Carmichael & Parker - [2022] FedCFamC2F 1658

Federal Circuit and Family Court of Australia
(DIVISION 2)
Carmichael & Parker [2022] FedCFamC2F 1658

File number(s): ROC 649 of 2019

Judgment of: JUDGE L. TURNER

Date of judgment: 1 December 2022

Catchwords: FAMILY LAW – Parenting – final – dispute as to spend time with arrangements for child aged nearly 7 with father and paternal grandparents – where child does not know of parental family – where mother argues that her parenting will be so negatively affected by the child being told of paternal parentage and/or spending time with parental family that it is in child’s best interests that child not be told and time not occur – where mother has mental health issues – held in child’s best interests not to be informed as to her paternal parentage – child live with mother, mother have sole parental responsibility and child spend no time or communicate with father and paternal grandparents

Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CC, Pt VII

Cases cited:
B and B (1993) FLC 92-957

Grant and Grant (1994) FLC 92-506

Irvine and Irvine (1995) FLC 92-624

ReAndrew (1996) FLC 92-692

Russell and Close Appeal No SA 45 of 1992

Sampson and Sampson (1977) FLC 90-253

Sedgley and Sedgley (1995) FLC 92-623

Division: Division 2 Family Law

Number of paragraphs: 170

Date of last submission/s: 26 October 2022

Date of hearing: 19, 20 & 21 April 2022 and 24, 25 & 26 October 2022

Place: Rockhampton

Counsel for the Applicants: Ms Stocks

Solicitor for the Applicants: Mcgowran & Cagney Lawyers

Counsel for the First Respondent: Ms Willey

Solicitor for the First Respondent: Michael Stockall Solicitor

Counsel for the Second Respondent: Ms Marsden

Solicitor for the Second Respondent: Lynas Law

Counsel for the Independent Children's Lawyer: Mr Slade-Jones

Solicitor for the Independent Children's Lawyer: Lyrene Wiid Lawyer & Migration Agent
ORDERS

ROC 649 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CARMICHAEL & MR CARMICHAEL

Applicants

AND:
MS PARKER

First Respondent

MR B CARMICHAEL

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE L. TURNER

DATE OF ORDER:

1 December 2022

THE COURT ORDERS BY WAY OF FINAL PARENTING ORDER THAT:
1.All previous parenting orders are hereby discharged.
2.The child X born in 2015 (the child) live with the mother.
3.The mother have sole parental responsibility for the child.
4.The child spend no time with and/or have no communication with the father and the paternal grandparents.
5.The decision to inform the child as to her parentage is a decision to be made by the mother when the mother considers it appropriate.
6.Forthwith the child X Carmichael be known as X [E] and this order is to act as an authority for educational and health purposes for the child to be known by that name.
7.Order 6 does not however act as authority to change the name on the child’s birth certificate.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carmichael & Parker has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE L. TURNER:
introduction

This matter involves X who is almost 7.
X lives in a family environment consisting primarily of the mother (the first respondent), the mother’s on-again, off-again partner Mr E (who X identifies as her father) and X’s siblings, F (aged 4) and G (aged 2) (Mr E’s biological children).
X has an ongoing relationship with the maternal grandmother (Ms H), the maternal grandfather (Mr J) and Nan and Pop (Mr E’s parents).
X is unaware that her biological father is Mr B Carmichael (the second respondent) and that her biological paternal grandparents (the applicants) are Mr and Mrs Carmichael.
X has, in the past, spent time with the father during 2017 and 2018 (last spending time with the father in December 2018) and the paternal grandparents during 2016, 2017 and 2018 (last spending time with the paternal grandparents in December 2019) but is unaware of their biological connection to her.
Issues
The father and the paternal grandparents, supported by the independent children’s lawyer (ICL) seek interim parenting orders whereby X be informed as to her paternal parentage and steps be taken for the gradual reintroduction of time for X with the father and the paternal grandparents.
The mother seeks final parenting orders whereby X live with the mother, the mother have sole parental responsibility for X and X spend no time or communicate with the father and the paternal grandparents.
The issues therefore for determination are:
(a)Should X be informed as to her paternal parentage?
(b)If not, what final parenting orders should be made for X?
(c)If X is informed of her paternal parentage, then how is reintroduction to occur and how time should proceed for the child with the father and the paternal grandparents?
Evidence
In considering the issue regard has been had to:
(a)The relevant material on the court file.
(b)The written and oral evidence of the parties and witnesses.
(c)The family report released by Ms C in 2021 (family report).
(d)The exhibits.
(e)Part VII Family Law Act 1975.
(f)Relevant authorities.
The parties are legally represented.
The court had the benefit of an ICL.
For the first three days of the final hearing in April 2022, Judge Demack presided but subsequently needed to be recused.
I then took over the matter and after reading the transcript and mentioning the matter with the practitioners it was concluded that the final hearing could proceed on a part heard basis with a further three days of hearing which occurred in October 2022.
In addition to the parties, numerous witnesses were called together with the family report writer.
I find the mother and her witnesses to be credible.
For reasons that will be addressed later in the judgment I did not find the father to be a credible witness on the issue of family violence and therefore where there is a discrepancy in the evidence given by the mother and the father on this issue, preference is given to the evidence of the mother.
Overall I find the paternal grandparents to be credible witnesses although it was clear from their evidence that they firmly supported the father and believed what he had to say.
comment as to nature of this matter
On its face the facts are simple:
(a)X does not know of the biological father and paternal grandparents and the biological father and paternal grandparents want to be part of X’s life.
On its face the solution is simple:
(a)Firstly orchestrate a way (through therapeutic intervention) to reintroduce the father and paternal grandparents to X.
(b)Secondly put in place a spend time with and communication regime to enable the paternal family to be part of X’s life.
However, this matter is far from simple.
It is sensitive and difficult matter because of the mother’s poor mental health.
It is argued by the mother that if the father and the paternal grandparents were reintroduced into X’s life, the mother’s ability to parent X and her two younger siblings would be so severely compromised that the mother would not be able to effectively care for X.
Therefore on the mother’s case it would not be in X’s best interest for the child to be informed of the father and paternal grandparent’s existence as this would be at the sacrifice of what is currently a loving and healthy mother/daughter parenting relationship between the mother and child.
I now turn to the law.
the law
The objects underlying Part VII Family Law Act 1975 are to ensure that the best interests of the child is met by:
(a)Ensuring that the child has the benefit of both parents having a meaningful involvement in their lives, to the maximum extent consistent with the child’s best interest (section 60B(1)(a)).
(b)Protecting the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence (section 60B(1)(b)).
(c)Ensuring the child receives adequate and proper parenting to help the child to achieve their full potential (section 60B(1)(c)).
(d)Ensuring that the parents fulfil their duties and meet their responsibilities concerning the care welfare and development of the child (section 60B(1)(d)).
The principles underlying these objects are:
(a)The child has the right to know and be cared for by both parents (section 60B(2)(a)).
(b)The child has the right to spend time and communicate on a regular basis with both parents and other significant persons such as grandparents and other relatives (section 60B(2)(b)).
(c)The parents are to jointly share duties and responsibilities concerning the care, welfare and development of the child (section 60B(2)(c)).
(d)The parents should agree about the future parenting of the child (section 60B(2)(d)).
(e)The child has the right to enjoy their culture (section 60B(2)(e)).
Before deciding whether to make a particular parenting order the court must regard the best interests of the child as the paramount consideration (section 60CA Family Law Act 1975).
In determining what is in the best interests of the child regard must be had to the primary considerations contained in section 60CC(2) and the additional considerations in section 60CC(3).
The primary considerations are the benefit of the child having a meaningful relationship with both parents (section 60CC(2)(a)) and the need to protect the child from physical or psychological harm (section 60CC(2)(b)) with this last consideration to be given the greater weight (section 60CC(2A)).
The additional considerations (section 60CC(3)) are many and include such considerations as views of the child, the nature of the relationship of the child with the parents and other persons, the capacity of parents to meet the needs of the child, the parents’ attitude to the child and responsibilities of parenthood and any other fact or circumstance the court thinks is relevant.
Matters of this nature, where there is such an apprehension by the mother to allow time as it would negatively impact on the mother’s ability to parent, are few and far between.
But there are some relevant authorities which are referred to below in chronological order:
(a)Sampson and Sampson (1977) FLC 90-253
(i)Fogarty J said at 76,357-8
“The matter has to be determined having regard to the welfare of the child (see sec. 64)... the ultimate problem of custody is brought about by the refusal of the custodial party to grant access to the other party and her inability to accept orders for access, that situation having a detrimental effect on the child. In that situation it appears to me that the following considerations are applicable:-
1.        In ordinary circumstances where custody of a child is granted to one parent access will be ordered in respect of the other parent. This falls to be determined having regard to the welfare of the child...
2.        The fact that the custodial parent is opposed to access or does not desire the other party to have access to the child is in itself irrelevant. The matter has to be determined having regard to the interests of the child, not the wishes as such of the custodial parent. That is, her wishes are irrelevant but her reasons must be given proper weight.
3.        Where the continuation of access has a detrimental effect upon the child the Court must weigh that detriment against the other advantages to the child of the continuation of access. Where it concludes that, considering the whole matter, to continue access would be to the real detriment of the child the Court is required in the performance of its duty to terminate or suspend access.
4.        The option then open to the Court is either to continue the existing custody and at the same time terminating or suspending access, or alternatively changing the custody and determining access in the light of that changed situation.
5.        In many cases this problem arises because the custodial parent quite irrationally and wrongly creates such difficulties about access that its continuance has a demonstrable detrimental effect upon the child. Even in cases where the situation is brought about in this way the same considerations apply. The matter is to be determined having regard to the welfare of the child, not by considerations of either sympathy for the innocent non-custodial parent or feelings of frustration or annoyance with the custodial parent.
6.        In such a case the question of the future custody of the child again must be determined only upon a test of the welfare of the child. It ought not be determined by unconscious feelings of punishing the custodial party who appears to have brought the situation about or rewarding the innocent non-custodial party. In cases where the welfare of the child dictates that that child should remain in the custody of the former custodian that must be the result even though the consequence may be that the non-custodial party, innocent of any wrong doing, is severed for at least the time from continued connection with his or her child.
7.        In cases where the attitude of the custodial parent is genuinely but unreasonably held, the relevance, and in my view the only relevance, of that attitude of the custodial parent is that such wilful or irrational behaviour may indicate such a defect of personality or character as to indicate that that person may not be a suitable custodian for the child. Similarly where the non-custodial party is prepared and able to assume the duties of a custodian and is prepared to agree to access to the other party that circumstance may be of such overall advantage to the long term welfare of the child that it may, taken with all the other relevant factors, justify the Court in altering the custodial position"
(b)B and B (1993) FLC 92-957
(i)The Full Court at 79780 stated:
“It is not unreasonable for the court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the child’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children”
(c)Russell and Close Appeal No SA 45 of 1992 (Unreported - delivered in 1993)
(i)The Full Court stated:
“That any benefit to the child in access taking place should not be outweighed by disadvantages for the child, including a risk that the child’s relationship with the custodial parent might be undermined by the conduct of the non-custodial parent during access periods”
(ii)The Full Court then went on to say:
“In taking into account the belief of the custody or parent… it must be shown that such belief on the part of the custodial parent is generally held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt”
(iii)The Full Court noted:
“Her honour had the unique advantage of hearing and observing the behaviour and demeanour of the wife in the court room during the proceedings, and particularly while she was under cross-examination… judges are entitled, and are frequently called upon, to draw inferences as to the likely future behaviour of a party to proceedings from that party’s prior behaviour… when considering whether the behaviour of a party in court during the hearing of proceedings is a reliable guide to the likely future behaviour by that party out of court, a judge will take into account the context in which the form of behaviour occurred, and make due allowance for the fact that the surroundings and atmosphere of the courtroom are novel and perhaps stressful for the party and quite different from the context in which the party normally functions. Nevertheless, we are of the opinion that it is open to a trial Judge to draw inferences as to a party’s likely future conduct in another context from the conduct which that party has displayed in the courtroom during the hearing of the proceedings”
(iv)As to the extent of evidence required to establish what impact a spend time with order might have on the resident parent’ ability to parent, the Full Court stated:
“Judges are entitled to bring to bear, upon the evidence before them, their ordinary common sense and general knowledge and experience of human nature and conduct. It seems to us that no direct evidence is required to entitle a judge to conclude that the children are constantly subjected to overt conflict between their parents over access, particularly where the custody or parent indulges in hysterical outbursts directed to the other parent involving allegations of sexual abuse, the children’s welfare is likely to adversely affected. We are therefore of the opinion that her honour’s finding about the wife’s likely reaction to an order for overnight access and her conclusion as to the impact of that reaction upon the children were open to her upon the evidence, including the evidence which her honour herself witnessed, in the form of the wife’s conduct and demeanour in the witness box in the course of the proceedings”
(v)The Full Court concluded:
“Her honour was not so much concerned with logic, as with reality, and she was obliged to regard the welfare of the children as the paramount consideration. She was faced with a very different choice”
(d)Grant and Grant (1994) FLC 92-506
(i)Purdy J stated:
“The court can and must take very much into account in assessing the desirability of access the possible effects of an access order on the custodial parent. If the court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child then the court must take that into account in assessing whether access is for the benefit of the child”
(ii)In considering the facts of the case Purdy J commented:
“On balance under ordinary circumstances I would say that contact between (the child) and the father was definitely for the welfare of (the child). However… I must give weight to the very great fear that (the mother) bears towards (the father) and fears as to the children’s safety with their father. I must say I do not think those fears are any longer well grounded. Nonetheless those fears would affect badly her ability to care for the children, physically and emotionally”
(e)Sedgley and Sedgley (1995) FLC 92-623
(i)The Full Court stated:
“The test to be applied in access cases… is ultimately prescribed by s.64 (now s.60CA) of the Family Law Act, namely what order is made by regarding the welfare of the child as the paramount consideration. Whilst the welfare of the child might acquire some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be more compelling need for the child”
(ii)The Full Court concluded:
“Her Honour was faced with a difficult case. The decision to cut the relationship between a parent and child is one which ordinarily the court takes only with considerable hesitation”
(f)Irvine and Irvine (1995) FLC 92-624
(i)The Full Court stated:
“The denial of an opportunity of a relationship between the child and his father is a conclusion which the court should only reach with utmost reluctance… it is… only in an exceptional case that the termination of is likely to be in the best interests of the child… in deciding whether it would be in the interests of the children to grant such access, the court have to bear in mind the obvious effect the respondent’s conduct must have had upon their custodial parent”
(g)ReAndrew(1996) FLC 92-692
(i)The Full Court cited Full Court decision of N and S (1996) FLC 92-655 which approved the findings in Sampson.
(ii)The Full Court concluded:
“There were two very complicated choices for his Honour. His Honour has chosen one, not the other. Given that the wide discretion imposed in his Honour, we of the view that it is impossible for us to say that he has erred”

I will now consider the first issue in this matter.
Should X be informed as to her paternal parentage?
When the parents separated, X was around 10 months old.
Shortly thereafter the mother became involved with Mr E, and for X, Mr E is the only father figure the child has ever known.
X’s perception that Mr E is her true father has been further cemented by the arrival of her (half) sister F in 2018 and her (half) brother G in 2020.
Attempts were made during the final hearing to downplay the involvement of Mr E in his role as father to X due to the mother and Mr E’s relationship being on again, off again, Mr E working away for 7 days every fortnight and where Mr E sometimes stays with the mother and at other times stays with friends or sleeps in a campervan when not working.
I find that these attempts failed with the evidence supporting that X has a strong and loving relationship with Mr E and where Mr E is committed wholeheartedly to the parenting of all three children; treating X as if she was his own biological child.
I further find that no matter the nature or state of the relationship with the mother, Mr E will continue to effectively co-parent the children with the mother and remain a constant and significant parenting figure in X’s life.
The evidence supports that the mother is also a committed and devoted parent and is protective of the children.
The mother takes her parenting role very seriously and is child focused, always placing the needs of the children first.
The maternal grandmother described the mother in cross-examination as “a very good mother, as is consistent and loving. The children have routines. They’re well loved. They’re clean... I had no concerns at all about Ms Parker being mother, even despite all the battles or struggles that she has. The children come first”.
Mr E described the mother as “a great mother. She pours her heart and soul into them kids day and night… she backs them kids. She is the perfect mother”.
It is not disputed that the mother has a deep, loving and meaningful relationship with X and that X’s primary bond is with the mother followed very closely by X’s bond with Mr E.
But functioning day to day does not come easy to the mother.
Whilst many of us go through life as if walking through air, with the occasional hiccup, I suspect for the mother it is more like constantly walking through treacle, with regular roadblocks, causing the mother to stumble and struggle to pick herself up again.
Since a very early age, the mother has suffered with ongoing mental health issues and other medical ailments and has had to deal with many unfortunate events.
At age 5, the mother was diagnosed with Asperges, depression and high anxiety and had started to self-harm.
By age 7, the mother had made her first suicide attempt.
At age 9, the mother was sexually abused by a neighbour.
At age 15, the mother was diagnosed with Borderline Personality Disorder (BPD).
At age 16, the mother lost her virginity after being raped by two men.
At age 18 the mother accidently found out that the person she thought was her biological father (Mr J) was not her father but a man called Mr K; with whom the mother does not have a good relationship. By this time the mother was self-harming by deep cutting her body in places that could be hidden by clothing, such as her thighs.
By the time the mother had met the father at age 20, the mother had had a history of being in mental health units as a child, suicide attempts and self-harming and was under the care of a psychologist, Dr L (the mother having first engaged with Dr L in 2011).
The mother in cross examination described her relationship with the father as being “my first real long-term relationship”.
Initially the relationship was long-distance with the parents travelling to spend time with each other although later there were periods of time where the mother left her supports in Town M to live with the father in City N.
The mother in cross-examination described how at first the relationship was “really good” and how the father “made me feel really good”.
The mother and the father talked on the phone for hours and the mother told the father everything about herself stating in cross examination “you tell them about… what has hurt you in the past; what hasn’t. You open up about things… I’ve never hidden my illness. I’ve never hidden… my past or my self-harm… I can’t hide it realistically. Especially when you’re sharing something like that with someone”.
The mother also shared with the father details as to her previous suicide attempts and her ongoing struggles with her mental health.
The mother explained in cross examination that she had fallen in love with the father because he seemed like “a really… decent guy”.
However, according to the mother the father did not remain a “decent guy” for long.
The mother describes a relationship marred by regular abuse at the hands of the father.
At first the abuse was verbal, emotional and psychological and leading up to the birth of X, the father’s abuse of the mother became extremely physical (the mother in cross-examination describes it as torture) including pushing, kicking, punching, pulling by the hair, breaking her fingers, slapping, choking and smothering (with a pillow) with this physical abuse continuing until separation and at times occurring in front of and involving X.
The mother feared for her life.
The mother often downplayed or denied the violence wanting to preserve the parent’s relationship for X’s sake and not wanting the father to lose his employment with the Employer R.
Further the mother held real concerns that X would be removed from her by the father.
However the mother was not always silent as to the abuse, making disclosures to family and friends, the father’s brother Mr O and his wife Ms P, the police, her GP, other treating professionals and discussing it with the Department of Communities (DOCS).
The mother took numerous photos of her injuries caused by the father’s abuse which included bruising to all parts of her body and black eyes and at one point provided some of these photographs to the father.
The mother tried to raise her concerns as to the father’s violence with the paternal grandparents prior to X’s birth but according to the mother, this fell on deaf ears.
Outsiders witnessed the aftermath of the abuse, such as Mr and Mrs Q (the parent’s former landlords) who saw the bruising, took the mother and child in after they were locked out by the father of their residence and where Mr Q subsequently reported his concerns about the father to the employer.
Further the maternal grandmother witnessed a hole in the wall after an argument between the parents which was allegedly made by the father and where the maternal grandmother said to the father afterwards “how does it feel, hitting the mother of your child in the face? Does it feel good? Does it make you feel proud?”.
Subsequently the parents attended counselling organised by the Employer R where the mother spoke of the abuse and the father was told the abuse must stop.
The mother also raised her concerns of violence through text messages with the Employer R.
A year after separation, still feeling emotionally threatened by the father, the mother was successful in obtaining a domestic violence order (after a contested hearing) against the father for five years and the father was charged with and subsequently pleaded guilty (albeit that the plea was limited only to kicking the mother) to charges of assault occasioning bodily harm.
Two years after separation the mother was diagnosed by Dr L with Post Traumatic Stress Disorder (PTSD) due to the mother’s experience of domestic violence including physical assault.
However the father denies being the perpetrator of violence with the exception of verbal arguments and the kick to the mother (the subject of the assault charges) which occurred after the mother threw a board game at the father.
In his written evidence the father wrote extensively as to the mother being the violent one in the relationship where the mother snapped without warning, yelled loudly, threw things at the father and was physically violent including striking, hitting and slapping the father.
The father maintained that the only other time he was physical towards the mother was when he had to grab her arms to stop her abusing the father.
During cross-examination the father stated that the mother had made up and/or “over-exaggerated” her allegations, the mother had possibly self-inflicted the photographed injuries to blame this on the father, the mother had taken long term steps to set the father up on domestic violence allegations and the mother had lied to others about the violence.
Having considered the evidence I find that both the mother and the father engaged in verbal arguments during their relationship.
I find however that the father was the main perpetrator of emotional, psychological and physical violence over an extended period of time, with the mother retaliating only in order to protect herself and/or X.
I further accept that the violence was as severe as outlined by the mother.
I make these findings based on the following:
(a)There was, from the commencement of the relationship a power imbalance between the mother and the father where the father was aware of the mother’s many vulnerabilities including her mental health issues, her difficulty in trusting and this being her first serious romantic relationship.
(b)From the outset the father was gaslighting the mother which fed into her insecurities and self-doubt (the mother told DOCS that “it’s okay, it was my fault, I deserved it”, the mother wrote in her domestic violence application “he would emotionally abuse me by saying I’m worthless and that everyone was better off without me and continually gets me upset by bringing up my past of self-harm” and in cross-examination explained “but abuse isn’t just abuse. What he did to me mentally is what fucked my up the most”) which reinforced that power imbalance and made the mother more susceptible to the father’s demands and more dependent upon him.
(c)I accept that at the end of the relationship the gaslighting continued with the father telling the mother to kill herself, that she was pathetic and no one loved her or would care or miss her if she died. As the mother explained in cross-examination “this person was able to trick my brain into thinking that killing myself was the right thing to do, that it was the only option that I had”.
(d)The father demonstrated coercive control by requiring the mother to account as to her whereabouts and where she was going and who she was seeing.
(e)Further the father was financially controlling with the mother explaining in her domestic violence order application that the father “would financially control my money by moving all my money into his bank account and said to me that he could not trust me to look after my own money”.
(f)When the physical violence commenced the mother was consistent in her disclosures to numerous persons and organisations as to the nature and extent of the violence.
(g)The mother reached out to her family, the father’s family and friends to get help for this violence, especially leading up to the birth of X and following the months after her birth.
(h)The mother took timely photographs of the aftermath of the violence. I do not find the father’s evidence as to the wounds being self-inflicted credible as the mother’s main form of self-harming was cutting in places that could be covered and the photographs consisted of bruising (some of which would have been very difficult to try and self-inflict) with the wounds being consistent with the nature of the violent acts the mother said took place.
(i)I accept the mother’s evidence that the father’s violence caused complications and the subsequently the early birth of X as the father had sat on and punched the mother’s pregnant stomach during arguments.
(j)Other persons such as police, the maternal grandmother and Mr and Mrs Q witnessed the bruising on the mother and witnessed the aftermath of the violence, such as the mother and child being locked out of their home with no clothing or food and a hole in the wall.
(k)After the relationship the father continued to undermine the mother and make her question herself with the mother including in her domestic violence order application that “I feel like he is still attempting to control me. I feel like you psychologically abusing me by still purposely bringing me to tears what he says to me… is currently telling me to continually check my emails and that someone will be contacting me but wouldn’t tell me what it’s about or who which makes me nervous and anxious which he knew it would and that’s why he did it”.
(l)It is not uncommon for victims of abuse to deny or downplay abuse, which at times the mother did, in order to preserve the family unit and keep her and the child safe.
(m)The father made admissions to DOCS that there had been physical arguments and that “he has perpetrated domestic violence against” the mother and “is taking responsibility for his actions”, albeit the father never did anything to address his anger issues.
(n)When spoken to by DOCS, Ms S (the social worker provided by the Employer to counsel the parents) stated that the mother was the “victim in the relationship” and that Ms S had “challenged” the father during the session “educating him that there is never an excuse for domestic violence”.
(o)I accept the evidence of the mother in cross-examination that “I only took him to court in 2017 because I finally got the strength and built the strength to actually speak up…- even after the relationship ended, he was still trying to abuse/manipulate that, and whatever he said I jumped because I was in fear that if I didn’t, it was going to be a lot worse off…”.
(p)At the contested domestic violence hearing the Magistrate made findings of domestic violence having been perpetrated by the father which resulted in a five year DVO order being made against the father.
(q)There was sufficient evidence for the police to charge the father with violence offences which resulted in the father pleading guilty.
(r)I therefore cannot accept the father’s versions of events given the evidence before the court as to the family violence and therefore do not find the father credible on this issue.
Now that a finding has been made that the father was a perpetrator of family violence towards the mother how does the impact on the issue of whether X be told her parentage?
Again on its face the simple solution appears to be to put in safeguards, such as supervision, to ensure that X is not at risk when spending time with the father.
But again this matter is far too complex for such a simple solution to be automatically adopted.
This is because of the mother’s mental health as the mother was subsequently diagnosed by Dr L with PTSD as a consequence of the violence perpetrated against her by the father.
Prior to her relationship with the father and her subsequent diagnosis of PTSD, the mother was dealing with Asperger’s, anxiety, depression and BPD.
The maternal grandmother in her written evidence said that from the age of 4 or 5 the mother was “different” to her siblings as “she didn’t cope with change, she needed consistency, she suffered meltdowns” and she “also suffered with anxiety” which usually goes hand in hand with Asperger’s.
During her childhood the mother was connected with child mental health services and in her high school years the mother suffered “with self harm and suicidal tendency and… had difficulty regulating her emotions”.
The mother explained in written evidence that “with my borderline personality disorder I feel real intense pain and hurt and the only way I could release that feeling… was to cut”.
As to the cutting “self-harming used to be a tool I used to take the hurt and deep pain I was feeling deep down on the inside away. People that aren’t self harmers could never truly understand. I would self harm on occasion to save myself in a way… my self harming is not a suicide attempt. It’s a tool to help take away the intense feelings I felt and could not escape”.
In early 2011 a treatment plan was put in place for the mother’s care of her mental health.
In cross examination the maternal grandmother explained that “every day was a hard day” for the mother and if triggered the mother would have an episode.
As to triggers this was explained by the maternal grandmother during the following court exchange:
Counsel: You’ve spoken here about the diagnosis and the struggles that [Ms Parker] had at a young age. She had triggers… at a young age didn’t she?
Maternal grandmother: Yes.
Counsel: There were things that would trigger her… into… can you say a decompression or a… downward spiral?
Maternal grandmother: Yes… I used to refer to them as episodes.
Counsel: And can you tell us what some of those triggers were?
Maternal grandmother: It was a long time to understand that there were actual triggers. We didn’t know why these meltdowns would happen. It wasn’t until… we got the diagnosis of borderline personality that we understood that triggers were what would happen to [Ms Parker] when she would have episode… it wasn’t until later that we realised that they were certain triggers. One of them was because [Ms Parker] was so bullied in school… we had an episode at home once where [Ms Parker] was fine, she was happy, a good day, and my young daughter… had a bunch of her friends turn up after school, and they were all in school uniforms, and then before we knew it, [Ms Parker] was having an episode… locked herself in her room and… did… some significant self-harm. And it wasn’t until later that we realised it was the trigger of girls in school uniform”
Another trigger for the mother, was that of trust and if the mother “gets hurt by a friend, that trust was really hard to get back”.
During her youth the maternal grandmother said that the mother worked on dealing with these triggers through her treating health professionals and the use of medication, with it being a work in progress.
However it is clear from the evidence that the mother’s mental health issues has changed significantly for the worse as a result of the mother’s relationship with the father as the PTSD has caused a change by adding to the internal triggers.
Dr L in written correspondence wrote that:
Triggers for [Ms Parker] appear to fall into two specific categories: (1) internal triggers, and (2) external triggers. Her internal triggers include memories associated with alleged violent interactions between herself and [Mr B Carmichael] along with cognitions/beliefs reinforcing a threat to her safety or that of the children. External triggers, based on comment from [Ms Parker] seem to include proximity to people she finds it difficult to trust. Additionally [Ms Parker] is highly reactive to hearing or being involved in arguments
With the change of triggers there has been a change of affect on the mother as explained by the maternal grandmother in the following court exchange:
Counsel: So is it fair to say that some of the things that we have been seeing here this time and… the last time the trial was taking place had happened earlier in your life… when she had meltdowns here… if I can be more clear, we’ve seen [Ms Parker] become distressed, shaking, unable to answer… things like that… is that what you’re calling episodes?
Maternal grandmother: They’re different… they’re very different. [Ms Parker] would… And it hasn’t been for many years, but when we were talking about episodes back then - when they were different triggers… it wasn’t like it is here where she is hyperventilating or anything like that… it was more… acting out, more self-harm, more she couldn’t be controlled, she couldn’t control herself, she couldn’t control her emotions. And that stuff that she has worked on in all of these years

Later in cross examination the maternal grandmother added:
Maternal grandmother: I don’t feel like… the meltdowns that she has now… compared to, like, the meltdown that I described earlier when she was a teenager… they’re different type of episodes compared to….
Counsel: Are they shorter now?
Maternal grandmother: I don’t know if they’re shorter. I just think that there are more emotionally torturing for her. That’s not the behaviour of acting out and self-harming and… cutting… taking things… they’re more of her not sleeping, and crying, and being hard to settle down, and the panic, and the fear… all that sort of stuff is different to episodes… she had most of her life. And that’s where all that hard work that she has been putting in with… [Dr L]… and all that over the years has changed, like everything has kind of evolved.
In addition to seeing Dr L, in 2020 the mother commenced sessions with Ms T (Ms T) a registered psychologist.
Ms T explained in her affidavit that her role was to manage the symptoms of the mother’s diagnosis of BPD, depression/anxiety, Asperges and PTSD and to assist the mother to develop the skills needed to achieve an optimal state of personal, social and emotional well-being.
In 2020 the mother’s GP prepared a mental health plan and leading up to the trial the mother was described depression medication.
In light of the current mother’s health issues, the question then arises as to whether the mother’s level of apprehension is such that if an order was made for X to be informed as to her parentage (which would then result in some type of order for time and communication to be established between the child and the father and the paternal grandparents), would the mother’s ability to parent be compromised to the extent that it would be in the child’s best interests not to have a relationship with the paternal family.
In order to answer this question findings must be made as to the following:
(a)Does the father present as a trigger to the mother?
(b)Do the paternal grandparents present as a trigger to the mother?
(c)What happens when the mother is triggered?
(d)Once triggered, do the mother’s symptoms impact on her ability to function?
(e)Once triggered is the mother’s inability to function such that it would impact on the mother’s ability to parent?
(f)Can the mother be successfully treated for her mental health issues?
(g)In the meantime is the mother capable of informing X as to her paternal parentage and facilitating time for X with the paternal family?
(h)If the mother is not capable of informing X as to her paternal parentage and facilitating time for X with the paternal family then what orders should the court make to reflect what is in the child’s best interest?
I will now address each issue.
Does the father trigger the mother?
I find that the father is a trigger for the mother based on the following:
(a)The violence by the father to the mother has contributed to the mother now suffering from PTSD.
(b)The added diagnosis of PTSD has contributed to the triggers suffered by the mother.
(c)It has been identified by Dr L that the mother’s internal triggers include memories associated with alleged violent interactions with the father.
(d)The mother throughout her evidence spoke of the father presenting as a trigger.
(e)When questioned during cross examination why Mr E, who was previously a perpetrator of violence towards the mother, no longer presented as a trigger the mother responded “because Mr B Carmichael’s abuse was much different. It was prolonged. Like it was over a good period of time. Mr E’s abuse was because he was getting off ice… he was reacting… he also had been drinking that night, which didn’t help and after that, he has never done anything to hurt me… he hated himself for it. He went and got help. He spoke to me about it. He said how sorry he was and how much he regrets it and he showed everything that Mr B Carmichael would not do after… like, Mr B Carmichael did it, what, 2 years or more. Like it wasn’t like that with Mr E. Mr E doesn’t trigger me and I don’t have control over my triggers. I wish I did. Trust me, I wish I did but I don’t”.
(f)The father accepts that he is a trigger to the mother.
Do the paternal grandparents trigger the mother?
I find that the paternal grandparents are a trigger to the mother based on the following:
(a)The mother identifies the paternal grandparents as a trigger as she cannot trust the paternal grandparents because of their failure to support and protect the mother when concerns were raised by her as to the father’s violent behaviour.
(b)The maternal grandmother in cross examination confirmed that the mother is triggered by persons who break her trust.
(c)It has been identified by Dr L that the mother’s external figures include “proximity to people she finds it difficult to trust”.
(d)The father confirmed that the paternal grandparents are a trigger to the mother.
(e)The paternal grandparents accept that they trigger the mother.
What happens when the mother is triggered?
As to the impact of the triggers on the mother, Dr L writes:
In the presence of noted triggers, both diagnoses are likely to manifest in different ways. In terms of her borderline features [Ms Parker] will demonstrate poor self-image, and affects with marked impulsivity (e.g. interrupting, yelling or inability to reason). However, she has also demonstrated and/or reported recurrent, involuntary, and intrusive memories of past trauma including domestic abuse, nightmares, flashbacks, persistent erroneous cognitions (i.e. it all my fault) lack of volition and motivation, diminished interest in previously enjoyed activities, quick temper, and being overly sensitive to potential threats with a heightened startled response. It is important to note that these difficulties were exacerbated after exposure to the alleged domestic violence she experienced and therefore are more likely an indication of PTSD, rather than the BPD in which such difficulties would be expected independent of any traumatic exposure
As to the mother’s symptoms when being triggered, Dr L writes:
When she perceives a threat (real or imagined), she reports intense and emotional discomfort that peaks within minutes and includes accelerated heart rate, trembling/shaking, breathing difficulties, chest pain, paresthesias, derealisation and fear of losing control
During cross-examination, the full extent of triggers and the impact on the mother was explained by Dr L:
She becomes quite irritable, quite distressed. She can become argumentative. She has a tendency… to dissociate to some extent, so for her it’s essentially being detached from the conversation, so it can be quite difficult to engage her in rational conversation. She can become quite catastrophic in her thinking
Ms T writes than when triggered the mother:
Experiences severe emotional distress and difficulties managing… emotions… when under high stress the mother has a tendency to freeze or disassociate... during acute and ongoing stress, [Ms Parker] can’t regulate her physiological and psychological responses to the same degree as other people. She has difficulties in organising and coordinating activities to achieve goals… an inability to regulate intense arousal, and problems turning attention away from emotional cues
As to the symptoms suffered by the mother (some of which were observed by Ms T), Ms T listed the following:
(a)Feeling empty, low self-esteem.
(b)Emotional detachment.
(c)Anxiety about relationships, efforts to avoid being abandoned.
(d)Self harm, threatening or attempting suicide.
(e)Anger, moodiness, irritability or difficulty controlling anger.
(f)A pattern of intense and unstable interpersonal relationships.
(g)Instability and reactivity in mood.
The father observed behaviours by the mother when triggered explaining that the mother “had nightmares… would shut down and cry, had to call people, shake”.
The mother explained the impact upon her when triggered in the following court exchange:
Judge: Witness, can I ask your question, and I want you to think very carefully before you answer it and I want you to answer it in your own way? Okay. You speak about being triggered. When you are triggered tell me how that affects you physically?
Mother: Do I have to?
Judge: Please. In your own words. In your own time. But it would assist me greatly if you could tell me?
Mother: I get really unwell. I get nightmares. I don’t sleep much at all. I struggle to get out of bed. I disconnect from the world and I really try hard not to self-harm which ends up hurting me when I don’t because it’s the only feeling that distracts me from trying to kill myself, and I keep thinking over and over and over again that I’ve got to do this… I’ve got to be strong, but sometimes I can’t be so strong and I rely on friends and family to pull me back when I’m really bad. I will call mum or I called dad… when [Mr E] is not there, because he can’t be there all the time and dad is not there all the time, so the majority of the time I’m doing this alone. I will walk away and I will go to a room or I will quickly go for shower to try and wash away, but it gets really a struggle sometimes and I break and I have panic attacks and I have, like, a fear that just washes over me and even though I know it’s not happening now I feel like it does and I get flashbacks and… I feel really unsafe. I can’t breathe and I know I’m a good mum. I’m not perfect and I know I look like an absolute mental case up here and I don’t like showing the side and this is really embarrassing and I don’t - but I will do anything for my children and I don’t show the side to them.
Judge: And how long do the last when you feel this way or does it differ?
Mother: Depending how bad it is, like, I have no control over how long they last. Sometimes I just need someone to calm me down and that could take ages on the phone or I need someone at the house with me and… I will do what I need to do and then I will break down or cry myself to sleep, but normally when I’ve had a really bad day or been triggered really bad I get really bad nightmares and I wake up and I don’t breathe when I wake up so I’ve got to, like, do everything possible to try and self soothe.
It was apparent that the final hearing triggered the mother which resulted in some of these symptoms materialising in the courtroom.
Judge Demack observed that there had been crying, intense shaking and distress by the mother and that at times the mother shut down. Further the mother placed herself in the courtroom in such a way that she averted her gaze from the father and the paternal grandparents.
My observations reflected that of Judge Demack, where, even with the support of a close friend sitting next to her at the witness box, the mother shook and cried and fluctuated from being quietly spoken to being over aggressive and at times disengaged.
Not once did I see the mother’s eyes as her head was always bent forward with her dark hair covering her face and tissues in her hand often dabbing at her eyes. Despite this however the mother answered the questions put to her and was honest and open in her reactions and responses even when at times unnecessarily challenged and agitated by counsel.
For the remainder of the final hearing the mother at times struggled to remain in the courtroom as she was so visibly upset and distressed and at times needed to leave the courtroom.
I find having considered the evidence that when triggered the mother suffers from numerous symptoms which range in severity and duration.
Once triggered, do the mother’s symptoms impact on her ability to function?
Given the mother’s symptoms, I find that the mother’s symptoms can impact negatively on her ability to function.
Once triggered is the mother’s inability to function such that it would impact on the mother’s ability to parent?
I find that once triggered the mother’s inability to function can impact negatively on the mother’s ability to parent as the mother becomes so physically and psychologically unhinged that parenting effectively would be difficult, if not at times impossible.
Can the mother be successfully treated for her mental health issues?
The mother suffers from both BPD and PTSD which, according to the evidence can be long term disorders.
Ms T explains that both BPD and PTSD are, at their core, disorders of emotional dysregulation:
Research into the psychological make-up of people with BPD indicates that in response to stress many show a neurovegetative imbalance, with an increased sympathetic response and a decreased para sympathetic response that is out of their control. This is because people with BPD, and often PTSD, have an increased sensitivity to emotional stimuli, a more intense response to emotional stimuli, and a slow return to an emotional baseline once an emotional arousal has occurred. As a result, [Ms Parker] experiences a neurovegetative imbalance on both a chronic and acute basis. This interferes of her capacity to cope in moments of stress and during periods of ongoing stress.
A combination of pharmacotherapy and psychotherapy treatment is necessary to address the mother’s mental health issues.
Whilst Dr L was optimistic that the mother was a good candidate for positive treatment there are some hurdles ahead for the mother in her success with treatment as indicated by the following comments made by Dr L during her both her written and oral evidence:
(a)Many of the mother’s perceptions remain distorted by historical traumas.
(b)Reducing stresses is necessary for the mother in order to minimise the potential for the overwhelming psychological load that the mother is currently ill-equipped to manage.
(c)The mother’s diagnosis of PTSD would have greater concern should the mother find herself in the direct presence of the paternal family.
(d)Whilst there was a good prospect of success in recovery for PTSD if therapy continued, BPD was a more unpredictable illness.
(e)Repeated exposure to traumatic events can certainly delay any possibility of improvement of impairments.
(f)The mother could relapse if exposed to stressors.
However, since the final hearing in April 2022 the mother has chosen not to continue with her treatment with Dr L.
When asked in cross examination why the mother was no longer seeing Dr L the mother explained:
My life has already been plastered… everything that I said to [Dr L] over the past 7 years has been used against me, and she was the one safe place that I had when it comes to sharing stuff, and now I don’t feel that there is a safe place - a safe place to share anything… the trust… it’s your private business but only you should be able to tell to the people that you feel safe with. For it to be plastered to people that you definitely don’t want knowing - it’s a … privacy, and it’s no one’s business
The mother continues to see Ms T on a regular basis for treatment.
Ms T explained in cross-examination that she uses the “triphasic model” of treatment which is used when working with trauma victims suffering from PTSD which consists of:
(a)First phase: For the person to obtain a sense of emotional and physiological stabilisation and safety.
(b)Second phase: Trauma memory processing.
(c)Third phase: Reconnection with communities and meaningful activities.
In her written evidence Ms T states that:
Both BPD and PTSD have the potential to be effectively managed. However the effectiveness of the treatment requires the person to be able to shift out of survival mode and focus on things other than threat and danger. [Ms Parker] needs to feel that she and her children are completely safe and secure so the ability to focus on skill development and recovery is available to her
Therapy needs to work towards establishing a sense of safety and helping her to learn the skills needed to handle the symptoms and building her resistance. An understanding of her trauma reminders (emotional triggers) and exploring ways to prevent (if possible) or cope better with then (in the long-term) needs to be the focus of therapy. She will not be able to progress emotionally and mentally in a state of continued crisis
As to the mother’s progress in her treatment to date with Ms T, Ms T writes that progress:
Has been hindered by [Ms Parker’s] focus on her court issues with the father and grandparents… [Ms Parker] becomes very distressed when discussing these relationships, she reports being traumatised by the violence she experienced while in the relationship and the lack of support she received from… grandparents… she struggles to focus on anything but the threat she feels from the court events… the possible outcome of the proceedings… and the memories that these proceedings have triggered for her. [Ms Parker] constantly says that it feels like she is re-experiencing the domestic violence over and over again
Ms T confirmed during cross-examination that the mother is currently still at the first phase of treatment as the mother is not ready and does not have the skills to move to the second phase stating:
When I see [Ms Parker], because she sees this whole thing as such a threat… she has a fight or flight response to it… all her attention is on the threat
Ms T was unable to predict a prognosis for the mother’s therapy and although the mother is not stuck forever at the first phase she is stuck now.
Ms T believed that the mother needs the space without threat to work through her therapy and that it is very hard to treat PTSD while the trauma is in action.
I find, having considered the evidence, the following:
(a)There is treatment available for the mother.
(b)Before suffering from PTSD the mother had pursued treatment and medication which assisted her successfully from time to time in her mental health issues.
(c)The treatment however has not successfully removed the BPD diagnosis and BPD continues to be unpredictable in its treatment.
(d)The subsequent diagnosis of PTSD has added to the mother’s mental health issues and complicated the treatment required.
(e)Whilst Dr L has confidence that the treatment will have a positive outcome for the mother, any positive impact for the mother is in its infancy as the mother continues to have stressors.
(f)The mother has lost faith with Dr L and will not return for treatment at her clinic.
(g)The mother is committed in continuing her treatment with Ms T.
(h)The mother is stuck in the first phase of her treatment with Ms T and until she becomes unstuck, treatment will not progress successfully.
(i)The mother is likely to remain stuck in the first phase until she feels that she is no longer under threat.
(j)The mother will relapse and this may result in delays in the successful treatment of the mother.
(k)It is unknown as to how long it will take for the mother to complete all three phases of her treatment.
(l)Until such time as the treatment is successful the mother, when triggered, will continue to be impacted negatively by her symptoms.
In the meantime is the mother capable of informing X as to her paternal parentage and facilitating time for X with the paternal family?
The mother is adamant that she does not have the capacity to facilitate any orders for X with the paternal family explaining in cross examination:
The relationship between me and the [Carmichaels], all of them, is very toxic and not only [X] but my other children to grow up and see that and the stress of it all, that’s not in the best interests for a child to be around a toxic relationship knowing that is causing stress… that’s just damaging…I will never be able to co-parent with [Mr B Carmichael] and I will never be able to have a positive relationship with him or his parents and that is damaging for [X] to see and I don’t want her knowing that bad side. I want to protect her from even knowing any of this….just the [Carmichaels] alone… it’s a trigger for me. I haven’t been able to begin my healing process… it doesn’t matter whether I communicate with them or not. It’s still the stress… if there in my life… it’s so hard to explain

As to the potential impact on her relationship with X and her other children the mother explained:
I am her consistent person. I’m her mum… I’m her person… she is everything to me, and I and everything to her. I’m consistent. For me to be able to do my job as a parent and as her carer but not only for her but for my other two children, I need to be healthy, I need to be okay and I need to be able to provide that for them. Now, having [Mr B Carmichael] and his parents in my life right now, I cannot - I can’t do that
However the father, the paternal grandparents, the ICL and the family report writer are of the view that the mother is capable of facilitating a relationship between X and the paternal family despite her mental health issues.
In oral submissions for the father the following was said:
[Ms H] (maternal grandmother) evidence was that… she thought the mother had learned skills and self soothing and regulation of her emotional skills. That might, in my submission, offer your honour some comfort that she (the mother) has the ability to keep learning and practising those skills when it comes to issues surrounding my client and his relationship with his daughter
The mother (is) still engaged with [Ms T]… which again would lend some support to the argument that she (the mother) is supported to deal with orders that are not what she necessarily wants
[Dr L’s] evidence was that recovery is possible. [Dr L] believed the mother would cope whatever the orders of the Court were made
So the issue is ultimately the mother’s mental health. Is it… So significant to justify no time? In my submission… If it is simply that it is not and that it can be managed as per the evidence of the treatment providers. They have given evidence she can cope.
The medical evidence is that both the mother and [X] will ultimately manage, would support, the build up of time spent and the building up of a relationship with the paternal family
In oral submissions for the paternal grandparents the following was said:
(Referring to occasions where the mother made [X] available previously to spend time with the paternal grandparents including overnight time) there was no evidence led by the mother that she was not able to cope on those occasions. There was no evidence led that she wasn’t able to parent effectively as a result of those occasions that [X] would spend with the grandparents up until 2017. She hasn’t said that she had any episodes of self-harm or attempts to suicide during those periods
The family report writer confirmed that she (the mother) didn’t decompensate during those family report interviews… the evidence of [Ms C] was that she did not see the level of distress or breakdown, if I can call it breakdown, that we have seen in the Court today
[Dr L’s] evidence was quite insightful, particularly given her lengthy involvement with the mother. And of relevance, in answering to Judge Demack’s… questioning, she… believed that the mother has the capacity to facilitate time occurring without a complete decompensation
The mother is going to have to find a way to work with any trigger that comes up in her life
In oral submissions for the ICL the following was said:
There is a possibility that the mother will decompensate and breakdown meltdown and have an episode that that has not happened on the evidence such that it has impacted upon the child adversely
The mother will pull through. It won’t be easy for her… The expert says that she is able - I put in square brackets “cope”… In my submission cope she would
When the two psychologists are compared… Your honour would favour the evidence of [Dr L]
The family report writer in her written report states:
It is clear to me that (the mother) suffers from mental health issues and that she is highly anxious of the father and paternal family having a relationship with [X]
My assessment of (the mother) is that she is likely feeling anxious about the paternal family being involved in [X’s] life and concerned about how this will impact on her own relationship with [X] and [X’s] relationships with her siblings and [Mr E]. I see no reason why the relationship between [X]and the paternal grandparents cannot occur in the future
I do not see the level of conflict between the parents to be severe enough to preclude (the father) from rebuilding his relationship with his daughter
Each parent needs to accept that they can only change themselves and their own behaviours. They need to work on how they can works are the issues within the relationship and assist their children to do the same. Parents need to accept ownership for their role in the relationship ending and prioritise how they can demonstrate to their children the importance of and maintaining significant relationships with both parents. Continuing to stage a war with the other parent, trading insults about who was to blame or not model to children how to manage their emotions when challenged
The family report writer in cross-examination said:
I’m surprised now having sort of read, obviously, all of the evidence of [Ms T] and [Dr L], certainly from my own report (the mother) needed no breaks throughout my interviews with her which, on the balance of the evidence I’ve read so far, I would expect that perhaps there could have been triggers for her at the time raising questions
(In) the process she did become outwardly overemotional… She didn’t sort of become overly distressed… She didn’t in inverted commas meltdown or she didn’t become unable to manage the report process
(As to time recommencing between [X] and the paternal family) I think it will be distressing for mum. I think (the mother) will find it distressing, which is why she need to remain linked with a professional that she trusts
Before considering what the mother’s treating health professionals had to say about the mother’s ability to cope I make the following findings:
(a)In 2016 and 2017 when the mother facilitated time between paternal family and X, court proceedings were not on foot.
(b)There is no evidence that at that time the father and the paternal grandparents were a trigger to the mother.
(c)Certainly, accommodating time caused the mother stress and fear as her witness Ms U explained in cross-examination when he observed that after dealing with the paternal family the mother, would for a couple of day be suffering from high anxiety, shaky, upset, be thinking the worse and have a negative demeanour, but I find that the mother, at that point in time help things together.
(d)In addition there is no evidence that attending a family report presented a trigger to the mother.
(e)Therefore it cannot be argued that the mother’s behaviour and ability during these times is indicative as to what the mother’s behaviour and ability will be into the future as it has now been established that the father and the paternal grandparents present as significant triggers to the mother.
(f)It is when the mother is triggered that her symptoms appear and are at their worst.
(g)Participating in the final hearing triggered the mother and the impact upon her was evident and devastating, which is more indicative of what the mother may experience in the future if triggered.
(h)To date the mother has not allowed her symptoms to impact on her parenting.
(i)Findings have been made however that once triggered the mother’s symptoms can affect her ability to function and parent the child.
Let us firstly look at the evidence of Dr L in cross examination:
(a)The mother has a number of stressors and that the conclusion of the court proceedings (which is a stressor for the mother) would reduce overall the stressors.
(b)The mother would cope if a decision was made for X to have contact with the paternal family.
(c)The mother would be distressed, initially very angry and would be quite upset. The mother may threaten to leave with the child.
(d)The mother’s thoughts would be quite catastrophic and they would be a period of decompensation for her.
(e)The mother’s stress and anxiety might be reduced if the mother was not there for changeovers but that the situation would still cause her distress.
(f)In answer to a question posed by the bench, Dr L agreed that if changeovers occurred through an intermediary of some kind then the mother would have the capacity to make that work without a complete decompensation from her.
(g)Dr L did not know to what degree the mother’s distress would be if court orders were made for time for X with the paternal family.
(h)Dr L could provide the professional support to the mother to support her through this time.
Subsequently the following exchange occurred between Dr L and counsel for the mother:
Counsel: The effect that the order would have if an order was made for [X] to spend time with the father or the grandparents, and the effect that order would have on [Ms Parker]… your answer was she would be angry and upset, catastrophic thoughts, periods of decompensation, very vulnerable and distress, crying, yelling, making threats to leave with the kids, and those sorts of things that she had mentioned to you about before, you indicated you could help her through that time… what I’m just wanting to… clarify with you is the reconciling of that answer that you’ve given in your evidence with other evidence that you’ve given surrounding the [Carmichaels] being triggers and stressors for [Ms Parker]. Can you sort of clarify the two answers and the two bits of evidence in that regard?
[Dr L]: Just knowing that the order has been made to allow the children to have access with the grandparents would obviously contribute to everything you’ve just described. That certainly would trigger her symptomology, and, for a period of time, I believe would be exacerbated. But over the years, I’ve come to learn that [Ms Parker], even at a heightened state of arousal like that… It takes a bit of time but you can reason with her
Counsel: Then the other question I had for you and it was really a question of how long is a piece of string, and I suspect you can’t answer it, and that is this period of decompensation… are you able to give any indication of how long that would be?
[Dr L]: Not at all
Counsel: In relation to that answer that you gave about catastrophic thoughts and, as I said, the period of decompensation, in the event her honour was to make an order… are you able to comment on… how that actually affects [Ms Parker] just… day-to-day living
[Dr L]: I think it would make it very difficult for her to go about what we would just call normal functioning and activities of everyday living… it’s possible that she could withdraw from family and from her other two children for a period of time, again, until she is able to stabilise emotionally. But it potentially would interfere with her ability to function
Counsel: And that period is not… a period you can… from your answer before, is this something you can’t comment on?
[Dr L]: I can’t. No
There was also an exchange between the bench (Judge Demack) and Dr L:
Judge: There’s a period then, of decompensation if I don’t make orders that the mother seeks
[Dr L]: It’s possible… yes
Judge: So say I make an order which says, in the first instance, so we need to be told to the father is, so the fact of that then happening… that’s a further potential triggering event?
[Dr L]: Yes.
Judge: And then if the order requires that [X] spends time with grandparents and/or father the first time that happens is a triggering event
[Dr L]:Yes
Judge: And the second time, and the third time, until the child turns 18, are each of those potentially triggering events?
[Dr L]: I would have to say potentially, yes
Judge: And so this really is all getting down to how well she is able to use the strategies that you have been working with her for years, and which you consider she really needs to be working on for life to be… addressing her mood stability and how she copes of stresses in life
[Dr L]:Yes
Judge: And the moment that she has some other stressor which lies on top of this, that’s a further stressor, and we can have every reasonable expectation that she will have further stressors in life because we all have stressors in life, and if you are predisposed to PTSD or have a personality disorder, you’ve got all those other things which mean that you are more disposed to having stressors or reacting in that way to things which other people might not find as stressful?
[Dr L]: That’s correct
Ms T has a very different view to Dr L with her evidence during cross-examination being as follows:
(a)The mother will not be able to cope if orders are made for X to reconnect with the paternal family.
(b)The following exchange occurred between the bench (Judge Demack), counsel and Ms T:
Counsel: If [X] did go and spend time with the father or the paternal grandparents, how would the mother… cope with the other children in that period of time? Would she decompensate? Would she cope well? Are you unable to answer that?
Judge: And I guess this could be for any, sort of, style of length of time so whether it was for… even for a two hour period or a long weekend… or even a week of a school holidays.… how the mother will cope?
[Ms T]: Yes. I don’t think [Ms Parker] will cope at all… because remember… what’s happening in your head, you get a physiological response. So she sees that as a threat to [X]. And, as you know… I’m not a child psychologist, by the way, but we do know that parental stress tends to spill over into child rearing… it’s possible she could be less responsive and affectionate towards the kids only because of stress responses, be unable to cope with everyday stresses and hassles and might become more irritable… I’m just guessing what happened to stress, and this is not just stress, this is PTSD stress. This is a stress disorder
(c)The father and the paternal grandparents are triggers of distress for the mother.
(d)The mother’s stress will not end and the mother will continue to re-experience the physiological and psychological consequences over an extended period of time if orders were made.
(e)If an order was made for X and the paternal family this would result in less attendance to sessions by the mother, more dysregulation and less opportunity for Ms T to build up the mother’s skills to handle the situation.
(f)Ms T expressed concern that:
BPD sufferers spontaneously develop behaviours, such as self-harm as a means to decrease their pain and distress… (Stress soothing)… when considering exposing [Ms Parker] to high stress situations (either in the short-term or long-term) her trauma history and unique sensitivities need to be of paramount consideration. It is well documented that BPD is associated with suicidal and self-harm behaviours and research shows up to 10% of BPD patients will die by suicide
(g)The mother remains at the first phase and if it was not for the current court proceedings, the mother would not be dealing with the trauma and would be involved in psychoeducation skill building.
(h)If the mother was able to successfully navigate the all three phases of her treatment then the mother might be out think about a co-parenting relationship with the father and the paternal grandparents without a trauma response.
I find, having considered the evidence, that the mother does not have the capacity to facilitate any orders that provide for a relationship between X and the paternal family as the mother will not be able to cope.
I make this finding based on the following:
(a)Although Dr L has treated the mother for a longer period of time than Ms T, Dr L is no longer the mother’s treating health professional.
(b)I give weight to the evidence of both health professionals but must take into consideration and give greater weight to the view of the mother’s only treating health professional, Ms T.
(c)Ms T holds a very strong views that the mother will not cope if orders are made for X and the paternal family.
(d)The reality is that whilst the mother continues to be exposed to the trauma that will be caused to her by being triggered by the father and the paternal grandparents the mother’s ability to progress in the successful treatment of her mental illnesses will be hindered.
(e)Dr L in her written evidence opined that the mother experiences intense vulnerability when exposed to the paternal family that she perceives as threatening and that her low level of resilience increases her risk of experiencing stresses as overwhelming and therefore increasing the risk of symptom exacerbation.
(f)Dr L justifies her opinion that the mother will cope on the basis that “over the years, I’ve come to learn that Ms Parker, even at a heightened state of arousal like that… it takes a bit of time but you can reason with her”
(g)I find however that this comment is fundamentally flawed because in the years where Dr L had been able to reason with the mother the mother was not suffering from PTSD, which was only subsequently diagnosed in 2018.
(h)As emphasised by Ms T in her evidence, for the mother “this is not just stress, this is PTSD stress. This is a stress disorder”.
(i)The mother articulated in cross examination how difficult treatment has been stating:
I have been trying to heal already for so long now, and no one would understand unless you had it, and you haven’t had PTSD. You have not been abused to the point where you thought you were going to die. So you have no idea what I go through, the nightmares, everything that I go through. You have no idea how much it still hurts every day and how much I suffer, and I’m not sitting on my arse doing nothing. I’ve been going to counselling. I’ve been trying so hard because I don’t want to be like this either. I don’t want to be seen like this either
(j)Ms T explained in her written evidence that the mother “requires a safe, stress free (as possible) environment for her well-being and the well-being of her children”.
(k)If orders are made for X to reconnect with the paternal family orders this will result in the mother remaining in the first phase (of the triphasic model used to treat PTSD) namely that the mother needs to obtain a sense of emotional and physiological stabilisation and safety before moving on to the second phase.
(l)Whilst trying to work through this phase the mother when triggered will be distressed and will hold onto the perception, whether distorted or not, that she and X are not safe.
(m)Making any parenting order which involves X reconnecting with the paternal family will expose the mother to repeated triggering and exposure to her symptomatic behaviours.
(n)This repeated triggering and exposure to her symptomatic behaviours will adversely affect the mother’s ability to function and to parent X.
(o)Every event that involves the father and the paternal grandparents, even indirectly, would enliven a fresh triggering and accompanying symptomatic behaviours which would result in the mother being on a never ending merry-go-round of trauma and stress.
(p)As the mother would not be making any progression in her treatment, being perpetually stuck in the first phase of treatment then it is unlikely that the mother will ever reach a stage where she would cope adequately as her mental health will continue to be adversely affected.
(q)At the very best the mother would experience repeated incidents of crying, shaking, nightmares, lack of focus, low self-esteem and lack of motivation just to name a few.
(r)At the very worst these behaviours may manifest into self-harming and if the coping mechanism of self harming does not take away the pain then it is more than likely that the mother will attempt suicide.
(s)The mother has attempted suicide before and is likely to try to do it again.
(t)The absolute worst outcome is for the mother to be successful in taking her own life.
If the mother is not capable of informing X as to her paternal parentage and facilitating time for X with the paternal family then what orders should the court make to reflect what is in the child’s best interest?

I am fully aware of the concerns raised by the family report writer in both her written and oral evidence of the negative impact it would have on X in the future of not knowing the truth about her paternal parentage and having been denied by the mother an opportunity to know and be part of the paternal family.
At the conclusion of the family report writer’s evidence I put to the family report writer a hypothetical (unfortunately long-winded and not articulated) and the court exchange unfolded as follows:
Judge: And my last question is another hypothetical. Again it is only a hypothetical. But if I was to make the following findings, that the mother in her treatment of her mental health issues and in particular for PTSD and BPD is at its early stages with little or no prospects of an immediate or timely cure, that the father and the paternal grandparents are significant triggers to the mother resulting in the mother being fearful and not only of her own safety but that of [X], and that the triggers impact on the mother in varying ways, at the very least shaking, disassociation, low self-esteem, nightmares which will impact on her parenting capacity, and at the very worst self harming, attempts at suicide or even suicide, and that these triggers are unlikely to abate and would continue due to the involvement of the paternal family in the mother’s life due to spending time with [X], is it in the child’s best interests (to spend time with the paternal family)? And I know that’s my decision, but I want your professional opinion as a court expert to have a compromised relationship, parenting relationship with the mother or, at the worse, a loss of a relationship with the mother in order to establish a relationship with the father and the paternal grandparents?
Family report writer: It’s a really difficult one, and I absolutely accept that the nature of PTSD and borderline personality disorder is different from person-to-person, so there is no one treatment fits all type of thing and they’re all going to present very differently, so there is certainly, I would say, a possibility of her decompensation impacting on her parenting and to, I suppose, provide [X] with information regarding her paternal family or to not provide [X] with her information about her paternal family to preserve the maternal bond or relationship, will be something that needs to be very carefully thought out because that can have long-term consequences to [X] in the future as well, as can the mother is obviously dysregulated emotional and mental health… so it will, in my view, have a detrimental impact on [X] if she doesn’t know who her family are and the long-term consequences of that will be how she was told, who tells her and what she is told and at what stage, because what we do know about children that don’t have that given to them very young is that they can become quite, I suppose, upset and feeling like they haven’t been told the truth when they eventually find out
Judge: But is that detrimental impact more significant than the possible loss of being parented by the primary carer or parented effectively by the primary carer?
Family report writer: I think it depends – it’s more like the future detriment to [X] as opposed to what would meet her emotional needs, her immediate emotional needs now
Judge: And what is more important? The future or her immediate emotional needs?
Family report writer: Well I think… they’re both important, but obviously her need to have a stable parent… The immediate need for it to have a stable parent is important… So I think that the immediate needs for [X] are absolutely important…
Judge: If that doesn’t continue, if I make orders and these again are just hypothetical, but if I make orders for there to be parentage disclosed and then time occur which then destabilises the mother and she is no longer capable of parenting effectively, that’s going to have a very dire consequence on [X] isn’t it?
Family report writer: It will be detrimental and I would say that the – there will be a lot of support then required in the household of her partner who is taking on virtually – at this stage is taking on a co-parenting role as [X’s] father
As findings have been made that the mother suffers from mental health issues which are treatable but where such treatment is in its infancy, that exposure to the paternal family will hinder that treatment and adversely impact on the mother’s ability to function and to parent and where the mother’s ability to cope with the paternal family being in X’s life would cause the mother continual distress and symptomatic behaviours and could eventually result in the mothers suicide than I find that there is only one possible outcome in this matter and that it is in the child’s best interests for X not to have any relationship or connection with the paternal family.
I make this finding based on the following:
(a)X who is described by the family report writer in cross-examination as “an adjusted beautiful little girl who is very articulated and well-mannered and doing well at school” and who has “no behavioural issues” and is “well adjusted” currently lives in a stable and loving household with a mother that she adores, a father figure in Mr E that she loves and two siblings with whom she has a strong bond.
(b)To date the mother has been able to protect X and her other children from being adversely affected by the mother’s behaviours when her mental health is triggered.
(c)This has been due to the mother’s continuing hard work and her commitment to treatment.
(d)Whilst the court process including the family report interviews have been very difficult to bear, should the mother in the future be required on any level to interact with the father and or the paternal grandparents then this will result in repeated triggering and symptomatic behaviours which the mother will have difficulty in hiding and which will adversely impact on her ability to function and more importantly her ability to parent.
(e)The court process has interfered in the mother progressing with her treatment and continued exposure to the paternal family will hinder the potential success of further treatment.
(f)If an order is made for X to reconnect with the paternal family I find that will impact on X dramatically, virtually turning her world upside down.
(g)Whilst counselling as suggested by the father, paternal grandparents, ICL and the family report writer may assist X in dealing with issues such as Mr E not being her father, Nan and Pop not being her grandparents and the father and paternal grandparents now being part of her life, it will not adequately address the day-to-day changes in the child’s life where the mother will become dysfunctional, unable to parent, may remove herself emotionally from the children and may end up taking her own life.
(h)As stated by Purdy J in Grant
The court can and must take very much into account in assessing the desirability of access the possible effects of an access order on the custodial parent. If the court comes to the conclusion that an access order will have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child then the court must take that into account in assessing whether access is for the benefit of the child
(i)I have in this matter taken into account the real and present outcome that X will lose the emotional support and physical support from the mother should an order be made for X to reconnect with the paternal family.
(j)I adopt the findings of the Full Court in Sedgley where it was held:
Whilst the welfare of the child might acquire some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be more compelling need for the child
Lastly in reaching the decision that is in the child’s best interests not to have a relationship with the paternal family I refer to the following considerations and my respective findings:
(a)The mother has a loving and meaningful relationship which needs to be maintained and nurtured and that the only way this can be achieved is for the mother to continue parenting in the manner that she has been parenting without it being adversely affected by the mother having to facilitate a relationship for the child with the paternal family (section 60 CC(1)).
(b)There has been significant family violence perpetrated by the father which has impacted on the mother’s mental health and has caused complications in the mother’s treatment for her mental health. In order for the mother to be in good mental health and to receive treatment for her mental health the mother cannot have anything further to do the father (section 60CC(2))
(c)The child has a loving and caring relationship with the mother and the child’s primary bond is with the mother. The child also has a strong bond with Mr E and her siblings. Any order for the child to reconnect with the paternal grandparents will impact negatively on X’s bonds with her current family unit as the mother’s ability to parent will be severely compromised (section 60CC(3)(a)).
(d)Any change in X’s circumstances resulting in a reconnection with the paternal family will negatively impact on the mother’s ability to parent and therefore result in change in the family dynamic for X in the mothers household (section 60CC(3)(d)).
(e)The capacity of the mother to continue effectively parenting X will be significantly impacted in the event that an order was made for X to reconnect with the paternal family (section 60CC(3)(f)).
(f)The attitude of the mother to the child and to responsibilities of parenthood will be adversely affected should an order be made for X to reconnect with the paternal family (section 60CC(3)(i)).
(g)It is far better for X to remain in the stable environment provided by the mother and the mother’s family unit than X to reconnect and spend time with the paternal family as this would result in that stable environment being desecrated with the mother’s ability to parent being affected (section 60CC(3)(m).
In conclusion I find that the only way X will continue to live in a loving and supported relationship with the mother and her family unit is for the father and the paternal grandparents not to play any part at this stage in X’s life.
Therefore it is in the child’s best interest that no orders be made to reconnect the child or for the child to spend time or communicate with the paternal family.
What final parenting orders should be made for X?
In order to give effect to this finding, orders have been made for the child to live with the mother, for the mother to have sole parental responsibility for the child and for the child to spend no time with or communicate with the paternal family.
I understand and appreciate that this will be a very difficult decision for the father and the paternal grandparents to accept and I acknowledge in particular that the paternal grandparents were coming from an honest and open position in making the application where they wanted nothing more than to get to know their granddaughter.
I cannot say the same about the father as it appears that he was riding on the coattails of his parents’ application.
However it is not in X’s interests for time with the paternal family to occur at this point as this will be at the sacrifice of the stable and loving relationship that the child has the mother.
The mother acknowledges that in time she will need to inform X as to her parental parentage but that this is not the right time with the mother explaining in cross examination:
I know that one day I have to tell her. Like, I already know that. It has to be in the right time… for me to be able to do it in the right way… for it not to damage her… I have to heal and be okay to actually sit down and not react the way that I react… and find techniques to deal with the… past traumatic event because my PTSD is exactly that… she will one day know them… I cannot tell you when that will be because I simply just don’t know. And I know within oneself that one day will come around… for me to be able to actively sit down and talk to her about it… I need to be okay and I need to be able to… manage… I want to be able to heal. I don’t want to be stuck like this for ever… I’m trying to protect her at very moment because I know at this very moment, it’s too toxic. It would be more damaging on [X] … It would do more harm than any good at the moment not just [X], but my whole entire family… I’m not in an okay place… Because at this very moment, I truly believe I won’t be able to handle
An order has therefore been made that will be up to the mother as to when she inform X as to her paternal parentage.
Now that the court proceedings have been completed and that the stressors for the mother will reduce then the mother is free and unhindered to progress with her treatment.
Hopefully the mother will be in a position sooner rather than later to be able to cope with telling X about her father and paternal grandparents which may then result in the outcome that the father and the paternal grandparents are seeking; namely for X to have a relationship with them.
In the meantime I accept that it is necessary for the mother and X for there to be a consistency in how X is viewed in the family which includes the need for the use of the surname [E] being the name used by X’s siblings.
Orders have been made to enable that to occur however the order does not extend to changing the name on the child is birth certificate.

I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L. Turner.
Dated: 1 December 2022

File number(s):	ROC 649 of 2019
Judgment of:	JUDGE L. TURNER
Date of judgment:	1 December 2022
Catchwords:	FAMILY LAW – Parenting – final – dispute as to spend time with arrangements for child aged nearly 7 with father and paternal grandparents – where child does not know of parental family – where mother argues that her parenting will be so negatively affected by the child being told of paternal parentage and/or spending time with parental family that it is in child’s best interests that child not be told and time not occur – where mother has mental health issues – held in child’s best interests not to be informed as to her paternal parentage – child live with mother, mother have sole parental responsibility and child spend no time or communicate with father and paternal grandparents
Legislation:	Family Law Act 1975 (Cth) ss. 60B, 60CC, Pt VII
Cases cited:	B and B (1993) FLC 92-957 Grant and Grant (1994) FLC 92-506 Irvine and Irvine (1995) FLC 92-624 ReAndrew (1996) FLC 92-692 Russell and Close Appeal No SA 45 of 1992 Sampson and Sampson (1977) FLC 90-253 Sedgley and Sedgley (1995) FLC 92-623
Division:	Division 2 Family Law
Number of paragraphs:	170
Date of last submission/s:	26 October 2022
Date of hearing:	19, 20 & 21 April 2022 and 24, 25 & 26 October 2022
Place:	Rockhampton
Counsel for the Applicants:	Ms Stocks
Solicitor for the Applicants:	Mcgowran & Cagney Lawyers
Counsel for the First Respondent:	Ms Willey
Solicitor for the First Respondent:	Michael Stockall Solicitor
Counsel for the Second Respondent:	Ms Marsden
Solicitor for the Second Respondent:	Lynas Law
Counsel for the Independent Children's Lawyer:	Mr Slade-Jones
Solicitor for the Independent Children's Lawyer:	Lyrene Wiid Lawyer & Migration Agent

ROC 649 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CARMICHAEL & MR CARMICHAEL Applicants
AND:	MS PARKER First Respondent MR B CARMICHAEL Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE L. TURNER
DATE OF ORDER:	1 December 2022