calls to and vandalism of both their residences, which allegations the father denied.
182. In his affidavit, filed on 19 May, 2000, the father responded to Mr A.'s affidavit of 16 May (but not to that of the mother, which was not sworn and filed until 19 May, the same day as the father swore and filed his affidavit). In paragraph 12 of that affidavit the father denied "turning up" at cricket games as alleged by Mr A. and said that he "came at the request of [...] ... a very good friend ... who was umpiring a game in which his son was participating". He further swore that he had "no for knowledge [sic.] that Mr A. would be there" but was seated in his car watching the cricket when Mr A., the mother and S. arrived and walked past his car "within 2 metres in front of me". He said "there was no incident".
183. In his oral evidence-in-chief on 22 May, 2000, the father was directed to paragraph 14 of the wife's affidavit (referred to in paragraph 180 hereof) and said that it was "a false statement". He proceeded to explain that he had gone to the cricket match because Mr J. had earlier telephoned him and asked him to put a bet on for him (presumably at the TAB shop) and to bring the ticket to him at the ground, where he was umpiring. He said that after he had been sitting in his car for 20-30 minutes watching the cricket (whilst waiting to see Mr J. to give him the betting ticket), the mother, Mr A. and S. arrived and walked past his car. He said he did not think they saw him, and that S. in particular was completely oblivious to his presence. He said he was "shocked" when he saw S., whom he did then witness throwing some balls, but again denied any incident such as described by the mother in her affidavit. He said he later left after he had been able to give Mr J. his betting ticket.
184. I have no recollection or any note of any of the mother, father or Mr A. giving any oral evidence or being asked in cross-examination anything about an occasion when the father is said to have "turned up" at a cricket match involving the mother and/or Mr A. and/or S. in February, 2000, as briefly stated in paragraph 8 of Mr A.'s affidavit previously referred to. However, in paragraph 15 of his affidavit Mr J. swore that on 6 February, 2000, he invited the father, and a visiting American friend (female) to come to watch him umpire a game of cricket at the cricket grounds, which they did. He said that neither the mother nor Mr A. was present on that occasion, but that the mother's former husband Mr D., was present, and there was some "light conversation" involving him, the father, his American friend and Mr J. on that occasion. It emerged during the cross-examination of Mr J. that one of his sons and Sc. were fellow members of the cricket team which he was coaching, and that Mr D. often attended that teams' games. It seems, therefore, that Mr A.'s assertion of the father "turning up" at that game was based only on what he was told by either Mr D. or Sc., and that he and the mother assumed that the father's presence there on that occasion was motivated by an expectation of seeing them and/or S. there. To the best of my recollection, that proposition was not put to the father in cross-examination.
185. Mr J. also corroborated the father's evidence about the reason for the latter's visit to the cricket ground in October, 1999, and explained why he had asked the father to put a bet on for him and to deliver the ticket to the ground where he was umpiring. He also confirmed that he saw the mother, Mr A. and S. walk past the front of the father's car on that occasion, and that there was "no incident", such as described by the mother in paragraph 14 of her affidavit referred to above.
186. Cross-examination of Mr J. by counsel for the mother and for the Child's Representative revealed that there is some ill-feeling between the mother and Mr J., the former being an associate of the latter's former wife, with whom he engaged in a protracted, and very bitter dispute in this Court (in which she was represented by the same solicitors who represented the mother in these proceedings) and that Mr J. is very sympathetically disposed towards the father in his dispute with the mother in these proceedings. In addition, the mother, in her evidence said that early in 1999 she complained to police about an incident when eggs were thrown at her home, which she attributed to a daughter of Mr J.. Mr J. also conceded that he has talked frequently to the father, whom he was keen to support emotionally, about his (the father's) frustration at not being able to see his son, which Mr J. perceived as being unfair. He agreed that there were words exchanged between him and the mother on another occasion at a cricket ground when, according to his version, the mother, without provocation by him, told him not to dare talk to her son Sc. (who was one of the boys he was coaching), called him an "adulterer", and said: "If you think you're going to help [the father] keep seeing S., think again". He denied starting the exchange by calling the mother "a fucking moll", but said that in response to her calling him an adulterer he asked how she, who had had so many affairs, could call him "an adulterer". He also said that when she lowered her sun-glasses to look at him while "making one of her derogatory remarks" he said to her: "You must be the nearest thing to the devil I could ever imagine seeing".
187. In relation to the occurrence at the cricket grounds in February, 2000, Mr J. said that he invited the father to attend, not knowing whether or not the mother would be there but knowing that she could be, because he regarded it as the father's right to go there whether or not the mother and S. happened to be there too. He denied that he intended, by his invitation, to be provocative, because he knew there would be no trouble "from his [the father's] side or mine" and that he could be a witness "if there was any trouble from other people".
188. Although Mr J. gave his evidence in a very forthright manner and was not shaken by cross-examination, I have some reservations about accepting his evidence as entirely reliable. Given the history of his relationship with the mother, whom he clearly perceives as a cohort of his former wife, and his clear emotional support of and empathy for the father in his dispute with the mother, arising in part from his own bitter experience of proceedings in this Court with his former wife, it is not possible to regard him as an objective witness with neither motive for distortion nor emotional bias. On the contrary, I think he is a witness whose view of the events he described was likely to be significantly coloured by emotional factors, and therefore biased strongly against the mother and in favour of the father. That does not mean that I reject his evidence entirely, but it does mean that I give it limited weight in my ultimate assessment of the facts in issue.
189. However, I do not believe that Mr J. fabricated or was party to the fabrication of his evidence about the trip to Sydney with the father over the period from 26 December, 1999 to 31 December, 1999. Too many elements of that story were capable of being checked by the mother, or her legal advisers, including through the subpoenaing of mobile telephone records of the father and Mr J. or enquiries directed to Mr J.'s daughter in Sydney, and nothing was put to him in cross-examination to suggest this was a complete fabrication. That evidence (the substance of which I therefore accept) provides a strong alibi for the father in relation to two of the three acts of alleged vandalism which Mr A. claimed his residence was subjected to during that period. At this stage I leave open for later consideration the question whether Mr A. concocted his evidence about those incidents (as part of what the father claims is a conspiracy between him and the mother to present a false case, to assist her in these proceedings, of on-going harassment of a vindictive kind by the father). All that I find, at this point, is that if Mr A.'s house and dog were damaged as he alleged, the husband was certainly not personally responsible for the damage which occurred on 27 and 30 December, 1999, and was probably not personally responsible for that which occurred on 31 December, 1999.
190. There remains a possibility, of course, that the father could have masterminded the performance of these acts of vandalism by some unknown third party, to coincide with his absence from Brisbane, thus giving himself a water-tight alibi. However, there is absolutely no evidence to support such a proposition, and he would have to be a very devious person indeed to undertake such a course, and a very manipulative one to be able to induce someone else to perform such criminal acts on his behalf. I am simply not satisfied that he is capable of such Machiavellian deviousness, and I therefore reject that possibility.
191. In addition to those lay witnesses, the father adduced oral evidence from a medical practitioner, Dr F, who gave evidence by telephone, but pursuant to a subpoena issued by the father following evidence given by the mother, under cross-examination, on 14 September, 1999.
192. Dr F is a specialist obstetrician and gynaecologist, and he became the mother's obstetrician in relation to her pregnancy with and birth of S.. The mother said in evidence that she was referred to him by Dr HA. It appears from part of exhibit 28 (Dr F’s clinical records) that Dr HA was the mother's brother. Dr HA did not give any evidence in the proceedings.
193. Dr F gave evidence that the mother first consulted him, with respect to this pregnancy, on 17 February, 1992. He said that from her he obtained the information that her last normal menstrual period was on 9 November, 1991 (although he inadvertently wrote that date in his notes as "9.11.92" instead of "9.11.91". He also wrote in his notes "conceived on 21.11.92", which again he stated was an error, and was intended as "21.11.91". He said that the only possible source of that information was his patient, and he therefore concluded that she told him that. He also wrote in his notes that the "EDC" (which stands for "expected date of confinement") was "13.8.92", and expressed the opinion that at the first consultation (on 17 February, 1992), from his clinical examination of the mother she was then at 14 weeks gestation. That would be roughly consistent with the date of conception stated by the mother, although exactly 14 weeks back from 17 February, 1992 would be 11 November, 1991, rather than 21 November.
194. Under cross-examination by counsel for the mother, Dr F agreed that he had determined that the mother was at 14 weeks gestation on 17 February, 1992, merely by palpation of the foetus through the abdomen, that that method of determination of that fact is "a fairly inexact science", and that based upon that evidence alone the mother could have been 16 weeks pregnant on that date. He further agreed that a woman may be pregnant yet experience a vaginal bleed which she may believe to be a normal menstrual period, and in such a case he would put the date of such a bleed down as the "last normal menstrual period". However, he also said that his normal practice is not to write down the date of conception unless some source of information indicated that to him. Finally, he said that if the mother's date of conception with S. was 5 November, 1991, the expected date of her confinement would have been 31 July, 1992, but in that event it would not be "out of the question" that the child was not born until August, 1992.
195. Under cross-examination by counsel for the Child's Representative, Dr F expressed the opinion that from all the clinical evidence, both at the time of birth and throughout the pregnancy, it was unlikely that S. was at 43 weeks of gestation when born (which he would have been if conceived on 5 November, 1991). He therefore opined that it was more likely that conception occurred around 21 November than on 5 November, 1991.
196. As previously indicated, the mother claimed throughout these proceedings that she conceived S. as a result of sexual intercourse with the father, when he raped her, on Melbourne Cup day (5 November) 1991. Under cross-examination by counsel for the father on 14 September, 1999, she denied that she told Dr F that the child was conceived on 21 November, 1991, and did not admit that she told him her last normal menstrual period was on 9 November, 1991, although she surmised that she may have had a "quick" period at that time and told Dr F that, although she could not actually recall either having such a period or telling him that she did. She said she was unable to recall when she had her last menstrual period prior to S.'s birth.
197. During cross-examination, the mother was referred to her 1992 diary, portions of which became exhibits 17, 21 and 23 in the proceedings. Her attention was directed, particularly, to some figures, from 1 to 40, written in red ink on the 1991 and 1992 calendars which appear in the front of that diary, which figures she acknowledged were in her handwriting. The figure "1" is written beside the week commencing on Sunday 17 November, 1991 and ending on Saturday 23 November, 1991, and the remaining figures, from "2" to "40" are then written consecutively beside each consecutive week thereafter, concluding (with number "40") at the week commencing on 9 August, 1992. The mother agreed that these figures related to the weeks of her pregnancy, but was unable to explain why she wrote week 1 beside the week ending on 23 November, 1991, if, at the time, she believed she had conceived on 5 November, 1991. At an earlier point in her evidence she had conceded that if she conceived on 5 November, week one of the pregnancy "in ordinary human terms" would be the week from 5 to 12 November. She also conceded that when she wrote the figure "1" beside the week ending 23 November, 1991, she "may have" believed that week to be week 1 of her pregnancy. She made an attempt, however, to explain away this apparent inconsistency between what she wrote at the time and what she now says about the date of conception, by stating that "they" (presumably meaning obstetricians) "don’t work it out like that" (i.e. counting the weeks from the date of conception), but "go on your last period and then there's a formula that they use, I believe". However, she was unable to explain how methods used by obstetricians to calculate the expected date of confinement could have had a bearing on her writing in her diary numbers identifying the weeks of duration of her pregnancy, which she agreed she probably wrote "as they were going along".
198. I shall deal with the issue of the mother's overall credibility, as a witness, later in this judgment, and with the specific allegation that the father raped her on 5 November, 1991. However, at this point I record that I accept the evidence of Dr F, which is supported by the mother's own contemporary notations in her diary to which I have referred, that S. was conceived on or about 21 November, 1991, and not on 5 November, 1991 as alleged, and stubbornly adhered to, by the mother in her evidence. I also find that the mother herself told Dr F that conception occurred on 21 November, 1991, and that she believed that to be the case at that time. Whether her belief as to the date of conception subsequently changed, I shall also consider when I address the broader issue of her overall credibility.
199. My finding that the mother believed, at least early in her pregnancy, that she conceived S. on or about 21 November, 1991, and accordingly told Dr F that, is further supported, to a degree at least, by her admission, during cross-examination, that there was a sexual encounter of a kind between the parties at around that date (two to three weeks after the Melbourne Cup day incident). She said that on that occasion the father came to her home to apologise for his behaviour on 5 November, 1991. She said that although he did not admit having raped her on that earlier occasion he was apologetic over the fact that as a result of their sexual activities on that day she suffered an injury to her left knee, which had previously been the subject of a reconstruction operation. However, she was at great pains to stress that on this later occasion in November there was no penetration of her by the father (although he started to do so, but was rebuffed by her in that respect) and he ejaculated externally to her, which she said "could have been on the inside of my thigh".
200. Whilst not directly alleging that the father's conduct on this occasion constituted a sexual assault, the mother used such expressions to describe his behaviour towards her as "forceful", and said that her not wanting to have intercourse with him that day "didn't stop [him] from finishing off what he started" and that he "went ahead and did what he wanted to do with ejaculating". She also maintained that she told her solicitor all about this incident, yet it is not mentioned in any of her affidavit material. This, too, is a matter relevant to the mother's overall credibility, to which I shall subsequently refer.
The Mother's Witnesses
201. Lay witnesses whose affidavits were relied upon by the mother, were:
202. Of those lay witnesses, Mr D., Mr T. and Ms W. were apparently not required for cross-examination, and accordingly gave no oral evidence in court. All the others did attend for and were subjected to cross-examination by one or other or both of counsel for the father and counsel for the Child's Representative.
203. Mr D.'s affidavit sworn on 9 July, 1998 contains evidence of only relatively marginal significance in the proceedings. He deposed to the generally amicable nature of his post-separation and post-divorce relationship with the mother since their separation some seven years prior to his swearing his affidavit, and of the harmonious arrangements they have had in relation to his contact with the children of their marriage, M. and Sc.. He also deposed to some brief contacts with the father, the first being soon after S.'s birth when, at the request of the mother, he approached the father to enquire whether he proposed to "do the right thing" and marry her, to which the father responded that he did not.
204. The other contacts with the father of which Mr D. deposed were all by telephone during the period from "early 1996" to "late June or early July 1996". Of those, he said that on one occasion in "about April 1996" the father called him twice at about 1.30am at a time when he "appeared to sound half drunk as he was slurring his words and sounded illogical" and "was saying that he was not a pervert and ... had done nothing wrong". This would have been soon after the allegations of sexual abuse were first made against the father by the mother. On another occasion, which Mr D. identified as being in "about late June or early July, 1996", he said that the father called the mother "all sorts of names, including 'fucking bitch'", and added that he was "not a fucking sex maniac". None of that evidence is really inconsistent with the father's own evidence about how he "lost the plot" at that time.
205. Mr D. also deposed to being present at the mother's home on an occasion in "about late July 1996" when the telephone rang and the mother, after answering it, and identifying the caller as "[G]", "attempted to persuade S. to speak to the caller". He said that S. "absolutely refused to go anywhere near the telephone, despite [the mother's] best endeavours", and that after the mother explained that to the caller, the conversation ended.
206. In paragraphs 8 and 9 of his affidavit, Mr D. gave evidence which, but for s.100A of the Act, would be inadmissible. The first of those paragraphs deposes to some statements allegedly made to Mr D. by his daughter M. about things she had seen S. do or heard him say. The second deposes to a statement allegedly made to Mr D. by his son Sc. reporting something S. allegedly said to him when they were in the bath together.
207. Clearly both paragraphs are hearsay, and would ordinarily be inadmissible (Evidence Act 1995 (Cth) s.59). However, the effect of s.100A(1) of the Act is to abrogate the hearsay rule, in proceedings under Part VII of the Act, in respect of a representation by a child about a matter which is relevant to the welfare of that child or another child. At the time Mr D. swore his affidavit (9 July, 1998) both M. and Sc. were under the age of 18 years, and therefore each was a "child" as defined, for the purposes of that section, by sub-s.(4) thereof. Each must therefore have been a child at the time of making the statement deposed to by Mr D.. Since the statements allegedly made by M. and Sc. to Mr D. constitute representations by children about a matter which is relevant to the welfare of S., Mr D.'s evidence of those representations is therefore admissible. It was no doubt for that reason that this part of Mr D.'s evidence was not objected to by counsel for the father.
208. However, s.100A(2) of the Act gives the Court a discretion to give "such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1)". Accordingly, it is for me to determine what weight, if any, I give to Mr D.'s evidence about what his children told him that S. said or did.
209. By the time of the trial of these proceedings, M. had turned 18, and she gave evidence, by affidavit and orally, about what she saw S. do and what she heard him say relevant to the matters in issue in these proceedings. That evidence covers, but in more detail, the matters the subject of her alleged statement to Mr D.. Accordingly, as she was cross-examined upon her sworn testimony I consider it both unnecessary and inappropriate to give any weight to Mr D.'s evidence of what she told him, out of court, about the same matters as are deposed to in her evidence. As for the alleged statement of Sc. to Mr D., the affidavit of the latter provides no context for that alleged statement, and the statement itself is so brief that I attach no weight to that evidence.
210. The only remaining issue addressed in Mr D.'s affidavit is that of S.'s behaviour following contact by the father. What Mr D. said, in paragraph 10 of his affidavit, was this:-
"10. I regularly see S. by virtue of having contact with M. and Sc.. I have noticed that S.'s behaviour has changed dramatically since the cessation of contact and say that his previous tantrums which included head banging, biting of Sc. and swearing have stopped completely and he appears to have changed into a well mannered child."
211. As that evidence (like all of Mr D.'s evidence previously summarised) was not challenged by cross-examination, I must accept it. However, it is not evidence upon which I place great reliance, partly because of the very general, non-specific nature of it (particularly in terms of linking the behaviour spoken of to the timing of contact between S. and the father), but also because misbehaviour of a child following contact may just as easily be related to how the fact of that contact is perceived and dealt with in the residence household as to any adverse experience suffered by the child in the contact household.
212. Mr T.'s affidavit deals with only two matters. The first (a description of his attendance, with the mother and Ms Sg., at a hotel in July of 1990 or 1991 when he met the father) seems to me to be of little, if any, relevance to the proceedings. The second is a description of an occasion on 5 August, 1993, when he attended the Church with the mother, and a note was found, together with a little toy teddy bear, under the windscreen of the mother's car, in the parking lot of the church, after the conclusion of the service. This witness said that, to the best of his recollection, the note read:
"Going to Church to date someone tonight. Who'se (sic.) minding my son?"
If accurate, that description of the note suggests that it was written and placed there by the father, a fact which I think he admitted.
213. This witness further deposed that the mother reacted to the discovery of this note and toy by becoming "visibly upset and anxious" and saying she "had to go home immediately", following which she left.
214. This evidence, which I accept, establishes only that at that time the father may have had some resentment of the mother's going out at night without S., possibly to meet another man, and that the mother was upset to receive a communication from him to that effect in that context. It is of very little significance in the overall scheme of things, and is no real assistance to me in resolving the important issues in this case.
215. Ms W., in her affidavit sworn on 16 July, 1998, identifies herself as a fellow employee of the mother, in which capacity she has known the mother since January, 1992. She deposed to receiving a number of telephone calls at the practice from the father for the mother. She said that after the mother fell pregnant with S. the father "would often ring many times a day", which calls she put through to the mother, and that "on occasions these calls would leave [the mother] visibly upset". She also referred to two particular telephone calls which she received from the father. One was "close to Christmas time in 1995" in which he enquired about the timing of the staff Christmas party, but she led him to believe that there would be no staff Christmas party that year, because she knew the mother "had separated from [him] and formed a new relationship with Mr A.". The second call was said to be in February, 1997, at which time the mother "had not been contactable on the [work] number for over 2 years". Ms W. said that on this occasion the father gave a false name, asked for the mother, and explained that she had told him not to ring her at her home because "there would be a guy named P. there and it would seem a bit funny".
216. The balance of Ms W.'s affidavit, although not objected to, was plainly hearsay, and therefore inadmissible (Evidence Act 1995 s.59). Notwithstanding the absence of objection, I do not admit that evidence. In my view, failure to object to inadmissible evidence, without more, does not make it admissible. Whilst the Court does have a power, under s.190(1) of the Evidence Act, to dispense with the application, for example, of s.59, it can do so only if the parties consent, and I would not regard a mere failure to object as constituting consent. Further, although the Court has a power, under s.190(3) of that Act, to order that the provisions of s.59 not apply, it can do so only where the matter to which the evidence relates "is not genuinely in dispute" or if the application of the relevant provisions "would cause or involve unnecessary expense or delay". In this case, neither of these criteria exists, and in any event no order under s.190(3) was sought by the mother in relation to this evidence. Even if it were admitted into evidence, I would give no weight to that hearsay evidence.
217. The purpose of Ms W.'s testimony was obviously to give some credence and corroboration to the evidence of the mother about continual harassment of her by the father, including by frequent unwelcome telephone calls. Whilst that testimony does offer some corroboration of the mother's evidence in this regard, it is only slight, relating as it does, in the main, to the period when the mother was pregnant, now some nine years ago. Ms W. identifies only two particular calls in more recent years, one in late 1995 and the other in early 1997. Even if accepted without reservation that evidence hardly assists in establishing an on-going pattern of regular harassment such as was alleged by the mother and, to a lesser extent, by Mr A..
218. Ms N. identified herself as a friend and former workmate of the mother, and said that she knew the father through her dealings with the mother. In her oral evidence, under cross-examination by counsel for the father, she readily conceded that she is and has been, for many years, very friendly with the mother, and that she does not like the father. Apart from the final paragraph of her affidavit (in which she deposes to some aspects of her contact with the father which appear to me to be irrelevant except to explain, in part, her admitted dislike of him) this witness' evidence is confined to events which she claims to have witnessed on Melbourne Cup Day 1991 and either on that night or the next night, which have some bearing on the dispute between the parties about the events of that day ("the relevant day").
219. Ms N. deposed that on the relevant day she returned from work "after a Melbourne Cup Party (sic.)" at which she "had not consumed any alcohol" to her home, following which she had "a big argument" and then "a big fight" with her sister. She said that she then walked to her sister's house (which is "directly behind" her own house) and had a further argument with her sister in the driveway of the sister's residence. She said that while she and her sister were having this argument, she saw the mother and father go past in a car driven by the mother, and in which the father was a passenger. She estimated that the time at which the car containing the mother and father drove past her sister's residence was "approximately 5.45pm". She said that she recalled the day particularly because of the argument which she had with her sister (with whom she seldom fought), and because of what the mother later told her. She said that at the time the father lived in the same suburb (a fact not disputed by the father). A Brisbane Street directory reveals that the two streets are only three streets removed and that it would be at least feasible to drive from the vicinity of the Hotel to the father’s home via those two streets.
220. Under cross-examination by the father's counsel, this witness said that to the best of her recollection she saw the car containing the mother and father go by at about 5.40 or 5.45pm, and she related this estimate of the time to the time it had taken for her to travel home from her place of work (where she said her work hours were 8.30am to 5.00pm), to have the argument with her sister at her own home, and then to walk around to her sister's home where the argument continued. She refuted the possibility that she could have seen the car go by as early as 4.30pm, because she had not left work until 5.00pm. The possibility that she may have left work earlier than usual on that day because of the Melbourne Cup party was not explored with her, but she certainly was quite adamant that she did not leave until 5.00pm.
221. The relevance of that evidence by Ms N. is that the mother in support of her claim that the father raped her after she had driven him home from the Hotel that day, said that they arrived at his home at about 5.30pm, and that she had no intention of doing more than drop him off there because she had to pick up her children, M. and Sc. (then aged 11 and 6, respectively) from their father, by 6.00pm, a fact of which she informed the father before they set off from the hotel. By contrast, the father said that they arrived at his home much earlier, around 3.30 or 4.00pm, and that they had consensual sexual intercourse at the mother's suggestion, although she did tell him that it would have to be quick because her former husband would be minding the children after school, and the bus usually dropped them off at about 4.00pm. His evidence about the time of their sexual encounter on that day was supported by the evidence of Ms L., to which I have earlier referred, and this evidence of Ms N. essentially contradicts Ms L.'s account of having spoken to the mother on the telephone when she rang the father's residence at between 3.30 and 4.30pm that day.
222. Ms N. further deposed that either on that same night, or the next night, the mother was due to play netball with her but did not turn up. When she later visited the mother (on the same or the next day) the mother had her left knee bandaged and had difficulty walking and said that she had "pulled all the ligaments in her knee". She further deposed that the mother told her on that occasion that on Melbourne Cup day the father had "dragged her out of the car, roughed her up/bashed her and then raped her".
223. In cross-examination by counsel for the father, this witness said that she had been first asked to recall the matters about which she deposed "probably at about the beginning of last year" which would have been 1999, but when reminded that her affidavit was sworn in July, 1998, she said she could not be sure when she was first asked to do so. She said that before swearing her affidavit the mother asked her to go to see her solicitors and talk to them. She said that she had "a fair idea why" the mother asked her to do that "from things she had told me in the past", although she did not tell her exactly what it was about, but only to go and see the solicitors "and see if anything I said could be relevant".
224. During that cross-examination this witness referred to another incident between herself and the father in which he allegedly insulted her, causing her to cry and run home. Her personal dislike of, and possibly animosity towards the father, was thus confirmed.
225. Although this witness gave her evidence in quite a forthright manner, and was not shaken at all in cross-examination, I am reluctant to place great weight on her evidence mainly because of her admittedly very close friendship with the mother and her clear dislike of the father. I do not for a moment suggest that she perjured herself. On the contrary, I have little doubt that she believed that she was telling the truth. However, the lapse of time since the events of which she spoke, her close friendship with the mother and the many opportunities which that friendship no doubt provided during that time for the latter to implant in her friend's mind her perception of events on the relevant day, coupled with Ms N.'s personal dislike of and readiness, no doubt, to believe the worst of the father, lead me to conclude that it would be unwise to place much reliance upon her version of those events which was first committed to paper almost seven years after the occurrence of those events. In particular, I am certainly not prepared to find, on the basis of her evidence, that the mother and the father drove past her sister's residence, on their way to the father's residence from the Hotel, at not earlier than about 5.40pm on 5 November, 1991. Nor am I prepared to find that the mother told her, either on that very day or the next, that the father had bashed and raped her on that day. Whilst I have no doubt that at some time in the intervening eight years the mother would have told this witness that, and probably many times, I cannot be satisfied that she did so so soon after the alleged event.
226. I have already referred, in paragraph 132 hereof, to the mother's friend Ms Sg., and her involvement, with the mother, in an incident which occurred in May or June of 1991, in which they entered the father's home at night (while he was present), and removed from it some jewellery belonging to another woman, which was subsequently returned to the father in a damaged condition. Ms Sg.'s affidavit, which was read and relied upon by the wife, relates her involvement in that incident, and also deals with other events of varying degrees of relevance and importance to the proceedings. She was cross-examined by counsel for the father on 23 May, 2000.
227. Ms Sg.'s account of the incident involving the jewellery in 1991, is contained in paragraphs 5 to 8 of her affidavit sworn on 9 July, 1998. She said, in cross-examination, that she was first asked to recall the events of that night "about 1 to 1½ years ago", but given that her affidavit was sworn in July, 1998 and she was giving evidence in May, 2000, that estimate was clearly inaccurate, since she must have been first asked to recall the events sometime prior to July, 1998. However, she agreed that the events occurred about seven years before she had been first asked to recall them, and that she made no notes of the events at or about the time of their occurrence. Nevertheless she said that she had no difficulty recalling those events which "stuck" in her mind because they occurred during a period of three to six months when she was living with the mother during which she (Ms Sg.) also went on a trip to the Kimberleys. Why the latter event assisted in fixing the events of the night in question in her mind was not really explained. She also agreed that she and the mother had discussed the events of that night long before any court hearing was contemplated.
228. In essence, Ms Sg.'s account of the events of that night, as contained in her affidavit, was as follows:-
228.1 She and the mother had been out together that night, and on their way home, at about midnight or later, she suggested to the mother that they call in to the father's house to see him, the mother having told her that he was "home alone".
228.2 She said that on arrival at the father's house, to her surprise there was "an unfamiliar car out the front". She then went up to the house, while the mother remained in her car parked outside. When she approached the house she heard, coming "from [the father]'s bedroom window" noises which she identified as "the sound of soft music and the sounds of 2 people, a man and woman, engaged in sexual intercourse". She thereupon returned to the mother's car and reported to her what she had heard. The mother did not immediately believe her and while they were sitting in the car "a woman walked out of the house and went to the other car, then driving off".
228.3 The mother then went up to the house. Being "young and foolish" and acting "out of concern for [the mother] and [the father's] act of infidelity", but not at the mother's suggestion, Ms Sg. then "stamped on a lot of his plants in the garden".
228.4 The mother then came out of the house and told her "that she had taken the woman's jewellery", which she "left lying around". After their return to their home, the next morning, again without any suggestion from the mother, Ms Sg. "took the jewellery outside and smashed it up with a hammer".
228.5 Later that morning the father visited their home. The mother slapped his face and said "How dare you treat me like that". She then gave him back the broken jewellery, in a bag, and he left.
228.6 For a couple of months afterwards, telephone calls were received at their home "at all hours" from a woman, who said: "I'll get you for wrecking my stuff", and from time to time a car she was not familiar with "was driven up and down outside [the mother's] home by a woman" with a similar hair style to that of the woman she had seen leave the father's house on the night in question.
229. Under cross-examination by the father's counsel, this witness' evidence departed in some respects from what she had deposed to in her affidavit. For example, she said that she distinctly remembered that she had "stood on" only two palm trees in the father's garden, which she said she must have "just pushed" with her foot. She attempted, (unsuccessfully, in my view) to explain her statement in paragraph 5 of her affidavit that she had "stamped on a lot of his plants", by saying that "a lot" meant only two, one on each side of the driveway. She also said that she could not remember how the jewellery got out of the father's house, and certainly could not remember leaving the house with it in her hand, so she concluded that the mother "must have" taken it. That is not consistent with the statement in paragraph 6 of her affidavit that the mother told her she had taken the jewellery.
230. Other aspects of this witness' evidence given under cross-examination lead me to doubt that she really had any clear recollection of the precise chain of events on the night in question, and to believe that her entire evidence about this incident was based more upon re-construction arising from subsequent discussions of it with the mother. For example, she said she was unable to now actually remember the mother or herself going into the house, or how they entered the house, but denied the suggestion that they entered through a window, saying that she "wouldn't" have done so but "would have" gone in through a door. Nor could she remember where the mother was when she (the witness) smashed the jewellery the next day, but was sure that she was not present to see it and may have been still in bed. She also said that she did not believe the mother knew the jewellery had been smashed when she handed it back to the father, but said she believed it was handed back to him in a clear plastic bag. I find this evidence to be less than credible, and I believe Ms Sg. was motivated to give evidence as favourable to the mother as she could, even to the extent of assuming more responsibility for the incident than might truly be her due.
231. There were two other issues of significance in relation to which Ms Sg. gave evidence. The first of these issues was the alleged rape of the mother by the father on Melbourne Cup day 1991, and the second was the alleged stalking and/or harassment of the mother by the father.
232. In relation to the first of those issues, Ms Sg.'s evidence, in paragraph 2 of her affidavit, was that "on or about Melbourne Cup Day 1991 [the mother] was to play netball" with a team of which she and the witness were both members, but that she "presented at netball with a bandage around one knee and made up an excuse as to why she was unable to play". The witness could not recall the excuse, but said that the way in which it was offered caused her "to be suspicious" that it was untruthful. Accordingly, she said that she called in to see the mother "within the next week (possibly the next day)" when the mother informed her that the excuse she had given was not true and that on Melbourne Cup day she had been raped by the father, during the course of which "physical injury had been caused to her knee". She added: "It was a number of weeks before [the mother] was able to return to netball".
233. Two aspects of that evidence by the witness were slightly inconsistent with the evidence of Ms N. on the same topic. The latter said that the mother did not turn up for netball on the night that she was due to play nearest to the Melbourne Cup day 1991, whereas Ms Sg. said that the mother presented at netball that night with her leg bandaged. Ms N. also said that the mother "ceased playing netball" at that time, whereas Ms Sg. said that she returned to play after "a number of weeks".
234. As to the second of the issues identified in paragraph 231 hereof, Ms Sg. described, in paragraph 12 of her affidavit, an occasion at "about Christmas 1991" when she saw and spoke to (separately) both the mother and the father at the Hotel. She said that when the mother was talking to another man in the beer garden, she (Ms Sg.) saw the father come in. Shortly afterwards, she and the mother left the hotel with the other man, whom the mother had agreed to give "a lift home". She said that when they arrived at the mother's home, after dropping the other man off at his "home", they found that someone had carried the "wheelie bin" up the front steps and placed it near the front door of the premises, with a "boogie board" on top of it and "children's toys all round the front door". Although not stated, the inference was clearly sought to be drawn from this evidence that the father had done these things out of jealousy upon seeing the mother leave the hotel with another man. The father denied having done this, and I am certainly not prepared to infer that he did, even if Ms Sg.'s evidence about this chain of events is to be accepted as essentially accurate, a matter about which I am not entirely confident, in any event.
235. Ms Sg. further deposed (in paragraphs 13 and 14 of her affidavit) that during the time she resided with the mother (which, from her other evidence, was a period of from 3 to 6 months straddling Melbourne Cup day (5 November) and Christmas Day, 1991) she saw the father "regularly drive past [the mother's] house 2 or 3 times per day" and that on many of those occasions "he would drive slowly past then do a U turn down the road and drive back". In addition, she said that during the same period "the telephone would ring at all hours of the day and night", particularly on weekends when Sc. and M. were with their father, and when she occasionally answered it, it would be the father. Most of the time, she said, the mother answered the phone, and she would hear her say such things as "leave me alone" or "do you know what time it is".
236. I place little weight on this evidence. I strongly suspect that it was given very much from a point of view of hindsight, which has been quite likely distorted by subsequent events, both actual and perceived, as related to this witness by her friend, the mother. In any event, it is clear from all of the evidence that the parties' relationship at that time was volatile, and that each of them was, at least to some degree, obsessed with the other. There is other acceptable evidence, to which I have earlier referred, of the mother's having taken a rather more than casual interest in the father's activities and associations at various times, and it matters little in the overall context of this case, if the father at this time also took a more than casual interest in the movements and associations of the mother. I certainly draw no adverse inference against him, in relation to much more recent activity of a similar kind alleged against him by the mother, on the basis of this evidence of Ms Sg..
237. The mother sought to read and rely upon an affidavit of her father, Mr H., containing 23 paragraphs of evidence. However, upon objection by counsel for the father I rejected (for reasons which I then gave) all but paragraphs 1 and 23 of that affidavit. Paragraph 1 merely identifies the deponent as the mother's father. Paragraph 23 deposes to two "persistent problems" exhibited by S., namely that he "reacts violently to anyone trying to wash his hair or putting water over his head" and that he is "very slow to eat", and is "mostly disinterested (sic.) in feeding himself" but if assisted "happily consumes a normal amount". There was no evidence from any source to relate those "problems" of S. to his contact with the father.
238. Although Mr H. was cross-examined briefly by counsel for the father, nothing of significance emerged from that cross-examination other than the fact that there appeared to be no obvious ill-feeling between Mr H. and the father's parents, who called at the H. residence on at least one occasion to deliver a Christmas or birthday gift for S., when Mr H. told them that they could deliver further presents for S. to him.
239. The affidavit of Mrs H., the mother's mother, sworn on 15 July, 1998, covers a range of issues. The more significant of those issues are: the father's alleged harassment of the mother in the form of frequent telephone calls; the father's alleged rape of the mother on Melbourne Cup day 1991; the father's alleged desire to reconcile with the mother during her pregnancy with S. and his alleged admissions to Mrs H. at that time in relation to his prior conduct towards the mother; the father's uninvited delivery of gifts to S. to this witnesses residence; and the alleged disturbed behaviour of S. following and/or related to his contact with the father.
240. In relation to the first of those issues (the father's alleged
harassment of the mother), Mrs H. deposed to a few occasions
in 1990 and 1991/92
when she herself answered the telephone at the mother's residence, after there
had been a number of late night
calls to that phone, to find it was the father
on the line, who apologized for the lateness of his calls after being chided by
about it. She further deposed that, when the mother was about four months
pregnant with S. (which would put this event at about
March, 1992), the father
came, by arrangement, to where she was then staying, to discuss with her the
possibility of a reconciliation
between himself and the mother. She said that
in the course of that discussion the father made a number of admissions to her
his conduct towards the mother (which he promised "would never happen
(a) that he had "telephoned her at all hours of the day and night";
(b) that he had "committed acts of harassment" towards her;
(c) that he had "knocked her about"; and
(d) that he had harassed her "to have an abortion".
241. Mrs H. further deposed that in about January, 1996, she telephoned the father for "the purpose of discouraging him from constantly telephoning [the mother] and leaving abusive messages on her answering machine". She said that his response was "to giggle" and then say "that he did not mean half of those things" and that "if he really wanted to harm [the mother] he could go down the road and get a shotgun or take a contract on her".
242. The father denied the substance of this witness's allegations related to the earlier period (1990 to 1992) and alleged that the discussion, in about March, 1992, about reconciliation between the parties arose at the instigation of Mrs H. rather than of him. He denied making admissions, in the terms alleged by this witness, about harassing the mother and knocking her about. He did not dispute having harassed her with abusive telephone calls in early 1996.
243. In relation to the issue of the father's alleged rape of the mother on Melbourne Cup day 1991, Mrs H. deposed that when she spoke to her daughter, the mother, "within one or two days" of that date, she told her that the father "had forced himself upon her at his home that day and had had sexual intercourse with her without her consent". In cross-examination she said her daughter told her that "he had been a bit rough and hurt her" that he "attacked her" and "dragged her into the bedroom", and she (Mrs H.) remembered her having a sore knee. Mrs H. also deposed that "within approximately a couple of months of that date" her daughter told her that she was pregnant "and that the pregnancy had resulted from that act of sexual intercourse".
244. In her oral evidence under cross-examination the mother had said that she was unable to recall what clothing she was wearing at the time of the alleged rape on Melbourne Cup day 1991. She said her outer clothing could have been "long pants and a shirt or a skirt and top", and that her underclothing was "more likely a G string" than panties. She did not recall what, if any, of her clothing was removed by the father before raping her. She did not suggest that any damage was done to any of her clothing as a consequence of the rape.
245. During her evidence under cross-examination, Mrs H. said that she bought the outfit for the mother to wear to the hotel for the Melbourne Cup function on that day (which Mrs H. described as an "afternoon tea party"), and that the outfit consisted of a fawn suit (skirt and button up jacket), bag, hat and gloves. She said that although she did not see the mother on that day she had been told that "she looked very smart" in the outfit she had bought for her. She denied a suggestion by counsel for the father that the mother had worn "a short black dress" (a suggestion in keeping with the father's evidence in paragraph 4 of his affidavit of 18 September, 1996, that she was "scantily" dressed). She said that she had seen the mother, dressed in the outfit she bought for her for the Melbourne Cup function, after that day, and that the mother never complained to her of it having been damaged.
246. The evidence, of Mrs H., of the mother's alleged complaint to her of being raped by the father (like the evidence to similar effect of the witnesses Ms N and Ms Sg to which I have already referred), is clearly hearsay and, by s.59 of the Evidence Act 1995, inadmissible to prove the existence of the fact (i.e. the rape) which the mother intended to assert by her representation made to those witnesses. Insofar as that evidence is relevant to the credibility of the mother in relation to her rape allegation, it would, prima facie, run up against the "credibility rule" established by s.102 of that Act, which provides that "evidence that is relevant only to a witness's credibility is not admissible". However, s.108(3)(b) of that Act provides (relevantly) that "the credibility rule does not apply to evidence of a prior consistent statement of a witness if ... it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed ... and the court gives leave to adduce the evidence of the prior consistent statement".
247. It was certainly suggested to the mother in this case, during cross-examination by counsel for the father, and by the father in his own oral evidence under cross-examination that her allegation of rape against the father was fabricated, it being his case that she willingly sought and took part in sexual intercourse with him on that day. Although my "leave" to adduce the evidence of the mother's prior consistent statements was not formally sought, I am prepared to infer from the failure of the father's counsel to object to any of that evidence that he was conceding that such leave should or might properly be granted, and I accordingly grant leave nunc pro tunc.
248. I shall deal with and make findings about the mother's rape allegation later in this judgment. For present purposes I merely note that, in accordance with s.60 of the Evidence Act, the evidence of these other witnesses of the mother's complaints to them of rape, having been admitted for a non-hearsay purpose (viz. to support the mother's credibility in relation to her allegation of rape) are now also admissible for the hearsay purpose, that is to say, as evidence of the facts intended to be asserted by the mother in her complaints to those persons. However, s.136 of that Act gives the Court a discretion to limit the use to be made of evidence if there is a danger that a particular use of it might "be unfairly prejudicial to a party". In my judgment, the use of this evidence of complaint by the mother to others as evidence of the truth of her complaints, would be unfairly prejudicial to the father, given the great length of time which has elapsed since the making of the alleged complaints and the inherent difficulties which that presents to attempts to test the strength and accuracy of the recollection of the witnesses of precisely what the mother then said, and the precise timing of those statements relative to the time of occurrence of the events of which she was speaking. Accordingly, I propose to restrict my use of this so-called "fresh complaint" evidence to its non-hearsay purpose, viz as relevant to the credibility of the mother's evidence of the alleged rape.
249. Mrs H. deposed that since the commencement of the court proceedings the father attended at her home, without invitation, to deliver presents for S. for his birthday and for Christmas, in both 1996 and 1997, and on one other occasion in September/October, 1997, when he delivered a stool "for no reason". She said she and her husband passed on all these presents to the mother. The father did not deny this evidence.
250. In relation to S.'s behaviour following contact with the father, Mrs H. deposed that "up to the earlier months of 1996, S. was often stuttering and nervous", but that by the time of her affidavit (July, 1998) she considered him "to be much calmer and a normal happy little child" who "no longer stutters, nor bangs his head on the floor, nor bites his brother, and now regularly hugs and kisses his mother". Although she did not say directly that he had previously exhibited such behaviour (head banging and biting), the clear inference is that he did so.
251. When cross-examined, Mrs H. gave her evidence in a reasonably straight-forward manner, and presented as a basically honest witness doing her best to give a truthful account of events, most of which were by now many years in the past. I regard her evidence as generally credible, but in deciding the weight to be given to it, make due allowance for her emotional alignment with and natural inclination to support her daughter. I also make allowance for the fact that she may feel that she did not support her daughter as fully as she might have done when, as a child, she made complaint to her of having been sexually abused by two relatives of her father (a fact which was confirmed by this witness during cross-examination). It is possible that, if she does have those feelings, Mrs H. may have been inclined to strive to give her daughter the fullest possible support in these proceedings in relation to the allegations which she has made of rape of her, and sexual abuse of S., by the father, and that in so striving she has unintentionally embellished her evidence or bolstered her "memory" to provide corroboration of her daughter's evidence.
252. M., the mother's daughter, and the elder child of her marriage to Mr D., swore an affidavit on 16 December, 1998, in support of her mother's case. I have already made some reference to this affidavit and to a statement to police by M. dated 2 April, 1996 which is Annexure “A” to her affidavit. At the time she gave that statement M. was aged 15 years, and she was aged just 18 when she swore her affidavit. She was 10 years of age when her mother began her relationship with the father. She lived continuously with her mother from her birth, in October, 1980, until about 19 October, 1998, when she moved out following a disagreement with her mother. Since then, she has lived with her maternal grandparents, Mr and Mrs H..
253. M. gave evidence in relation to a number of issues, including the following:-
254. M.'s description of the relationship of the father with her mother, from her perception, was really fairly consistent with that of both parties, in terms of its being a volatile, "off and on" relationship, with frequent break-ups following highly emotional incidents, and subsequent reconciliations for relatively short periods of time only to be followed by another break-up of equal intensity. It is hardly surprising that her perception of the cause of the parties' break-ups largely mirrors her mother's, rather than the father's, since this witness's strong emotional attachment to the former throughout the relevant period, and her lack of any attachment to the latter, whom she knew only intermittently and for a relatively short period of time, could not help but pre-dispose her to see the relationship very much from her mother's point of view.
255. The same applies to M.'s descriptions of particular incidents of violence between the parties, although I have no doubt that her perception of the father as generally the angrier, the more vociferous, the more foul mouthed and the more aggressive of the two participants, is reasonably accurate. Nevertheless, I think she would have been quite oblivious to the subtleties of the parties' relationship and to the emotional string-pulling by her mother which often preceded and at least in part precipitated many of the father's angry outbursts. Whilst I am certainly not saying that emotional string-pulling or manipulation is justification for domestic violence, I am saying that in this case, at least, it would be unfair for the Court to focus on any acts of violence by the father towards the mother as perceived by the daughter of the latter, without paying due regard to conduct of the mother, both physical and emotional, which may have contributed to the conflict out of which such violence arose.
256. In any event, on close analysis, M.'s affidavit contains little direct evidence of actual physical violence by the father to the mother witnessed by her. She describes one incident at the father's unit, which is undoubtedly the same incident as identified by the parties as having occurred on 5 December, 1992, and which was also deposed to by the father's brother, whose evidence in relation to it I have dealt with in paragraphs 134 and 135 hereof. In her affidavit (paragraphs 15 and 16) M. describes being outside when she heard "some yelling" as a result of which she "crept" to the door of the unit, from where she heard her mother yell out "Get your hands off me". She (M.) then "burst through the door and yelled out 'Get your hands off my Mum'", when she saw the father with his hands "on my Mum's shoulders shaking her", and her mother with "her arms in front of her as in a protective mechanism". She said the father's face was red, and her mother "appeared as though her eyes were popping out". She alleged no other physical violence by the father towards the mother on that occasion, but described how the father "was pacing up and down swearing constantly" and saying: "Look what your Mum's done to me", calling her Mum "Fucking moll" and saying "I just want to fucking murder you". She said that he "was red faced and his veins were popping out on his forehead and neck".
257. In paragraphs 24 and 25 of her affidavit, M. describes another incident which she says occurred at the father's Brisbane home, which would make the event earlier than that described in the previous paragraph, which occurred at his bayside residence to which he moved in about October, 1992. However, the event described by M. in this paragraph of her affidavit seems to be the same event as that referred to in paragraph 26 of the mother's affidavit filed on 20 July, 1998 and in both paragraph 15 of the father's affidavit filed on 19 September, 1996 and paragraph 28 of his affidavit filed on 4 August, 1998. The parties, whilst giving different accounts of this incident, seemed to agree that it occurred on 27 March, 1993, and certainly agreed that it occurred at the father's bayside residence, not at Brisbane. Accordingly, I conclude that M.'s recollection that it occurred at Brisbane is faulty, which is hardly surprising, given that she would then have been only 12 years old.
258. The mother, father and M. all agree that whatever happened that night it happened after the mother had walked from the father's residence (which she was visiting with M. and S.) to some nearby shops and back, in the course of which the mother claimed that she was chased by "a suspicious stranger", from whom she ran. The father said that on the night in question the mother was wearing "extremely short shorts", which he advised her "to cover up as it was not appropriate for her to parade around in public dressed like that", but that she "laughed off" his concerns, and went as she was.
259. It also seems common ground that after the mother returned from the shop and complained to the father about being followed, which frightened her, he was quite unsympathetic, and accused her of attention seeking, after again telling her that she was inappropriately dressed for going out in public. An argument followed during which, according to the mother and M., the father told the mother to "shut up" and "sit down". The father and mother agreed that violence began when the mother slapped his face (although the mother said she did this only after he "started swearing at" her, and the father, in his earlier affidavit, said "there was no physical contact").
260. M. made no mention, in her affidavit, of her mother slapping the father, but said that after he told her to "shut up" and "sit down" the mother "became upset", took her and S. to the car saying "Grab your things, we're going", but yet somehow "stayed inside" with the father for about 20 minutes, at which time the father "yelled out 'You're staying'" and then took S. inside. M. said that her mother was in the father's house (presumably, when she, M., re-entered it) and "had what appeared to be blood on her face, as if from fingernail scratches", and "was crying and hyperventilating". She said that the mother told her that the father had put his hands around her throat, and she could not breathe, and then asked her to telephone an ambulance, but she was unable to do so because the father "pulled the phone out of the wall", at the same time yelling to her: "You're not calling anyone". M. said that both the mother and father were "yelling at each other" and the father was "red faced". She (M.) then went into the spare bedroom and "after a while things quietened down", and after about 1 to 1½ hours, during which the parties "started talking normally to each other", her mother said to her: "We're staying the night, you can go to sleep".
261. The mother's version of the physical violence between the parties differed slightly from M.'s, in that she said the father "hit my face with his fist" (which the father steadfastly denied), cutting her under the eye, and then "tried to choke" her, only letting go her throat when M. re-entered the house. She also said that after she gradually got her breath back, after panicking and having "difficulty breathing properly", she and the children left the father's residence and went home.
262. The father, as I have said, denied any assault of the mother by him on that occasion, and in his later affidavit said that in addition to slapping his face the mother "tried to kick my genitals and scratch my forearms as I held her arms from hitting me and crossed my knees to protect my genitals". He also claimed, in his earlier affidavit, that the mother "feigned hyperventilation" when her daughter walked in "towards the end of the argument".
263. In relation to this particular incident, there is some corroboration of the mother's version not only in M.'s evidence (despite the slight inconsistencies previously identified) but also in the report of Dr P which is annexure "A" to his affidavit filed on the mother's behalf on 23 July, 1998. That annexure is a report written by Dr P recording a number of consultations by the mother with him or other doctors at the 7 Day Medical Centre, in the period from 7 November, 1991 to 11 June, 1995. In that report Dr P wrote this, relative to the incident which the parties agreed occurred on 27 March, 1993:-
"I saw [the mother] on 28/3/93 the morning after another alleged assault by her defacto [sic.] in which she stated she had been grabbed by the neck and hit in the face, chin and chest. She told me she felt he had been trying to strangle her.
On examination on this occasion she had scratches to her left cheek, the left side of her chin and anteriorly on her neck over the cricoid cartilage. She had areas of tenderness and bruising over both forearms and on her sternum."
264. Not only what the mother told Dr P on that occasion of the events of the previous night but also, more importantly, his examination findings, as recorded in the second paragraph of that passage quoted from his report, is consistent with the mother's and M.'s version of that incident (perhaps more with M.'s than the mother's) but inconsistent with the father's. Although I shall have more to say about the relative credibility of the mother and the father later, for present purposes I merely record that in relation to this particular incident I find that the mother's version, as supported by M., is nearer the truth than the father's. However, given the mother's own evidence that she began the violence by slapping the father's face, it is impossible to assign sole responsibility for all that transpired thereafter to him, there being at least an element of provocation involved.
265. At the same time I record my view that the father's contention that the mother was too scantily dressed to go out in public (when she was wearing short shorts) and his apparent reaction to her being frightened by being followed (which I interpret, despite the father's denial of this, when I asked him about it, as being to the effect that she got what she deserved) had, along with other portions of the father's evidence to which I shall subsequently refer, a strong sexist flavour which I find both offensive and illuminating, as regards the underlying character of the father.
266. The only other occasion of physical violence by the father towards the mother deposed to by M. is referred to in paragraphs 26 and 27 of her affidavit. These paragraphs seem to refer to an incident which the parties agreed occurred on 5 April, 1994, although they gave widely divergent accounts of that incident. I have already briefly referred to the parties' conflicting accounts of this incident, and its aftermath, in paragraph 14 hereof.
267. The incident in question is addressed in paragraph 41 of the mother's affidavit filed on 11 September, 1996 and in paragraph 36 of her affidavit filed on 20 July, 1998. The father responded to those paragraphs in paragraph 22 of his affidavit filed on 19 September, 1996 and paragraph 36 of his affidavit filed on 4 August, 1998, respectively.
268. In the paragraphs of her affidavits to which I have referred the mother merely alleged that on 5 April, 1994 she was "again assaulted" by the father, resulting in her "attending on a doctor on 7 April, 1994" and in the police making an application for a protection order on her behalf. She annexed to her earlier affidavit a copy of an almost illegible entry in her medical records for 7 April, 1994, a copy of the protection order application issued by the police on her behalf on 5 April, 1994 and a copy of a cross-application by the father for a protection order against her issued on 6 April, 1994. The description of the alleged assault contained in the Application issued on her behalf [in which "Resp." stands for the respondent father and "agg" for the aggrieved person, viz the mother] was this:-
"Argument about phone call. Resp. abused agg then pushed her against cupboard several times. Then tryed [sic.] to punch her. He then pushed her on to the bed. Then in the hall way [sic.] he continued to abuse her then kicked her in the thigh/groin area then threw her to the floor. He then ran off."
269. In the paragraphs of his affidavits which I have identified, the father gave the following version of this incident:-
He said that whilst the mother was visiting his unit, a friend (Mr E., to whom reference has earlier been made) telephoned him, and the mother objected to his taking the call, demanding that he not talk to Mr E.. The father ignored her protests, as a result of which "she became enraged". After finishing his telephone conversation the father went to his bedroom "to avoid a confrontation" with the mother, who followed him and "knocked from the top of a cabinet, photos and paintings causing them to smash on the floor". The mother then picked up a vase, hitting the father in the right eye with it. He grabbed her arms to prevent her from continuing to hit him with the vase, and wrestled with her, as he attempted to leave his unit. The mother blocked his exit, so he "grabbed her forcing her against a wall and then pushed her aside". He then left the unit, returning some six hours later, by which time the mother had left.
270. M.'s version of this incident contained in the paragraphs of her affidavit which I have identified, was as follows:-
She had gone to the park opposite the father's unit, from where she heard the mother and father arguing. She then heard her mother call out "Don’t! Don't!", so she entered the unit. She there saw the father fling open the bedroom door, and S. "crawled to the toilet and accidentally shut the toilet door". The mother and father were "yelling at each other" and the father was "extremely angry, red faced, large eyed [and] with veins appearing to pop on his neck and forehead". She then went to the mother and father's bedroom where she saw "a broken vase and broken picture frame" and the "bedroom was messy". She saw the father "kick Mum down to one knee" and then run out of the unit.
271. It will be seen that, save for her allegation that the father kicked the mother "down to one knee", M.'s account of this incident is at least as consistent with the father's account of it as the mother's. Indeed, save for the kicking allegation, it is probably slightly more consistent with the father's version than the mother's, because the latter made no mention of the broken vase or picture frame, or how they came to be broken, and also said that after kicking her in the hallway, the father "threw her to the floor", an allegation not confirmed by M..
272. Given M.'s emotional attachment to her mother, and the fact that the two have doubtless discussed this and other such highly emotive events more than once over the years, I find no corroboration of any value of the wife's account of this incident in the evidence of her daughter, M..
273. In accordance with her usual practice (and, perhaps, acting on the advice of the police who issued the protection order application on her behalf) the mother attended the 7 Day Family Health Centre on 7 April, 1994, for an examination in relation to injuries allegedly sustained by her in the incident on 5 April, 1994. The report of Dr P, to which I have previously referred, records that attendance as follows:-
"[The mother] was seen again on 7/4/94, 2 days after another alleged assault by her defacto [sic.] in which she had been push [sic.] against a cupboard, hitting her head, and being punched in the right arm. On examination she had bruising on her right forearm, scratches on both hands, and generalised tenderness over both trapezii, with limitation of neck movements due to pain."
274. In my opinion, that medical evidence provides no real corroboration of the mother's version of this incident, any more than the father's. Most significantly, it records no complaint by the mother of having been kicked by the father, and no detection of any bruising or other signs of injury to her "thigh/groin area", which one might have expected had he kicked her there as alleged by her to the police and recorded in her protection order application. Nor is there any record of her having complained of being thrown to the floor, as alleged in that application. The injuries and/or symptoms recorded in that report are clearly of quite a superficial nature, and would appear to be as, if not more, consistent with the father's version of this incident as the mother's.
275. Some slight corroboration for the father's evidence about this incident is to be found in a medical report by a Dr WO, dated 16 January, 1999, obtained by the father, which is before me as exhibit 7. That report records that the father attended Dr WO on 6 April, 1994 complaining of being hit in the right eye "by his ex-partner" with a vase and that, on examination, he was found to have bruising "on the upper and lower eye lid".
276. When cross-examined about this incident on 14 September, 1999, the mother absolutely denied hitting the father in the face with a vase, or with anything, and said she had no idea how he sustained any bruising observed by Dr WO the next day. She said quite specifically that she had nothing to do with any injury the doctor may have observed. She did acknowledge that a vase and some other things were accidentally swept off a mantelpiece onto the floor by her arm as she was trying to get out of the room where the father had assaulted her, but her description of that action left no room for the possibility that the father may have been accidentally hit in the face by any object flying off the mantelpiece.
277. Overall, I find the mother's evidence about this incident less credible than the father's, although I have no doubt that he has rather painted the lily in describing his own part in it. I believe that the mother probably started the confrontation when she objected to his talking to his friend on the telephone, rather than to her, and that the level of conflict escalated from there, with each party behaving towards the other in an unacceptable and violent manner, during which the mother deliberately (rather than accidentally) knocked some items off a shelf, breaking them, and picked up the vase (which became exhibit 5 in the proceedings) hitting the father in the eye with it. She may have done that in anger, or in self-defence, once the father began to show signs of being enraged at what she had already done. I believe that the father at least man-handled the mother, and may have hit her, deliberately or accidentally, on the right forearm, and either shook her violently by the neck or shoulders or threw her violently aside, sufficiently to cause some soreness to her neck and her trapezii (the two large muscles which extend over the back of the neck). I certainly reject the mother's contention that this was a vicious, unprovoked attack upon her by the father, and conclude that each party probably assaulted the other in a melee, in the course of which each probably gave about as good as he or she got, but because of the father's greater strength and weight the mother suffered the greater (albeit relatively minor) injuries.
278. M. also gave some evidence of a peripheral nature about an incident (to which I have already made passing reference) which occurred on about 27 September, 1991, when the father received a laceration to his top lip which required suturing, as a result of being hit in the face by an object (a metal trophy) thrown by the mother. I say that M.'s evidence about that incident is peripheral because she did not claim to have witnessed it, but only its immediate aftermath. She said that she and Sc. were in the car outside the father's Brisbane home when he came out of the house and said: "Look at what your Mum's done to me. She threw a trophy at me. She's cut my face". She said he had "blood on his face and hands" and said: "I'll need stitches now". She said her mother "was out the back ... trying to calm herself down" and that the mother and father "were yelling at each other". She said that after they all went back inside the house, her mother said they would all go in the father's car "to the doctors [sic.]", and that although the father attempted to prevent the mother from accompanying him, she insisted, and they all went to the doctor where the father received "2 or 3 stitches to his top lip".
279. M. also said that after they all returned from the doctor's, she saw the broken trophy and the father said to her: "This is the trophy your Mum threw at me", to which her mother replied: "I didn't throw it at you, but at the floor and it bounced off the lounge and hit you in the face".
280. The mother's version of this incident, contained in paragraph 12 of her affidavit filed on 11 September, 1996 and repeated in paragraph 6 of her affidavit filed on 17 August, 1998, was this:-
The father had failed to meet her, so she went to his home, where he told her he had gone out the night before, stayed overnight "at a girl's home" and not got home until late. He was "sitting on the lounge". When he told her he had "slept with" the other girl, she picked up a nearby trophy and "tossed it at the floor in front of the lounge" whereupon the father "moved from an upright sitting position into a lying down position ducked into the trophy and it hit him", although that was not her intention. (In her oral evidence she explained that the trophy hit the floor and bounced up into the father's face.) She added: "We went to the nearest doctors [sic.] and [the father] had two or three stitches to his lip. [The father] broke off the relationship".
281. The father's version of this incident, as contained in paragraph 3 of his affidavit filed on 19 September, 1996, in paragraph 30 of his affidavit filed on 15 January, 1999, and in paragraph 8 of Annexure "E" to his affidavit filed on 4 August, 1998, was this:-
The mother, whom he was not "seeing" at the time, turned up at his home "unannounced" while he "lay snoozing" on the lounge. She picked up "a large trophy" which his brother had recently won and "appeared to be reading the inscription on it" when, "without warning or provocation", she threw it "with considerable force" into his face. The plastic (bakelite) base of the trophy "smashed" on his mouth, and "one of the steel handles broke off". His lip was badly cut, and there was "blood all over [his] lounge room and carpet". When he "stood up in shock and extreme pain" the mother said to him "in a very stand and deliver way, 'That's what you fucking get for playing up on me", emphasising 'on me'". He later drove to a doctor's surgery where he had eight stitches inserted in his upper lip. The mother did not accompany him to the doctor, but followed in her own vehicle. His front teeth were loose for about six weeks as a result of this incident, and he still bears a scar on his lip. He denied that he was sitting on the lounge at any stage, that he "ducked into" the trophy, or that the trophy bounced off the floor into his face.
282. Neither party departed significantly from their account of this incident, as summarised above, during cross-examination by counsel for the other. The father denied, and described as an "absolute categorical lie", M.'s evidence, referred to above, that after the family returned from the doctor's he showed her the broken trophy saying: "This is the trophy your Mum threw at me", and that the mother then said: "I didn't throw it at you but at the floor and it bounced off the lounge and hit you in the face".
283. The mother, under cross-examination, did expand somewhat on her version of this incident. For example, she said that the argument which preceded her throwing of the trophy included her expressing concern at the possibility that she might contract AIDS or some other sexually transmitted disease as a result of the father's having had intercourse with another woman, and that when she said this he "was laughing" in a "mocking" and "sort of guilty way", and it was then that she "threw the trophy on the ground". She said that when she threw the trophy the father was "maybe 8 feet" from where she was standing, but she then demonstrated the distance in the courtroom which counsel and I agreed was more like 3½ to 4 metres than 8 feet. She said that she picked the trophy up in her right hand from on top of a stereo unit, and threw it down and to her right onto the floor, which was carpeted over concrete. She agreed that she was angry, upset and frustrated when she threw the object, but was reluctant to concede that she lost her temper. She said that when she picked the object up she was "totally in control" of herself, and that she "believed ... this might get his attention [and] he might take the whole thing a little more seriously". She was unable to recall whether the bakelite base of the trophy was smashed and one of the steel handles broken off as a result of the incident, and did not accede to the suggestion that she paid to have it repaired and also to have the carpet cleaned afterwards, although her response to that suggestion was not an outright denial but a statement that she could not recall doing so.
284. The trophy in question was produced in evidence by the father on the first day of the hearing, and tendered in evidence as exhibit 1. At that time, the base was intact, but one of the two steel handles was not attached. The father said that the base had been smashed and the handle broken off when the mother threw it at him, but that she had subsequently had it repaired. However, he said that the repair to the handle had not been successful, and it had since come loose again. The object was a fairly standard type of silver plated trophy cup, with two side handles, mounted on a cylindrical bakelite base, the whole object standing about 30cm high and it would certainly constitute a fairly formidable missile if hurled at one with force from fairly close quarters.
285. M.'s evidence in relation to this incident is only slightly corroborative of the mother's. It supports the mother's version of the incident and contradicts the father's only on two points, namely that the mother accompanied the father to the doctor afterwards (a matter of no consequence) and that on their return home the mother denied throwing the trophy at the father and claimed to have thrown it at the floor, hitting him only because it "bounced off" something. Interestingly enough, the mother herself did not give evidence of making such a statement at that time.
286. For similar reasons to those given above in relation to the evidence of Mrs H. about the mother's complaint to her of rape by the father soon after Melbourne Cup day 1991, I do not propose to treat M.'s evidence of her mother's self-serving statement on this occasion as any evidence of the truth of that statement, but only as evidence relevant to the assessment of the credibility of the wife's evidence in these proceedings. Even in that respect, it is of doubtful assistance to the mother's case, since M. has her saying that it "bounced off the lounge" whereas the mother said it bounced "off the floor".
287. In any event, for reasons which I have already identified (M.'s age at the time, the long period which elapsed between the event and M.'s giving evidence about it, the closeness of M.'s attachment to her mother and her lack of any attachment to the father, and the likelihood of this incident having been a subject of discussion between the mother and her daughter over the intervening years), I place no weight whatsoever upon M.'s evidence about that event. Thus it comes down to a straight contest of credibility between the mother and father as to which version of this incident I accept.
288. I shall make some general findings of credibility about both parties later in this judgment, but for present purposes I merely record my view that the mother's account of how the father was struck in the face by this object is inherently improbable, and his account inherently much more credible. The mother clearly set out, in paragraph 12 of her affidavit of September, 1996, to down-play this incident, by using the word "tossed" to describe what must clearly have been, on any view, a very hard throw of the object in the direction of the father, and I believe that she was concerned throughout the proceedings to place her behaviour on that occasion (as, indeed, on all others) in the most favourable light possible. Whilst she may have had some cause to be angry with the father on this occasion, her action in throwing such a heavy metal object in his direction, even if not intending to hit him, reveals a propensity towards acting out behaviour which could be seen as manipulative in intent, and a readiness to resort to violence to achieve her objectives.
289. This was the first of at least two occasions (the other being the occasion of 27 March, 1993, referred to in paragraphs 257 to 264 hereof) on which it is clear that the mother was the first of the two parties to resort to physical violence against the other to resolve conflict. On one other occasion (in May or June of 1991) she was at least party to the theft from the father's house of some jewellery belonging to another woman and the subsequent destruction of that jewellery, motivated, it would seem, only by jealousy, at a time when the parties could not be said to have had more than a fairly casual, predominantly sexual, relationship. That conduct, again, could best be described as acting out behaviour of a manipulative, if not vindictive kind.
290. In relation to the subject of telephone calls by the father to the mother, M. said this (in paragraph 10 of her affidavit):-
"At the time S. was born Mum started getting phone calls from [the father] at all hours of the day and night. Sometimes I would answer the telephone. When I answered them, sometimes they were hang up calls and sometimes they were 'Is your Mum awake?' Whenever the caller spoke, it was [the father]. Usually Mum answered the telephone. These calls occurred as often as 12 times per day. I say these were a continuous feature from after that time and although there were a few when S. was born, the problem got worse later on when the calls increased in intensity. Mum has not recorded all the telephone calls that have been received. Sometimes the taping didn't work. During the course of 1998 from time to time there have been a number of hang up calls that I have answered or calls where I have spoken and the caller has not spoken. The last of these calls was in approximately the beginning of 1998."
291. During cross-examination by counsel for the mother on 21 January, 1999, the father admitted making some telephone calls to the mother's residence, very late at night, and when he had liquor taken, from telephones to which he had access, up until the end of 1997, but denied making any calls after that date. Although in making this admission the father used such expressions as "now and again" or "a couple of times", his answers (including for example, "I don't remember making a call from there") were, I thought, deliberately vague and evasive, leaving me with the distinct impression that he was trying to downplay the frequency and duration of these calls, which he knew to be greater than he was acknowledging. In the same context he made similarly vague admissions of making some telephone calls to Mr A.'s residence, but again I thought his responses to questions which addressed the times, dates and content of these calls to be less than fully frank. He conceded that he made calls to both the mother's residence and Mr A.'s residence at times when he knew there was a "domestic violence order" in force which forbade him from doing so, but said it was "such a rare thing" and he was "depressed" because he missed his son and the proceedings had "dragged out for years" and he "just wanted to plead for some sort of sanity to come into the equation".
292. I shall say more below about Mr A.'s and the mother's evidence about the extent of the telephone calls which they attributed to the father. At this point I merely indicate that I accept the general tenor of M.'s evidence, as set out above, about this issue, although I also believe that her perception of the frequency of calls and her attribution of them all to the father, are based, at least in part, upon what her mother would have said to her over the years about these calls.
293. In relation to the issue of the father's treatment of S. up until March, 1996 (when his contact was stopped by the mother), M. deposed to three particular incidents which were put forward as indicators of the father's at least indifferent, and at worst callous attitude towards S.'s physical and emotional well-being.
294. The first of these incidents (dealt with in paragraph 31 of M.'s affidavit) allegedly involved S. falling over whilst in his "baby walker" and under the father's supervision. M. deposed that "S. was screaming" and that when her mother asked "What happened?", the father "was not serious about what occurred and said it was not a big deal".
295. In my opinion this evidence, even if accepted without reservation, provides no basis whatsoever for a finding that the father was either indifferent to or uncaring of S.'s well-being, nor does it provide any significant corroboration for the mother's evidence about other similar alleged incidents, such as the "boogie board" incident referred to in paragraph 11 hereof, or those described in paragraphs 23 and 24 of her affidavit filed on 20 July, 1998. In any event, I regard the mother's evidence of those incidents, and her attempt to support them by adducing this evidence from M., as an attempt to make a mountain out of a molehill. There is no evidence that S. suffered even the slightest injury in any of these incidents, which are themselves relatively commonplace in the lives of young children. Perhaps the father was a little less solicitous, in relation to S.'s reaction (which was no doubt due more to fright than any injury) than an ideal parent would have been, but that is not a basis for any significant adverse finding about his parenting capacity, particularly having regard to his almost total inexperience in that role at that time.
296. The second incident in this category referred to by M. is dealt with in paragraph 34 of her affidavit. She there said that on an occasion when S. was on the floor in the lounge-room playing with some toys, his father (who was sitting in the lounge) reached down and "put one hand on each side of S.'s head and pulled S. until he was close enough [to him] and then lifted S. up under the arms" instead of getting up out of his chair to pick the child up. Although M. did not give any indication of when this occurred, the mother said (in paragraph 25 of her affidavit filed on 20 July, 1998) that M. reported this incident to her on 17 March, 1993, immediately after she witnessed it. If that were correct, S. would have been about seven months old at the time.
297. The father denied this incident, but even if it occurred just as M. described it, I would attribute no significance to it, and would make the same comments about it as I have made in paragraph 295 hereof about the "baby walker" incident described in paragraph 31 of M.'s affidavit.
298. The third incident of this kind deposed to by M. (in paragraph 35 of her affidavit) relates to an occasion when, according to her, the father's parents had come to visit, and they, the father, S. and M. were apparently in the lounge-room, whilst the mother was in the kitchen preparing food. M. said that S. was in "his walker" and the father started "throwing an inflatable/sealed plastic ball at S.'s head". She said: "S. was not crying", and that the father was laughing, whilst his mother "did not try and reprimand [him] or stop him from doing what he was doing" but only said: "Oh S.y". M. said she reported what was happening to her mother, who came out of the kitchen "and the ball throwing stopped".
299. The mother did not refer to this incident in any of her affidavits. In paragraph 19 of her affidavit of 20 July, 1998 (and paragraph 25 of her affidavit of 11 September, 1996) she referred to an apparently different occasion, said to have been on 24 January, 1993 (when S. would have been 5 months old) when her other son, Sc., reported to her that the father "had thrown a toy at S.'s head". She said that when she asked the father why he did this he said that he "wanted to see how the baby would react". She said that S. had "started screaming and crying".
300. In her oral evidence, under cross-examination, however, on 14 September, 1999, the mother, when being questioned by counsel for the father about the suitability of the father's parents as potential supervisors of contact by the father with S., made a number of allegations against his mother, including the allegation that both she and her son [the father] had bounced an inflatable plastic ball against S.'s head, in the family room of her home, during a visit, on S.'s second birthday (which would have been on ... August, 1993). In the course of giving this evidence the mother went from describing the father as "bouncing this ball, hitting S. on the head" with it, and his mother as "bouncing the ball on S.'s head and laughing", to them both "hitting him in the face" with the ball.
301. Whether this alleged event was the same as that deposed to by M. is not entirely clear, but given the fact that, in both M.'s and her mother's accounts, the father's parents were present, and the child was said to be in his "walker", and that what was bounced against him was a ball which the mother appeared to accept could be described as a "light balloon type thing", I infer that the two witnesses were purporting to describe the same event. Yet M., who appears to have been present throughout the incident, made no mention of the paternal grandmother also bouncing the ball on S.'s head, and said that when she (M.) reported what was going on to her mother, who was in the kitchen, her mother emerged from the kitchen, and "the ball throwing stopped". If I accept M.'s evidence about the incident, I must reject the mother's evidence as to the involvement of the paternal grandmother, and I have little doubt that the mother was guilty of painting the lily in this respect. I believe that, in her endeavour to cast aspersions against that lady as a possibly suitable contact supervisor, she seized upon and embellished the incident, which had been described to her by her daughter, in order to seek to implicate the paternal grandmother in what she considered to be ill-treatment of S. by the father.
302. My conclusion that the mother's assertion, during cross-examination on 14 September, 1998, that the paternal grandmother had also bounced the ball on S.'s head or into his face, was an opportunistic fabrication, is strengthened by the fact that although the paternal grandmother was asked about this alleged incident by the mother's counsel during his cross-examination of her on 19 January, 1999, it was not suggested to her that she had been involved in the activity but only that her son had done it in her presence. She said that she could not recall any such incident occurring in her presence, although she confirmed that she (but not her husband) was present at the mother's house on S.'s second birthday.
303. The father denied the incident described by M. (see paragraph 80 of his affidavit filed on 24 December, 1998) and further stated (by way of rebuttal of M.'s evidence about this matter) that his father had never been to the mother's residence (a fact affirmed by the paternal grandmother in her oral evidence under cross-examination, as noted in the immediately preceding paragraph). When cross-examined about this issue by the mother's counsel on 22 January, 1999, the father did not categorically deny having done what M. described, but said he did not remember having done so, and went on to say: "if you see one of these balls ... you could throw it at a baby's head", and then: "I'm saying even if I did I don't see what the big deal is".
304. Having read M.'s description of the ball in question, and having some awareness of objects of that type, I have to say I share the father's view as expressed in the last sentence quoted in the immediately preceding paragraph. M. did not suggest that the father threw the ball with any force into S.'s head, and she stated specifically that the child was not crying. The picture which is conjured up by M.'s evidence on this issue is of the father playfully bouncing a soft, inflated plastic ball (of the type commonly used by children on the beach or in the swimming pool) off S.'s head (he then being two years old) without causing the child any real distress. Such conduct may be seen as a little unusual, even perhaps a little thoughtless, but it certainly falls well short of abuse, and in my view was hardly worthy of comment at the time, let alone of being the subject of evidence in these proceedings. The fact that the mother saw fit to make it part of her case is indicative of the lengths to which she seems prepared to go in order to paint the father as a cruel, violent person, or of the depth of her paranoia about any interaction between the father and her son. In the result, I make the same comments and findings in respect of this incident as I have made in paragraph 295, above, about other incidents to which reference was made therein.
305. A further aspect of the father's treatment of S. is dealt with in paragraphs 32 and 33 of M.'s affidavit. In summary she there alleges that the father frequently gave S. Coca Cola or beer to drink, the former when "S. was a baby" and when the child was going to bed. She said that he always gave S. the Coca Cola when the mother was not present, that she (M.) would then report it to her mother, who would reprimand the father and tell him not to do this, that the father would then deny that he had done it, but that as soon as the mother turned her back he would do it again. In relation to the beer, she said that the father "would give S. a sip of beer from his stubbie", and if he kept it up her mother would take S. off him, when the father "would either shrug it off or laugh about it". She also said that whenever the mother found out about the father's giving the child Coca cola "he would laugh about it".
306. In paragraph 77 of his affidavit filed on 24 December, 1998, the father denied giving S. Coca Cola when he was going to bed, but admitted sometimes giving him a sip of that soft drink from his glass of it during a meal, if he asked for it, in the presence of and with the permission of the mother. In paragraph 78 of the same affidavit the father denied giving S. sips of beer from his stubbie, but said that S. liked "to lick the top of empty stubbies if you were not watching" and, if the father was having a beer in a glass with dinner (which was a "rare occasion"), S., having asked for some and been refused, would "sneak his hand into the glass when we were not looking and lick his fingers". He said that "at times the lengths he would go to were amusing to all at the table".
307. The father was not cross-examined about this matter, nor was M. cross-examined about her version of it. However, even if I accept M.'s version without reservation, it is still, in my view, much ado about very little. Whilst it is no doubt unwise to give very young children Coca Cola, and at best equally unwise to feed beer to even older children, many parents have no doubt done both on occasions, and would be startled to hear that such behaviour was put forward as a form of child abuse. It is obviously a question of degree, in terms both of the quantity given and the frequency of its being given. I am certainly not satisfied that the father gave either beverage to S. in sufficient quantities or with sufficient frequency to amount to abuse. At worst, his behaviour in this regard displayed a degree of immaturity and a modest lack of judgment, some years ago, neither of which should impact adversely, to the slightest degree, upon his current applications. Again, the raising of this almost petty issue as part of the mother's case tells me at least as much about her, and her attitude to the father as it does about him.
308. In relation to the behaviour of S. after contact with the father, M. asserted the following (in paragraph 38 of her affidavit):
(a) that there was a period (unspecified) when S. was always sick for a few days after contact;
(b) that S. "generally" had "temper tantrums involving head banging, throwing himself on the floor, hitting himself against walls" was "overtired", bit Sc. on occasions, "often complained of sore legs and regularly wet his bed";
(c) that, after the mother and Mr A. started going together, S. said such things as "[Mr A]'s an arsehole", "Daddy hates [Mr A.]", and "Daddy's driven past [Mr A.]'s house - he's going to kill [J]" ("J" being Mr A.'s dog);
(d) that S. said "Daddy's got a gun - shoot him with a gun"; and
(e) that S. would complain of the "bogie man" (an entity M. had heard the father talk to S. about) and did not like going to bed or going into dark rooms by himself.
309. The father responded to these allegations in paragraphs 83 to 87 of his affidavit of 24 December, 1998. In essence he denied witnessing any such behaviour in S. (except for his occasionally wetting the bed in the 1-3 year age range) and denied being the source of any of the statements attributed to S.. He said he did not know Mr A.'s dog's name, and that he had never owned a gun.
310. On the same topic, M. deposed (in paragraph 52 of her affidavit) that after the cessation of contact S. stopped swearing and "rarely if at all wet his bed". She said that during 1998 "S.'s stuttering became worse at school" (clearly a fact of which she would have had no personal knowledge) and he told her he was being teased. The mother then arranged for S. to attend a speech therapist.
311. In paragraphs 53 to 58 of her affidavit, M. deposed that later in 1998, when she was aware an order had been made allowing the father to telephone S. (a clear reference to Warnick J's order of 5 August, 1998), S. began to wet his bed again, "constantly". She said she was present when her mother explained to S. the making of that order, and told him that his Daddy "was able to call him once a week and was allowed to call him that night and that S. was able to make his decision to speak to his Dad or not but that Mum was going to be there and he was going to be safe". She said her mother spoke "in very positive terms about how she wanted S. to be able to speak to his Dad and how he could feel safe during the call". She also spoke of S. "sleepwalking" after the father's phone calls started, on one occasion wetting her bedroom door and carpet "as he did not know where he was". She said that this bed wetting occurred "at least 3 to 4 nights per week", and eventually S.'s mattress had to be thrown out, and his bed moved onto the tiled floor in the family room to avoid further damage to the carpet in his room. She said, however, that the bed wetting problem ceased "at about the time that the telephone calls ceased".
312. The father did not, nor could he, of course, make any response to that evidence about matters of which he had no means of knowledge.
313. In relation to the father's telephone calls pursuant to that order, M. said (in paragraph 58 of her affidavit) that she answered the telephone on a number of occasions when the father rang. She said that on each such occasion S. was beside the telephone, that she asked him if he wanted to talk to his father, and on each occasion he refused. She said she always asked him "in a positive manner". She said the father's reaction to being told this was to say "I didn't hear him say no, let me ask him" or "put him on the phone" or "just tell him I said to say hello" or something like that.
314. The father made no response to that paragraph of M.'s affidavit, and I therefore accept it.
315. Subject to the reservations which I have already made, I accept the broad thrust of M.'s evidence about S.'s behaviour after contact with the father. However, as also previously noted, the worst features of such behaviour may be as attributable to the reactions of those in his mother's household, to that contact, as to any conduct by the father during contact, those features being essentially indicia of the child experiencing stress. He may well experience stress through awareness of the conflict between his mother and father which emanates from his contact with the latter, or even from his awareness of the acute emotional reaction which those to whom he is most closely attached (his mother and sister) have to the merest suggestion of his having contact of even the most indirect kind with his father, whom he can have no doubt they regard as very bad and dangerous.
316. In relation to the incident in the park opposite the father's residence which occurred on 12 July, 1995, M. gave evidence (in paragraph 44 of her affidavit) which is slightly corroborative of her mother's. However, it is by no means clear how close she approached to where the confrontation between her mother and the father and Ms S. occurred, and her description of the incident is quite sketchy. Again, her perception of this event is likely to have been influenced by subsequent discussion of it with her mother. I place little weight on this aspect of M.'s evidence.
317. In paragraph 46 of her affidavit, M. identified and verified an annexed unsigned copy of the statement she gave to the police on 2 April, 1996, regarding behaviour by S. at his home on 21 March, 1996. In that statement she said that she and S. were at home alone, the mother and Sc. having gone shopping. She said that at about 7.30pm, having not heard from S. for three or four minutes, she "crept up the hallway to his room" where she believed him to be (having seen him put the light on there earlier). She said that his bedroom door was open, and as she looked inside she saw S. lying face down on his bed, with his feet towards her. He was wearing a T-shirt, shorts and underpants. His shorts and underpants "were pushed down around his ankles", and his hands were "under his body". She saw "his bottom moving in an up and down motion", whereupon she asked him what he was doing. She said that he "got off the bed and started to pull up his pants", appearing "very embarrassed". He said "Daddy does this", and when she asked him where, he said "at his place". She then told him not to do that as "it's not very nice" but was "rude". She later reported the incident to her mother.
318. M. said that when she told her mother what she had seen she was "shocked and did not believe that S. was masturbating", but when she subsequently asked S. to show her "what Daddy does" he "lay on his stomach and moved his pelvis up and down" but kept his pants up and "did not have his hands in the genital area".
319. I can see no reason to reject this evidence of M., particularly since her statement to the police, which her affidavit verifies, was made so soon after the events which she claims to have witnessed, and at a time when those events would have been very fresh in her mind. But even given full credence, what does this evidence establish?
320. It establishes only that S., at age 3½, was caught by his teenage sister, in the act of masturbation (quite common behaviour for a boy of that age) and, when challenged by her (no doubt in an accusatory or anxious tone) about what he was doing, the child said "Daddy does this". Whilst that might mean that he had seen his father doing something similar, it might also be that the child merely sought to justify what he would have realized his sister saw as naughty behaviour by attributing similar behaviour to his father. That sort of diversionary behaviour is also not unusual in young children.
321. At worst for the father this evidence suggests S. may have seen him masturbating in bed at his place, which could hardly be regarded as aberrant sexual behaviour by a young healthy, single man. No doubt it would be inappropriate for him to engage in such behaviour in his son's presence or hearing, but if it occurred at night-time, when he believed the child to be asleep, the worst he could be accused of would be carelessness. Many a parent has been "sprung" by their off-spring engaging in sexual activity at a time when the parent believed the child to be sound asleep in another room. In this context, sexual self-gratification cannot be seen in any different light from sexual activity with a partner. The notion that S. may have inadvertently witnessed his father masturbating in bed at night is given some support by S.'s telling Ms H, as recorded in her report of 5 March, 1997, that "Daddy woke me at night and scared me (with loud noises while the lights were off)" - see paragraph 29(3), above. What this evidence of M. does not do is to provide any evidence of sexual abuse of S. by his father.
322. What is perhaps equally as important as what M. said in her affidavit about this issue of alleged sexual impropriety/abuse, is what she did not say. For example, she did not corroborate evidence given by her mother, in paragraph 87 of her affidavit filed on 20 July, 1998, in which the mother deposed that on about 29 March, 1996, in the presence of herself, M. and Mr D., S. said that the father played with his own "wee wee" once in S.'s bed and once in his own bed. Nor did Mr D., in his affidavit refer to this alleged disclosure by S.. Similarly, M.'s evidence offers no corroboration of the mother's evidence, in paragraph 59 of her affidavit last referred to, that S. "told the other children and I that daddy said to stick his finger in his bottom and smell it", nor of her evidence, in paragraph 49 of that affidavit, that in June, 1995 M., Sc. and the mother "all noticed we could no longer get changed comfortably in front of S. as he would point and comment using the new sayings" which he had allegedly picked up from his father [being expressions such as "nudie pudie", "bumbo" and "willie wonker"] and that he "would pull his pants down and stick his bottom out, exposing his genitals".
323. On the same issue, it is perhaps instructive to compare M.'s description, in her statement to the police and as summarised in paragraph 317, above, of what she saw S. doing on about 21 March, 1996, with the mother's interpretation of that description in paragraph 86 of her affidavit to which I have last referred. In that paragraph the mother said that on 29 March, 1996, she telephoned the father and told him "what M. had seen S. doing (which was S. lying face down on his bed, move up and down, pivoting on his groin, with one hand moving up and down his penis, as though he were masturbating)". Nowhere in her statement to the police, or elsewhere in her evidence in these proceedings, did M. say that she saw S. "with one hand moving up and down his penis". Rather, she said that his hands were "under his body and his bottom was moving in an up and down motion". She obviously could not see exactly where his hands were or what they were doing. Nothing much perhaps turns on this, but what I think it demonstrates is the mother's capacity to embellish what she was told to make the event allegedly witnessed by M. more explicit than it actually was.
324. Another instance of the mother's possibly embellishing her evidence on this issue arises in relation to paragraph 89 of the same affidavit. In that paragraph she said that on 14 April, 1996 "S. laid on his back showing us what Daddy does" [my emphasis]. She did not specify who the "us" was to whom she was referring. She went on to say this:
"S. said his daddy hits, slaps and squeezes his wee wee over and over again. S. then rolled over and demonstrated the other technique described in M.'s statement to the police."
325. There is no mention of this or any like incident in M.'s affidavit. However, in paragraph 17 of his affidavit filed on 16 July, 1998, the wife's fiancée, Mr A., said this:-
"In about early April 1996 whilst watching television at [the mother's] home, S. put his hands in his pants. He was lying down and then started to masturbate. He stated 'My daddy does this'. On another occasion, I saw this occur in [the mother's] kitchen, S. saying 'Daddy does this'."
326. It would seem that Mr A., in the first part of that passage, was referring to the same occasion as referred to by the mother in the passage quoted above from paragraph 89 of her affidavit. In a case in which Mr A. has corroborated so much of the mother's evidence, it is notable that he makes no mention of the statement attributed by the mother to S., about his father's behaviour, in the first sentence of that passage.
327. M., in paragraphs 49 and 50 of her affidavit, gave evidence which was no doubt intended to explain the way S. presented, to MS H, his complaints about his father's behaviour towards him, as outlined in paragraphs 47 and 48 of Ms H’s report (see paragraph 27 hereof). She said that up until the morning of Ms H’s interviews, the mother had repeatedly told S. that, he was "not allowed" to either do what he had done (viz. the masturbation action) or "use the naughty words" which he had attributed to his father. However, on the morning of Ms H’s interviews the mother had told S. that they were going to see a woman called Ms H, and that he should feel free to talk openly to her and to tell her the truth about "the naughty things that had been said". She said that he had her "permission" to talk to Ms H about those things, and that he would not get into trouble from her for saying those things.
328. Although the mother did not depose to any such conversation with S. in any of her affidavits, nor was any oral evidence-in-chief adduced from her to this effect, she did give oral evidence of such a conversation in the course of her cross-examination by counsel for the Child's Representative on 25 May, 2000. She could not recall whether that discussion was on the morning of S.'s interview with Ms H, but she said that, her solicitors having advised her to tell S. where they were going that day and why, she told him they were going to a big building to see a lady and would be talking about things she had previously told him not to talk about. She said that she asked S. what he could remember about all the hurtful things he had said his daddy had done that she had discouraged him from talking about. She said that she did leave it up to S. to talk to Ms H about whatever he wanted to talk about, but "had to give him permission" to talk about those things. She said he told her a lot of things he remembered and she told him those were the things he could talk to Ms H about. She acknowledged that after his interview with Ms H, S. said to her "I couldn't remember everything", but she did not accept that she had told him beforehand what he should say to her.
329. Leaving aside issues of credibility, my own assessment of the mother, based upon the totally uncompromising nature of her every utterance about the father in the course of her evidence, is that if S. did not appear to have a clear recollection of something which she thought it important that he should disclose to Ms H, or anyone else involved in making assessments for the purpose of these proceedings, she would not have hesitated to remind him of it, in the clearest terms.
330. Although there are some other aspects of M.'s evidence to which I have not referred, I consider it unnecessary to do so. For reasons which I have already given, I neither entirely reject nor unreservedly accept the balance of her evidence. In attempting to sort out the myriad of disputed facts in this case, I accord to that evidence only slight weight.
331. The witness whose testimony offered the most support for the mother's evidence, in this case, in respect of the period since about March, 1995, was her fiancée, Mr A.. Three affidavits by him were relied upon in the wife's case, those affidavits being filed on 16 July, 1998, 15 December, 1998 and 16 May, 2000. It also emerged during cross-examination of Mr A. that he had sworn at least one other affidavit in support of the mother in the course of these proceedings, namely an affidavit which was sworn on 6 March, 1997, filed on 7 March, 1997, and relied on by the mother for the purposes of an interim hearing which was listed for that day. A source of complaint by the father about the mother's tactics in these proceedings was the fact that this affidavit, although it deposed to significant events which allegedly occurred a month earlier (viz. the putting of sugar into the petrol tank of Mr A.'s Coca-Cola work truck whilst parked outside his home on the night of 5/6 February and again on the night of 9/10 February, 1997), was not served on him until the very day of the hearing for the purposes of which it was to be used, thus causing him embarrassment and putting him at a significant disadvantage in those proceedings. Whilst that is a valid complaint, it is not possible on the evidence to sheet responsibility for that home to the mother, rather than to her legal advisers. The allegations of Mr A. about those two incidents were repeated in paragraphs 25 and 26 of his affidavit of 16 July, 1998, which was read for the purposes of these proceedings.
332. I have already touched upon Mr A.'s role in this conflict, and some aspects of his evidence, at various points in this judgment (see paragraphs 145, 176, 177, 181, 184, 189 and 325). It would serve little purpose at this point to attempt to summarise all of Mr A.'s affidavits or his oral evidence, given the extent of that material and the fact that it so closely mirrors the mother's evidence in relation to issues which they both either claimed to have witnessed or participated in. It will, I think, suffice to say that his evidence was strongly corroborative of the mother's (and vice versa) in relation to the following issues of relevance to this case:
(i) the father's harassment of both the mother and Mr A., since 1995, through constant telephone calls at all hours of the day and night (only a relatively few of which could be actually and reliably attributed to him, either because he identified himself or spoke and his voice was recognised), and through other actions of a "stalking" nature, such as driving slowly past or stopping outside their residences for no apparent reason;
(ii) the father's verbal, and physical abuse of the mother, (including his abusive verbal messages left on her telephone answering machine) and his verbal abuse of and threats of physical abuse to Mr A.;
(iii) S.'s having made statements attributing to the father comments of a threatening or derogatory kind about Mr A., or the mother;
(iv) S.'s masturbating in front of the mother and Mr A. in early April, 1996 and attributing that behaviour to behaviour of the father which he had witnessed (although I have already referred to some differences between his and the mother's accounts of that incident);
(v) S.'s recounting of crude statements or suggestions made to him by the father;
(vi) S.'s stuttering, banging his head, throwing himself on the floor, biting his siblings, wetting the bed, and exhibiting other similar disturbed behaviour after contact with the father, and the dissipation of that behaviour following the cessation of contact;
(vii) S.'s refusals to speak to the father on the telephone when he was called to talk to him pursuant to Warnick J's order of 5 August, 1998 and otherwise;
(viii) the alleged breaking and entering of the mother's residence in January, 1997, when his wallet (which contained, amongst other things, his work card) and the mother's handbag were stolen;
(ix) the circumstances of the wife's windsurfing in the bayside area on 20 October, 1996, and of the visit by Mr A. and others (including the mother) to the bayside area on 27 October, 1996, referred to in Mr E.' affidavit as outlined in paragraph 143 hereof;
(x) the father's turning up unexpectedly at cricket matches attended by Sc. in October, 1999 and February, 2000;
(xi) the closeness of the relationship formed between Mr A. and S. since the former entered the latter's life now some six years ago;
(xii) the purpose and content of an interview between the mother and Ms U, the manager of the Contact Centre, on 16 January, 2000, and of another subsequent conference between the mother, Ms C and S. in relation to the supervised contact by the father with S. pursuant to the consent orders of 16 September, 1999; and
(xiii) S.'s reaction to being first informed by the mother of the effect of the consent orders of 16 September, 1999, and his reaction to the contact which he experienced with the husband at the Contact Centre during the period from 7 November, 1999 to 16 January, 2000.
333. When cross-examined by counsel for the father and for the Child's Representative on 25 May, 2000, Mr A. presented as a reasonably open, responsive, straight-forward witness, who gave no overt indications of untruthfulness or of vindictiveness towards the father. However, there were some aspects of his evidence which arose during cross-examination which are relevant to his overall credibility.
334. In his affidavit material (eg in paragraphs 7 and 26 of his affidavit of 16 July, 1998 and paragraph 21 of his affidavit of 16 May, 2000) Mr A. stated that he could think of no person who might be responsible for the acts of harassment and vandalism he has experienced over recent years other than the father. He also stated in paragraph 7 of his July, 1998 affidavit, that he separated from his wife in 1995, and that their separation had been "reasonably amicable". However, it emerged during cross-examination (it would seem for the first time in the proceedings, including his interviews with any of those experts who provided reports for the proceedings) that he had in fact been married twice, that it was from his second wife that he separated in 1995, and that he had separated from his first wife in 1985, after three years of marriage, which produced his only child Ma., who was born in 1981. He also conceded that there never had been an amicable relationship between him and his first wife, since their separation, and that their son Ma. had resided with her in Brisbane from their separation until about June, 1995 when, at about age 14, he came to live with Mr A.. That occurred following the commencement of proceedings in this Court by Mr A., during or related to which he, his former wife and Ma. attended a conference with a counsellor at the Legal Aid Office at which it was decided, as he put it, that Ma. was old enough to make up his own mind, and he chose to live with his father. In fact, he said that Ma. had initiated the matter by expressing a wish to live with him and had himself gone to the Legal Aid Office to see someone, which ultimately resulted in the conference being convened.
335. Mr A. further revealed during cross-examination that on the day of the Legal Aid conference Ma.'s mother said that she felt betrayed by Ma.'s deciding to go to live with him, and said that she did not want anything further to do with the child. He said that she had followed through on her threat, and had since refused to see or talk to Ma., even though he had tried to telephone her "a few times". He said that Ma. "got off the phone [to his mother] really upset, saying, 'She doesn't want to see me'". He said that it had concerned him that Ma.'s mother hadn't seen him, and that he had tried to get her to do so, but without success. However, he also said that the last time he had spoken to her on the telephone had been about three weeks after the Legal Aid conference, which suggests that any efforts he made to persuade her to have contact with Ma. were not very prolonged.
336. Although there is not the slightest evidence to connect the former Mrs A. with any of the events complained of by Mr A. since he began his association with the mother, I consider that it was less than entirely frank of him to say that he could not think of any other person who might be motivated to behave in such a manner towards him and to fail to disclose his first marriage and the unpleasantness surrounding Ma.'s move to live with him in 1995, after which all of these alleged incidents occurred.
337. It also emerged only during cross-examination of Mr A. that his son Ma. moved out of his home about six months before the resumption of the hearing of the proceedings in May, 2000. Mr A. said that this occurred following a period of disagreement between him and his son over a range of issues, including discipline, performance of household chores, and respect for others. He said that over the preceding four years there had also been a problem with Ma.'s being jealous of Mr A.'s relationship with the mother and her two older children. When Ma. left home he moved in with his paternal grandmother, with whom Mr A. said he had had a "falling out" some six months earlier over her giving Ma. money behind his (Mr A.'s) back. He said that since Ma. left his home he has not had much contact with him, and that that does concern him, but that he had tried to help Ma. grow in a positive manner, and he rebelled. He added that he thought Ma. was happy with his grandmother because she spoils him by, for example, making his bed for him.
338. Again, there is not the slightest evidence to connect Ma. with any of the incidents of which Mr A. has complained and which he attributes (with little concrete evidence) to the father, and Mr A. says that Ma. was himself the recipient of some of the nuisance telephone calls, although no evidence was adduced from Ma. himself. Nevertheless, I consider that again it was rather less than fully frank of Mr A. not to disclose this turmoil in his own family in his affidavits when pointing the finger at the father as the only possible person responsible for a whole range of incidents related to him and/or his property.
339. In relation to the series of events which Mr A. said occurred at his residence over the period from 27 to 31 December, 1999 (which I have briefly described in paragraph 177 hereof), no evidence was given of any complaint to the police about any of these events, let alone of any enquiries instituted by the police or anyone else into those events. From Mr A.'s description, in paragraphs 18 and 19 of his affidavit of 16 May, 2000, and in his oral evidence, of two of those events (namely those which allegedly occurred on 27 and 30 December, 1999) it is apparent that he is in the habit of leaving his dog locked in the garage under his house when he is away from the home. Dogs locked up in confined spaces and left alone for any appreciable time are well known to be inclined to be restive and to bark, sometimes for quite lengthy periods. Mr A. conceded that his dog barks ferociously if anyone enters his property. The possibility that some frustrated neighbour may have taken it upon himself or herself to assist the dog to escape from its confinement, and that the dog may have injured its head, as related in paragraph 18 of Mr A.'s affidavit, in the process of escaping or attempting to escape from its confinement, has apparently not been considered or investigated by anyone. It was much easier (and, perhaps, more natural) for Mr A. just to assume that it must have been the work of the father. However, as previously indicated, I am satisfied that the father has a perfect alibi in relation to these two events, and the alternative suggestion for the mother that the father must have procured someone else to do his dirty-work on those occasions, having taken care to ensure he had an alibi, is just too Machiavellian to be attributed to him. I simply do not believe that the father has that degree of cunning or that capacity to manipulate others which would be required to carry out such a plan.
340. The fact that I do not accept that the father was responsible, either personally or through an agent or agents, for those events complained of by Mr A., does not necessarily mean that I reject the evidence of the latter as to the fact that those events occurred or that I find he lacked general credibility as a witness. However, the fact that he was prepared to attribute these events to the father, without any investigation or consideration of other possibilities, and without any factual basis for that attribution, does indicate that he is far from objective in his perception and interpretation of events, and that he is ready and willing to assume the worst against the father. In the course of his oral evidence under cross-examination by counsel for the Child's Representative, Mr A. agreed that he could think of nothing positive to say about the father, as a person or as a father, and that that is unlikely to change in the future. He also conceded that he has not told S. that he should see his father. Although he claimed to have encouraged S. to go along to the contact centre to see his father in accordance with the consent orders of 16 September, 1999, Mr A. added that he made it clear to S. that it was "his choice" whether to go or not, and that he was "in control".
341. Another aspect of Mr A.'s evidence which I found a little confusing, and which raises at least a question about his credibility, is his account of an occasion when he allegedly found something in the driveway of his home, the presence of which he again attributed, at least inferentially, to the father.
342. In paragraph 7 of his affidavit filed on 18 December, 1998, Mr A. deposed as follows:-
"On Saturday 22nd August, 1998 I went to leave my home. Before driving out of the garage I went to take out the wheelie bin. I then saw running across my driveway a long timber strip with nails and tacks sticking out of it that I would have driven over if I had driven in the usual way."
343. In his oral evidence under cross-examination by counsel for the father, Mr A. gave a rather different account of that event. Firstly, he said that the event occurred "recently", which hardly seems an apt description, on 25 May, 2000, of something which, in December, 1998, he said had occurred on 22 August, 1998. Next, he said that he discovered the object in question as he was about to drive into his driveway (and not, as he had said in his 1998 affidavit, as he was about to leave his home). Next, he described the piece of timber in question as being "about 3 foot long and about half an inch thick and half an inch wide", which does not seem to correlate with "a long timber strip" which he saw "running across" his driveway, as deposed in his affidavit.
344. Furthermore, in his oral evidence Mr A. said he recalled finding this object in his driveway "one evening when I arrived home", which is not consistent with his earlier deposition that he discovered it before leaving home when he "went to take out the wheelie bin" which, in Brisbane, one would normally do either the night before the next day's collection or early in the morning of the day of collection. In his oral evidence he was unable to recall either the day or the time of day when he made that discovery, and said that at his home the day for the collection of household refuse (which Brisbane householders deposit in their "wheelie bins") is Friday. Accordingly, one would expect him to put his bin out for clearing either on Thursday night or early on Friday morning, and he agreed he would not do it on Saturday morning, as alleged in the paragraph of his affidavit quoted above.
345. Finally, in his oral evidence Mr A.'s attention was directed to his description of his discovery of this article contained in paragraph 15 of his affidavit filed on 16 May, 2000. That paragraph was not admitted in evidence by me as part of the wife's case, for reasons which I gave when the affidavit was read soon after the resumption of the hearing on 22 May, 2000. However, as the witness did not demur to counsel's suggestions as to what he there said, I take him to have conceded that there were some inconsistencies between that description and both his oral evidence and his earlier description of the same event in his 1998 affidavit. In particular, he said both in his earlier affidavit and in an earlier segment of his oral evidence on 25 May, 2000, that the offending timber strip, with nails and tacks protruding up out of it, lay "across" his driveway, which would suggest it was at right-angles to the driveway such that it would be difficult to avoid hitting it with the wheels or a wheel of the car when driving into or out of the driveway. However, in the later affidavit, he described the piece of timber as having been "placed along the length of my driveway ... in a way that would cause multiple punctures to the car tyres". That suggests it was parallel to the car tracks in the driveway, which would put it at right-angles to the kerb line.
346. When cross-examined further about the position and attitude of the offending strip, Mr A. described it as "parallel to the kerb and right up to the edge of the driveway", and positioned "where the driveway meets the road" some eight metres from the building alignment and two metres from the fence alignment. That is certainly consistent with his earlier description of its being "across" the driveway, but inconsistent with the description of its placement in his most recent affidavit.
347. All of this leads me to conclude that, at the very least, Mr A.'s evidence about this incident is at least unreliable, and at worst totally or partially fabricated. I think that the least damaging finding I can make about all this is that this was an example of Mr A., as the mother's strong ally, attempting to make a mountain out of a molehill in order to attribute further malicious wrong-doing to the father, when a more rational explanation for the presence of this object (assuming it to have existed) was that it may have fallen from a passing vehicle, or been carelessly cast there or dropped by a passer-by. That is particularly so, given its proximity to the road as described in the evidence of Mr A. referred to in the immediately preceding paragraph.
348. Having regard to all of the foregoing, my ultimate assessment of Mr A.'s credibility is that it is at best moderate, and at worst low. I certainly do not accept his evidence on the more important issues unreservedly, although I also do not reject his evidence out of hand as being entirely unworthy of credit. I treat it with the degree of caution which one would apply to the evidence of an interested party, with a significant stake in the outcome of the proceedings, and with a very fundamental disregard for the opposing party (in this case, the father).
349. In addition to those lay witnesses, and the experts referred to earlier in this judgment, the mother relied upon evidence from the following expert or professional witnesses:-
Dr L; and
Ms C (Counsellor).
350. Of those witnesses, Drs PL, P and PR were not required to attend for cross-examination, and their affidavits read in the wife's case therefore stand unchallenged. The remaining experts were cross-examined, in varying degrees, to some aspects of which I shall refer below. Doctors PL, P, HI and SM all practice at the 7 Day Family Health Centre, of which the mother is, and has been for a number of years, an employee. Doctors L and PR both practice in Brisbane. Mrs C is a Counsellor at the Counselling Department of a Christian organisation (a church attended by the mother) in Brisbane.
351. The evidence of Dr PL is inconsequential. He records that he examined S., on 22 January, 1994, at the request of the mother who said the child had returned from his father where he fell down some stairs, but was not knocked out. His examination revealed "2 small superficial abrasions on his right forearm and a small erythematous [i.e. reddened] abrasion behind his left ear". He formed the opinion that the injury was "quite consistent with the alleged cause" and he therefore "reassured" the mother accordingly.
352. This evidence was tendered to corroborate the mother's allegation, in paragraph 33 of her affidavit of July, 1998, that on that date, the father visited her while she was on holidays, and was minding S. whilst she was "elsewhere in the unit", at which time she heard S. "scream and cry out". She said that the father then told her "S. had fallen down some small concrete steps outside the unit". The father admitted the visit but denied any recollection of S. falling down any stairs at the unit. He said that the first he heard of this allegation was when he read it in paragraph 38 of the mother's affidavit filed on 11 September, 1996, which he responded to in paragraph 19 of his affidavit filed on 19 September, 1996. In a later affidavit he makes the further point that there is a 24 hour medical centre within 200 metres of the block of units where the mother was staying, yet she travelled 100km back to Brisbane to obtain a medical certificate from a doctor at her place of employment. His inference is that the mother was simply making evidence to use against him in her plan to ultimately deprive him of contact with his son.
353. I have said that this evidence of Dr PL is inconsequential because, although it confirms that S. suffered some very minor injuries on that day it tells nothing of how or in what circumstances the injuries occurred, and provides absolutely no evidence of any neglect of S.'s care by the father, even if it occurred in precisely the way the mother deposed. The fact that the mother saw fit to take S. to a doctor with such minor injuries, suggests either that she was intent upon finding the tiniest fault with the father's care of S. and creating or gathering evidence of such fault to be used against the father at some time in the future, or that she was obsessively overprotective of S. particularly in relation to his contact with his father. The fact that she would then refer to this incident in her evidence so early in these proceedings, and put forward the doctor's report in relation to it, seems to me to confirm her willingness to clutch at the tiniest straw to justify or support her ultimate determination to stop the father's contact with the child, a matter to which I have already referred in paragraphs 304 and 307 hereof in relation to other trivial incidents raised by the mother.
354. The evidence of Dr P (to some aspects of which I have already referred) consists of a report dated 19 March, 1998 recording a number of consultations by the mother, either with him or others of the practice, and reporting the contents of the notes made at another practice of two other consultations by the mother there with a Dr FL. The consultations referred to cover the period from 7 November, 1991 to 11 June, 1995. As these notes are of significance in relation to some of the issues about violence between the parties it is appropriate that I refer to them in some detail, to the extent that I have not already done so earlier in these reasons.
355. The first note relates to a consultation by the mother at the practice on 7 November, 1991, two days after the much talked about Melbourne Cup day incident. This note records that "she presented with a sprained swollen left knee which she stated had occurred during an assault by her boyfriend" and that she was treated with "ice, analgesia and a supportive bandage".
356. The fact that the mother suffered an injury to her knee during whatever occurred between the parties on 5 November, 1991, was not really in issue. What was very much in issue was the circumstances of that injury. In relation to that issue, the notation is probably as remarkable for what it does not say as for what it does. The fact that the mother asserted she was injured "during an assault by her boyfriend" is consistent with her story to a degree, but the fact that she did not report that the assault was of a sexual nature, indeed rape, is an eloquent omission. One would have expected that if that were in fact what the mother had experienced she would have told the doctor of it when she visited him two days later for treatment for an injury sustained in the course of the rape.
357. The next notes referred to in Dr P’s report are those of Dr FL in relation to consultations by the mother with him on 5 December and 12 December, 1992. Those consultations relate to an incident which occurred between the parties at the father's bayside unit on 5 December, 1992, to some of the evidence of which I have referred in paragraphs 134 and 256 hereof. The notes record that on 5 December, 1992, the mother told Dr FL that she had been assaulted by the father including "being thrown against a wall, punched in the chest, grabbed and held by the left wrist, slapped in the face and kicked in the left leg". That description is consistent with the mother's description of this incident in paragraph 19 of her affidavit of 11 September, 1996, but that is hardly surprising, given that when she swore her affidavit the mother had access to a copy of Dr FL’s notes of that consultation which she annexed to her affidavit. It is, of course, inconsistent with the father's version of this event, as contained in paragraph 7 of his affidavit of 19 September, 1996.
358. The father there claimed that after arriving at his home that day unannounced, the mother played back some phone messages on his answering machine, and became angry when she heard a message from another female, whereupon she accused him (for the first time, according to the father) of having raped her when S. was conceived. He said he was "absolutely devastated by this allegation and became very upset". He continued that when he attempted to leave his unit, the mother blocked his path by standing in front of the door "with her arms and legs spreadeagled". He said that he "pushed her out of the way", and was not aware of any injuries she suffered "as she fell into a soft couch".
359. More important than what the mother told Dr FL about that incident on 5 December, 1992 is what he observed upon examination of her. Those observations are reported thus in Dr P’s report of 19 March, 1998:
"Dr [FL] noted a painful left wrist and a painful neck with tenderness over the C7 and C8 spinous processes. He also noticed scratch marks on [the mother's] left shoulder and left chest and a 3 centimetre bruise on her right calf."
That report is consistent with Dr FL’s notes, a copy of which is annexure "C" to the mother's affidavit of 11 September, 1996. The only additional information disclosed by those notes is that there was no swelling of the mother's left wrist, and that she ascribed her neck pain to having been "whiplashed from being pushed against the wall at least 3 times".
360. Although it is no doubt correct to say that a good deal of what Dr FL referred to as evident "on examination" (eg pain in the wrist and neck) would have been based upon the patient's subjective reports of or reactions to movements initiated by the doctor, it is also reasonably clear that what the doctor observed clinically in relation to the mother's condition on that day is substantially more consistent with the mother's description of this incident than the father's.
361. That consistency with the mother's account and inconsistency with the father's is magnified by Dr P’s reporting of what Dr FL recorded of the mother's subsequent consultation with him on 12 December, 1992, namely that the mother "was still complaining of neck pain with some paraesthesia [i.e. numbness] in her arms on waking". In fact, Dr FL’s notes contain some additional information, namely that the mother's range of neck movement was "slightly limited in all directions" with "associated pain". Such symptoms, lasting for one week since the incident in question, provide further support for the mother's description of the incident.
362. Dr P’s report next records a consultation by the mother with him on 8 March, 1993 "following an argument with her de facto during which she stated she had been pushed and shoved, and threatened with violence as well as a more specific threat to 'plant' drugs on her for the purpose of intimidation". The doctor reports no complaint of any actual injury on that occasion nor any indicia of injury observed by him on examination if, indeed, he carried out any physical examination of the mother on that occasion (which he does not report having done).
363. The mother gave an account, in paragraph 27 of her affidavit of 11 September, 1996, repeated in paragraph 21 of her affidavit of 20 July, 1998, of an incident which she alleged occurred on the verandah of the father's unit on 5 March, 1993. She said that in the course of an argument, instigated by her when she "challenged" the father regarding a conversation which she claimed to have had with one of his "ex-girlfriends", the father "became enraged" and "was screaming abuse, pushing me into walls and shoving me, swearing and stormed off". She added that he "again threatened to plant drugs on me". She does not allege that she received any injury in this incident.
364. The father responded to the mother's evidence about this incident in paragraph 11 of his affidavit of 19 September, 1996 and in paragraph 25 of his affidavit of 4 August, 1998. Essentially, he admitted an argument, provoked by what he asserts was the mother's false allegation of having spoken to an ex-girlfriend of his whom he had not seen for some years and whose whereabouts he did not know. He denied the mother's allegations of his screaming abuse, pushing or shoving her into walls, swearing or threatening to plant drugs on her. He contended that her attendance upon a doctor three days later, with no complaint of any injury, was merely evidence manufacturing by the mother.
365. There is certainly some basis for the suggestion that the mother's attendance upon Dr P on this occasion was more for evidence gathering purposes than for treatment. However, when regard is had to the doctor's original notes of the consultation (annexure "D" to the mother's earlier affidavit), which concludes with the notation "discussion re problems", I think that the more reasonable inference is that she attended the doctor, essentially, for counselling, in relation to her troubled relationship with the father, and related to him her perception of an event which happened three days before.
366. In the result, I am inclined to accept that on this occasion the father did become angry, shout and swear at the mother and at least push her aside as he "stormed off" the verandah. Whether he also threatened to plant drugs on her I regard as of little consequence. I also believe, however, that the mother instigated this whole incident by bringing up the subject of an ex-girlfriend of the father (photographs of whom the father claimed, and I accept, she had previously destroyed) and attempting to trick the father into making some admission about her by falsely claiming to have spoken to her recently.
367. Dr P’s report next refers to a consultation by the mother with him on 28 March, 1993, which I have already dealt with in paragraphs 263 and 264 hereof, in the context of dealing (in paragraphs 257 to 265) with M.'s evidence and the parties' conflicting accounts of the incident which occurred at the father's residence on 27 March, 1993, after the mother had gone to a local shop. I have expressed the conclusion, in paragraph 264, that in this instance the mother's version of the incident, as supported by M.'s evidence and Dr P’s report, is nearer the truth than the father's.
368. Dr P’s report next refers to a consultation with the mother on 7 April, 1992 "2 days after another alleged assault by her de facto". I have already dealt with the parties' versions of the incident of 5 April, 1992, to which this consultation relates, with M.'s evidence about it and with the medical evidence about it (including Dr P’s report) in paragraphs 14 and 266 to 277 of this judgment, and there is therefore no need for me to repeat any of that here. My ultimate findings about the incident appear in paragraph 277.
369. The last consultation by the mother referred to in Dr P’s report is one which took place on 11 June, 1995, which was again "2 days after a further alleged assault" by the father. I have referred briefly to the parties' conflicting accounts of the incident of 9 June, 1995, to which this consultation relates, in paragraph 16 hereof. In relation to this consultation Dr P (who was apparently not the treating doctor) reports that the mother complained of having been "picked up by the left calf and punched in the chest". He further reports that on examination "she had a large bruise over her left calf and was tender over the third sterno-costal joint". She was also recorded as having "developed a rash (possibly a neuro-dermatitis) over her neck, back and abdomen "for which the doctor treating her prescribed "a light sedative medication".
370. Of relevance to the alleged incident of 9 June, 1995, is also the report of Dr PR, annexed to his affidavit filed on 20 July, 1998. In that report the doctor states that the mother attended his surgery on 20 June, 1995, alleging she had been assaulted by her "ex-partner" on 9 June, 1995. He reports that the only injury visible at that time was "a healing bruise over the left calf with three imprints possibly consistent with imprints of 3 fingers". It is unclear why the mother would have presented to this doctor eleven days after the event when she had already seen a doctor at the 7 Day Family Health Centre only two days after the incident. The only possible conclusion is that she wanted to have, for future use, some medical evidence of the fact that the bruise she claims to have been caused by the father on 9 June, 1995, was still evident eleven days later. This is perhaps borne out by what appears in the last paragraph of Dr PR’s report, namely that on 14 July, 1995, the mother presented at his surgery with a request that he send a copy of her file to the 7 Day Medical Centre. Although that paragraph also contains a recitation of some other self-serving statements made to him by the mother on that date, they are hearsay and even if technically before me, I attribute no weight whatsoever to them.
371. Why the mother would want to be accumulating evidence against the father at that stage is not altogether clear. Apart from mutual applications for protection ("Domestic Violence") orders in April, 1994, following the incident on 4 April, 1994, both of which were withdrawn later that month, there were no court proceedings on foot or, so far as the evidence discloses, in contemplation by the mother in June/July, 1995.
372. So far as the event of 9 June, 1995 is concerned, the evidence of Dr P and Dr PR gives no greater credence to the mother's version of it than the father's. At worst for the father, that evidence may suggest that he rather understated the extent of the pressure which he applied to the mother's leg when he squeezed it in response to her statement of her intention to keep company with him and Mr A. at the same time. He admitted that her statement angered him, and I have no doubt that his intention in squeezing her leg was to cause her some pain, which it clearly must have done to produce a bruise which remained evident eleven days later. In the absence of other corroborative evidence I do not accept the balance of the mother's account of that incident.
373. The affidavit and annexed report of Dr HI establishes that it was he whom the mother consulted at the 7 Day Medical Centre on 7 November, 1991, and whose notes formed the basis of Dr P’s report, to which I have earlier referred, in so far as it related to that consultation. Dr HI’s report adds little to what appears in Dr P’s report in relation to that consultation, except that he says that the mother's knee injury was "consistent with being twisted in a fall when pushed", which suggests that that was what the mother told him of the mechanism by which her knee was injured. During cross-examination the mother described how the injury occurred in the course of the alleged rape. That description did not involve her falling after being pushed. Rather, she said that she was lying on her back with her legs tucked up between her and the father, in the process of trying to push him off her, as he was bearing down on her in order to rape her, and that it was in that process that "this ligament was ripped", or "torn" which caused her to scream. She said that the mechanism of the "brute force" which he employed to rape her consisted of "his body weight and his arms and hands".
374. When cross-examined by counsel for the father Dr HI confirmed that the only mention the mother made of interaction with her boy-friend in relation to her knee injury was that he assaulted her, and the mother conceded in cross-examination that she did not tell him she was raped. She explained that she "didn't want people to know", but on her own evidence, and that of others, she did tell a number of people that she had been raped, soon after the event.
375. The mother also agreed, during cross-examination, that she had previously had a major surgical re-construction on that knee. Yet Dr HI, in cross-examination, said he was not aware of that fact, and he had no note of a scar on her knee. He was unable to be certain whether, when she attended him, the mother already had her knee bandaged. He expressed the opinion that if she had previously had a major re-construction of that knee it might possibly be susceptible to further injury by relatively minor trauma.
376. In cross-examination Dr HI also gave evidence that, in his opinion, a woman would not ordinarily be fertile four days before the start of her normal menstrual flow, but that the normal period of fertility is in the period 10-14 days prior to the first day of the next menstrual cycle. That evidence, although general, tends to support my earlier finding (in paragraph 198 hereof) that S. was not conceived on 5 November, 1991, as claimed by the mother, but on a subsequent occasion around about 21 November, 1991.
377. The affidavit and annexed report of Dr SM adds little to what is contained in Dr P’s report to which I have already referred. His report consists of a summary of many of the same consultations by the wife with members of the 7 Day Medical Centre practice which are detailed in Dr P’s report, although Dr SM identifies the examining doctor on each occasion. The only additional consultation referred to in Dr SM’s report is one on 10 December, 1992 (midway between those on 5 December and 12 December described by Dr P). The attending physician on that occasion is recorded as Dr WE, and the summary of his notes of that consultation adds nothing to what emerged from the notes of the consultations on 5 and 12 December, dealt with above.
378. Dr SM was cross-examined by counsel for the father. Little of significance beyond matters I have already noted came from that cross-examination. In general, he agreed that the physical injuries with which the wife presented on all occasions were minor, by any definition, and that the consultations on at least some occasions appeared to be more for evidentiary purposes than for treatment. He also agreed that the types of injuries reported could be consistent with the mother's being the aggressor as well as with her being the "defender". He thought that the knee injury described by Dr HI on 7 November, 19991, was not likely to have been suffered in a vigorous (but consensual) sexual encounter, although he could not rule it out.
379. Dr L swore two affidavit in support of the mother's case. Her first affidavit, filed on 20 July, 1998, annexes two reports, the first dated 14 July, 1995, and the second dated 9 March, 1998. Her second affidavit, filed on 13 October, 1998, annexes two further reports, both undated. She was cross-examined briefly by counsel for the father on 23 May, 2000.
380. In her report dated 14 July, 1995, Dr L certified that S. "has had repeated bouts of tonsillitis and URTI - following access visits [with] his father". She then added this:
"His mother is concerned about the evil [?] of violence and lack of parental care during access visits with his son S.."
381. In relation to the first of those statements, Dr L disclosed no basis upon which she would have had any personal knowledge of any chronological relationship between S.'s bouts of tonsillitis and his visits to his father, and I have already commented (in paragraph 159 hereof) upon her failure to assert that S. was suffering from tonsillitis on the date of the certificate). In cross-examination she said that in 1995 S. was "sick" for "about 3 months in a row", which she then stipulated as "April, May, June and July", but acknowledged that it was the mother who told her these bouts occurred after he had been with his father.
382. In relation to the second sentence of her report, quoted above, Dr L acknowledged (I thought somewhat reluctantly) that all she knew of the relationship of the mother and father was from what the mother told her.
383. I think it appropriate to record, at this point, that in her oral evidence under cross-examination I thought that Dr L displayed a degree of partisanship towards the mother which I found unusual in a professional witness. She appeared quite bristly and defensive towards cross-examining counsel, and displayed a propensity to add uncalled for comments, helpful to the mother, to some of her responses. I was left with no doubt that she is very much an emotional ally of the mother, whom she was anxious to support as well as she could. Her professional objectivity was thus somewhat compromised, in my judgment.
384. In her report dated 9 March, 1998, after certifying that she had known the mother "since 5.4.80" and making reference to her marriage "to her first husband", Dr L proceeded to make some bold statements about the mother's relationship with the father. These statements, couched in the form of assertions of fact, rather than as a reporting of facts alleged by the mother, themselves bespeak an unquestioning acceptance and adoption by the doctor of whatever the mother told her, which emerges from the whole tone of her reports and her oral evidence. Those assertions included the following:-
"She met [the father] in 1990 and she then embarked in [sic.] a very violent relationship which broke up in Oct. 1992. Since that time she has been the victim of sexual harassment & violent abuse for which she saw me on 14.6.95.
Her son S. was also used as a pawn during this time."
385. Although she did not say specifically, in the last part-sentence quoted above, that it was the father (rather than the mother) who was using S. "as a pawn", it is clear from the balance of the sentence which follows that she was indicating the former. That sentence concluded:
"& on 14.7.95 I advised her to seek legal counsel [with] a view to having access stopped Θ[because] of neglect of the child."
386. There is no evidence that the mother followed Dr L’s advice at that time, to "seek legal counsel" with a view to having the father's contact with S. stopped, but she did take it upon herself, at that time, to stop the father's once in seven weeks mid-week contact. No doubt she felt that Dr L’s advice gave her justification for so doing, but if so one wonders why she did not also stop the regular alternate weekend contact, which must have had a much greater impact upon S. than the occasional mid-week contact. I have no doubt that by this time the mother was strongly motivated towards achieving the total cessation of contact, and would have been very much on the look-out for any circumstance which might give her justification for taking that course. I also have little doubt that if she did seek legal advice at that time that advice, if sound, would have been that she then had insufficient cause to justify a total cessation of contact.
387. In the first of her undated reports annexed to her affidavit of 13 October, 1998, Dr L recorded that she saw the mother on 12 august, 1998 "regarding her concerns over her son S.'s objections to speak or respond to his father in any way". That consultation occurred one week to the day after Warnick J's order of 5 August, 1998, (which was a Wednesday) which required the mother to make S. available at her home telephone number at 7pm each Wednesday for the purpose of his receiving a telephone call from the father.
388. The father deposed (in paragraph 15 of his affidavit filed on 24 December, 1998) that he telephoned the mother's telephone number on eight occasions between 7pm and 7.40pm on the day of that order, and that on every occasion the phone was either engaged, or rang out. The mother did not dispute this, and effectively affirmed it in paragraph 4 of her affidavit filed on 18 December, 1998.
389. She there said that although she had told S. that his father would be calling to speak to him, and encouraged him to receive the call, when the telephone rang at the appointed time he refused to pick it up, and continued to do so, becoming progressively more upset over the course of the period during which the calls were received. She also said that after about 20 minutes of this, she telephoned the Counsellor, Ms C (whose evidence I shall refer to below) and sought her advice, and at her suggestion put S. on the phone to speak to her. She said that Mrs C advised her that S. should not be forced to speak to his father against his will, and that after she and S. had spoken to Mrs C the phone continued to ring on and off for a further 15 minutes, during which S. continued to refuse to answer it. She said she was reluctant to answer it herself because she believed the father would abuse her. She said that as a result of all this she took S. to see Dr L, because she wanted "a second opinion to be sure that I was doing the right thing" and also because she "wanted some assistance for S. who had started bed wetting and was having problems with his speech in particular a stutter".
390. In her report of the consultation of 12 August, 1998, Dr L stated the following:
"I asked S. myself how he felt and he was clear that he did not want to talk to his father on the phone or send letters back to him. I assured S. that it was alright if he did not want to speak to his father, however, I encouraged him to respond to his father's letters.
It was evident that the first phone call to S. for the purpose of contact had clearly upset S.. I suggested to [the mother] that her present partner, Mr A., take the next of these phone calls and explain to S.'s father, how S. did not want to speak to him."
391. In paragraph 16 of his affidavit of 24 December, 1998, the father said that when he telephoned the mother's residence again at 7pm on 12 August, 1998, the phone "rang out" on three occasions, before being answered, on his fourth attempt, by Mr A., who told him S. did not want to talk. He said that he requested that S. be asked "beside the phone" (presumably so he could hear it) but that "this was evaded by Mr A. on instruction from" the mother, whom he could hear "in the background". He said he did not hear S. at all.
392. The mother, in paragraph 6 of her affidavit of 18 December, 1998, said that when the telephone rang on 12 August, 1998, Mr A. answered it and asked S. if he wanted to come to the phone, but he refused. She said neither she nor Mr A. wanted to pressure S. to speak to his father, but that whilst he was on the phone to the father Mr A. asked S. twice to come to the phone and speak to his father, but he refused.
393. Mr A. gave evidence about these attempted telephone calls by the father to S. in paragraphs 2 and 3 of his affidavit filed on 18 December, 1998. Although there are some differences in detail, his evidence substantially corroborates the mother's on this issue. In particular, he affirmed that whilst he was on the phone to the father on 12 August, 1998, he asked S. if he wanted to speak to his father, to which the child responded by shaking his head and saying "No", at the same time having "his arms crossed and a worried look on his face". He said that the father said something to the effect that he could not hear the child's reaction, and after being told by Mr A. not to upset the child further the father said: "I have a court order that S. has to talk to me".
394. The parties gave similar slightly conflicting accounts of the father's subsequent attempts to contact S. by telephone in accordance with Warnick J's order, but it was common ground that he never succeeded in doing so. I have earlier referred (in paragraph 166) to the evidence of Ms L as to her attempts to deliver a birthday present to S., on the father's behalf, in August, 1998, and how the mother dealt with that attempt. Her conduct on that occasion could only be described as spiteful and mean spirited.
395. Dr L concluded the first of her reports annexed to her affidavit of 13 October, 1998 with a reference to a further consultation with the mother on 11 September, 1998 which "covered her concerns over her son S.'s recent bed wetting and marked increase in his stuttering". The doctor said that she explained to the mother that "this can occur as a result of stress, anxiety and tension" and that she recommended an organisation named "Stuttern" to her. What Dr L did not express an opinion on was the source of S.'s "stress, anxiety and tension", but she would no doubt have attributed it to the renewal of the father's telephone calls and written communications. But, assuming that to be the case, it does not necessarily exclude the possibility that the stress and anxiety for the child might have arisen, not because he does not want to have contact with his father, but because he does want that contact but knows that his mother does not want him to have it and that she is stressed and upset by the prospect of it occurring.
396. The second undated report annexed to this affidavit of Dr L relates to a consultation with the mother on 15 September, 1998, in which she recorded that the mother had "had no luck with 'Stuttern'" so she recommended a speech therapist. After noting that the mother referred to the "Counsel" she had received from Mrs C "not to pressure S. to respond in writing to his father's letters" Dr L stated: "I support [the mother's] statement that it has been S.'s request not to respond to his father's communications". She concluded by saying she had suggested to the mother that, instead of pressuring S. to respond to his father's letters, "she routinely send one of his school drawings to his father, with unpressured permission" [sic.].
397. The father acknowledged (in paragraph 98 of his affidavit filed on 24 December, 1998, that from 5 August, 1998 to 24 December, 1998 (a period of 20 weeks) he received eleven of S.'s drawings, on some (but not all) of which the words "from S." and, in one case "to dad from S.", were written in what would appear to be the handwriting of a very young child. Those drawings are annexure "M" to that affidavit. The father's letters to S. (sixteen in number) sent during the same period, are annexure "L" to that affidavit. Some of these letters were written on cards of various types, some were accompanied by photographs including (in one case) some photographs of S. and the father together at earlier times, and one is written on a photo-copy of one of S.'s drawings previously sent to the father.
398. Apart from some fairly restrained requests to S. to write letters back to his father, and to wait by the phone for his calls, the father's letters seem appropriate and caring, containing expressions of love (without being too fulsome or overpowering), occasional exhortations and commendations about his school work, and words of encouragement in relation to his drawing and other activities of a positive or educational kind. They contain no adverse comments about the mother or anyone associated with her, or about the court proceedings except for one fairly oblique comment (letter dated 29 September, 1998) namely "Dad's been phoning to talk to you but I know it's not your fault that you have been unable to talk".
399. In responding to the mother's evidence about S.'s alleged stress, including his stuttering, arising from the mere prospect of talking to him on the telephone and receiving written communications from him, in the second half of 1998, the father points to the absence of any evidence adduced by the mother from the speech therapist to whom the child was allegedly referred, and the absence of any mention of stuttering (indeed of any other indicia of stress) in S.'s school reports for 1998 which are annexures "F" and "G" to the father's affidavit last referred to. These reports certainly speak in fairly glowing terms of S.'s "growth and development" and of his "confidence", including "confidence when speaking in front of others" and his "becoming talkative", throughout that year. In the second semester report he is also referred to as interacting well with others, and being "a well-liked member of the class". The only areas in either report in which S. received a grading less than "Satisfactory" were in those relating to exhibiting self-control and doing homework.
400. It is also not without some significance that when the father wrote to the mother's solicitors on 14 October, 1998 requesting that he be provided with a cassette recording of S. speaking, "post 5-8-98", to demonstrate the stuttering which was alleged to have been worse after that date, those solicitors responded by letter dated 2 November, 1998, that their client did not propose to provide a tape of S.'s speech, adding that she had noticed an improvement in the child's stuttering "since the involvement of the speech therapist". As already noted, however, nothing was forthcoming from the speech therapist in this respect.
401. I have already referred, in earlier paragraphs of this judgment [particularly in paragraphs 55, 77, 78 and 89] to aspects of the evidence of Ms C, and of her involvement in this case. Three affidavits sworn by Mrs C were read as part of the mother's case in these proceedings. Those affidavits were filed on 16 July, 1998, 18 January, 1999, and 19 May, 2000 (the last by my leave in the course of the hearing).
402. In her first affidavit, and in her oral evidence under cross-examination on 23 May, 2000, Mrs C explained that she obtained a diploma of education over 50 years ago (which would suggest that at the time of the hearing she was aged in her late 60's, a suggestion supported by her appearance and presentation during her evidence). She said that she had been a school and kindergarten teacher (primarily the latter) for some 25 years, and "after qualifying from Bible College", obtained a Diploma in Counselling from a Christian organisation in Brisbane (a body accredited by the Queensland Education Department) in late 1998. She had been engaged as a Counsellor by the Christian Centre, for some nine years prior to that date.
403. Mrs C said that she had counselling contact with both parties, having first counselled the mother after her separation from her husband, Mr D., and the commencement of her relationship with the father. She said that from time to time the mother telephoned her after an incident involving the father, in a state of distress, and "made some complaint which she attributed to" him. However, she said that until the mother asserted "that S. had expressed sexualised behaviour" she had "always insisted upon S. having a continuous relationship with his father".
404. Mrs C said that she had contact with the father in counselling on three occasions, namely on 28 or 29 February, 1995, 15 June, 1995 and 4 July, 1995. She said that on each of these occasions another counsellor, Ms Z was present and "co-counselled" with her, and that on the second occasion, a Pastor of the Church was also present.
405. Mrs C said that on the first occasion of her counselling the father told her:-
406. When cross-examined about his contact with Mrs C, the father did not really disagree with the above summary of what he told her on the first occasion, except that he denied telling her he was attending counselling for the purpose of dealing with his outbursts of anger, but rather "to try to work something out between [himself and the mother] as far as the relationship goes". Whilst denying that he told Mrs C that people "let you down", "cheat you" and "defraud you". He did concede that at that time he felt that the mother had "manipulated" him, "set him up", and "defrauded" him "to a certain degree".
407. Mrs C said that she saw the father on the second occasion (15 June, 1995) as a result of seeing him at Church, when the mother and "her friend Mr A." were also both there, at which time the father said he wanted to see her again after he had "made a commitment to the Lord and wanted to be converted to Christ". She said that on this second occasion of counselling, the father:-
408. The father, during cross-examination, presented quite a different perception of the events of that day. Whilst he admitted having spoken of experiencing jealousy and of feeling mocked, he denied saying many of the things attributed to him by Mrs C, including that he had "thoughts of murderous hate", that he had "made attempts at suicide" (although he admitted telling her he had "thought of it"), or that his problem was his inability to be in control and that he therefore maintained control by using brute force. He said that many of these sorts of statements (and others such as: "We want to get rid of the spirits that cause rape") were in fact made by Mrs C and/or the others with her, in the process of conducting a ritual during which the others were "talking in tongue" [sic.] and he was grabbed around the stomach while they said "We can feel something coming, we can feel it coming", and behaved in other bizarre ways his description of which could only lead one to believe that he was involved in some form of exorcism. He said that in this process he was "a bit frustrated with the way she way trying to conduct the counselling" because "it just didn't seem professional". He also said that when he laughed at some of the behaviour of Mrs C and the others present, she said "Sorry Lord" and said he had "a mocking spirit", which he immediately denied.
409. Although Mrs C denied that there was, at any time "any exorcism or anything of that kind", she agreed that there probably would have been "a laying on of hands" when she and the others present prayed for the father, and that at times they probably "spoke in tongues". She explained that there was an atmosphere of prayer and ministry throughout the counselling session, because the father had approached her "as a religious counsellor" with a "biblical background to counselling".
410. The father said that he left that counselling session thinking it was just a farce but because the mother was "insisting" that he go back and "didn't want much to do with [him] unless [he] did", he in fact returned to see Mrs C for the third time on 4 July, 1995. He also said that he was "waiting for someone to hit me and say ... God's found me, or whatever", by which I took him to mean that he was waiting to experience an epiphany or some similar religious awakening.
411. Mrs C said that on this third occasion she "prayed over" the father, "taught him ways to help himself and discussed baptism". She said that he told her "he had been reading the Bible a little but there were no major significant changes".
412. Again, the father gave a rather different account of this third meeting. He said that when he arrived Mrs C was "extremely ill", but when he suggested she go to a doctor she replied: "No, no. I got [sic.] my heart with the Lord. The Lord will take care of me". This was not put to Mrs C in cross-examination.
413. Mrs C further deposed to a conversation with the father in 1997 when he telephoned her. She said that he accused the mother of "cheating and tricking him", and that he was "very angry that the mother had turned away from him". She said that he made a number of derogatory comments about the mother, and she formed the view that he was trying to "enlist her support". As she considered the call "inappropriate" she terminated it. In her oral evidence under cross-examination Mrs C said that in some of her earlier counselling sessions with the father he had tried to bring the conversation around to the mother, accusing her of various things, but that she refused to discuss that, or to discuss the father's desire to reconcile with her, because the counselling which the father sought was in relation to "his own behaviour and what it was bringing him into", it did not involve the mother at all.
414. Once again, the father gave a rather different account of this conversation. He said that he telephoned Mrs C in June, 1997 in an attempt to enlist her help in getting to see S.. He said he told her he had been accused of "interfering" with him, and that "it was a blatant lie". He said that when he asked her if she could help him she said: "No. The Lord told me that - that you acted inappropriately in front of him", and that she did not want to listen to him. He said that he then became angry at her and accused her of being "only a kindergarten teacher" with "no qualifications" who was "ruining people's lives". He admitted that he told Mrs C that the mother was a liar, and that he may have said other derogatory things about her, to which she responded by saying that she believed what the mother had told her, before "hanging up" on him.
415. In her first affidavit, Mrs C said that within a year of S.'s birth the mother told her that he was "conceived from her rape" by the father, and that thereafter her story on that score never changed. In cross-examination Mrs C said that the mother "may well" have told her of a "sexual encounter" with the father some two weeks after the alleged rape, because she [Mrs C] knew that she [the mother] had sexual relations with the father at times other than the occasion of the alleged rape. She was then shown the mother's diary (exhibit 17) and particularly the figures from 1-40 written in red ink on the Calendar inside the front cover of the diary [to the details of which I have referred in paragraph 197 hereof]. Notwithstanding those entries, Mrs C said she believed the mother was truthful when she told her the child was "conceived in rape" and that this evidence did not affect her view of the mother's honesty. She said that, knowing her character, she would say that if in fact the child was conceived on the later occasion the mother was "merely misled as to the conception" rather than being dishonest about it.
416. In her second affidavit (filed on 18 January, 1999) Mrs C gave evidence consistent with that of the mother and of Mr A. about her telephone contact with the mother and with S. on 5 August, 1998 and with the mother again on 12 August, 1998 in relation to the father's telephone contact with S.. As I have already summarized the evidence of the mother and Mr A. about those events in paragraphs 389, 392 and 393 hereof, it is unnecessary for me to deal further with this affidavit of Mrs C.
417. In her third affidavit (filed on 19 May, 2000) Mrs C told of being consulted by the mother and S. on 29 October, 1999, in relation to the proposed contact between the father and S. at the Contact Centre pursuant to the consent orders of 16 September, 1999. That contact was due to commence (and did subsequently commence) on 7 November, 1999. Mrs C said that she agreed to see the mother and S. on this occasion "to assist [the mother] in her efforts to calm ... S.", whom Mrs C found to have "experienced some distress at the prospects of having to spend time in close quarters with his father". She said that he "settled down and began to act normally" "once told that he would be allowed to choose as to whether he had to stay or not at visits with his father". She said that the purpose of this visit "was to encourage [S.] to realize that he did have choice in the matter" and "to assist the child to understand that his mother had not betrayed him by agreeing to an arrangement which she knew he did not want".
418. Mrs C said that she saw S. again on 2 January, 2000 when he "protested" that a worker at the Contact Centre had "tricked" him into seeing his father. It is not clear whether this interview took place before or after the fourth contact visit at the centre which occurred on that date. She said that she "reassured S. that he would not be coerced into doing things that he did not want to do" and was thus "able to encourage and pacify" him to the point where "he seemed very happy ... that he would be able to express his own feelings to the supervisor ... about his relationship with adult persons".
419. Mrs C next saw S. on 12 January, 2000, at which time she "encouraged S. to speak of his own views as to why he was scared" in relation to contact with his father. She explained that he had previously explained that he was scared, but "did not appear comfortable in sharing the reasons for that anxiety". On this occasion he explained "that he did not like the things that his father did" and when pressed as to what those things were he said "they are rude" but appeared "too embarrassed" to elaborate. He also told her that his father "had been holding out the promise of a skate board as enticement for contact" and that "he wanted the skate board but wanted to keep his distance from his father". When Mrs C asked S. why he had concerns about his father he "explained in detail his fears being due to his vivid recollection of past 'trouble' with his father" and gave examples "such as his father smashing his mothers [sic.] pot plants and seeking to get into the house". She considered that from the words used and the manner in which he explained these things "S. had a vivid recollection of violence and property damage".
420. Finally, Mrs C referred to her attendance with the mother and S. at an interview with Ms U and the contact supervisor at the Contact Centre on 16 January, 2000. She said that Ms U was "pleased to see us and happily spoke with us about S.'s concerns and listened to the efforts made by the mother and me to encourage S. and make him feel comfortable with the supervised contact arrangements". I note that Ms U makes no mention in her affidavit of such efforts to encourage S. in relation to the supervised contact.
421. In her oral evidence during cross-examination by counsel for the father, Mrs C (in response to a question whether, during the interview at the Contact Centre on 16 January, 2000, she had heard the mother say "You know [the father] is a very violent man") said that something could have been said about the father's behaviour "because we were discussing S.'s concerns and his memories of his father's behaviour". It was the father's evidence that whilst he was kept waiting at the Centre while this meeting was going on he heard the mother use those words, which would have been in the presence and hearing of S..
422. In the course of her evidence under cross-examination, Mrs C said that she believed S. had been placed by his father in a box which had been "taped up" (something of which the child is said to have complained only in relevantly recent times - see paragraphs 4 and 16 of Professor N’s report of 8 April, 2000 referred to in paragraphs 89 and 93 hereof), and when confronted with the child's statement to Ms H in March, 1997, that his father "had not hurt him" [see paragraph 29(4) hereof] she expressed the view that he would then have been thinking only of recent events.
423. Mrs C also said, during cross-examination, that she had not heard of "parental alienation syndrome" nor was she aware of any of the writings of Dr Gardner [Richard A. Gardner, "Parental Alienation Syndrome: A Guide for Mental Health and Legal Professionals"] on that topic. However, she said she had heard of "parental alienation", having "come across it" in her readings, but had not recently "looked at any of the studies on it". She also said that she had not seen what Professor N had written, in his reports, about parental alienation of S.. She further conceded that she had not done any study to enable her to determine the truth of anything S. told her, but added that that was not her role, in any event. She had earlier said that what was important was S.'s perceptions.
424. In giving her evidence, Mrs C presented reasonably well. Whilst I have no reason to, and do not doubt her credibility, I do have some reservations about the level of her expertise, particularly in the area of assessing and interpreting S.'s behaviour and perceptions, although her years of experience as a kindergarten teacher would no doubt be of some assistance and benefit to her in that role. I have no doubt that Mrs C is very supportive of the mother and accepting of her perception of relevant events, and that, conversely, she is unaccepting of the father. Indeed, given her emotional support of the mother and her admitted belief in the truth of whatever she has been told by her, it would be impossible for her to be accepting of the father's highly conflicting perceptions of relevant events.
425. In relation to the conflict between Mrs C and the father about the form and content of his own counselling sessions with her, I am of the view that her account is likely to be nearer to the reality than his. I am satisfied that, although there was a heavy religious component to those sessions, with much prayer and laying on of hands, frequent calls for the intervention of the Lord", and some "speaking in tongues", there was nothing which could properly or fairly be described as an attempted exorcism, and I am satisfied that the father greatly exaggerated the religious components, particularly of the session on 15 June, 1995. Although it may be the case that some of the words which Mrs C attributed to the father in relation to his behaviour and feelings originated in her, I believe that he readily accepted and adopted them as descriptive of that behaviour or those feelings. Whether what he said or adopted was strictly in accordance with his own independent perceptions, or whether he was attempting to enter into the spirit of the counselling process by taking on more than, in hindsight, he would regard as his fair share of responsibility for the difficulties in his relationship with the mother, I am not sure, although I think there was probably at least an element of the latter. Nevertheless, I consider that what he told Mrs C or acknowledged to her in those sessions was a more honest and open account than that which he ultimately presented in his evidence in these proceedings.
THE CREDIBILITY OF THE PARTIES
426. I think it will be clear from all that I have written above that there are aspects of the evidence of both parties which I do not accept, for reasons which I think I have explained. On a broader level, I record that, having regard to all of the evidence in this case, and to the presentation of the parties during their lengthy periods in the witness box, I have serious reservations about the overall credibility of both. I believe that both are so deeply entrenched in the conflict between them, which goes right back to the earliest days of their relationship and has become a central feature of their lives, that neither is capable of taking even a partially objective view of the other's behaviour, and each has been quite prepared to tell lies, if necessary, to gain what he or she perceives as an advantage over the other with a view to achieving ultimate "victory" over that other in these proceedings.
427. In relation to demeanour, neither party could be described as an impressive witness. The father was inclined to be discursive, defensive, and/or evasive at various times throughout much of his evidence, and some of his answers, both in terms of their content and their presentation, seemed to me to reveal sexist or narcissistic attitudes. I had the impression, during much of his evidence, that he was giving a performance, in which he was seeking to make or convey an impression, rather than simply to give truthful, factual answers to questions asked of him. Although, in his earlier periods in the witness box (in January and September, 1999) I perceived a high level of underlying anger and bitterness in him, I did feel that in his later presentation (in May, 2000) some of that may have dissipated, and he presented as more relaxed, less judgmental, and more focused on the essential issue of what would best promote S.'s future well-being than on his long standing conflict with the mother.
428. One particular affidavit of the father’s, which he prepared himself and filed on 15 January, 1999, was replete with material which was highly derogatory of the mother and offensive to her in the extreme. Most of that material was, on any reasonably objective view, irrelevant to any of the issues in the proceedings, and it was clearly designed with a view to discrediting the mother. The father's attempts, during cross-examination by counsel for the Child's Representative on 13 September, 1999, to explain why he perceived all of this highly offensive material to be relevant, and his protestations that in including it he had acted upon advice from some nameless person from a community legal service, I thought told more about him than about the mother. In my judgment, only a man harbouring very great bitterness against a woman and/or with extremely sexist ideas and attitudes, could have composed and put forward such an affidavit in these proceedings.
429. The mother, too, was inclined to be discursive and/or evasive in many of her responses, and there was a strong element of self-justification in much of her evidence. She also seemed to me to exhibit some deviousness, as well as vindictiveness in her personality, and she could not hide the extreme bitterness which she holds towards the father. She was particularly vulnerable when cross-examined about the entries in her diary (exhibit 17) and I am satisfied that she had sought to prevent the father and his counsel from gaining access to the tell-tale markings on the 1992 calendar printed inside the cover of that diary, to which I have earlier referred, by falsely asserting that there was some irrelevant personal information written on that page, which she then proceeded to cover with a piece of paper stapled to the diary page. I have little doubt that she perceived the significance of the markings which she had made on that calendar, and how they might be (and ultimately were) used to attack her assertion that she had conceived S. as a result of the rape which she suffered at the father's hands on 5 November, 1991. I believe that it was for that reason that she sought to prevent that part of the diary from being inspected by the father and his counsel.
430. The mother also demonstrated her deviousness when cross-examined about the statement, in paragraph 9 of her affidavit of 20 July, 1998 (which was a repetition of paragraph 15 of her affidavit of 11 September, 1996), that "over the next three or four weeks [following Melbourne Cup day 1991] I experienced a mixture of shock, disillusion [sic.] and morning sickness" and her statement to Ms H (recorded in paragraph 10 of her report) that she "avoided contact with [the father] for some time", coupled with her statement in the same paragraph of her affidavit that, on 16 December, 1991, after receiving a pathology report confirming her pregnancy, she told the father of it. During her cross-examination the mother was very evasive about when she began to experience morning sickness. Although she conceded that she had not mentioned, anywhere in her material, the sexual encounter between the parties which she agreed occurred on about 21 November, 1991 (when, according to her, the father came round to apologise over the rape incident) she claimed to have provided that information to her former solicitor. The contradiction between what she swore in her affidavit and told Ms H and what she conceded in her cross-examination, is obvious.
431. In relation to the circumstances of the rape, itself, I found the mother's evidence somewhat contrived and unconvincing. In particular, I find it hard to believe that the father somehow managed to drag her, protesting, from her car parked in his driveway into his house (presumably after somehow managing to unlock the door), where he proceeded to rape her in the manner she described (and to which I have earlier referred) without causing any bruising to any part of her body, but only the damage to her knee for which she consulted Dr HI two days later, or any damage which she was able to recall to any of her clothing. All in all, I found her evidence about this event inherently improbable, and when regard is had to her subsequent attempts to relate her conception with S. to that date, when all the medical evidence, including records of her own contemporaneous statements about it, points to it having occurred at least two weeks later, her credibility over this whole incident is virtually destroyed.
432. For the reasons which I have given, it is regrettably the case that I find myself unable to accept, unreservedly, the evidence of either party. That fact, given the reservations I have also expressed about the acceptance of the evidence of many of the witnesses relied on by each, has made my fact finding task in this case particularly difficult. I have already indicated aspects of the evidence of each party which I reject and accept, or at least prefer to that of the other. As for the rest, the best that I can do is to make some findings about a few particular events of importance which were in issue, and some general findings about how I perceive that the balance of probability lies in relation to some general issues. Before doing that, however, I think I should canvass the oral evidence of Professor N and Ms Q, given at the re-opened hearing in May, 2000.
433. I have already set out the salient feature of Professor N’s updated report of 8 April, 2000, in paragraphs 87 to 107 hereof. In his oral evidence-in-chief given on 24 May, 2000, at the re-opened hearing, he explained further the concept of "parental alienation", referred to in his report, as detailed in paragraph 102 hereof. He said that this syndrome, first described by Dr Gardner in 1989, is characterised by the residential parent perceiving the contact parent as "the personification of evil", and conveying that perception to the child, who then becomes "inexorably opposed to contact". He explained that the syndrome has many variations, ranging from concoction to honest belief by the residential parent and from "mild" to "intense". He said he would categorise this case as "serious". He also said that in his interviews with the mother he did not feel that her reasons were fabricated or concocted, and that she believed them to be true, although this did not necessarily mean that they were true.
434. Professor N then had his attention directed to the three possible courses of action postulated in paragraph 36 of his report, which I have referred to in paragraphs 103 to 106 hereof. He said that, having since seen the notes of the supervisor of contact from the Contact Centre (exhibit 25), and having read Ms Q’s report (outlined in paragraphs 114 to 124 hereof), his recommendations had changed somewhat. In particular, he said he had abandoned his option 2, as postulated in paragraph 36 of his report, and now saw only two realistic options, being either to cease the father's contact with S. altogether, or to change the child's residence from his mother to his father. He did go on, however, to postulate a "modified option 2", namely to continue contact, but with the paternal grandparents as supervisors, rather than at a Contact Centre, for a trial period of about three months, during which the mother would be encouraged, with therapy, to adjust to the restoration of contact, with the reservation that if the child's attitude did not change over that three month period, a change of residence would occur at the end of the period.
435. Professor N said that the option of ceasing contact altogether would have some short-term benefits for S. but some long term ill-effects. The benefits would be that his disturbed behaviour, as described in paragraph 14 of his report [see paragraph 92 hereof], should settle. However, S. would continue to believe his father to be a "violent, homosexual pervert", his mother would see her view of the father as having prevailed, and the alienation would therefore continue and may never abate. The long-term effects of this on S. would be that his own ability to be a father may be adversely affected, a prospect which Professor N described as a "serious danger". He explained that a male person's internalisation of his relationship with his father is an important part of his own manhood. During cross-examination by counsel for the father, the Professor said that another possible effect on S. of a continuation of the alienation from his father may be rebelliousness during puberty, but he also said that he could not predict the outcome with reasonable certainty, although the "greater probability" is that it would "not be good".
436. In his oral evidence-in-chief Professor N said that he has been involved in "this sort of case" quite often over the past fifteen years, both here and in the USA. In his experience, such cases "most commonly circulate around" allegations of sexual abuse by the access [contact] parent, and that he had seen "30 to 40 such cases". He also said that in his experience the alienation does not resolve without a change of residence from the alienating to the non-alienating parent, and that this experience is also reflected in the "American literature". However, he then went on to outline some of the negative features of a change of residence for S..
437. He said that for the first six months (at least) after the change, S. would protest at the separation from his mother and siblings. Both for that reason and because the father is, to S., a hostile person, he would be oppositional and show signs of anxiety. His school performance (which he later agreed was better, having regard to the school reports, than he would have expected) may deteriorate. He said that it may take longer than six months for these indicia of stress to settle, and they may never settle. If the child did settle, the long term benefits for him would be that he would have a relationship with his father based on realistic perceptions, which would be of benefit to his development and his capacity to father. However, he said that he was unable to balance that gain for S. against the loss of his mother "in any algebraic way".
438. Professor N then addressed the possible long-term disadvantages for S. of a change of residence. Firstly, he said that it is not clear that the father has the capacity to cope, long-term, with parenting S., who already has a degree of emotional disturbance. Parenting S. will therefore be "very testing" for the father, as it will not be "ordinary parenting". He said that the potential results for S., if the father cannot cope with parenting him, would be serious. His current level of emotional disturbance and stress would intensify, and affect his ability to cope in areas such as his schooling, his relationship with his peers and his home life. That may then require consideration of a return to his mother, a further potentially damaging change for the child. He agreed that a change of residence for S. would be "something of an experiment" because it is unclear what the result will be.
439. Professor N also addressed the issue of the mother's contact with S. in the event that there were a change of residence. Firstly, he said that it would be "profitable" if, for a period of, say, three months, there were no contact with the mother except by telephone and letter, and that thereafter her direct contact were restored on a gradual basis. He added that if the mother's current perception of and attitude to the father were to persist, following a change of residence, and she were to "disaffect" the child during contact, then her contact "may have to be reviewed" (presumably with a view to limiting or even terminating it). Thus he prognosticated that if the mother's present attitude persisted the child may ultimately lose his relationship with her, but he added that it would not be in his best interests to have no contact with her.
440. In relation to his assessment of the parties, Professor N said that over the three years of his involvement with them he had not noticed any change in the mother's attitude, but that he had noticed some distinct change in the father. He said that when he first saw the father he was very hostile to the mother, "bogged down in legal details" and "mired in the issue". However, he said that to him the father "no longer seems to have the same hostility towards the mother", has attempted to get some experience working with children, and gave the impression of having "taken stock of his life and tried to move on". Those perceptions of Professor N are similar to my own, as outlined in paragraph 427 hereof.
441. During cross-examination by counsel for the father, Professor N agreed that S.'s level of anxiety about his father is being "fuelled" by the mother, and that he has developed fantasies about his father which he is embellishing, for example, around the area of the father's touching his genitals and his being taped inside a box. The Professor also agreed that it was likely S. was being cross-examined by his mother about these sorts of issues, and that when he saw the child "he seemed well primed" on these topics. He described this as "harmful" for the child, and said that his perceptions of his father will not be changed, while he lives with the mother, unless she decides to change, an event which he thought "unlikely". He also agreed that the mother's attitude was the primary reason for the failure of the supervised contact at the Contact Centre.
442. In relation to the father's capacity to cope with the parenting of S., Professor N agreed that Ms Q’s report, referred to above, was a very comprehensive analysis which revealed that the father, who appeared to have "moved on" in many respects, would be a capable parent. He also agreed that the father's attitude, as revealed in paragraph 4.14 of Ms Q’s report [see paragraph 124 hereof] was a "positive sign", as too was the fact that S. had said to the supervisor at the Contact Centre, after his father had left on 10 December, 1999, "He likes me, doesn't he?" [see exhibit 25 and paragraph 1 of Professor N’s report quoted in paragraph 89 hereof].
443. Professor N also said that the father's capacity to co-operate with the mother in relation to contact by her with S. would be "one of the real keys" to the success of a change of residence. At the same time, he said that whether the father's current attitude would continue, remains to be seen. He opined that S. would need psychological treatment, and the father would also need continual help to cope, in the event of a change. He agreed that it would be of assistance if the father's mother came to live with the father for the first six months after a change.
444. Professor N said, in relation to his "modified option 2" described in paragraph 434 hereof, that he did not think S. would be any worse off at the end of a three month trial than he now is, and that it would be no worse for S. to be moved after such a trial than it would be to move him immediately. He concluded by expressing the opinion that, of his 3 options now postulated [viz. total cessation of contact ("option 1"), an immediate change of residence ("option 3"), and a three month trial period of contact supervised by the paternal grandparents, with a change of residence at the end of that period if the child's attitude did not change during the period ("modified option 2")], the last would be in S.'s best interests.
445. In cross-examination by counsel for the mother, Professor N said that although there is literature in the USA about the use of his "option 3" [change of residence] and its outcome, he knew of only one case in Australia in which "this heroic option" was adopted, and it was successful. But he agreed that there are "real concerns" about the impact on S. of such a change, and that the outcome remains "uncertain".
446. His attention was then directed to paragraph 39 of his report of 8 April, 2000 (summarised in paragraph 106 hereof) and his fourth recommendation in that report (referred to in paragraph 107 hereof), and he said that he still thought the father had "little understanding" of how difficult it would be for him to cope with S., but that a factor influencing him to express an opinion somewhat different from that in his report, was Ms Q’s report. However, he agreed that much of Ms Q’s report is about what the father told her, and that one can never know about a person's parenting capacity until it is tried, and the father's never has been.
447. Professor N also agreed that in comparing the risks for S. of a change of residence with those of a complete severing of his relationship with his father, the risks of the former are immediate, and can be predicted with greater certainty than those of the latter. He agreed that the risks of the former include the possibility of immediate, severe, permanent emotional damage. He said that the "hope" was that once S. is with his father his perceptions of him (as a violent, homosexual paedophile) will be dispelled, but agreed that they may not be, particularly if there is a factual basis for those perceptions, but even if there is not.
448. In relation to his perception that the father had "moved on" to some extent, he said this was not just based on what the father said but also on how he said it. He agreed that if, contrary to the father's contention, there have been further episodes of serious harassment by the father of the mother or Mr A. into 1999/2000, that would be a basis for concern about what the father says. Nevertheless, he expressed the opinion that the mother's position, vis-à-vis the father, is much more entrenched than vice versa.
449. I found the entirety of Professor N’s evidence in this case to be soundly based, carefully reasoned and considered and very professionally presented. Whilst I do not abdicate to him the task of finding the necessary facts to support the decision which I am called upon to make, I have found his analysis of the facts, as presented to him by the parties and S., insightful and therefore helpful to me in that fact finding task. I accept entirely the validity of the professional opinions expressed by him on the basis of the facts as presented to and analysed by him.
450. I have already outlined, in paragraphs 114 to 124 hereof, the essential features of Ms Q’s report dated 19 May, 2000. That report gives a largely positive assessment of the father's parenting capacity. In her oral evidence, under cross-examination by counsel for the mother, Ms Q said that although she had been retained by the father's solicitors, she did not seek only to gather together all the positive features of that capacity, but to present an accurate assessment, and if there had been deficits revealed by her enquiries, she would have identified them in her report. She also said that although she had had to rely very much on what the father told her, he did not appear "rehearsed" and there was a congruity between what he said and how he presented. In particular, she said that he demonstrated both insight and knowledge, which are "not easily faked".
451. Ms Q said that she found the father "quietly optimistic" about his capacity to cope with the parenting of S., but agreed that he perhaps had "a little bit of an over-optimistic view" about that, although not overly so. She said he had given it "a lot of thought", but "maybe doesn't fully appreciate the level of difficulty that may be involved".
452. When questioned about the extent of the father's acknowledgment of his past faults, in relation to his conduct towards the mother (which, in paragraph 4.4 of her report, Ms Q had said that he made "spontaneously and voluntarily", and "accepted responsibility for"), she said that he spoke in general terms, with no specifics, about the period when he said and did things which he should not have done. In response to her enquiry about the last time he did such things he had identified two phone calls which he made, in 1997, in breach of the Protection Order. He said that he made those calls because he was frustrated by the lack of contact with S., and on one of the two occasions he had been drinking. I have to say that it appears to me that there was a significant element of self-justification by the father in those statements as, indeed, there was in much of his evidence about that issue.
453. In relation to paragraph 4.13 of her report (quoted in paragraph 124 hereof), Ms Q said that she spoke "fairly frankly" to the father about his feelings towards the mother, and said to him: "If what you say is true, your friends probably think [the mother] is a fair bitch?", to which he responded: "Yes, she is a bitch, but I can't harbour those thoughts for my sake or for S.'s". She said that she proceeded to delve deeper, whereupon the father talked about how he had worked through his feelings about the mother, for his own and S.'s benefit, and how he had been assisted in that process by supportive friends and by spending time with a psychiatrist whom the father, in his evidence, said he consulted, for symptoms of depression, on five or six occasions around November/December, 1998.
454. In general terms, in her oral evidence under cross-examination Ms Q affirmed the contents of her report, and did not depart in any degree from the conclusions expressed in it. Her demeanour and presentation, in giving her evidence, was thoroughly professional. I accept her evidence, whilst acknowledging (as she did) that her opinions rely heavily (although not exclusively) upon what the father told her, and she did not have the benefit of any input from the mother or, more importantly, from S.. Nor was she able to make any assessment of the current interaction between S. and his father, although, on all the other evidence in this case, it is clear that at least whilst S. is residing with his mother any interaction between him and his father is likely to be at best, strained and, at worst, stressful for S..
ULTIMATE FACTUAL FINDINGS
455. Having regard to all of the evidence which I have canvassed above, and the findings about credit and otherwise which I have previously made, I summarize my findings upon some of the more controversial issues in this case, as follows:-
455.1 The Alleged Rape
I am not satisfied that the father raped the mother on Melbourne Cup day 1991, as alleged by her, or at all. I find, on the balance of probabilities, that there was consensual intercourse, of a kind, between them on that day, and that any injury which the mother suffered to her knee on that day was not as a result of any force applied to her by the father in the process or for the purpose of engaging in sexual intercourse with her against her will.
455.2 S.’s Conception
I find that S. was not conceived as a result of the sexual intercourse which occurred between the parties on Melbourne Cup day (5 November, 1991), but rather as a consequence of another consensual act of intercourse between them which occurred approximately and not less than two weeks later, possibly (although I make no specific finding to this effect) after the mother had told the father, falsely, that she was already pregnant. I find that the mother has at all relevant times known that she did not conceive S. on 5 November, 1991, but her motivation for falsely claiming that she did, is obscure. It may be that, not wanting her family and/or friends to know that she had voluntarily engaged in sexual intercourse with the father (which she had done for the purpose of attempting to become pregnant to him), and having suffered an injury to her suspect knee in the process, she found it expedient to claim that he had raped her and, when she subsequently succeeded in becoming pregnant as a result of a later act of intercourse, to attribute her pregnancy to the alleged rape. She would thus maintain some “face” with those to whom she had no doubt previously complained of the father’s ill-treatment of her, particularly having regard to the circumstances of the trophy throwing incident, in September, 1991 and the jewellery theft and damage incident, in May, 1991.
455.3 Sexual Abuse of S.
(i) I am quite comfortably satisfied that no sexual abuse of S. by the father occurred at any time. At worst the child may have accidentally, and without the father’s awareness, witnessed the father indulging in some masturbation in his (the father’s) bed at night. This, coupled with the child’s perception of the father’s possibly clumsy and “macho” attempts to show him how to avoid getting urine on his clothes, by shaking his penis after urinating, and the father’s use of some rather colourful, if not crude, expressions in relation to bodily functions, may have precipitated the words and conduct by S. which were readily (perhaps even eagerly) seized upon by the mother and interpreted as disclosures of sexual abuse. The child made no such disclosure to any independent person or any person in authority at or about the time of the alleged disclosures to M. and the mother. In particular, he made no disclosure when questioned by a police officer at the Child Abuse Unit of the Queensland Police Service on 2 April, 1996 (see the report dated 17 April, 1996, which is part of exhibit 33). Any subsequent statements by S. to others (such as Ms H in March, 1997) which might be seen as slightly suggestive of sexual abuse, must be regarded as having been contaminated by the focus which undoubtedly fell on that topic in the mother’s household from April, 1996 onward.
(ii) As I have previously found, the mother was very much pre-disposed, by that time, to believe the very worst of the father, and motivated to curtail his contact with S., as a means of getting him out of her life, if not as a means of getting back at him for perceived past misdeeds. I have no doubt that whatever S. said or did, if it gave the slightest hint of sexual impropriety by the father, it fell upon very fertile ground, and was nurtured into full bloom by the mother’s abiding abhorrence of the father. That abhorrence was no doubt shared both by M. (who, as an adolescent, had had to live through the turmoil of the volatile and violent relationship between her mother and the father, and had more recently, no doubt, heard much of the gutter bred vitriol directed by the father, to the mother over the telephone) and by Mr A., who had himself borne the brunt of some of the father’s volatility, and had become emotionally interdependent with the mother.
(iii) Not only am I satisfied that no sexual abuse by the father occurred, I am also satisfied that there is no unacceptable risk of such abuse occurring in the future, were the father to be either the parent with whom S. resides or with whom he has unsupervised contact.
455.4 Other ill-treatment of S.
(i) Apart from exposing S. to displays of violence between him and the mother (responsibility for which I shall discuss below) I am not satisfied that the father has been guilty of any other ill-treatment of S.. Whilst he has occasionally displayed a lack of judgment, and a degree of inexperience or insensitivity in his treatment of the child, I am not persuaded that any of his activities with S. were callous or uncaring, as the mother would suggest. A number of her complaints, in this respect, were attempts to make mountains out of molehills, for the purpose of these proceedings.
(ii) Notwithstanding attempts by the father to establish some physical ill-treatment of S. by the mother, I am not satisfied that she has been guilty of any such ill-treatment. Whilst it may undoubtedly be asserted, not unreasonably, that her alienation of S. from his father, about which I shall say more below, and which I have found has been based substantially (although not entirely) upon the false premise that he sexually abused the child, is a form of psychological abuse, I do accept Professor N’s opinion that the mother does believe that such abuse occurred. Although I regard such belief as unsoundly based, I am not satisfied that she has simply fabricated it in order to destroy the father’s relationship with the child. It is impossible to categorise as abuse the actions of a parent which alienates his/her child from the other parent whom the alienating parent believes, however unreasonably, to have sexually abused the child.
(i) There has unquestionably been a history of violence in the relationship between the parties, but it is clear, on any view, that it was not entirely one-sided. On at least two occasions which I have identified (i.e. the trophy throwing incident, in September, 1991 and the incident of 27 March, 1993 following the mother’s visit to a nearby shop), and possibly on a third occasion (namely the incident of 5 April, 1994 when some pictures were broken and the father was hit in the eye with a vase) the mother was at least the initiator of actual violence. In some other cases, I believe the mother exaggerated the extent of the father’s violence and minimised her own contribution in that respect, and also in terms of her provocative behaviour. Nevertheless, a significant degree of responsibility for the violence rests with the father. It is impossible to overstate the significance of the difference between the size and strength of the parties, and the impact upon a woman of being hit, manhandled or even merely physically threatened by a much larger, angry man, even if in some measure she has contributed to his anger.
(ii) However, I do not accept that the mother is particularly frightened of the father, in the physical sense. Her behaviour, in general, I think is inconsistent with that. I instance her insisting on wind-surfing off the beach opposite his residence, her visiting the locality of his residence for recreational purposes on other occasions, her refusal to consider obtaining an unlisted telephone number, and her preparedness to confront him in the park outside his residence on 12 July, 1995, in an aggressive manner, as examples of behaviour inconsistent with such fear.
(i) I have absolutely no doubt that at least from mid 1995 through most, if not all, of 1996, and into 1997, the father was guilty, at least periodically if not continuously, of behaviour towards the mother which could only be described as serious harassment, including stalking both her and Mr A., and making a series of threatening, abusive telephone calls to the mother’s residence, and annoying telephone calls to both her residence and Mr A.’s.
(ii) Although the mother claimed that this harassment, particularly in the form of frequent abusive telephone calls, dated from October, 1994, I do not accept that. Whilst I do not doubt that the father may have occasionally given the mother some oral abuse over the telephone as early as that, I am satisfied that the course of conduct of that kind which could properly be described as “harassment” did not begin until after the father became aware of the mother’s developing relationship with Mr A., which was not until April/May, 1995. I believe that the father’s jealousy towards that developing relationship, coupled with his anger and frustration at what he perceived (with some justification) to be mixed messages which he was receiving from the mother in relation to her intentions as regards her relationship with him, fuelled that course of conduct. That is abundantly clear from the content of the recorded telephone calls from him to the mother which are set out in sub-paragraphs (a) to (h) of paragraph 40 of the mother’s affidavit filed on 20 July, 1998. Those calls were made in the period from December, 1995 to February, 1996.
(iii) Before leaving those calls, I think it appropriate that I record how seriously I regard them, and what a significant role I think they have played in the escalation of the conflict between the parties and in the growth and maintenance of the sexual abuse allegations. Although the father has expressed his regret for making those calls, I think he has failed to appreciate the depth of the impact they must have had on the mother, and the lasting damage which they did to the parties’ relationship as parents of S.. To describe the language used by the father in those calls as “vile” is to grossly understate its offensiveness. They are full of the most degrading, insulting, sexually explicit, vitriol which any woman could possibly wish never to hear from any man, let alone from the one who is the father of her child. Yet, in the midst of this mountain of sexist garbage, the father occasionally still professed his reluctant love for the object of his abuse. The sorts of insults which he directed at the mother, in a tone and manner no doubt dripping with hatred and loathing, could not fail to wound her so deeply that the scars will never disappear. It is little wonder that the woman who was the victim of such a sustained campaign of vilification would want to prevent the perpetrator of that attack from having any influence over her child. If the ground was not already fertile, from the previous conflict between the parties, to receive and nourish the seeds of the sexual abuse allegations, it became lushly so through the fertilization provided by these disgraceful outbursts.
(iv) The remaining calls which are particularised in sub-paragraphs (i) to (l) of paragraph 40 of the mother’s affidavit of 20 July, 1998, which post-dated the mother’s termination of the father’s contact with S., took on quite a different tone. Although they continued to be abusive, and full of accusations of hypocrisy, lies, unchristian and inhuman behaviour, and bad parenting, they focussed very much on the issue of his contact with S., and pleaded for a change of heart by the mother in relation to that matter. Missing are the constant, offensive, sexually explicit insults to the mother, and the personal denigration of Mr A. which so dominated the earlier calls. They suggest that his feelings of hurt and loss at the termination of his contact with S. have largely displaced his earlier feelings of jealousy in relation to the mother and Mr A., and of anger and hatred directed towards them.
(v) I am satisfied that the father, either by himself or through agents, continued to make nuisance telephone calls to both the mother’s and Mr A.’s residences, well into 1997, and that the frequency of such calls was much greater than the father was prepared to concede in his evidence under cross-examination. However, I also believe that the mother and Mr A. have greatly exaggerated the number and frequency of the calls, and have readily assumed every unidentified caller to be the father, when there is at least a possibility, particularly in the case of Mr A., that some other person could be involved. Despite references in the evidence of the mother and Mr A. to investigations, including telephone traces, carried out by the police and Telstra, there is no admissible evidence as to the outcome of such investigations, leading to the inference that no proof of any involvement by the father was thus elicited.
(vi) I am not satisfied that the father, or anyone acting as his agent, carried out any of the acts of vandalism at the mother’s and Mr A.’s residences which have been attributed to but denied by him, in relation to which there is no evidence directly implicating the father. In particular, I find that the father was not responsible for the damage to Mr A.’s residence and his dog which is said to have occurred in the period from 26 December to 31 December, 1999, nor for the placement, in Mr A.’s driveway of a strip of timber with nails and tacks protruding from it, on 22 August, 1998.
(vii) I have already referred to some “stalking” by the father of the mother and Mr A.. Again, I find that their accounts of those incidents are probably exaggerated, but that stalking (in the form of the father’s driving past or parking near the mother’s or Mr A.’s residences at times in order to monitor their movements) occurred more frequently than the father was prepared to concede. At the same time, I am satisfied that the mother also did some similar “stalking” of the father, at least in the period from 1991 to 1995. The parties, I believe, shared a mutual fascination, even an obsession, with each other during those years, as part of their destructive love/hate relationship, in which there ceased to be any love, but only hate, by the end of 1995.
455.7 Alienation of S.
(i) I accept Professor N’s evidence that S. has been completely alienated from his father as a result of the mother’s belief that the father sexually abused him, and her reaction to that belief, in the context of her deep-seated hatred of the father arising from the long history of conflict between them. I find that a very significant factor, in the development of that hatred, was the father’s bombardment of the mother, throughout the latter months of 1995 and the early months of 1996, with verbal (and emotional) abuse through the telephone calls to which I have referred.
(ii) Given that I am satisfied that the father has not sexually abused S., nor mistreated him in any other significant way (except through the exposure of him to the worst features of the conflict between the parties, a matter with respect to which the mother shares some responsibility), I find that it is not in S.’s long-term best interests to remain completely alienated from his father. Whatever his father’s shortcomings may be (and he is certainly not without them) it would be more beneficial to S.’s ultimate development into a mature, adult male, to have some kind of a relationship with his father based upon his own experience of him, rather than to grow to maturity with a distorted, non-reality based concept of him.
(iii) Since S. has lived all his life with his mother, who has been his primary care giver and to whom he is undoubtedly very strongly emotionally attached, it would be far preferable, from the point of view of his well-being, if he could develop a relationship with his father, through regular contact, whilst continuing to live with his mother. However, it is clear from Professor N’s evidence, which I accept, that the prospects of that occurring are very remote, given the mother’s entrenched belief that the father has sexually abused the child and her deep seated hatred and mistrust of the father. My own assessment of her is that she is unlikely to accept my determination that no sexual abuse occurred and that there is no unacceptable risk of it, or my rejection of her perception of the father as the personification of evil. I believe that she has far too great an emotional investment in that perception to give it up without a prolonged course of counselling, and that she would not willingly participate in such counselling. Even if the Court has power to order her to attend such counselling, as part of its final orders in these proceedings (a point upon which I express no opinion) it would be unlikely to be successful without her willing participation.
(iv) Although the father is, I believe, well motivated and sincere in his ultimate application to have S. live with him, and although Ms Q’s report upon his parenting capacity is essentially positive, he remains totally untried as a full-time parent, and I retain reservations about his capacity to cope with the sort of problems which S. and he would undoubtedly experience in the event of my ordering a change of residence. I take note of Professor N’s evidence that such a move would be experimental, and that the risks of such a change are immediate and predictable with reasonable certainty, whereas the risks of continuation of S.’s residence with his mother and the cessation of any contact with the father are more remote and less certainly predictable. Whilst I do not find that the father lacks the capacity to cope with S.’s transition to his care, I do find that there is a significant risk that he will be unable to cope adequately with the predictable behavioural problems which S. will experience as a result of such a change. If that should prove to be the case, the experiment will have failed, and S. would have to go back to his mother, possibly permanently damaged by the process. That risk must be weighed against the risk to S.’s long term development of the continuation and confirmation of his alienation from his father.
(v) I find that the father’s parents would be strongly supportive of the father were S. to reside with him, and that their support, and that of his other family members, would be of considerable assistance to him in coping with the problems likely to be experienced by him and by S. in that context. I reject the mother’s evidence that the father’s mother displayed cruelty or callousness towards S. at any time. I have no doubt that she would try to be a loving grandmother to S., and would be suitably protective of him, if she had the opportunity or the necessity so to do. I think it would certainly be to S.’s advantage, in the event that he were to live with the father, if the paternal grandmother (and her husband) were to move in to live with their son for the first few months. Not only would that provide the father with some emotional and practical support in his new role as a full-time parent, but it would also, I think, provide S. with some valuable emotional support, and some relief for both S. and his father from the emotional pressure of living together in isolation, in circumstances where they would be trying to re-build a very damaged relationship.
THE APPLICABLE LAW
456. The proceedings in this case are proceedings under Part VII of the Act for “parenting-orders”, as defined by s.64B(2)(a) and (b). All of the provisions of Part VII are to be applied having regard to the objects of that Part, as defined by s.60B(1) and the principles underlying those objects, as defined by s.60B(2).
457. The objects of the Part as prescribed by s.60B(1) are:-
“... to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
458. The “principles” underlying the “objects”, as defined by s,60B (2), are that:
“... except when it would be contrary to the 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.”
459. Of particular relevance to the circumstances of this case are the principles outlined in paragraphs (a) and (b) of s.60B(2). These parents have displayed an inability to meet the principle set out in paragraph (d) of that subsection, and that set out in paragraph (c) is impossible of operation whilst S. remains alienated from his father, save to the extent that the father may continue to meet his responsibility for the financial support of S. through the payment of child support for him as assessed from time to time under the provisions of the Child Support (Assessment) Act, 1989.
460. However, as the Full Court (Nicholson CJ, Fogarty and Lindenmayer JJ) said, in B and B: Family Law Reform Act 1995 (1997) FLC 92-755, those principles, whilst providing guidance to the Court’s consideration of the matters referred to in s.68F(2) and to the overall requirements of s.65E, are expressly subservient to the “best interests” of the relevant child, which remains, throughout, the paramount consideration, and the final determinant of the proceedings. Thus, in a particular case, if the best interests of the child in question require the curtailment or even the total cessation of the child’s contact with one parent, then that is the result mandated by s.65E, notwithstanding the principles specified in s.60B(2)(a) and (b).
THE RELEVANT MATTERS FOR CONSIDERATION UNDER S.68F(2)
461. Having regard to the findings which I have already made it is probably necessary only that I now identify the relevant matters for consideration under s.68F(2), and indicate briefly how I see consideration of those matters as impacting upon my determination of which of the three options open to the Court, as proposed by Professor N, is now in S.’s best interests.
462. Paragraph (a) of s.68F(2) prescribes for consideration: “any wishes 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 to the child’s wishes”.
463. There can be no doubt in this case that S. is currently expressing, both by words and conduct, a wish not to have any contact with his father. However, I am satisfied that that wish is the product of S.’s alienation from his father by the words, conduct and attitude of his mother and all those in her household or closely associated with her. It follows that S.’s wish is to continue to reside with his mother, but that wish is not itself the product of his alienation from his father, but rather the natural product of the fact that S. has always lived with his mother, is emotionally attached to her, and could have no real concept of living elsewhere.
464. Given that S.’s wish not to have any contact with his father is the product of his alienation from him by his mother (and others), and given also S.’s relative immaturity (he was aged almost four when the alienation began in earnest, and has just turned nine at the time of completion of this judgment), it is not a wish to which I consider any significant weight should be given in determining what is in his best interests. However, his wish to continue to live with his mother, having a sounder and less reprehensible base, is worthy of somewhat greater weight in the ultimate balancing process. Again, however, given his relative immaturity, and his consequent inability to judge what may or may not be in his own long-term best interests, it is not a matter upon which I think it correct to place any great weight.
465. Paragraph (b) of s.68F(2) requires the Court to consider “the nature of the relationship of the child with each of the child’s parents and with other persons”.
466. As indicated above, S.’s closest, and no doubt his most important relationship, is with his mother. The evidence suggests that he also has a normal sibling relationship with M. and Sc., the latter of whom continues to reside with him and his mother. Although M. lives with Mr and Mrs H., and has had some disagreements with her mother, there is nothing to suggest that there has been any real rift in that relationship, much less in her relationship with S.. The evidence further establishes that S. has a good, although not necessarily a deep relationship with Mr A., whom he refers to as "P." but who, in many ways, acts as a parent towards him.
467. By contrast, S. has practically no relationship with his father, or with any of the members of his family. He has a perception of his relationship with his father, which is very negative but as I have said, that is not a reality-based perception, but one based predominantly upon misleading impressions of his father conveyed to him by his mother and, to a lesser extent, his siblings and Mr A.. Given the right circumstances, I think the father has the capacity to build a reasonable father-son relationship with S., but the uncertainty is whether S. has the capacity to accept the building of that relationship so that it becomes reciprocal or mutually satisfying and healthy.
THE LIKELY EFFECT OF ANY CHANGES IN S.’S CIRCUMSTANCES
468. Paragraph (c) of s.68F(2) obliges the Court to consider:
“the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; and
(ii) any other child, or other person, with whom he or she has been living.”
469. I have already made findings about the likely short-term and long-term effects on S. of a continuation of his separation from his father, and of the short-term and long-term effects of a change of residence from that of his mother to that of his father. At this point it will suffice to say that I am satisfied that the initial impact of any separation of S. from his mother and his siblings is likely to be quite severe, and the duration of that severity uncertain. Even if he were going into an environment with which he is familiar, and into the care of a father with whom he has an established and positive relationship, I consider that S. would suffer some short-term ill-effects, likely to be reflected in some behavioural problems, as a result of the separation. In that event, however, one could probably safely predict a fairly rapid resolution of those problems, particularly if the child had regular and frequent contact with those from whom he had been separated. However, in the circumstances of this case, the child would have to cope not only with the separation from those to whom he is most closely and deeply attached, but also with the necessity to form a relationship with a person whom he currently perceives as evil and dangerous. In addition, if Professor N”s advice, as set out in paragraph 439 hereof, is followed, he would have to try to cope with those twin stresses without immediate contact with his mother, who is undoubtedly his single greatest source of emotional security at this point in his life. That is a very significant burden to place upon such a young and already emotionally vulnerable child.
PRACTICAL DIFFICULTIES OF S.’S HAVING CONTACT WITH NON-RESIDENT PARENT
470. Paragraph (d) of s.68F(2) requires the Court to consider:
“the practical difficulty and expense of a child having contact with a parent and whether the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.”
471. In this case there is no issue of expense of contact between S. and his non-resident parent, but there is very much a practical difficulty in his having contact with the father if he continues to reside with the mother. That practical difficulty is simply that, because of the alienation of S. from his father, it is emotionally impossible for S. to have regular, satisfying and beneficial contact with his father whilst his mother maintains that alienation through her belief that the father has sexually abused the child and is otherwise unfit to have any relationship with him. Conversely, if S. were to live with his father, there would be a practical difficulty in his having contact with his mother arising from the likelihood that during any such contact the mother would, whether deliberately or otherwise, undermine the child’s development of his relationship with the father, and thus further de-stabilize the child’s life.
THE CAPACITY OF THE PARENTS TO MEET S.’S NEEDS
472. Paragraph (e) of s.68F(2) requires the Court to consider:
“the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs.”
473. In this case, there is no issue about the capacity of either parent to meet S.’s physical or intellectual needs. There is, however, a very significant issue about their respective capacities to meet his emotional needs.
474. I am satisfied that in all save one important respect the mother is able to meet S.’s emotional needs. The one important exception to that is her capacity to meet his need to have an ongoing relationship with his father. She has demonstrated by her conduct to date that she is quite unable to meet that need in S. because of her own deeply held feelings of animosity and mistrust towards the father, and her inability, in this area, to place S.’s needs ahead of her own. Whether she will be able to meet that need in the future depends on her capacity to accept my judgment in this case that her perception of the father, as a father, is mistaken, and I have already expressed my doubts that she can do that.
475. So far as the father is concerned, I do not doubt that he would have the capacity to meet S.’s emotional needs, even his need to maintain a good relationship with his mother, were he a normal, well-adjusted child. However, if S. were to come to live with him he would not be a normal, well-adjusted child, at least in the early stages after that change. I have already made findings about the likely consequences for S. of such a change and have expressed my reservations about the father’s capacity to cope with these consequences. I have also found that his capacity, and S.’s, to cope with the change would be enhanced if the father’s mother were to reside with them both during at least the initial six months or thereabouts after the change.
S.’S MATURITY, SEX AND BACKGROUND
476. Paragraph (f) of s.68F(2) requires the Court to consider:
“the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant.”
477. In this case there are no cultural or lifestyle issues which are relevant to S.’s best interests. I have already referred to his relative immaturity, and to Professor N’s evidence that his internalization of his relationship with his father is an important part of his own manhood and his capacity to “father” his own children.
THE NEED TO PROTECT S. FROM HARM
478. Paragraph (g) of s.68F(2) requires the Court to consider:
“(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.”
479. I have already found that S. has not been sexually abused or otherwise ill-treated by the father, and that there is no unacceptable risk of such abuse or ill-treatment in future. The child therefore needs no protection from any such abuse or ill-treatment. I have also found that the mother’s denial of contact by S. with the father cannot be categorised as abuse or ill-treatment (although it has had a detrimental effect on the child’s relationship with his father) in circumstances where she believed, although wrongly, that he had abused the child. I suppose, however, that a continuation of her alienation of S. from his father, in the face of my findings that he has not abused the child, would be capable of constituting behaviour exposing the child to psychological harm, and there is a risk of such behaviour by the wife which I have identified. Accordingly, this is a risk from which there is a need to protect S., if that is possible consistent with his overall best interests.
480. Both parties have been guilty, to some extent, of exposing S. to violence between themselves in the past. Of the two, I would apportion a greater share of the responsibility for that to the father, because I am satisfied that on a number of occasions he allowed himself to become very angry and aggressive in attitude towards the mother, in S.’s presence, and to behave in ways which could only have been frightening for her and for S.. However, the parties are now living apart, I believe the father has made a real effort to extricate himself from the destructive cycle into which their relationship had deteriorated, and I have no basis for a finding that he has any general propensity for violence which is likely to surface in other relationships or in his every-day life.
481. Similarly, I have no basis for a finding that the mother has a propensity for violence in her every-day life, and there is not a hint of violence in her current relationship with Mr A..
482. There is, of course, a risk that if I make orders which necessitate any regular contact between the parties, particularly, for example, at contact hand-over times, this would expose S. to a risk of further violence between his parents. However, given the passage of time, I think this risk is fairly remote, and is not one which I need to take any particular precaution to avoid.
THE PARTIES ATTITUDES
483. Paragraph (h) of s.68F(2) requires the Court to consider:
“the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parties.”
484. Again, apart from the exposure of S. to the ugly and intractable conflict between them (and, in the mother’s case, her alienation of S. from his father with which I have already dealt sufficiently), both parties have displayed reasonable attitudes to S. and to the responsibilities of parenthood.
485. Paragraphs (i) and (j) of s.68F(2) require the Court to consider:
“(i) any family violence involving the child or a member of the child’s family;
(j) any family violence order that applies to the child or a member of the child’s family.”
486. I have already dealt with the issue of violence in the relationship between the parties and, in reciting the relevant history have referred to relevant “Protection Orders” under the Queensland domestic violence legislation. There were no current orders under that legislation in force at the conclusion of the hearing of these proceedings.
487. Paragraph (k) of s.68F(2) required the Court to consider:
“whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.”
488. It is always difficult to know how to apply this provision. Obviously, the order which is least likely to lead to the institution of further proceedings in relation to a child should not be made if that order is contrary to the best interests of the child or if, treating those best interests as paramount, another order would better serve those interests. This provision merely gives recognition to the fact that, as a general rule, continued litigation about parenting orders is not in children’s best interests, but it cannot and does not abrogate the Court’s obligation under s.65E. I suppose that if, after considering all other relevant matters and focusing on the child’s best interests as the paramount consideration, the Court were to conclude that the scales were absolutely evenly balanced between two possible forms of order, one of which is less likely than the other to lead to the institution of further proceedings, then regard to this provision should lead it to make the first of those orders.
489. The other difficulty about this provision is that it is often difficult, if not impossible, to determine which of two possible orders is less likely to lead to the institution of further proceedings. Is that to be judged solely by the nature of the orders, or solely by the Court’s assessment of the likely future behaviour of the litigants, or a combination of both? In a case where the choice is between leaving a child with the parent who has always been his or her primary care-giver, with no contact whatsoever by the other parent, and moving the child from residence with the long-term care-giver to residence with the hither-to alienated parent, with provision for some contact (even if postponed for a time) by the previous primary care-giver, I suppose it would be reasonable to conclude that the former order would be less likely to lead to the institution of further proceedings than the latter, at least where the alienated parent is not shown to be a habitual vexatious litigant. That is because there is less scope for the institution of further proceedings by a parent who has never been the child’s primary care-giver and who has no contact with the child than there is by a primary care-giver deprived of residence but with regular contact. As I have said, however, this provision could only be resorted to if the Court were to conclude that the balance between the two alternative orders was, having regard to the child’s best interests, absolutely equal on all other relevant considerations.
490. Finally, paragraph (l) of s.68F(2) enables the Court to consider:
“any other fact or circumstance that the court thinks is relevant.”
In this case, I am unable to perceive any other relevant facts or circumstances which are not covered by what I have already said in considering the other paragraphs of the subsection.
THE SUBMISSIONS OF THE CHILD’S REPRESENTATIVE
491. The submissions of counsel for the Child’s Representative were detailed and helpful, citing relevant parts of the evidence, drawing my attention to appropriate provisions of the Act and to relevant authorities, and stating in quite clear terms the pros and cons of the various options put forward by Professor N. Counsel submitted that the option of continuing the contact visits of the father in the same context as had been tried pursuant to the consent orders of 16 September, 1999, is not a viable option. I agree with that submission. That option was never seriously proposed by Professor N and was expressly abandoned by him in his oral evidence. Similarly, counsel submitted, again in my view correctly, that the second option referred to by Professor N in paragraph 36 of his last report (see paragraph 103 hereof) was not a viable option. Again, that option was never seriously proposed by Professor N (see paragraph 105 hereof) and was also effectively abandoned as an option in his oral evidence.
492. In relation to what I have described in paragraph 434 hereof as professor N’s “modified option 2” (a continuation of the contact, but under the supervision of the paternal grandparents, for a trial period of three months, upon the premise that if the mother’s attitude had not changed by the end of that period, there be a change of residence), counsel submitted that this too is not a viable option. Although counsel did not explain that submission, I assume it to be based upon the premise that, given the mother’s attitude to date, there is really no prospect that it would change significantly within such a short period. In addition, I have already noted that a further condition of this option, as advanced by Professor N, was that the mother undergo a course of therapy during that three month period to assist her to adjust to and accept a re-commencement of the father’s contact. As I have previously stated, I doubt the court’s power to order her to undertake such therapy as part of its final orders in these current proceedings.
493. One possible way to achieve that result, without directly ordering the mother to undergo such therapy, would be to make a residence order in her favour conditional upon her doing so. However, such a conditional order would present a number of practical problems. Who would choose the therapist and the program of therapy? Who would pay for the therapy? Since the willing participation and co-operation of the patient must be almost an essential prerequisite to the success of this kind of therapy, how would the mother’s willingness and co-operation be ensured? Certainly, no court order can do that. So, even if the practical problems of choice of therapist and the program of therapy could be overcome through an order of the court delegating someone (such as the Child’s Representative or Professor N) to make those choices, and if the question of who should pay could also be decided by the court and made the subject of an order, there is simply no way of compelling the mother to participate willingly in such a process. Without her co-operation I think such a process would be futile. Hence I agree with the submission of counsel for the Child’s Representative that Professor N’s “modified option 2”, although attractive, is not viable.
494. In relation to the two remaining options (permanent cessation of the father’s contact, save for some occasional gifts and letters, or a change of residence to the father), counsel for the Child’s Representative ultimately made no submission supporting either option. His submissions closed with the following “Conclusion”:-
“14.1 It is the Child Representative’s view that the case becomes one of whether the Court considers that a change of residence is warranted upon a consideration of all the evidence and the Child Representative submits a form of orders in respect of S. remaining with his mother, or changing residence to his father.”
The inability of the Child’s Representative to put a submission in support of either of those options highlights the difficulty of the choice confronted by the Court in this case, neither option being seen as a particularly attractive one, from the perspective of the child’s best interests.
495. The two alternative forms of order put forward by the Child’s Representative, as indicated in the concluding paragraph of her counsel’s submissions quoted above, are as follows:-
“IF S. IS TO RESIDE WITH THE FATHER
(1) That the child S., born ... August 1992 reside with the Father and he have sole responsibility for his day-to-day care, welfare and development.
(2) That to facilitate the child transferring to his Father’s residence, the Mother produce the child to the Family Court Counselling Section at Brisbane on (a date to be nominated).
(3) That S.’s residence in his Father’s household be monitored by the Family Court Counselling Section pursuant to section 65L of the Family Law Act, and a report be provided to the Court and Child Representative as to the following:
(a) S.’s adjustment and coping in his Father’s household;
(b) S.’s coping with separation from his Mother and family;
(c) When and on what terms contact with the Mother should recommence;
and that such report be produced after a period of 3 months.
(4) That the question of the Mother’s contact with S. be listed for determination after the production of the report in Order (3) hereof.
(5) That the Child Representative not be discharged.”
“IF S. IS TO RESIDE WITH THE MOTHER
(1) That the child [S.], born [...] August 1992 reside with the Mother and that she have sole responsibility for the long term and day-to-day decisions concerning his care, welfare and development.
(2) That the Father be at liberty to forward a letter and a gift to S. at Easter and Christmas and on the child’s birthday in each year.
(3) That the mother forward the father:
(a) copies of S.’s school reports and order forms for school photographs within 7 days of receiving them from the school;
(b) a photograph of S. (not being a school photograph) and a short letter outlining S.’s general health, extra curricular interests and development generally at the conclusion of each school year.
(4) That the Mother permit S. to respond to the letters and gifts received from the Father by correspondence if he should wish to do so.
(5) That the Mother and Father notify each other in writing within 7 days of any change of address.
(6) That the Mother be restrained by way of injunction from changing the child’s surname.
(7) That the Mother do all necessary acts and things and sign and procure the signing of all necessary documents to have the child’s surname on all official records, including school records, as [D-P].”
THE SUBMISSIONS OF THE MOTHER
496. The submissions of counsel for the mother, after referring to the relevant principles and some relevant authorities [including B and B: Family Law Reform Act 1995 (supra)] focused, as is to be expected, upon the need to protect S. from harm and, in that context, upon the indisputable evidence of S.’s present “marked resistance and reluctance to interact with this father”. It was submitted that “such an attitude on the part of the son just simply cannot be explained away as the product of the mother’s influence”. The submissions then addressed numerous evidentiary matters and factual issues, to which I have had regard when considering and ultimately making my findings on those factual issues, as set out above. It is therefore unnecessary for me to refer to those details of the submissions. The submissions also highlighted the fact that the father is “completely untried and untested in relation to being the residential parent of S.”, whereas “apart from her attitude to contact, there is no criticism put forward as to the mother’s ability to care for” the child.
497. In the section of the submissions headed “Conclusions”, after observing that “the assessment of S.’s best interests requires choice between alternatives where there are identified risks in relation to each of them”, counsel proceeded to identify and compare the risks to S. of a change of residence to the father with those of continued residence with the mother and a permanent cessation of all direct contact with the father. Those two options were accepted as the only viable alternatives open to the Court. As I have already identified and compared the differing risks posed by the two options, it is unnecessary to refer specifically to counsel’s submissions in relation to them, which I have had regard to in making my own analysis and findings.
498. The ultimate submission of counsel for the mother was as follows:-
“5.6 It is therefore submitted that weighing all of the relevant factors and in applying the correct principles in having regard to S.’s best interests, the correct outcome in this case is for residence to remain with the mother and for the father not to have contact with S. other than as proposed in the Orders set out in the annexure to the separate representatives submissions, under the heading, ‘If S. is to reside with the mother.’”
499. Counsel for the mother then referred to Professor N’s evidence that a change of residence for S. would be “an experiment”, if that meant “that the outcome was uncertain”, and submitted that the experimental nature of the change of residence option was implicit in the orders suggested by the Child’s Representative under the heading “If S. is to reside with the father”, particularly the suggestion inherent in paragraph (4) of that proposed order that “there be a three month period of ‘cold turkey’ without contact between the child and mother, with a review of the options as to residence and contact, after that period”. [In passing I note that paragraph (4) of this alternative form of order put forward by the Child’s Representative does not envisage the issue of residence being reviewed after the three month period, but only the issue of the mother’s contact.] Counsel then concluded his submissions with the following submission:
“5.9 Clearly the outcome of taking such an option would be uncertain and the magnitude of the risks involved so great that it is further respectfully submitted that it would not be an appropriate exercise of the function of this court to take such risks.”
THE SUBMISSIONS OF THE FATHER
500. At the outset of the submissions for the father, his counsel set out the orders now sought by his client in the following terms:-
“1. That S. resides with the applicant and that the respondent have contact as determined by the Court and/or as set out below.
2. Such contact be on a supervised basis commencing with telephone contact once a week for three months and thereafter a three month period of supervised contact every second Sunday between the hours of 1pm and 5pm at [the] Contact Centre. A report be produced by the Family Court counselling section monitoring the contact arrangements over the period of six months. Subject to a satisfactory report respecting contact arrangements at the end of six months, that the usual orders for contact be introduced with every second weekend, half school holidays and such other contact as may be agreed between the parties.”
501. Immediately following that statement of the orders sought by the father, his counsel summarized the reasons for his contention that there should be a change of residence for S. in the following passage:-
“The child, S., has been subjected to a systematic campaign to alienate him from his father. Unless arrested, it will permanently inculcate the child with a belief that his father is a monster and that belief is likely to extend into adulthood affecting inter-personal relationships. It has had a detrimental effect upon him and, unchecked, will leave a permanent scar on his life. It amounts to a very serious case of parental alienation. There is no reasonable or practicable middle ground option to redress it. Nothing short of a complete change of residence will allow the child the opportunity to live his life secure in the knowledge that both parents are positive and enriching reagents in his upbringing.”
502. These submissions then undertook a very detailed review of the evidence, expert and non-expert, in the course of which many submissions were made as to which evidence on various issues should be accepted, and which rejected, and what factual findings should be made in relation to those issues. I have had regard to all of those submissions (without referring specifically to them) in making my own analysis of the evidence and my findings on credit and upon the issues, earlier in this judgment. It is therefore unnecessary for me to refer to those detailed submissions here. It will be apparent that I have accepted many of those submissions, but also rejected many others. I should perhaps record that I have not accepted some submissions, appearing on pp.9 and 10 of that document, to the effect that the report of Ms ME (dealt with in paragraphs 59 to 70 hereof) exhibited “lack of balance”, “partiality to the respondent” [the mother], “lack of ... objectivity” or “absence of insight into human nature”. I regard those particular submissions as themselves lacking objectivity and balance.
503. These submissions then proceeded to respond, in some detail, to the submissions of counsel for the Child’s Representative and counsel for the mother. Again, I have had regard to those submissions in my earlier consideration of, and in arriving at my earlier findings on, the issues in this case.
504. The next section of these submissions, headed “The Law” begins with a consideration of the so-called “Section 68F(2) Factors”, in which counsel has addressed each of the matters referred to in that subsection, in turn. As I have also already undertaken a detailed consideration of those matters, I find it unnecessary to refer in much detail to these submissions. However, I think it appropriate to highlight a few of these submissions, which I have found to have at least a degree of merit, or which I think require further comment.
504.1 Under paragraph (b) of s.68F(2), counsel submitted:
“There is, at least in part, an unhealthy relationship between the child and his mother that seems to derive much of its energy from de-humanising the father.”
Although I find the latter part of that submission somewhat colourful and emotive, the thrust of the submission is sound.
504.2 Under paragraph (c) of s.68F(2), counsel submitted:
“The initial separation [of S.] from the mother would not be easy but handled appropriately will not have as much an effect as may be thought. If it is in his best interests to have a relationship with both parents, then that must over-ride the difficulties of transition.”
Whilst I think that the first sentence of that submission takes an overly optimistic view of the likely impact on S. of a change of residence, the second sentence has some merit, provided the difficulties of transition are not disproportionate to the benefits of restoring a healthy relationship with both parents. That is the nub of the problem presented by this case, and it is one which it is not easy to resolve.
504.3 Under paragraph (e) of s.68F(2), counsel submitted that Ms Q’s report, and the evidence in the case “indicates a committed and capable father”. I readily accept that he is a committed, and a loving father, but his capability is yet to be tested, particularly his capability to deal with an emotionally disturbed child, as S. is bound to be, at least short-term, in the event of a change of residence.
504.4 Under the same paragraph of s.68F(2), counsel submitted that the mother “seems to lack insight into the child’s emotional needs” and “appears to have given little or no thought to S.’s future life of total alienation from his father”. However, as I have already said, I think the mother’s lack of insight into S.’s emotional needs is limited to his need to have a relationship with his father, and that lack of insight arises from her own strongly held but erroneous perception that the father offers nothing of value, as a father to S., but only negative influences. As to S.’s future life of alienation from his father, I am sure that the mother sees that as a positive thing for S., particularly given her relationship with Mr A. whom, I am sure, she sees as a suitable father figure for S. to replace his father.
504.5 Under paragraph (g) of s.68F(2), counsel submitted:-
“S. has been subjected to very serious and deliberate alienation by the respondent from the applicant. [Professor N] has said that the methodology involved especially the cross-questioning fuels his anxieties and that this is ‘extremely harmful’ to S.. The real key to unlock the child from this abuse is contact with the father. To cut off the child from his father would be a complete negative.”
Whilst this is substantially correct, I have earlier found that the mother’s alienation of S. from the father was based, in large measure at least, upon her belief that he had sexually abused the child, and that in those circumstances her alienation could not be categorised as “abuse” of the child. However, I have also expressed the view that for the mother now to continue the alienation, in light of my findings, could be categorised as abusive of the child, and that there is therefore a need to protect him from that abuse, but only if the cure is not worse than the disease. Again, that brings me back to the nub of the problem in this case to which I have previously referred.
504.6 Under paragraph (k) of s.68F(2), counsel submitted that a change of residence “would lead to a cessation of further proceedings”. However, that seems to be as opposed to Professor N’s “modified option 2”, rather than as opposed to permanent cessation of direct contact between the father and S.. I re-iterate the view expressed earlier that of the two options now being considered, that less likely to lead to the institution of further proceedings is the “no further contact” option rather than the “change of residence” option.
504.7 Under paragraph (l) of s.68F(2), in some rather colourful and emotive language which I need not repeat, counsel submitted that the mother has used delay as a means of further alienating S. and that it “could amount to an abuse of the processes of this court for her to be able to point to lapse of time as a factor militating against a change of residence”. It was submitted, correctly, that ultimately “the paramount interests of the child must always be at the forefront” of the Court’s considerations. However, the issue of delay and its consequences is a matter to which I shall refer further below.
505. Counsel next turned his attention to what he described as “Over-riding principles – s.60B”, in the course of which he referred to and relied upon the case of Re David (1997-98) 22 FamLR 489; (1997) FLC 92-776. In that case the Full Court upheld the decision of a trial Judge to order a change of residence from the primary care-giver mother to the father of a six year old child in respect of whom the mother had made, what the trial Judge found were either false or unfounded allegations of sexual abuse, as a result of which the father had not seen the child for a period which appears to have been between 12 and 15 months prior to trial. Counsel directed my attention, first to that part of the Full Court’s judgment (at FamLR 503-6) in which it extracted a passage from B and B: Family Law Reform Act (supra) about the operation of s.60B, and then to passages (at FamLR 506-507) where the Full Court said this:-
“In the present case, it is quite clear that any order which had the effect of preserving the status quo as to residence would have run contrary to the best interests of this child and to the spirit of the law as it is now stated in the Family Law Act .
While it is obviously a very serious step to alter a Residence Order in respect of a young child which has the effect of removing him from his principal caregiver, there are some situations, and we think that this is one of them, where the Court has no option but to do so.
Where a parent is the residence parent pursuant to a Residence Order, they have a clear obligation, not only to comply with the order, but to take all reasonable steps to ensure that a child is made available to the other parent for the purposes of contact in accordance with the order. All too often, such parents behave as this mother has done, and rely upon a child's purported refusal or stated lack of desire to see the other parent, as a justification for denying contact.
However, in high conflict situations such as this one, it is frequently the case that the child is doing no more than seeking to adopt a position that he or she thinks will be the one desired by the parent concerned, because of the powerful position that such a parent occupies. To permit such a situation to continue is extremely damaging to such a child and should not be countenanced.
The first difficulty is to identify that this really is the situation and that there is not some more significant basis for the child's attitude, such as a genuine complaint of ill treatment or abuse. In the present case, this process has been undertaken and the trial Judge has concluded that there is no such basis. Moreover, as mentioned earlier in this judgment, the mother through her counsel effectively conceded that the sexual abuse allegations were ill-founded.
The second difficulty is to achieve a positive solution. In the present case there were exhaustive attempts to bring about a situation where a previously satisfactory contact regime could be resumed, all of which were thwarted by the mother and her husband.
It is sometimes said that this sort of behaviour can be overcome by a more rigorous attitude on the part of the Court to the enforcement of its orders. There are however a number of difficulties about this proposition.
In the first place, this is a civil court and cannot enforce an order unless someone asks it to do so.
Second, when it is asked, the material upon which it is expected to act is often deficient and having regard to the potentially serious consequences of making a finding that an order has been breached, it is apparent that the court cannot make orders based upon defective material.
Third, in high conflict situations such as the one exemplified in this case, the motives of the person alleging a breach of the order may be questionable and the application may have been brought for tactical reasons in order to achieve some other advantage.
Fourth and most importantly, the enforcement options open to the Court are extremely limited. In substance, they consist of imprisonment or fine, the making of a community service order and make-up contact. Where there is implacable opposition by the residence parent, the making of any one of these orders may, in many cases, have a most destructive effect upon the welfare of the child in question and achieve little or nothing in relation to bringing about meaningful contact. If compliance does result, the manner in which contact thereafter occurs and the attitude of the residence parent to it may, in some cases, be more damaging to the child than if it does not occur.
The option of a change of residence must therefore be seriously considered in cases such as this one as being the only way in which contact with the other parent can be preserved.
In the present case, his Honour found that there was a loving home for the child with his father and grandparents and in these circumstances, as we have said, we think that the order that he made was correct.
We are accordingly, of the view that the appeal against the Residence Order must be dismissed.”
506. Counsel then submitted that in this case the position adopted by S., in relation to contact with his father, is the position that he thinks is desired by his mother, not that which he would adopt independently were he a free agent. Assuming the correctness of that submission (with which, in essence, I agree) then the dictum in the above quoted passage from Re David, that “[t]o permit such a situation to continue is extremely damaging to such a child and should not be countenanced”, becomes directly relevant to and persuasive in this case.
507. Finally, after reference to some dicta of L’Heureaux-Dubé J and of Pugsley JA in some Canadian authorities, to which I need not refer, and some further submissions, including that “[t]here is not such an effluxion of time since the last contact nor is the age of the child such as would render a change of residence prohibitive” [sic.], counsel summarized his submissions in the following “Conclusion”:-
“The options in respect of S.’s future are limited and clear.
On the one hand, S. can stay with his mother. It is uncontested that if this happens, S. will not know his father. He will thus grow suffering a deprivation that no child should have to bear. The long term effect of such deprivation is unknown but may be serious.
On the other hand, S. can reside with his father and have contact with his mother. He will thus know both parents. [Professor N’s] last report clearly asserts that this is the preferred option, subject to the applicant’s ability to be an effective full-time parent.
The report of Ms [Q] and her evidence suggests that the father should be able to fulfil this role. Such an observation never comes with a written guarantee, but this material was sufficiently impressive to satisfy Professor [N’s] query. The applicant has everything to gain from repaying the trust of the court by providing a happy and stable future for S..
It is submitted, quite simply, that it is in the best interests of S. that he be allowed to have both a mother and a father.”
508. I indicated earlier that I would come back to the issue of delay, touched on in the submissions for the father which I have referred to in paragraphs 504.7 and 507 hereof. I think it appropriate that I address that issue, not the least because of the inordinate delay, for which I alone am responsible, which has occurred between the conclusion of the hearing and the delivery of this judgment. However, that delay (now of almost 14 months, if measured from the date of the last of the parties’ written submissions, namely 4 July, 2000) has to be measured against and in the context of the delay which occurred between the institution of these proceedings, on 2 July, 1996, and the conclusion of the hearing, on 4 July, 2000 (a period of four years). Much of that delay was attributable to the actions of one or other or both of the parties or their legal representatives in relation to the conduct of the litigation, or to the need perceived by the Child’s Representative (and indorsed by the court, often with the consent of the parties) to constantly obtain further expert evidence. One of the unfortunate consequences of that has been the continual proliferation of material from both sides, with an ever-widening range of issues that ultimately needed to be considered and dealt with.
509. Having said all that, however, the facts that S. is now five years older than when all this started, and 15 months older than when the parties last gave evidence before the Court, and that during all of that time, save for the failed attempt at supervised contact between 7 November, 1999 and 30 January, 2000, he has had no direct contact with his father, are relevant to the determination of these proceedings. At the same time, however, in the absence of any evidence of significantly changed circumstances since the end of the hearing on 25 May, 2000 (an opportunity to adduce which I propose to give to the parties before publishing this judgment and making final orders in this case), it seems clear from Professor N’s evidence that S.’s alienation from his father was complete, by the time of his final report on 8 April, 2000, and is unlikely to have become any worse, or any less susceptible of redress by a change of residence, over the ensuing period. Indeed, one would hope that the intervening period of freedom from the conflict and tension surrounding these proceedings and associated attempts to restore contact between S. and his father, would have enabled S. to settle and mature further, and thus achieve a more robust emotional state more capable of coping with the traumas which a change of residence will undoubtedly cause him, if that is the result which I conclude is in his overall best interests.
510. It will be apparent from all that I have written, above, that I regard this as a very finely balanced case which is very difficult of resolution. Regrettably, there is no perfect solution for S., and whichever of the two stark options I ultimately choose, he will suffer some adverse consequences. The adverse consequences of a change of residence will be immediate and are fairly predictable, but they may be relatively short-term. That will depend to a significant degree upon the father’s capacity to deal adequately and sensitively with those consequences. Failure to do so may result in long-term psychological damage to S.. The adverse consequences of a maintenance of the status quo are likely to be less immediate, and perhaps more subtle in onset and appearance, but they are also likely to be very long-lasting, if not permanent. The mother’s capacity or otherwise, to cope with those consequences would seem to be irrelevant to their development, as they will have their roots firmly planted in the soil of the parental alienation which has already occurred, and will continue to be nurtured by the mother’s totally negative perception of the father which she will undoubtedly constantly re-affirm to the child in her daily dealings with him.
511. As long ago as 1976, in the case of Raby and Raby (1976) FLC 90-104, the Full Court (Watson SJ, Fogarty and Lindenmayer JJ) said, two things which I think are of some relevance to the decision I am called upon to make in this case. The first related to what is often referred to as “the status quo argument”, in which it is frequently argued that an existing custodial (now residential) arrangement in relation to a child should not be disturbed. The second related to what the Court there categorised as the “long term verses short term effects of a custody order”.
512. In relation to the first of those matters the Court, after referring to and quoting passages from the judgment of Lord McDermott in J v C  UKHL 4; (1969) 2 W.L.R. 540 at 568, and of the Full Court of New South Wales in Jones v Jones (1960) 77 W.N. (NSW) 682 at 688, said this (at 75,483):-
“The statement by Lord McDermott in J. v. C. (supra) states the position neutrally. If the status quo is to be changed, the change itself and the reasons for change require examination. In our opinion the statement in Jones v. Jones (supra) goes too far. It appears to assume that a change in the status quo is automatically a serious inroad into a child's sense of stability and security. This may or may not be so in a particular case. Several matters may be relevant - the age of the child, the length of the status quo, its quality and, in particular, the nature of the child - adult relationships developed within it. It is the welfare of the child including his happiness which is paramount. If the status quo is predictably more detrimental to the child's welfare than proposed alternatives, a change may not only be desirable, it may be necessary.”
513. In relation to the second matter (long-term versus short-term effects), the Court (at 75,483) said this:-
“There will be cases where the extreme youth of the child gives immediacy to the parental bond, particularly the maternal one. The majority in Sanders and Sanders (1976) FLC 90-078 considered it to be one such case. There will be other cases where illness or temporary separation require an order geared to a short term.
Where, however, the child is beyond the stage of babyhood and is capable of forming those relationships which will give it ‘a good start in life’ , the court is obliged to attempt predictions in the longer term.”
514. However, in the same case, the Full Court, after citing a passage from the judgment of Barry J (of the Supreme Court of Victoria) in P v P  VicRp 55; (1964) 5 F.L.R. 452 at 456, added the following words of caution (at 75,484):-
“Predicting the future is an inexact science. Predicting the outcome of human relationships is fraught with uncertainty. Neither legal nor psychological skills and insights are as yet sufficiently developed to enable predictions to be made with reasonable certainty.”
515. In all of the circumstances of this case, and in the light of my above findings, I have come to the conclusion (somewhat reluctantly, and not without some misgivings) that it is predictably more in S.’s long-term best interests that he be given the opportunity now to re-establish a real relationship with his father, rather than that he go forward to maturity bearing the distorted image of him which his mother has fostered through the process of alienation to which I have referred. That means, for reasons which I have given, as was really accepted by all parties, that there must be a change of residence for S., painful and all as that may be for him. Accordingly, I propose (subject to any evidence of significantly changed circumstances since 25 May, 2000, which I may ultimately permit either party to adduce prior to the publication of this judgment) to make orders directed to achieving that change of residence. I do not intend that that change should necessarily be permanent. My primary intention is that S. have the opportunity to re-establish a reality-based relationship with his father free of the mother’s malign influence. It may be that, once that has been achieved, and the relationship is perceived as being strong enough to withstand any renewed attempts by the mother at alienation, it would be adjudged to be in S.’s best interests to return to reside with his mother, and have regular contact with his father. But that remains to be seen. The orders I propose will broadly follow the form proposed by counsel for the Child’s Representative for this eventuality, as set out in paragraph 495 hereof, subject to the following changes and additions:-
(1) As I consider that S. will have enough to cope with in a change from his mother’s to his father’s residence, and having noted the father’s statement of his preparedness, if necessary, to even change his place of residence to be nearer the mother’s residence, I propose to make the order for residence and day to day care welfare and development in his favour subject to the condition that the father ensure and facilitate S.’s continued attendance at his current school until at least the end of this school year.
(2) I consider that it would be in S.’s best interests that the change of residence occur as soon as possible. However, I think that before that occurs the mother should have sufficient time to consider and take advice in relation to my judgment, and to consider, with the benefit of that advice, whether she wishes to appeal from my orders, and if so whether a stay of my orders should be sought pending appeal. Given the length of my judgment, that process could not reasonably be achieved over-night. At the same time, I am concerned that the mother not use any time which I might consider appropriate to allow her for that purpose to prime S., intentionally or otherwise, to react in a more negative way to the change than might otherwise be expected. Accordingly, I propose to order that the change-over occur, unless my orders are sooner stayed, three weeks from the date of the orders, and that the changeover be facilitated by the mother’s production of the child on that date at a time and place to be nominated by the Child’s Representative in advance of that date. I have in mind that the change-over should be monitored by a suitable professional person, preferably one with at least some background knowledge of the case (such as, but not specifically or exclusively, Professor N) nominated by the Child’s Representative. I also propose to order that until the date of the changeover the mother, her servants and/or agents, be restrained from informing S. of or discussing with him the proposed change, except pursuant to and in accordance with the written advice of a qualified mental health care professional approved in advance by the Child’s Representative, a copy of any such advice to be provided forthwith to the father and the Child’s Representative.
(3) Whilst I agree with the intent of paragraph (3) of the Child’s Representative’s proposed order, I think that the form of the order is not quite in accordance with s.65L of the Act, and I shall amend it to better conform with that statutory provision.
(4) I agree with the main concept of paragraph (4) of the orders proposed by the Child’s Representative, namely that the issue of the mother’s direct contact with S. following the change-over of residence should await a report by the supervising counsellor or welfare officer to be provided about three months after the change-over. However, the orders ultimately sought by the father (as set out in paragraph 500 hereof) include weekly telephone contact by the mother during that three month period (a proposal consistent with Professor N’s evidence referred to in paragraph 439 hereof) and I consider it would be too harsh to deprive S. of all contact with his mother during that period. Accordingly, I propose to include provision for that contact in the orders, and to provide a mechanism for the parties or the Child’s Representative to come back to the Court before the expiration of the three months to seek an expansion or contraction of that contact if circumstances indicate the necessity for a change.
516. For all of the foregoing reasons, the orders which I propose to make (subject to any further submissions of the parties or the Child’s Representative on matters of form) are as follows:-
(a) S.’s adjustment to and coping with the change of residence to his father’s household;
(b) S.’s reaction to and coping with separation from his mother and her family;
(c) whether any, and if so what further orders for contact between S. and his mother should be made in the child’s best interests; and
(d) such other matters relevant to the welfare and best interests of S. as he or she sees fit.
I certify that the preceding 516
paragraphs are a true copy of the reasons for judgment delivered by The Honourable Justice Lindenmayer