Athanasiou and Callow (No 2)

FAMILY COURT OF AUSTRALIA

ATHANASIOU & CALLOW (NO. 2)

[2013] FamCA 818

FAMILY LAW – CHILDREN – With whom a child lives – Where both parents have perpetrated acts of family violence – Where both parents have disorders of personality – Whether the evidence of the parties is reliable – Where the Mother has not availed herself of the opportunity to have time or communication with the child for a year – Where the child has made disclosures of physical abuse perpetrated by the Mother – Where the Mother alleges the disclosures are either the product of coaching by the Father or the product of officers of the Department of Child Safety conspiring against the Mother – Whether the child’s disclosures are reliable given the circumstances – Whether the child is at an unacceptable risk of harm.

Family Law Act 1975 (Cth) Evidence Act 1995 (Cth)
APPLICANT:	Mr Athanasiou

RESPONDENT:	Ms Callow
INDEPENDENT CHILDREN’S LAWYER:	Ms Fox

FILE NUMBER:

BRC

8429

2007

DATE DELIVERED:

22 October 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

16, 17, 18 and 19 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Simonidis Steel Lawyers

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr George
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Barbara Fox Solicitor

Orders

IT IS ORDERED THAT

All previous parenting Orders be discharged.

Parental Responsibility

It is declared that the presumption of equal shared parental responsibility is rebutted in the best interests of S Callow, born … 2005 (“the child”).
The Father shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child

Live With, Time and Communication

The child shall live with the Father.
The child spend time with and communicate with the Mother as agreed between the parties and failing agreement:
(a)The child spend time with the Mother for a period of up to four (4) hours per week, such time to be supervised by Ms R, with Ms R’s costs to be shared equally between the parties;
(b)in the event that Ms R becomes unavailable the parties do all acts and things necessary to engage the services of a similar provider of supervision services, being similar in cost and location as Ms R, to undertake such supervision and likewise the costs to be shared equally between the parties;
(c)the Mother be at liberty to communicate with the child by telephone each Monday and Wednesday at 6:30pm, on such landline telephone number as is nominated by the Father from time to time.
The Mother be permitted:
(a)once each month, to forward a letter to the child and that the Father ensure that the child receives that letter if he considers the contents to be appropriate;
(b)to forward to the child a present for her birthday and for Christmas each year and the Father ensure that the child receives such presents.
In relation to the child’s holiday time with the Father:
(a)The child spend a total period of up to six (6) weeks holiday time per year with the Father at his liberty, but if that time is to be spent in blocks, the blocks are to be no longer than three (3) week periods;
(b)the Father is to provide the Mother thirty (30) days advance notice in writing of his intention for the child to have holiday time with him;
(c)during the child’s holiday time with the Father, the child’s time with the Mother pursuant to Order 5 herein will be suspended;
(d)the Father is to facilitate make up time between the Mother and the child for any time missed as a result of the child’s holiday time with the Father.

Miscellaneous

All necessary communication between the parties be by way of e-mail or text message, save for emergencies affecting the child or a parent’s ability to care for the child, where each parent shall telephone the other as soon as possible of the emergency arising.
The Mother and the Father shall:
(a)keep the other parent informed at all times of their contact telephone number and any changes to same within 24 hours of such change;
(b)keep the other parent informed of the child’s mobile numbers, if any;
(c)keep each other informed of an emergency contact telephone number;
(d)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and the parents shall authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and
(e)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
This Order be authority for the child’s school or any extra curricular activity to provide to both parties, at their own expense, such reports or information as may be requested about the child, copies of the child’s school reports, any school newsletters and other notices issued from time to time.
During the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the child and use their best efforts to ensure that others do not denigrate or insult the other parent in the presence or hearing of the child; and
(d)refrain from and are hereby restrained from discussing with the child any issue touching upon the dispute between the parents whether it be in relation to property or child issues.
The Father shall enrol the child in counselling with P Counselling Service and ensure that the child (and he, as required) undertakes such counselling as may be recommended by the child’s counsellor.
The Mother is restrained and an injunction is granted, restraining the Mother from attending at the E State School, save for with the written consent of the Father and the Principal of E State School.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Athanasiou & Callow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8429 of 2007

Mr Athanasiou

Applicant

And

Ms Callow

Respondent

REASONS FOR JUDGMENT

Introduction

S Callow (“the child”) born on in 2005 who was 7 years 10 months of age as at trial is the subject of these parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The child’s father Mr Athanasiou (“the Father”); her mother, Ms Callow (“the Mother”); and Barbara Fox the lawyer appointed pursuant to s 68L of the Act to independently represent the child's interests in the proceedings (“the ICL”) each have competing proposals as to the parenting orders now to be made in the child’s best interests.

Relevant Background

The Father is 54 years of age having been born in 1969. The Mother is 35 years of age having been born in 1978. The Father has long been in receipt of a disability support pension and is currently a full-time parent to the child. He previously worked as a performer and expressed an intention in evidence to return to some part-time work as a performer in the future.
The Mother has some history working in childcare and has undertaken diploma studies through TAFE in childcare on a part-time basis. She is currently engaged in caring for her daughter A, who is a child of the Mother’s relationship with one Mr Y and is not a subject of these proceedings.
It is unnecessary to trace the entirety of the long and convoluted history between the parents. Suffice to note that they met sometime in 2003 and commenced a relationship in about mid-2004 and began cohabiting shortly thereafter. They never married. They disagree as to the date of their final separation. On the Father’s version, separation occurred in June 2007 following an incident of family violence. On the Mother’s case, separation occurred much earlier around mid-2005 when she was pregnant with the child and moved into accommodation provided by the Department of Housing. However, even on her version, the parties continued their relationship for some period from their separate residences. There is no need to determine a precise date of relationship breakdown and separation. Suffice to note that on either party’s version the relationship was relatively short and punctuated by conflict.
As already noted, the child was born in 2005 and she is the only child of the relationship. The Mother has another daughter, A born in 2011 who thus as at trial was some 23 months of age. The child A’s father is one Mr Y and it seems the Mother commenced a relationship with Mr Y in about 2009. As will be discussed, significant doubt attends the nature of the Mother’s relationship with Mr Y from time to time given the Mother’s evidence on this aspect.
As long ago as 12 July 2007 the Mother commenced parenting proceedings in relation to the child in the then Federal Magistrates Court. There were a number of interim applications following the filing of the Mother’s initiating application but those proceedings culminated in final orders being made on 9 April 2008. Significantly those orders were made with the consent of both parties, and those orders provided for an equal shared care arrangement for the child living on a week about basis with each parent.
It is difficult, if not impossible, to reconcile what each parent now has to say about the other of an adverse kind with the fact that each parent consented to equal time orders on 9 April 2008 when the child was only two years and four months of age. That is because each party advances significant challenges about the personal and parenting capacity of the other based upon allegations pre-dating the final consent orders referred to.
It is clear enough that between 2008 and 2011 the parents were unable to co-parent effectively due to the continuing conflict in their relationship culminating in disputes in relation to the child’s schooling.
On 31 January 2012 following disclosures to officers of the Department of Child Safety (“the Department”) of physical abuse made by the child implicating the Mother and the maternal grandmother, Ms C, the Father filed an Initiating Application for final orders in the then Federal Magistrates Court which application was subsequently amended on 22 June 2012.
On 11 April 2012 Federal Magistrate Demack (as her Honour then was) appointed the ICL and transferred the proceedings to this Court. Following an altercation at the child’s school the Father filed an Application in a Case on 19 July 2012 seeking interim orders that the child live with the Father and have supervised time with the Mother.
On 24 July 2012 the Principal Registrar made interim orders supported by the ICL that provided, inter alia, for the child to live with the Father and have supervised time with the Mother for a period of two hours each Saturday (supervised by Ms R) and by telephone each Monday and Wednesday between 5 and 6 pm.
Since the orders of 24 July 2012 were made the Mother has elected to have only one supervised visit with the child which occurred on 22 September 2012. The Mother has not availed herself at all of the provision for telephone time with the child on a twice weekly basis.
It is to be noted that the child was six years and eight months of age when the 24 July 2012 interim orders were made and she had not yet turned seven years of age when she last saw the Mother in the supervised visit on 22 September 2012 and she has had no time or communication with the Mother since then.
Against that background the Father seeks the orders set out in his Case Information document filed 16 January 2013. In essence, the Father seeks an order that he have sole “parental responsibility” for “major long-term issues” as those terms are defined in the Act and an order for the child to live with him. As to time and communication with the Mother, the Father seeks, in essence, final orders in conformity with the interim orders that were made on 24 July 2012 referred to albeit involving weekly supervised visits up to four (4) hours duration supervised by Ms R with twice weekly telephone communication.
The Mother, who represented herself in this trial, proposed in her evidence and final oral submissions, that orders be made for the Mother to have sole parental responsibility; for the child to live with her and for the child to spend one weekend per month with the Father from after school Friday until before school Monday; plus the child to live with the Father for the entirety of each school holiday period.
In advancing these proposed orders the Mother was not prepared to detail in open court any evidence at all concerning the location of her current place of residence; the location of the school she would propose the child attend if the child was living with her; and generally the other care arrangements that would apply referrable to the location of her place of residence. At one point the Mother indicated a preparedness to disclose the location of her residence only to the Court and the ICL on a confidential basis, but not to the Father.
It was explained to the Mother, repeatedly, during the course of the trial the ramifications for her application for orders if she was not prepared to make disclosure of these fundamental matters concerning the child’s care arrangements if she were to live with the Mother. However, the Mother asserted that by reference to the history of abuse and family violence she alleges has been perpetrated by the Father; and allegations to the effect that the Father has “stalked” the Mother and her family members; and an asserted need to protect herself and her daughter A and her other family members; the Mother steadfastly refused to disclose her current residence beyond asserting that it was in “a suburb of Brisbane” and that the home she occupied provided adequate accommodation.
Obviously, absent full disclosure of these details no investigation or assessment of the Mother’s present circumstances or proposed arrangements for the child could be made. As was explained to the Mother, repeatedly, this posed obvious difficulties for orders being made for the child to spend unsupervised time with the Mother or to live with the Mother when her whereabouts would be unknown and difficulties of enforcement of orders would follow if the Mother elected not to adhere to the parenting orders made if they provided for unsupervised time for the child to spend with the Mother.
The Father lives on the Gold Coast (where the child has also been living) whilst the Mother relocated from the Gold Coast area to the unspecified address she says is in “a suburb of Brisbane” presumably sometime following the interim order made on 24 July 2012.
The orders ultimately proposed by the ICL in final submissions were admitted and marked as exhibit 1 in the proceedings. In essence, the ICL’s proposed orders include the Father having sole parental responsibility and the child living with the Father and spending no face to face time at all with the Mother; and the childs communication with the Mother being limited to monthly letters the Mother might send to the child plus birthday and Christmas gifts.

Psychiatric Evidence

In the previous proceedings and prior to the final orders made by consent on 9 April 2008 Dr D, psychiatrist, undertook a psychiatric assessment of both parents at the request of the then Independent Children’s Lawyer for the child for the purpose of compiling his report dated 5 December 2007 attached to the affidavit of Dr D filed on 17 December 2007. This formed part of the evidence for this trial. No party required Dr D for cross-examination.
As is reflected in the histories then obtained by Dr D, the parties’ history of co-parenting is highly conflicted. Each parent contended to Dr D that they were the subject of physical abuse perpetrated by the other upon them.
Dr D diagnosed the Mother as suffering borderline personality disorder. He opines in his report that from time to time extremes of pathology may be exhibited by the Mother, for example, paranoia and hypomania.
With respect to the Father, Dr D assessed the Father to have narcissistic and selfish traits and diagnosed the Father with schizotypal personality disorder.
Dr D opines in his report:
It would seem each parent contributes roughly equally to the total of the pathology between them and so it becomes difficult to allocate some order. [The Mother] has a [hi]story of alleged violence but it would seem not so incontrollable that with some counselling, a man like [the Father] would be able to avoid the provocative and retaliatory ploys [s]he exhibits to make a gain. [The Mother] perhaps similarly employs, unconsciously but eventually realisable hurts to [the Father’s] fragile self.
Dr D recommended treatment via counselling for the parties’ respective personality disorders. His report contains the following prognosis:
Things seem so volatile at this stage that any rapprochement is impossible but, if a court can devise, with the appropriate help from the social work agency, a firm and fair set of orders to each adult member, possibly the trio could be contained by this and live as if in a family even if separated physically, in different abodes. It would be a great achievement as it can be seen, taking into account the histories of the parties how the pathologies have been handed down through generations, transmitted by self-propagating traumata.
As earlier noted, final orders were made by consent on 9 April 2008 which provided for equal shared care arrangements on a week about basis. However, as already noted and will be further discussed, those arrangements broke down over time due to the inability of the parents to co-parent effectively and manage the high level of conflict in their relationship.
Dr V, Associate Professor of Psychiatry and senior Consultant Psychiatrist undertook interviews of the parents on 8 and 9 November 2012 for the purpose of compiling his report dated 15 January 2013 attached to his affidavit filed on 16 January 2013. Dr V also gave oral evidence at trial and was cross-examined by each party.
Amongst the documents Dr V was provided with for the purpose of his report was the 2007 report of Dr D earlier referred to.
Dr V opines that the principle clinical issue is that both parents have disorders of personality.
In the case of the Father, Dr V opines his personality disorder has predominant traits in the narcissistic spectrum and also obsessionality. Dr V did not share Dr D’s diagnosis of the Father that there were schizotypal traits.
Dr V identified the main problem with respect to the Father’s parenting is that it is likely that the Father will seek a highly enmeshed relationship with the child which would not be ideal for her development.
Dr V assessed the Mother’s personality disorder as having the predominant feature of borderline personality with additional histrionic traits and a tendency to paranoid and conspiratorial thinking “with an external locus of control”. Dr V further opines of the Mother that she also has significant narcissistic traits with little insight into how her own behaviour has contributed to the “current unfortunate situation she is in with respect to her relationship with her daughter”. I note that at the time of Dr V’s interviews the Mother had only had one supervised visit as earlier noted following the July 2012 orders. What was not known by Dr V at the time of compiling his report was that this one supervised visit would be the only visit the Mother elected to have with the child. This feature was addressed by Dr V in his oral evidence.

In his oral evidence and when informed of the feature that the Mother has had no further visits nor communication with the child Dr V expressed serious concerns about the level of the Mother’s attachment to the child and her commitment to the child. Paraphrasing Dr V’s oral evidence, the Mother’s narcissistic traits find expression in the Mother’s decision not to take up the opportunities to spend time with and communicate with the child provided by the July 2012 orders given her personal opposition to the terms of those orders.
Dr V assessed that aside from the personality disorder of each parent there is the additional problem of “a pathological interaction between the parents. This pathological relationship has been characteristic when they were together and has survived and indeed intensified following separation.”
The evidence amply demonstrates the “pathological interaction between the parents” referred to by Dr V and, moreover, the propensity of each of the parents to prioritise their success over the other in that interaction at the expense of the child’s needs.
A prime example of this is what is reflected in the content of the Department’s case plan of 17 May 2012 which records the following:
It is further noted that [the Mother] and [the Father] have demonstrated that they are overwhelmed and consumed by their own resentment towards one another, and are focused on their own needs and ‘winning’ custody of [the child]. [The Father] and [the Mother’s] actions demonstrate that they are focused on their own needs, and are failing to prioritise [the child’s] care and protection needs above their own resentment towards one another. This is evident with both parents detailing that they plan to have [the child] undergo an extremely invasive medical assessment to assess whether she has suffered sexual abuse. [The Mother] wants this assessment to occur to ‘prove’ that [the Father] has sexually abused [the child], and [the Father] wants this assessment to occur to ‘prove’ that he has not sexually abused [the child]. Both parents clearly demonstrate that they are prioritising the need to incriminate one another, with little thought or consideration being taken in relation to how such an invasive assessment would impact upon [the child’s] emotional and general wellbeing. This is highly concerning given that [the child] has made nil sexual abuse disclosures, nor does she present with any physical or emotional indicators to suggest that she has suffered sexual abuse.
Dr V expressed the following as part of his conclusions in his written report:
The Court has a formidable task in deciding on the best interests of the child given the current situation where the child is apparently ‘alienated’ from the Mother. If this ‘alienation’ or ‘estrangement’ is a result of the Mother’s behaviour entirely, or has been contributed to by the Father’s attitude, is an important question for the Court to decide.
The present situation of the child having hardly any contact with the Mother and seemingly not wanting such contact is unsatisfactory and unhealthy for the child. It is concerning that the Mother has not availed herself of the supervised contact that is available. This is indicative of the narcissism in the personality.
If the present situation continues the child’s estrangement from the Mother will become permanent and she is unlikely to develop along healthy lines in the enmeshed relationship with her Father.
It is difficult to advise the Court on this matter. I would suggest that the child’s relationship with the Mother may be reparable with psychotherapy sessions involving the child and the Mother. Ideally this should occur in a situation where both parents are themselves receiving psychotherapy. As to whether they are good candidates for psychotherapy is another question.
(emphasis added)
In his oral evidence and with the knowledge of what has transpired since his interviews late last year Dr V expressed significant doubts about psychotherapy achieving any positive outcome for the Mother. Dr V expressed views to the effect that it was more likely than not that psychotherapy of the Mother would be unsuccessful mainly because she would not be receptive to the idea that she requires psychotherapy because she is not receptive to the concept that she has problems of personality to address.
When Dr V gave oral evidence it was put to him that the Mother had not availed herself of the opportunities to spend time or even communicate with the child as provided for in the July 2012 orders. As a consequence, Dr V opined that serious questions attend the Mother’s attachment to the child. Dr V confirmed the seemingly obvious, that is, from the child’s perspective it may well have been deeply distressing for the child not to have any time or communication with the Mother over such a lengthy period. In that respect the Mother can be said to have made a significant contribution by her own conduct in the “alienation” or “estrangement” referred to by Dr V.
There was a significant issue in the trial, as will be further discussed, about the Mother’s claimed relationship with Mr Y. The Mother had presented to all concerned, including to Dr V as he confirmed in his oral evidence, that she was maintaining an intimate relationship with Mr Y as a life partner. In fact, only well into cross-examination did the Mother make admissions clearly supporting the conclusion that this relationship had broken down a long time ago. Her own mother, Ms C, gave evidence in cross-examination to the effect that Mr Y had departed at around Christmas time 2011. Dr V confirmed in his oral evidence that the Mother had presented a positive perspective on her relationship with Mr Y and advanced the proposition that they were planning to marry. He confirmed that in the face of the evidence referred to this provided a good example of the Mother’s unreliability as a witness of fact.
At trial Dr V was asked to peruse the Mother’s more recent affidavit evidence. His opinion in light of that affidavit evidence was that it was confirmatory of the paranoid aspects to the Mother’s presentation and also reinforced his opinions as to the personality defects he identified in the Mother including her narcissistic features.
As to the issue of the enmeshed relationship between the Father and the child raised in his report, Dr V emphasised in his oral evidence that the Mother’s decision not to have time or communication with the child made it essentially inevitable that there would be enmeshment in the relationship between the child and the Father given that he had essentially become a sole parent.
Dr V described as “extreme” the Father’s professed view or fear that the maternal grandparents would go so far as to perpetrate acts of physical and sexual abuse upon the child so as to accuse and blame the Father of sexual abuse.
During cross-examination Dr V observed of the Father that part of the obsessionality traits the Father has means that he is unable to “separate the wood from the trees” in terms of prioritising matters of importance.
Dr V expressed an opinion to the effect that it was appropriate that there be an order for supervision of the child’s time with the Mother at least in the short to medium term. He opined to the effect that the Mother’s suspicions advanced in her own evidence that the Father was causing her to be followed; was stalking her; and was responsible for damage sustained to her car; were all more probably than not the result of the Mother’s paranoid traits and that the Mother’s personal functioning in these respects may well have an influence upon the child.
Because the Mother was self-represented at the trial and she cross-examined Dr V in acting for herself, it is obvious that Dr V had a good opportunity to observe the Mother’s presentation. As a consequence, at the end of his evidence Dr V volunteered his observation of the Mother that based upon her demeanour she appeared depressed and paranoid. That is, it was Dr V’s opinion that the Mother was suffering from depression as at the time of trial.
It follows from the evidence of Dr V, which I accept, that there are significant deficiencies in the personalities of each parent which potentially compromises the parenting capacity of each parent. Moreover, as Dr V emphasises there is the very significant dynamic of the parental conflict in play given the personality makeup of each of the parents, as regards the potential for the child to be exposed continually and on an ongoing basis to the effects of that.
Dr V’s curriculum vitae is set out in his report. It is impressive. As a witness Dr V impressed me as having undertaken a careful and thoughtful analysis of the available data and his opinions were well-based and, in my judgement, fortified by the evidence overall. That is, the evidence concerning the behaviour of each of the parents as will be further discussed was entirely consistent with the assessments made by Dr V.
I accept the evidence and opinions of Dr V. It follows that findings are made in accordance with the opinions expressed by Dr V in his report and in his oral evidence.

Credit Issues

Each of the experts who gave oral evidence before me, Dr V and the family report author Mr N, expressed reservations about the reliability of the accounts of each of the parents. I accept their reservations for reasons now discussed.
In the case of the Father it was plain on his own evidence in cross-examination that he was less than frank and forthright in terms of his role in family violence that historically occurred during the parties’ cohabitation and subsequent to separation. For example, in one part of his cross-examination the Father portrayed that the only injuries the Mother could ever have received as a consequence of his behaviour in any episodes of family violence were due to his defensive measures when she was physically attacking him by his attempting to block her blows. However, in a later passage of his oral evidence it was clear that the Father acknowledged that at least on one occasion he struck the Mother in her face with sufficient force to send her “off balance” as he put it but, properly understood, with sufficient force to cause her to fall to the floor.
The Father also gave an unconvincing explanation for telling Mr N at one point (as is recorded by Mr N in his report) that he had effectively exaggerated his claims of physical disability for the purpose of qualifying for the disability support pension but then attempting to explain in evidence (after he had sought and obtained a certificate pursuant to s 128 of the Commonwealth Evidence Act 1995 (Cth)) that whilst he had not in fact exaggerated his claims to social security for this purpose he did purport to assert this to Mr N so that he would not be seen by Mr N to have compromised parenting capacity by reason of any physical ailment.
I find it more likely than not that historically the Father has perpetrated acts of family violence upon the Mother and his failure in evidence to properly acknowledge his role in this respect does him no credit.
Moreover, that the Father perpetrated family violence in a manner which exposed the child to the conflict between these parents became readily apparent from his own evidence. That is, the Father’s own evidence confirmed that he knew at times that conflict was to erupt but he did not do anything to prevent that occurring in circumstances where the child would then be exposed to ugly confrontations between her parents.
The Father’s credit also suffered when, in the first instance, he gave evidence to the effect that he was supportive of the Mother’s relationship with the child being restored and continued and his subsequent admissions to the effect that this was not in fact his true view. That is, initially the Father gave evidence to the effect that he positively supported the child’s future relationship with the Mother but that evidence became heavily qualified as the Father’s oral evidence unfolded to the point where his earlier evidence in this respect was not reconcilable with his ultimate evidence.
Whilst I am satisfied that the Father has attempted to minimise his role in perpetrating family violence during the parties’ relationship and I reject his evidence seeking to establish that he was only the innocent victim of assaults by the Mother I likewise, for reasons which follow, do not accept the Mother’s mirror portrayal of herself on this issue. Given the Mother’s conduct including in the school incident discussed below, I accept the Father’s account to the extent that I find it more probable than not that the Mother also historically perpetrated acts of family violence within the meaning of the Act.
In the end, given my serious doubts about the reliability of each of the parents as witnesses of credit, I am not able to safely make comprehensive findings about each or any specific incident of family violence alleged by either parent. However, I am satisfied that it is more probable than not that each parent perpetrated acts of family violence within the meaning of the Act as part of the “pathological interaction” component to their relationship and that the child was probably exposed to that kind of conflict.
There were many areas of the Mother’s evidence which were utterly unbelievable.
The most striking example is her evidence overall concerning Mr Y, her alleged partner and the father of her daughter A, born in 2011.
The Mother’s case as presented, including when interviewed by each of the experts Mr N and Dr V respectively, was to the effect that she had formed a serious relationship with Mr Y and that such relationship was thereafter maintained as an enduring relationship. That is, a relationship which was enduring as at the respective times each of these experts interviewed the Mother. Indeed, given the Court’s reliance upon what the Mother told these experts the Court was given to understand by the Mother via these reports that as at the commencement of the trial the Mother’s relationship with Mr Y was subsisting.
That case or version, initially maintained by the Mother at the outset of her oral evidence, utterly disassembled during the course of the Mother’s cross-examination. By her own account it can be concluded that Mr Y terminated the relationship long ago to pursue, as he then told her, employment opportunities including as far afield as in Western Australia. He had paid no child support for A and indeed on the Mother’s evidence she had advanced him funds from the funds she had accrued from damages claims consequent upon two motor vehicle accidents she had been involved in. The Mother admitted to having engaged private investigators to try and locate Mr Y. She ultimately acknowledged in cross-examination that he had “deceived” her.
Notably, on the evidence of her own mother, Ms C, Mr Y had left the relationship by about Christmas time 2011 yet in the Mother’s later presentations to each of Mr N and Dr V the Mother portrayed that she remained in a committed relationship with Mr Y. I accept the maternal grandmother’s evidence on this point and find it more likely than not that Mr Y had left the relationship with the Mother by the end of 2011, when A was only about two months of age, and the Mother could not legitimately claim to be in a mutually committed relationship with Mr Y since then.
Even with all that, the Mother maintained that she was still in regular contact with Mr Y via text messaging and suggested during the trial that she may still call Mr Y to give evidence if he, as she said had been indicated to her by him, arrived during the course of the trial. Unsurprisingly, that did not eventuate.
I find that the Mother actively mislead all concerned including the experts Dr V and Mr N, the family report writer, the other parties and ultimately the Court, in purporting to present an image that she was in a mutually committed relationship with Mr Y, the father of A, at all material times when it became obvious that in fact the Mother has not been in a relationship with Mr Y since no later than about late 2011.
It did the Mother no credit that she attempted to uphold the accuracy of what she had told the experts in terms of an existing relationship with Mr Y on the spurious basis that Mr Y continued to use the Mother’s address as his nominated address for receiving some mail, this being said by the Mother to justify assertions by her to the effect that they “lived together”.
Neither the Mother nor for that matter her own mother, Ms C, did themselves any credit in the respective versions they gave concerning the ugly confrontation that occurred at the child’s school, E State School, on 4 May 2012. As the Mother and Ms C would have it, on their evidence, essentially the Mother was a victim of an unprovoked attack by teachers, including the school principal on the afternoon of 4 May 2012.
Aside from the Father’s version of events there is a plethora of evidence within the subpoenaed material tendered in evidence to corroborate the Father’s version of events. This includes the documents sourced to the Queensland Police Service which investigated the incident including statements provided by the teachers involved to the police.
On all the evidence I find it more probable than not that the following summary is what occurred in what may be termed the “school incident” on 4 May 2012.
On that afternoon the Mother and the maternal grandmother attended the E State School to collect the child after school. They had A with them. The Father also attended the school to collect the child. School staff became involved in mediating an argument between the parents and the maternal grandmother as to who was to take the child from school which resulted in the child expressing a wish to go home with the Father. The child and her Father had went to the school car park and had entered the Father’s vehicle but whilst the child’s passenger door was not yet closed, the Mother attempted to forcefully remove the child from the passenger’s seat of the vehicle. School staff then intervened and removed the child to the opposite end of the car park. The Mother then ran towards the child and tried to forcefully take the child from school staff. Those school staff restrained the Mother from taking the child by holding the Mother’s arms and the Mother then wrapped both her legs around the child whilst being suspended off the ground by her arms being held by the teachers. During this restraint the Mother sustained a scratch to the left side of her neck and some tearing of her clothing.
The school staff then took the child away from the car park but still within the school grounds and the Mother tried again to follow the child, but school staff placed themselves between the child and the Mother preventing her access to the child. Again the child was asked who she would like to go home with and again the child stated that she wanted to go home with the Father. School staff then informed the Mother that the police had been telephoned and at that point the Mother left the school car park. In the course of this altercation verbal accusations were made by the Mother in which she accused the Father of being a “paedophile”.
The police obtained versions from each of the relevant teachers involved in this unfortunate episode which are included in the subpoenaed material. These support the above description of events on that day. The police records include an admission by the Mother initially to the effect that she acknowledged that school staff were acting protectively of the child. It was only later that the Mother altered her version, apparently with the encouragement of the maternal grandmother, to assert that the teachers engaged in some kind of unprovoked assault of her.
In reaching this conclusion as to what occurred I find the evidence of the Father on this incident is inherently more probable than that of the Mother or the maternal grandmother. All versions are consistent on the point that the child had expressed a view or wish, in the presence of the adults concerned, that she wished to leave with the Father; that consistent with that the Father and the child then went together to the car park; and the child and the Father had entered the Father’s vehicle and were about to depart before any problem occurred. Neither the Mother nor the maternal grandmother offered any sensible or rational explanation as to how or why, given these agreed circumstances; a conflict then ensued in the car park given that the Father and the child were departing. I find that the Mother instigated that conflict. Whilst I am mindful of adopting a cautious approach to the weight to be given to untested versions of the teachers as recorded in the subpoenaed material produced by the Queensland Police Service, that evidence does indeed corroborate the Father’s version, which I accept.

I reject the evidence of the Mother and the maternal grandmother as to this episode and in my judgement their attempts to explain what occurred highlight the lack of credit of both of these witnesses on fundamental issues of fact.
Even due allowance for Dr V’s assessment of the Mother’s personality disorder involving histrionic traits and a tendency to paranoid and conspiratorial thinking does not, in my judgement, account for the Mother’s capacity to confabulate evidence such as she gave concerning this incident.
Likewise I do not accept the Mother’s attempts to explain her conduct in 2007 resulting in her being convicted of multiple offences of assault or obstruct police. In my judgement, the Mother’s conduct in relation to those offences, like the school incident, highlights the Mother’s capacity to act erratically and with loss of self-control. The crime report for these offences formed part of the subpoenaed material and was tendered in evidence before me. I have no reason to doubt the accuracy of its content given the serious reservations held as to the Mother’s reliability as a witness. The crime report records that on 25 June 2007 police were assisting the Mother to recover personal property from a residence then occupied by the Father and this event was in the circumstance of a then recently issued domestic violence protection order.
Relevantly, the crime report referring to the Mother as “the defendant”; the Father as “[Mr Athanasiou]” and the child as “the baby” includes the following:
The defendant then returned to the garage and was again just looking at her property rather than removing any of it. Sgt [H] reminded the defendant that the purpose they were there was for her to collect her personal effects. At this point [Mr Athanasiou] came down the stairs and stood nearby. The defendant then ran up the stairs and into the living area of the unit. The Police followed her up and she emerged onto the balcony carrying the baby in her arms. Sgt [H] told her that they were not here for her to take possession of the baby, but only for her to collect her keys and personal effects. The defendant while still holding the baby was precariously close to the edge of the balcony at the top of the stairs. Constable [G] told the defendant to go back inside the unit and she did so.
Sergeant [H] once again told the defendant that she could not take the baby as they were not there for that purpose. At this point the defendant said, ‘over my dead body.’ She then lashed out with her left hand and struck Sergeant [H] in the right shoulder and chest area using a backhand type of action. Sgt [H] grabbed hold of the defendant’s left arm to restrain her from further assaulting him. He told Constable [G] to take hold of the baby and Constable [O] to grab the defendant’s right arm. The defendant was continuing to struggle with the Police at this time. Constable [G] was able to take hold of the baby and she handed it to [Mr Athanasiou] who was standing nearby. As soon as the baby was safely released from the defendant’s arm she started to behave erratically. While Sgt [H] had hold of the defendant’s left arm and Const. [O] the right arm, the defendant kicked out using both legs trying to kick all of the Police. A decision was made to handcuff the defendant and she was force (sic) to the ground. The handcuff (sic) was placed around her left wrist and she was lying on top of her right arm refusing to be restrained. Force had to be used to pull her right arm around her back to get the handcuffs on her right wrist. The defendant began to kick out with both her legs while she was on the ground and she was grabbing and pinching with her left hand the arms of Constable [O]. She also connected 2 or 3 kicks to the legs of Constable [O]. The Police managed to get the defendant to her feet but she further hindered Police efforts by taking the weight from her feet and trying to sit down. The defendant wrapped her legs around the kitchen table legs in a further attempt to prevent Police from removing her from the room. Police struggled to get the defendant outside of the unit and onto the balcony. Whilst walking her towards the doorway Constable [O] was holding the defendants head forward to prevent her from biting or again lashing out at any officer.
As the Police and defendant neared the doorway to the balcony the defendant has wrapped both her legs round the legs of Constable [O] preventing her to walk forward, causing Constable [O] to fall to the ground striking her knee on the doorframe. The Police have then had to lift the defendant to her feet again. Once on the balcony, while the defendant was on her feet, she took a couple of quick steps towards the edge of the balcony which appeared to be an attempt to jump from the balcony. Fortunately, the Police had a good grip of her and they prevented her from jumping off the balcony.
The defendant then sat down again and the Police were forced to carry her down the steps to get her to the front yard. This was a difficult task as it was raining at the time and the steps were narrow and slippery. The defendant continued to struggle while she was being carried down the stairs.
Sgt. [H] and Constable [O] were able to restrain the defendant against her car while Constable [G]drove to (sic) Police van around. The defendant had by this stage settled down somewhat. She was placed into the rear of the Police van and driven to the … Watchhouse, where she was charged with these offences.
Whilst as already noted I am satisfied that the Father has sought to minimise his own role and conduct in physical confrontations with the Mother, equally the school incident and the Mother’s conduct in this episode lend weight to the reliability of the Father’s accounts of the Mother’s capacity to act violently and the consequent need for him to defend himself.
As is apparent from the police event described above, three police officers had difficulty dealing with the Mother on that occasion and I am satisfied that the Father’s evidence may be accepted where he refers to events where the Mother has lost control and struck out at him in a violent way requiring him to defend himself.
It is also significant that in both the school incident and the police incident referred to the Mother’s conduct occurred in the presence of the child.
It may be that the Mother’s assessed personality disorder with her histrionic traits and “tendency toward paranoid and conspiratorial thinking with an external locus of control”, as described by Dr V, comes into play in the Mother’s assertions to the effect that numerous officers of the Department of Child Safety, who she named in the course of her cross-examination, have conspired against her. That conspiracy, the Mother would have it, extends to the conspirators fabricating statements the child is recorded to have made to the Department. That is, in the course her cross-examination the Mother moved from the proposition that the Father had “coached” the child to make adverse statements about the Mother implicating her in physical abuse of the child to a position of asserting that the child had not in fact made such statements but relevant officers of the Department had actually fabricated the official records held by the Department to include such false statements.
The Mother’s conspiracy theory extended to evidence to the effect that officers of the Department of Child Safety had undertaken surveillance of her, including at theme parks the Mother attended in the Gold Coast area. The Department of Child Safety Team Leader Ms J gave oral evidence at trial and confirmed in her evidence that there was no practice of the Department for its officers to undertake external surveillance. I accept Ms J’s evidence and reject the Mother’s evidence generally concerning her conspiracy theory which was likewise asserted by the maternal grandmother, and which evidence is likewise rejected.
In short, this Court can have no confidence in the reliability of either the Mother or the maternal grandmother in the accuracy of the evidence they gave.
It follows from the above findings concerning both the Father and the Mother that the Court must adopt a cautious approach before accepting any uncorroborated evidence of either of these witnesses and, moreover, it cannot be concluded that the maternal grandmother is a reliable witness.

Statutory Framework

Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. Because the current application was instituted prior to the effective date of amendments made to the Act being 7 June 2012 the legislation in its unamended form applies.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child's best interests.
Section 65D of the Act provides the source of the Court's power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility (s 61DA(4)).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child's parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents.
The operation of the statutory framework and the manner in which the Court approaches its application including the determination of the s 60CC “best interests” considerations is well-settled by authority (see for example Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffeand Anor (2013) 48 Fam LR 298 and Cox & Pedrana (2013) FLC 93-537).

Determination of Best Interests – s 60CC Considerations

Much of the preceding discussion and more particularly many of the findings already made, including in the discussion of credit issues, resonate with one or more of the s 60CC considerations. To avoid unnecessary repetition I will not repeat that discussion or those findings in further addressing these considerations but the following is to be read with, or against the background of, that discussion and findings.

Section 60CC(2) “primary considerations”

(a) the benefit of the child having a meaningful relationship with both of the child's parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

It can readily be concluded on the evidence that the child currently has a meaningful relationship with the Father. The opinions of Mr N, family report writer, which I accept, reflect that the Father has had a continuing involvement in the child’s life from the time of her birth. Departmental investigations include positive observations of the Father’s physical care of the child on a home visit and positive reports from the child’s school and teachers about the Father’s care of her.
In contrast, in circumstances where the Mother has not taken the opportunity to spend any time with, or communicate with the child since the orders of 24 July 2012 were made, save for one two hour period in September 2012, it cannot be concluded that the child currently has a meaningful relationship with the Mother.
Mr N undertook interviews for the purpose of his report on 29 August 2012. As is confirmed in his written report and by his oral evidence the Mother was asked to, and agreed to, return to Mr N’s rooms to complete her interview but then, without notice to Mr N, left the interview process, returning to the Gold Coast with her parents. That denied Mr N the opportunity to observe interaction between the Mother and the child, provided the child would agree to attend such a session.
Whilst the Mother asserted in evidence that she was reliant upon her own father for transport and that there was some imperative for her father to return to the Gold Coast and thus she had to leave the interview process to accompany him, I found the Mother’s evidence on this aspect very troubling.
In circumstances where the Mother was opposed to the terms of the July 2012 interim orders one would have assumed that the Mother would welcome every opportunity to participate in a family report process designed to assist the Court including in relation to the nature of the child’s relationship with the Mother. Moreover, it would be expected that she would welcome the opportunity to see the child. In those circumstances it is difficult to reconcile the Mother’s approach of departing the interview process without any notice to Mr N and failing, I find, to make any meaningful follow-up contact with Mr N.
Mr N records in his report that the child expressed wishes on the day of the interviews not to meet or have play time with the Mother. However, in circumstances where the Mother elected to leave the process Mr N records that it was not possible to explore the option of a “mother-child meeting or play session”.
Thus, Mr N’s interview process and report preparation process was limited by the Mother’s conduct in electing to not further participate in that process when her further participation may potentially have led to Mr N being able to convince the child to spend time with the Mother so that Mr N might make observations of the nature of the mother-daughter relationship.
As is recorded in Mr N’s report, the child had many things to say which were adverse about the Mother or about the child’s experience of care when with the Mother. Given the opportunity, Mr N might have been able to test the child’s descriptions in these respects had the Mother pursued the family report process to the extent of a session between the child and the Mother observed by Mr N.
Based only upon the child’s own statements to Mr N as recorded in his report it would be difficult to conclude that the child then (as at 29 August 2012) enjoyed a meaningful relationship with the Mother. Whether or not that is so, what can be concluded is that in circumstances where the Mother has had only one relatively brief visit with the child since the July 2012 orders were made, and no other form of communication, then having regard also to the child’s age and level of development, it must have had a profound effect upon the child that she has had no time or communication with the Mother over such an extensive period that has since elapsed.
All of this is all the more curious when regard is had to the evidence of Ms R the supervisor who undertook supervision of the sole visit since the July 2012 orders were made being a visit that occurred on 22 September 2012 which of course post-dates Mr N’s interview.
Ms R provided an affidavit and was not required for cross-examination by any party. Ms R describes the supervised time for two hours on 22 September 2012 as involving the child and the Mother interacting “very well”. She describes the child and the Mother playing together and that they “appeared to be enjoying each other’s company.” Ms R’s unchallenged evidence, in terms of her not being required for cross-examination, is that at the end of the session “the mother said to me that she wasn’t going to attend anymore as it was too expensive and a waste of money.”
Clearly on Ms Rs evidence, at least in a supervised setting the child apparently responded well to the Mother and there is a positive description of the nature of their interaction in that setting. That would seem to reflect that at least as at September 2012 a meaningful relationship between the child and the Mother was sustainable, at least in such a protected environment.
However, the difficulty now is that more than 12 months have elapsed since then and such a period of time in the life of a child who at trial was only some seven years and 10 months of age is obvious. The child has never had any explanation from the Mother as to why the Mother does not telephone her or why she has not seen the Mother or, perhaps most importantly, why the Mother has not sought to see her. The Mother acknowledged that she did not send a birthday gift or Christmas gift for the child last year nor has she sought to send any cards, letters or otherwise to communicate with the child in the period under discussion.
In this case there is an obvious tension between the two primary considerations. Dr V refers in his report to the Father developing an enmeshed relationship with the child as being something not in her best interests. However, in his oral evidence Dr V noted that given the Mother’s choice not to pursue time or communication under the terms of the July 2012 order the situation has been reached that the Father has essentially been a sole parent by circumstance.
In this case, however, the potential for the child to have a meaningful relationship with both parents heightens the other primary consideration in terms of the risks for the child, and the need to protect her from harm, given the nature of the parental conflict and the manifestations of that conflict to which the child has been exposed historically.
The child’s exposure to what transpired in what has been termed the “school incident” on 4 May 2012 is but one example of the kind of parental conflict the child has been subjected to. That must have been a profoundly difficult experience for the child.
Not long after the 4 May 2012 incident referred to, a further concerning event occurred on 14 June 2012.
On the afternoon of that day departmental officer Ms M received a report from E School Principal Mr B advising that the child had not been collected from school that day. Mr B advised the Department that the school sports carnival had occurred on that day and the Father had attended the carnival but left at 3:00pm as that week was a week scheduled for the child to spend with the Mother. When the Mother arrived at the school she advised she was leaving because she had seen the Father at the school. Notwithstanding that Mr B advised the Mother that the Father had left, the Mother refused to go and get the child and informed Mr B that she was going home and that other arrangements would need to be made for someone else to take the child home. Indeed the Mother suggested to Mr B that he should call the Department and ask them to take the child home.

Ms M attempted to contact the Mother and left messages advising the Mother that she needed to return to the school to collect the child. When Ms M was eventually able to speak to the Mother, the Mother advised Ms M that she had already been to the school and she was not returning. Ms M insisted that the Mother return as the child needed to be collected. The Mother asserted that because she regarded her own physical safety as at risk from the staff at the school if she returned she would not be doing so. Repeated requests of the Mother to return to collect the child were met with refusal.
I interpolate here that I do not accept that the Mother genuinely believed she was at risk. This was an experience in histrionics by the Mother and she pursued it at the child’s expense.
Mr B, the school principal, advised Ms M that he would consult the school’s legal advisers for the appropriate response. Mr B subsequently advised the Department that he would telephone the local Police Station to make arrangements for the police to come and collect the child. As this was seen to be very inappropriate Ms M pursued attempts with the maternal grandmother to make arrangements for the child to be collected. In the course of that communication the maternal grandmother told Ms M that she would accompany the Mother to collect the child but advised that she would be taking her walking stick and would use it if needed if there were any issues with school staff.
The departmental records include a reference to the local Police being contacted and that in turn the police advised they would attend at the school and would be contacting the Mother and instructing her to collect the child.
This is but another example of the preparedness of the Mother to place an histrionic response to events which she thinks will serve her personal interests over and above the needs of the child. I have earlier referred to the example in the Department records about both parents respectively having contemplated an invasive medical investigation of the child for similar purposes.
When the Mother was cross-examined about the event on 14 June 2012, when she elected to leave the school and persistently refused to collect the child, a striking feature of the Mother’s evidence was her capacity to justify her own actions whilst failing to display any insight whatsoever as to the potential impact upon the child of her conduct.
Relevant to the potential need for protection of the child is the evidence concerning the child’s disclosures made to the Department in the school interview on 17 July 2012. These are recorded in full in documents subpoenaed from the Department which were tendered in evidence. The summary of the assessment is as follows:
Throughout the investigation and assessment phase, it was evident that [the child] experienced emotional distress as a result of her mother placing her hands around her neck causing [the child] to experience breathing difficulties and coughing. [The child] was observed to be in a state of alarm when recounting this experience and later stated that she did not feel safe at her mother’s home. Further, [the child] reported that she cried and pleaded, while her mother held her upside down for her mother not to put her under a cold shower, and stated that this was something that [Mr Y] had previously done to her. Although no signs of physical harm were sighted by departmental officers, the nature of the abuse places [the child] at an unacceptable risk of future physical harm as the neck is a delicate area and rough handling could lead to interruption of her breathing. Further, being held upside down by the legs and held under a shower could feasibly have led to being dropped on her head.
The child also made complaints to the Department to the effect that the Mother refused to allow her to have a bath or shower; that her clothes were unwashed in the period she spent with the Mother; and the child also described being locked outside on a veranda “in the dark”.
When the Department undertook an investigation of these allegations it obtained information from the child’s school that her school attendance when in the Mother’s care was not satisfactory whilst the child reportedly had very good attendance when in the Father’s care.
The Department substantiated risks of physical abuse from physical harm as well as emotional harm in respect of this notification and assessment. It was this assessment that existed as at the time of the July 2012 interim orders and in respect of which the ICL contended that interim orders ought be made in the terms in which they were ultimately made in the child’s best interests.
In her cross-examination the Mother denied the conduct attributed to her by the child in her disclosures. However, as already noted, the Mother moved from the position of asserting that the Father was, via “coaching” of the child, responsible for the child making such statements or disclosures to the position that the Mother actually contended that the disclosures were fabricated by departmental officers. That is, the Mother reached the extraordinary position that the child did not in fact say the things to departmental officers she is recorded as having said but, rather, in their determination to act adversely to the Mother departmental officers have invented or fabricated such disclosures as having been made by the child.
Leaving aside the inherent improbability factor the difficulty for the Mother in advancing this proposition is that, as she well knows, the child is recorded telling much the same information to Mr N when he interviewed the child for the purpose of his report. Whilst Dr V assessed the Mother’s personality disorder as including a tendency to paranoid and conspiratorial thinking it is difficult to place the Mother’s position into that context given her knowledge of the contents of Mr N’s report, unless it be the Mother’s position that Mr N is part of this conspiracy.
It may well be that such has historically been the child’s involvement in the parental conflict that she has embellished or exaggerated claims that she has made which are adverse to the Mother. It may be that there is some substance in the earlier assertion by the Mother as to “coaching” given the reference by some witnesses, including Dr Z, a psychologist engaged by the Mother as to the child’s use of “adult” language, a “rehearsed” quality to her statements; and her obvious knowledge about the proceedings from time to time given things she has said.
However, because of my doubts concerning the Mother’s credibility I cannot dismiss the child’s statements so readily. Indeed, I find it more probable than not that the child’s statements reflect her true experience of the Mother which gives rise to obvious concerns regarding the Mother’s capacity to deal appropriately with the child without the use of unacceptable means of discipline.
In summary, I find that there is a need to protect the child from the parental conflict because of the risk to the child that by being exposed to such conflict on an ongoing basis there is potential psychological harm to the child from being subjected to the kinds of interaction between her parents that has historically occurred.
I further find that given the child’s disclosures to the Father, given their consistency with the disclosures she made to officers of the Department and to Mr N; the Department’s substantiation following its investigations; and the conclusions reached concerning the Mother’s unreliability as a witness; I also find that there is a need to protect the child from the risk of physical harm from being subjected to abuse from the Mother via the forms of inappropriate physical measures described by the child in the disclosures referred to.

Section 60CC(3) “additional considerations”

(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

Mr N observed that the child expresses “robustly positive experiences and/or perceptions of [Mr Athanasiou] and stridently negative experiences and/or perceptions of [Ms Callow] and of the maternal grandmother [Ms C].”
Mr N also records in his report:
[The child] expresses a sense of feeling and/or being safe with father.
[The child] expresses a sense of feeling and/or not being safe with mother.
In short, Mr N assessed the child as having aligned herself with the Father and as having enjoined with the Father in her disengagement or estrangement from the Mother.
Even allowing for the prospect, as Mr N did, that at least part of the child’s position as assessed by him is attributable to the Father’s influence the difficulty now is that the Mother has chosen not to communicate with the child or to spend any time with her since the July 2012 interim orders, save only for the two hour supervised visit in September earlier referred to.
Necessarily because of her age and level of maturity there are limits upon the weight to be given to the child’s expressed views. Moreover, due allowance must be made for the prospect that the child’s expressed views of such strong alignment with the Father may be the product of the child wishing to retreat from the parental conflict and bringing that conflict to an end, or at least her involvement in it to an end, by aligning herself with one of her parents and she has elected the Father as that parent.
Notwithstanding these considerations, the fact is that the child has now for a considerable period of time advanced views to the effect that she wishes to live with the Father and not to spend time or communicate with the Mother. In this context it is also instructive that in the school incident earlier referred to when the child has been asked to choose which parent she wished to leave the school with she chose the Father.
Moreover, a lengthy period has now elapsed even since Mr N’s interviews and report took place during which the child has been aware that the Mother has not sought to see the child or communicate with her. There must consequently exist a significant prospect that from the child’s perspective the Mother’s election not to see or speak with her entrenches the child’s views.

(b) the nature of the relationship of the child with (i) each of the child's parent; and (ii) other persons (including any grandparent or other relative of the child)

Mr N assessed that the child’s care experience with the maternal grandmother has not been positive. The child indicated to Mr N that she does not miss either the Mother or the maternal grandmother. The child did express interest in her half-sister A. For example, asked about the hardest thing about her care arrangements living with the Father and having no time with the Mother the child said “I don’t get to see my little baby sister. I wished [sic] she lived with my Dad”. Asked about what she liked about the Mother the child responded to the effect “nothing… just my baby sister [A]”. Undoubtedly the child has a positive relationship with the Father save only for the risk of enmeshment identified by Dr V. The child does not have such a relationship with the Mother nor, does it seem, that she seeks such a relationship. Likewise, the child has expressed negative comments about the maternal grandmother Ms C. As noted, it would seem that the only positive expression the child makes about the Mother’s household is in relation to her half-sibling A.
In this context it is to be noted that the Mother’s choice not to pursue time or communication pursuant to the July 2012 orders has also consigned the child and A to a loss of their relationship. That is, the child has had no opportunity to pursue interaction with A and vice versa A has had no opportunity to know the child.
The child’s paternal grandparents are deceased and Mr N assessed that the child has had no contact with paternal family members and these are not part of the child’s “care and/or relationship landscape.”
Mr N observes in his report:
It seems reasonable to propose that the maternal grandparents have been part of [the child’s] care and/or relationship landscape while the girl’s experience is that this has not been a positive experience, at least in relation to the grandmother.
Again, it is to be noted that the Mother’s choice in relation to the July 2012 orders has meant that there has not been continuing time or communication between the child and the maternal grandmother, or any other maternal family members.
It would seem on the evidence that the Mother is now estranged from her sister and as has already been noted the proposition of the Mother’s continuing relationship with Mr Y would seem to be illusory.
In short, it would seem on the evidence as a whole that it is only the relationship as between the child and her sibling A that has potential positives for the child in the future from the child’s perspective. Much would need to change, in terms of the Mother’s approach, for that to be true also in relation to the Mother.

(c) The willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

On the whole of the evidence I have no hesitation in finding that neither parent has any willingness nor ability to facilitate and encourage a close and continuing relationship between the child and the other parent. Their history shows a determination to pursue their conflict with each other at the child’s expense.
As has already been referred to, there is a plethora of evidence in this case that both parents have historically put their own perceived needs and interests in their conflict with each other a long way ahead of serving the child’s interests. Their respective deficits of personality have had an obvious influence upon that and those deficits endure.
The Father has at least engaged Mr GG, a psychologist, who gave evidence before me, to undertake therapy sessions albeit that these seem to be somewhat limited. In the case of the Mother there has been no attempt by her to address the obvious issues she has. Indeed, it would seem that the Mother does not accept the existence of issues that she has which on Dr V’s evidence would be an obvious starting point for any psychotherapy of the Mother to have any prospect of success.
I have no confidence, based on the lengthy past history and the nature of parental conflict, that either of these parents will ever be capable, let alone willing, to encourage or support a close and continuing relationship between the child and the other parent.

(d) The likely effect of any changes in the child's circumstances, including the likely affect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child) with whom he or she has been living

Plainly, the orders sought by the ICL would simply see a continuation of the child’s present circumstances, that is, her living with the Father and having no time or communication with the Mother, beyond letters and gifts.
The Father’s proposed orders, if taken up by the Mother, would see her spending regular supervised time with the child as well as communicating with the child on a regular basis. That is, provided the child can be now encouraged to re-engage with the Mother in such time and communication after such a long hiatus in their relationship.
The Mother’s proposal that the child now live with her would obviously have a profound impact upon the child. It would be completely contrary to her expressed views and moreover, given my findings as to risk, would pose risk to the child’s welfare.
On the Mother’s proposed orders the child would move from the experience of living full-time with the Father and, prior to that, week about/shared care to living almost wholly with the Mother save only for one weekend per month and each school holiday period with the Father.
The Mother gave some evidence to the effect that at one point she was unable to have the child attend school because of the child’s adamant refusal to so do. The Mother gave evidence to the effect that the child was distressed and she (the Mother) was not prepared to heighten that distress by forcing the issue.
In my judgement, any move of the child to a care arrangement along the lines proposed by the Mother would now be highly distressing for the child and it cannot be concluded that this would not have an adverse overall effect upon the child. It cannot be concluded that the child would adjust to such a profound change.

(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

Obviously there are no practical difficulties or expenses associated with the ICL’s proposal on the basis that there would be no time and communication occurring, beyond the sending by the Mother of letters and gifts.
On the Mother’s proposal it is simply unknown what would be the practical difficulty and expenses associated because of the Mother’s adamant refusal not to disclose her place of residence beyond that it is in a “suburb of Brisbane” in circumstances where the Father is, and has for a long time now been, living on the Gold Coast.
On the Father’s proposal the obvious practical difficulty and expense is that which follows from the proposal that the child’s time with the Mother be supervised albeit that the Father proposes a sharing of this expense. Again though, absent the Mother’s disclosure of her present address beyond that noted there would be a practical difficulty involved of Ms R supervising when that supervision would occur in the Gold Coast area whilst for any period the Mother chooses to continue to reside in Brisbane or its environs.

(f) The capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

In relation to the Father, the evidence to be gleaned from information obtained by the Department during its various investigations and assessments all points to the Father having the capacity to provide well for the child’s physical needs.
Historically the Mother alleged that the child was anorexic and attributed this to dietary strictures placed upon the child by the Father. However, as at trial this aspect was not pursued by the Mother and she gave oral evidence to the effect that medical examinations had confirmed that the child was achieving her milestones normally.
The evidence from the child’s school is to the effect that the Father ensures the child’s school attendance and that she presents well at school and is provided for adequately in all respects. The chikld seems to be making pleasing progress at school on the most recent school reports in evidence.
Given the findings as to risk in the case of the Mother there are significant reservations about her capacity to provide for the child’s needs. There are questions on the evidence as to the Mother’s capacity to ensure the child’s regular school attendance historically albeit that many of the child’s absences were supported by medical certificates obtained by the Mother.
As earlier noted, because Dr V had the opportunity to observe the Mother when he was cross-examined by her Dr V expressed the opinion that the Mother is depressed. I have earlier referred to the Mother’s troubling evidence concerning her purported relationship with Mr Y. In my judgement there are significant reservations about the Mother’s capacity to provide for the child, if the child was placed in her primary care, at least on the Mother’s current presentation as described by Dr V.
I reiterate that fundamentally neither of these parents appears to be capable of providing for the child’s emotional need to have and maintain a relationship with the other parent and in this respect all that could be said in favour of the Father is that he did not embrace the ICL’s position in the proceedings. That is, the ICL having formulated a proposal for there to be orders for no time or communication with the Mother beyond letters and gifts it might have been expected that the Father would embrace that position for himself but it seems to me it is to his credit that he has not so done.

It would seem that in the context of the safety of supervised time the Father has at least some appreciation of the need for the child to have some relationship with the Mother although I retain significant reservations about the Father’s capacity to provide for that need if it is ever tested in future.

(g) The maturity, sex, lifestyle and background of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

The key ingredient in relation to this consideration is the assessed personality disorders in each of the parents as assessed by Dr V. These have already been discussed.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

There would seem to be no doubt that the Father is committed to the child and to providing for her needs. Indeed, Dr V gave evidence to the effect that the child is at the centre of the Father’s world and is his focus. Indeed it is the potential for the child to be his sole focus and for the relationship to become an enmeshed one that potentially may have an adverse effect upon the child’s welfare.
In contrast, Dr V raised significant concerns about the Mother’s commitment to the child and thus her attitude to the child given the choices that the Mother has made since the July 2012 orders were made not to have time with the child or to communicate with her. I accept that Dr V is correct in opining that there are significant concerns about the Mother’s level of attachment to and commitment to the child.
I am troubled that there is a significant prospect that the Mother pursues this litigation more as a reflection of her wish to seek retribution against the Father, encouraged to do so by her own mother Ms C, than actually focusing upon what it is the child’s best interests.
It is undoubtedly the case that the Mother reacted adversely to the interim orders imposing supervision of her time with the child. It is equally undoubted that the Mother refuted the need for supervision and she took this as a personal affront that the Court would impose such an order.
It is equally not to be doubted that the Mother has strong adverse views of officers of the Department of Child Safety and the teachers at the child’s school, amongst others.
However, taking all of those things into account, the only explanation for the Mother not spending any time with the child or not communicating with her at all over the period since the interim orders were made is that the Mother cannot put the child’s best interests and the mother-daughter relationship and its maintenance ahead of the Mother’s own perceived need to redress grievances, real or perceived by her.
In my view, even allowing for the Mother’s personality disorder as assessed by Dr V, this profoundly resonates as the Mother’s attitude to the child and the responsibilities of parenting being fundamentally flawed.
Whilst the Mother would seek to justify her position on the assertion that the Father has a long history of family violence and indeed it is her alleged fear that the Mother persistently points to as the primary reason or motivation for her conduct, the fact is that historically the Mother reached consent orders on 9 April 2008 (when the child was not yet three years of age) that saw the child in a equal shared care regime.
Whilst I have already found, as noted above, that the Father has underplayed his role in family violence historically it beggars belief that if all the Mother has to say about the Father is true so far as family violence is concerned that she would consent to the orders referred to in 2008 as meeting the child’s best interests. The same may be said of her current proposed orders which would see the child spending the whole of all holiday periods with the Father.

(j) any family violence involving the child or a member of the child's family

I have already dealt with this aspect and noted the impossibility of making firm conclusions or findings about any or each episode historically referred to by either parent on this issue.
I repeat that I am satisfied that the Father did historically perpetrate acts of family violence; and that he has understated his role in that respect; but equally I am satisfied that the Mother has likewise perpetrated family violence historically.
Indeed it can be seen on the history that the Mother has a significant propensity to act uncontrollably in a given situation. The best example of this relates to the subpoenaed material admitted into evidence concerning the convictions of the Mother for assault and obstructing police arising out of events which occurred in June 2007. I accept that on that occasion the police were assisting the Mother to retrieve belongings from the then joint residence of the parties but that the Mother took it upon herself to use that opportunity to attempt to take the child into her custody. That led to, remarkably, an ugly confrontation with the police officers who were there to assist the Mother resulting in her obstructing them and assaulting them and she was convicted of these offences.
To similar effect is the evidence concerning the Mother’s conduct at the school already referred to.

(l) 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

The child is still very young. Given the history of the conflict between her parents, essentially for the whole of her life, there can be little confidence that these proceedings will necessarily bring an end to that conflict. No doubt it is this consideration which looms large for the ICL in having reached her position of proposing that there be no orders for time and communication with the Mother beyond letters and gifts.
Whilst it may be concluded that the ICL’s proposed orders if implemented would be least likely to lead to the institution of further proceedings in relation to the child, the consideration as expressed is whether this would be “preferable”.
For reasons which will be discussed further I am not satisfied that it is preferable to make such an order.

Section 60CC(4)

I have already dealt with the relevant considerations expressed in this subsection in dealing with the s 60CC(3) considerations.

Balancing of best interests considerations

I have not specifically addressed some particular subparagraphs of s 60CC(3) of the Act on the basis that those have no particular relevance to this case further than that which has already been addressed.
On balance I am satisfied that orders along the lines proposed by the Father best meet the best interests of the child in the current circumstances.
I am satisfied that the need to protect the child; the nature of the current relationship between the child and the Mother (which is essentially non-existent); and the need to eliminate from the child’s life her ongoing exposure to the parental conflict are determinative that the orders proposed by the Father be made.
Those orders at least carry some prospect of the Mother re-establishing her relationship with the child and provide a basis upon which a relationship between the child and her half sister A might be furthered. Of course this depends upon the Mother putting her children’s needs ahead of her own and availing herself of the opportunity to commence restoration of a relationship with the child.
If and when the Mother engages successfully in psychotherapy to address the issues arising out of her personality disorder then further consideration might be given at some time in the future by a Court exercising jurisdiction under Part VII of the Act to expand the orders for time and communication beyond those presently contemplated.
The undesirability of a long-term order for supervised time is obvious. The unsatisfactory nature of that kind of interaction is obvious particularly as a child of the child’s present age matures and develops. However, in my judgment the Mother’s conduct since the interim orders produces that and her refusal to disclose her address dictates constraints.
Had the Mother engaged in the time and communication provided for in the interim orders from the time when they were made until trial the position might now be different. However, the same considerations which led to the making of those orders subsist with the added dynamic that further significant time has now elapsed when there has been no time or communication between the Mother and the child and that of itself causes significant doubts about the Mother’s commitment to the child and her attachment to the child.
If the Mother successfully undertakes psychotherapy and successfully adheres to orders I propose to make, it might be that she can demonstrate the existence of a material change in circumstances sufficient to persuade a Court in future exercising the jurisdiction under Part VII to revisit the orders now made. On the other hand, if the Mother chooses the same path as she did in response to the interim orders of not having time and communication with the child then the impact of these proposed orders will be lessened, or there will be no discernible difference from the child’s perspective.

Parental Responsibility

Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility in terms of decision making about major long-term issues.
Subsection (3) of that section provides:
The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Notably, the section does not provide any mechanism for resolving any deadlocks. That is, if the parties are unable to come to a joint decision about an issue, being a major long-term issue as defined in the Act, then resort must be had, ultimately, to the Court to resolve the issue.
It is abundantly clear in this case that the parents are not only hostile to each other and have no capacity to effectively communicate or discuss or resolve issues the position has been reached where their relationship can only be described as toxic. I find that there is no prospect that an order for equal shared parental responsibility would be workable and I find that, in any event, given the findings I have made above the presumption if it applied, would be rebutted in the child’s best interests.
In any event, given my findings concerning family violence, the presumption in s 61DA of the Act does not apply. I do not propose to make an order for the parents to have equal shared parental responsibility. I am satisfied that an order ought be made for the Father to have sole parental responsibility.

Orders

I am satisfied that orders largely in line with those proposed by the Father best meet the child’s best interests.
In addition to the Father’s proposed orders for time and communication I incorporate the ICL’s proposed orders with respect to the Mother sending letters and presents. It may be that the Mother makes a similar election, in response to these orders, as she did with the interim orders, and does not avail herself of supervised time or the telephone communication provided for. It may be that she will avail herself of the opportunity to send letters and gifts to the child. If she elects to avail herself of all of these provided means of communication that seems to me to meet the child’s interests of having or achieving a restoration of some relationship with the Mother.
I decline to make orders in the terms sought by the ICL for the Father to undergo the programs identified in the ICL’s proposed orders in Exhibit 1. I am satisfied that the Father has availed himself of therapy with Mr GG as earlier referred to and is likely to continue to so do. In my judgement, attention to the Father’s deficits identified by Dr V is more likely to have direction by the Father voluntarily accessing the assistance of Mr GG rather than him being required, by order, to attend courses.
Similarly, I decline to order that the Father attend upon Mr GG, psychologist in circumstances where he seems to have voluntarily accessed that assistance when needed and there is nothing to suggest he would not continue to so do.
The Mother’s evidence and submissions did not lead to any confident conclusion that the Mother will in fact avail herself of the orders for time and communication proposed, particularly, supervised time. Indeed some of her answers in cross-examination would support a conclusion that it is unlikely that the Mother will take up the opportunity to have any time with the child if it is to be supervised. Nevertheless, it seems to me that it serves the child’s interests for the order proposed by the ICL for counselling of the child (and the Father to be involved in that if necessary) to take place. If the Mother does avail herself of the opportunities afforded by these orders then such counselling may assist in having the child attend the visits. Alternatively, if the Mother elects not to avail herself of these opportunities a counsellor may assist the child in adjusting to that fact. I therefore propose to make an order in terms of paragraph 8 of the orders proposed by the ICL.
Otherwise the orders to be made are self-explanatory. For example, provision is included in the event that Ms R does not remain available to undertake the task of supervision.
For these reasons I make the Orders set out at the commencement of them.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 22 October 2013.

Associate:

Date: 22 October 2013

[2013] FamCA 818

22 October 2013

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Family Law

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Injunction

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