Fontana and Bouras
[2016] FamCA 668
•16 August 2016
FAMILY COURT OF AUSTRALIA
| FONTANA & BOURAS | [2016] FamCA 668 |
| FAMILY LAW – CHILDREN – Spend time with – Best interests – Whether an Order for the child to spend supervised time with the father will detrimentally affect the mother’s parenting capacity – Where the father consents to the mother’s sole parental responsibility of the child – Where the mother seeks an Order that the child spend no time with the father – Where the father seeks supervised time with the child four times per year. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68B Evidence Act 1995 (Cth) ss 55, 140 |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Briginshaw v Briginshaw ((1938) 60 CLR 336 Goode & Goode (2006) FLC 93-286 N and S and the Separate Representative (1996) FLC 92-655 M & M (1988) 166 CLR 69 SCVG & KLD (2014) FLC 93-582 |
| APPLICANT: | Mr Fontana |
| RESPONDENT: | Ms Bouras |
| INDEPENDENT CHILDREN’S LAWYER: | Justine Lilley |
| FILE NUMBER: | BRC | 10362 | of | 2010 |
| DATE DELIVERED: | 16 August 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 1 - 5 August 2016 |
REPRESENTATION
| FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr J. Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr N. McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
That all previous parenting Orders be discharged.
That B (“the child”) born … 2009 live with the mother.
That the child spend time with the father at all such times as may be agreed in writing but failing agreement on four (4) occasions each year, being on the first Saturday in March, September and December and the second Saturday in June, for two hours on each occasion, supervised by Ms C or such other supervisor as is available at the D Service (“the Service”) (and in the event that the Service ceases to be able to facilitate the visits for any reason, such other service as selected by the mother – “the substitute Service”), subject to the capacity of the Service to facilitate the visits.
That the parties arrange each visit directly with the Service or substitute Service no less than four (4) weeks prior to the date of each visit and request the Service or substitute Service to confirm all necessary arrangements with the other party.
That each party take all reasonable steps required of them by the Service or substitute Service so that the visits may be facilitated and ensure that their contact details remain current with the Service or substitute Service.
That all fees charged by the Service or substitute Service be paid by the father.
That the father be at liberty to provide the child with a gift and card at each of the said visits.
Subject to the Service (or substitute Service) consenting, the father is at liberty to bring with him to the visits the child’s half-brother, E.
That the mother have sole parental responsibility for the child.
That the mother keep the father informed about the following matters:
(a)The name of the school the child attends from time to time (if it is other than F School);
(b)If the child suffers any serious accident or illness the details of same including the name of any treating doctor and the father is hereby authorised to request information from the doctor relating to the child’s health;
(c)If the mother proposes to travel overseas with the child a full itinerary be provided to the father and any such travel is not to conflict with the father’s time with the child unless there is prior written agreement as to any makeup time; and
(d)When and if she obtains a new passport for the child.
That the mother be permitted to travel internationally with the child and to apply for and have an Australian travel document for the child.
That the mother and father each keep the other informed at all times of an email address to be used only for the purposes of giving effect to this Order.
That the mother be restrained and an injunction hereby issue restraining the mother from changing the child’s name or causing her to be known by a name other than B.
That the father be at liberty to contact the child’s school and request copies of the child’s report cards at the end of each semester, with any cost associated in fulfilling that request to be met by the father. This Order is sufficient authority for the school to release the information to the father.
That the Independent Children’s Lawyer be discharged.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order are set out in the fact sheet attached hereto. And these particulars are included in these orders.
That all outstanding applications be dismissed and removed from the list of cases awaiting a hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontana & Bouras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10362 of 2010
| Mr Fontana |
Applicant
And
| Ms Bouras |
Respondent
And
| Justine Lilley |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The significant issue in this case is whether Mr Fontana (“the father”) should spend time with his daughter B born in 2009 (“the child”) on four supervised occasions each year or not at all.
The parties to these proceedings are the father and Ms Bouras (“the mother”).
The father and mother each seek a final parenting Order in relation to the child.
The father represented himself in these proceedings. While his English is competent, the Court provided him with an interpreter, at his request, to assist him with any language difficulties. I note that he sought assistance from the interpreter from time to time during the trial including having the interpreter read out his submissions which the father had written in Italian.
There are allegations of violence made against the father by the mother and a witness subpoenaed in her case, Ms G. The mother and Ms G were informed of the capacity of the Court to facilitate their giving evidence via video link and in having a person other than the father cross-examine them. No application was made in that regard.
Relevant background facts
The father and mother commenced cohabitation in or about 2007/2008, married in 2008 and separated on 9 February 2010 after the mother discovered that the father was having an affair. The parties divorced on 1 August 2011.
The father is forty-six years of age having been born in Australia in 1970. He is a tradesman in his own business. At about two years of age he returned with his parents to Europe where he lived until he was about fifteen whereupon he returned to Australia until his early twenties. He then returned to Europe until again returning to Australia in his mid-thirties. He has two prior marriages. The first to Ms H when he was in his early twenties. The second to Ms I with whom he lived in Europe and Australia. He has three other children - Ms J aged twenty; K aged fifteen and E, aged five. His other children all have different mothers. Ms J and K live in Europe and the father has no contact with them. The father spends unsupervised weekly time with E including overnights. The father lives with his partner, Ms L.
The mother is thirty-eight years of age having been born in 1978. She is a public servant and works four days a week from approximately 7.45am to 4pm. She is undertaking study for a Masters qualification. She lives with her parents. She is of Country M heritage, her father having been born in Country M and her mother’s parents having been born in Country M.
Throughout the parties’ brief marriage and for the several months beforehand they lived with the mother’s parents in the Bouras family home. The mother has two brothers, one of whom, Mr N, also lived with the parties in the Bouras family home until several months after the marriage. The mother’s sister, Ms O, also lived in the Bouras family home until early 2010.
Two days after separation the mother obtained a Temporary Protection Order against the father and a final Protection Order was made after a contested hearing on 13 April 2010. The Order expired on 12 April 2012. There is no evidence that the father failed to comply with the terms of the protection Order or that he has committed an act of domestic violence since that time.
On 21 June 2010 the parties attended a mediation and reached agreement for the child to spend supervised time with the father. An Order was made by consent on 4 March 2011. Weekly supervised time commenced on 19 November 2011.
The father commenced these proceedings on 26 April 2013 seeking equal shared parental responsibility and gradually increasing unsupervised time with the child, culminating in alternate weekends and an overnight in the other week. He also sought an order to spend half school holidays and special days with her.
Since separation, the father has spent only supervised time with the child. Currently, he spends time with the child for two hours each fortnight supervised by Ms C, a psychologist, who operates a business called D Service. The cost for each visit is about $300, which is currently shared equally between the parties.
It is common ground that the child enjoys spending time with the father.
It is conceded by the father that the mother has developed an ‘anxiety illness’ relating to the father spending unsupervised time with the child. On the second day of trial, as a result of the father’s acceptance of this fact, he amended the order sought by him to supervised time only, on four occasions each year.
The matter was set down for trial for nine days but was completed in five days.
Proposals of the parties
The father seeks a final order that he spend time with the child for two hours on the first Saturday of March, September and December and the second Saturday of June in each year to be supervised by Ms C or such other person as may be agreed and for the costs associated with that time to be shared equally. He opposes the order sought by the mother to change the child’s name and her proposed injunctions against him. The father agrees for the mother to have sole parental responsibility as long as he is provided with information about the child’s school, health and proposed overseas travel. He also agrees to the mother being able to travel internationally with the child and to her obtaining a passport for the child as long as he is informed when a passport issues.
The mother seeks a final order that the father spend no time with the child and have no communication with her. She also seeks an order to change the child’s name to the child Bouras-Fontana (although ultimately the mother did not press the removal of the child’s middle name, P), to travel internationally with the child, to obtain a passport for the child and for restraints on the father going within 500 metres of her home, employment, the child’s school or ‘any other place where the mother and/or child may be present’.
The Independent Children’s Lawyer proposes a final order that the father spend time with the child for two hours on two occasions each year in June and December to be supervised by Ms C. The Independent Children’s Lawyer supports the change of surname for the child.
Significant issues
Given the concession made by the father during the trial, the significant issues for determination at this hearing comprise:
a)Whether the mother’s mental illness will deteriorate and detrimentally affect her parenting capacity if the father were to spend two supervised hours with the child on two or four occasions per year; and
b)The advantages and disadvantages to the child if she were to spend no time with her father.
The mother’s counsel contended that the mother’s memory of, and belief about, the father’s conduct, was a trigger for her anxiety and not just the thought of his spending unsupervised time with the child, and as such an order for ongoing supervised time as sought by the father or recommended by the Independent Children’s Lawyer would be debilitating for the mother and ‘push her over the edge’.
While it may not be strictly necessary in the determination of the ultimate issues pressed at trial, I have nevertheless considered the nature and cogency of the evidence relied upon by the mother to form her beliefs about the father, given the consequences for the child of the order sought by the mother, namely, the loss of her rights to know, communicate and spend time with her father.
I have also considered the evidence relating to the allegations of violence against the father because the parties identified the allegations as an issue for determination at trial when this matter was set down for trial in March 2016. It may seem somewhat artificial for the parties if the mother’s allegations are not considered, given that they have been a central part of the case for so long. Finally, I note the submissions of the mother’s counsel which advocated for findings on these issues to be made.
How parenting applications are determined
Part VII of the Family Law Act 1975 (Cth) (as amended) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper, but such consideration will focus in particular on matters raised as significant issues by the parties and the Independent Children’s Lawyer (see Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637).
Section 60B(1) provides that the objects of the Act are to ensure that the best interests of children are met by:
a)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
a)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
b)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
c)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) provides that the principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
c)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children;
e)Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In applying the primary considerations the Court is to give greater weight to the need to protect a child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 4AB of the Act defines family violence as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. Examples of such behaviour and how a child is exposed to such behaviour are set out therein.
In considering the ‘unacceptable risk’ questions Fogarty J observed in N and S and the Separate Representative (1996) FLC 92-655, at 82,713-4:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of a particular case fall, and to explain adequately their findings in this regard.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence, and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an Order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in the ‘legislative pathway’ I have considered all sections as required when making my determination (Banks & Banks (2015) FLC 93-637).
In making findings of fact I am required to be satisfied on the evidence produced to the requisite standard viz on the balance of probabilities (s 140 Evidence Act 1995 (Cth)). The evidence must ‘rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’ (s 55 Evidence Act1995 (Cth)). In Briginshaw v Briginshaw ((1938) 60 CLR 336 at p 362 and restated in s 140 above) Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
Just because there are numerous facts in dispute does not mean that the primary enquiry need be diverted to a consideration and finding on each one (M & M (1988) 166 CLR 69 at 76; (1988) FLC 91-979 at 77,080 and 77,081; Baghti & Baghti [2015] FamCAFC 71).
The father’s case
On the second day of trial the father made this concession:
I acknowledge more deeply than before that somehow the child's mum is getting affected by my visits and that she could have relief if I see the child less frequently and I just want to do my part to make sure that the child's mum has relief and she can recover and that she can be better.
As a result of this concession he amended the order sought by him to seek ongoing supervised time on four occasions each year.
He relies upon the positive relationship he has with the child as described by the various supervisors and Mr Q, the family report writer, and contends that it will be to the child’s long term benefit to have an ongoing connection with him.
The father was the only witness in his case.
The mother’s case
The mother contends through her counsel that any ongoing order for the father to spend time with the child, even on a supervised basis, will ‘push her over the edge’ and that as a result, her parenting capacity would be severely compromised should the father spend any time or communicate in any way with the child.
It is contended that the mother was a normal high functioning individual prior to her marriage and has only been able to ‘survive’ the last six years with significant assistance from her psychiatrist, Dr R, her psychologist, Ms S, and with reliance on medication.
The mother relied upon affidavits from members of her family, her treating therapists, her parent’s treating psychiatrists, two of the father’s former partners and two employees of one of her brothers.
Mother’s mental health and the impact on her of ongoing supervised time
In the mother’s affidavit filed 29 April 2016 she deposes inter alia:
69. After the filing of my trial material I had limited involvement with the Court system and my stress alleviated to some degree.
70. I did not think about the Court case and as outlined above, I became more confident with the supervision provided by the [T Town] Contact Centre.
71. However, since the recent events at the [T Town] Contact Centre and the setting down of the matter for trial my anxiety has increased significantly.
…
74. … I had persistent thoughts that the court would order unsupervised time and worried that the child would be at risk and there was nothing that I could do to protect her.…
…
76. … I worried that the Court would order that time continue between [Mr Fontana] and [the child] and that I was powerless to stop this. I worried if this happened that he would find ways to scare and upset [the child] as he would enjoy seeing her scared. I worried that he would hurt her and he wouldn’t stop himself. I worried that he would have a violent outburst towards her or someone else and that she would witness this and he would enjoy her reaction and his violent behaviour would escalate. I worried that he would take deliberate risks with her safety putting her in dangerous situations. He is impulsive so I worry that he would be reckless about her safety.
77. I worried that if he felt that he could get away with physically hurting her without getting himself into trouble, he would. I recall thinking that he would take pleasure in knowing that he was causing distress to my family.
…
81. … I still cannot contemplate the order would be made that I believe would put [the child] at risk.
82. When I do think about these things I cannot cope with everyday tasks and I have no motivation or patience.…
…
86. If I feel that people understand the violence that [Mr Fontana] is capable of I feel myself relax. For example, recently [Ms C] told me over the phone that her risk assessment placed [Mr Fontana] at the highest level of risk. I felt myself relax over the next few days as a recognised tremendous relief in knowing that someone with [Ms C’s] experience identified this. I was able to focus better at work and [be] more responsive to the child than I had prior to this telephone conversation (with [Ms C]).
(emphasis added)
I note Mrs U Bouras’ observations of the mother as follows:
62. I have noticed that Ms Bouras seems a lot calmer since she has been taking medication. She seems to be sleeping better and doesn’t become anxious and upset as easily.
Dr R, psychiatrist
Dr R has been the mother’s treating psychiatrist since 2010. She commenced seeing mother after her separation from the father. The referral letter states:
… In a nutshell, a beautiful wedding, a beautiful baby girl and sudden revelation that it was all a lie. He is bad and perhaps MAY have a past littered with similar stories. [Ms Bouras] however is very confused. For your review.
The letter of instruction for preparation of a report is annexed to her affidavit filed 6 June 2013 and it states inter alia:
Specifically in relation to the report we are instructed that our client has real fears and anxiety as to [Mr Fontana] spending unsupervised time with the child.
(emphasis added)
In her May 2013 report Dr R opined that the mother presented with Adjustment Disorder with Depressed and Anxious Mood secondary to significant psychological stress. At that time the child was spending monthly supervised time with her father and Dr R opined that,
… It would greatly affect her mental health and capacity to care for the child, should the current conditions be changed.
Dr R linked the increasing anxiety in the mother with review of the arrangements for supervision.
In the course of her treatment Dr R noted the mother’s concern about the father’s motivation for seeking time with the child:
Although he has another child, she has been distressed that he has continued in his attempts to have contact with their daughter. Her level of anxiety and dread have increased as the time has come for review of their parenting arrangement and his request that he have unsupervised access to their daughter. Because of her knowledge of his previous history of violence with his ex-partner and from her knowledge of his behaviour towards her and her family, she is extremely distressed and hypervigilant…
(emphasis added)
When asked in correspondence in June 2013 to explain her opinion that the mother’s mental health and her capacity to care for the child would be affected, Dr R responded:
… the essential feature of an Adjustment Disorder is the development of clinically significant emotional behavioural symptoms in response to an identifiable stressor or stressors occurring within 3 months of the onset of the stressor. These symptoms must be characterised by marked distress and significant impairment in social or occupational functioning. Once the stressor has terminated, the symptoms may resolve within 6 months (Acute Adjustment Disorder) or may persist for a longer period if the stressor has long-term consequences (Chronic Adjustment Disorder).
In the definition of Adjustment Disorder, there is an expectation of good outcome relative to symptoms remitting after removal of the precipitating stressor.
…
[Ms Bouras] is continuing to suffer from an Adjustment Disorder, because the stressor, [Mr Fontana’s] abusive behaviour, continues to be a presence in her life through his application to have more significant time with their daughter.
Her distress associated with the forthcoming Court Case regarding [Mr Fontana] having unsupervised access to their daughter had pitched her into a more vulnerable state and I now believe she is at risk of developing a Major Depressive Disorder and Generalised Anxiety Disorder. … A pervasive Depressive disorder would affect her capacity to respond to her daughter warmly, her capacity to respond appropriately to her needs and an escalation of Anxiety symptoms would lead to more significant sleep disturbance, fatigue, and potentially a lower irritability threshold. This could potentially affect [the child’s] current Secure Attachment to her.
Should the current parenting arrangement change, and [Ms Bouras] develop a more significant level of Depression and Anxiety, this could have a significant impact on the child’s development. ….
… she remains at risk of more serious mental health problems with Anxiety and Depression, if, as she firmly believes, her daughter would be exposed to significant trauma if she has any unsupervised contact with [Mr Fontana].
(emphasis added)
In her report dated 6 November 2014 Dr R notes the following:
a)The mother’s report that on 25 May 2014 she was feeling much calmer on the Pristiq (a dual acting antidepressant);
b)The mother’s “strongly and genuinely held views that her daughter’s emotional wellbeing would be at risk should she have unsupervised access with [Mr Fontana]”;
c)The mother has continued to work a .8 position as a [public servant] and “has been able to function well in this situation”;
d)On medication the mother’s sleep has improved but she experiences a significant increased level of anxiety at the prospect of any change in the current contact arrangement;
e)The mother is currently comfortable with the supervised access at the [T Town] Contact Centre.
(emphasis added)
On 21 March 2016 Dr R was asked via correspondence inter alia:
5. Whether, having reference to all of the above points, your view as to whether [Ms Bouras’] parenting capacity would be compromised or affected if the Court were to make Final Orders that [Mr Fontana] either spend unsupervised time with the child away from the confines of the Contact Centre or that the child continue to spend supervised time with [Mr Fontana] at a Contact Centre indefinitely.
(emphasis added)
In her report dated 19 April 2016 she states the following:
…
I have mentioned in previous reports of [Ms Bouras’] genuinely held fears that her daughters (sic) psychological health is at risk if she were to have unsupervised access with her biological father [Mr Fontana]. … she has felt confident that with appropriate supervision her daughter’s emotional wellbeing is not compromised.
…
From my very regular contact with [Ms Bouras] over an extended period of time, I am of the belief that her parenting capacity would be compromised if the court were to make final orders that [Mr Fontana] spend unsupervised time with the child … It is my opinion that providing [Ms Bouras] has confidence in the contact centre staff, she has demonstrated a willingness to continue her commitment to ensuring that [the child] attends for scheduled access visits.
[Ms Bouras] has continued on maintenance antidepressant medication and regular Psychotherapy both with myself and Clinical Psychologist. Despite this, the thought of [Mr Fontana] having unsupervised access with their daughter has pitched her into a much more labile and vulnerable state.
…
… She [the mother] reports that [the child] is generally a very happy and well-adjusted child. In the event that [Mr Fontana] were to be granted unsupervised time with the child, I think it is highly likely that [Ms Bouras], despite all the resources and assistance that she has had, would be in a much more precarious mental state. …
…
In summary my position as outlined in previous reports has not changed and I believe that [Ms Bouras’] functioning as a loving and robust parent would be severely compromised if there were any changes to the current access arrangements with her biological father.
(emphasis added)
Dr R clarified in oral evidence that her understanding of the ‘current access arrangements’ were fortnightly supervised visits.
In her oral evidence, Dr R initially sought to change her opinion that had been consistently expressed throughout her reports, namely, that the mother’s functioning as a parent would be severely compromised if there were a move to unsupervised time. She suggested that the impact on the mother would be the same if there were any time at all whether supervised or unsupervised or even if the time was only twice a year. Ultimately however, Dr R stated:
I have seen my patient function very well until the lead up to these reviews, [court] and then she goes from being relatively robust to being extremely distressed.
That latter evidence is consistent with the tenor of her reports.
Ms S
Ms S is a clinical psychologist whom the mother has consulted regularly since 23 July 2014.
By letter dated 29 October 2014 the mother’s lawyer requested a report from Ms S requesting inter alia:
10. Whether, having reference to all of the above points your view as to whether [Ms Bouras’s] (sic) parenting capacity would be compromised or affected if [Mr Fontana] was to spend supervised time with [the child] away from the confines of the Contact Centre …
In her report of 5 November 2014, Ms S notes that the mother initially sought assistance because she:
was struggling with significant levels of anxiety related to on-going legal and custody matters between herself and her ex-husband. [Ms Bouras] more specifically reported that she was highly distressed at the prospect of changes to the current custody orders that may allow her ex-husband access to their daughter away from the supervision of a designated contact centre.
Ms S further notes the following:
[Ms Bouras] reported that she has gained a large amount of information about [Mr Fontana’s] history since the end of their relationship, including previously unknown details about his past marriages and relationships, children he had in past relationships and alleged domestic violence committed against previous partners.
…
For [Ms Bouras], piecing together her own experiences of feeling threatened, unsafe and intimidated by [Mr Fontana] with information about alleged past incidences of domestic violence by him has served to increase her anxiety drastically. [Ms Bouras] does not consider that her daughter would be safe in [Mr Fontana’s] care. She has formulated very strong beliefs that [Mr Fontana] is a dangerous person, which has triggered a strong sense of fear about him having unsupervised access to [the child] away from the relative safety of the contact centre. [Ms Bouras] believes that she would be breaching her duty of care is a mother to allow [Mr Fontana] access to [the child] outside of the current contact centre.
(emphasis added)
Ms S opined inter alia:
Given that [Ms Bouras] holds such strong concerns about [Mr Fontana] and [the child’s safety] with him, I would consider that any changes to the current consent orders allowing for unsupervised time or access away from the contact centre would lead to a marked increase in psychological distress for [Ms Bouras].…
While [Ms Bouras] holds strong concerns about [Mr Fontana] and his contact with [the child] she has been somewhat placated by visitation taking place in a contact centre where she has trust in the staff to supervise effectively. While [Ms Bouras] does continue to have concerns about [the child] having contact with [Mr Fontana] in any context, she is at least able to tolerate the anxiety of supervised visits occurring at contact centre at this time.
(emphasis added)
In a letter to Dr V dated 22 April 2015, Ms S opined:
…
[Ms Bouras] has made some good progress during the past few months and reported that she is generally feeling calmer and better able to manage stressors when they occur. …
…
Now that [Ms Bouras] is feeling more stable and better able to cope, I would suggest that she continue attending sessions to focus on strategies to enhance her general health and well being. She will benefit from targeted interventions aimed at improving her activation, diet, health and work/life balance, especially now that she is calm enough to focus on making such changes for herself.
(emphasis added)
On 21 March 2016 the mother’s lawyer again requested a report from Ms S, and in particular stated the following:
Specifically in relation to the report we are instructed that our client has real fears and anxiety as to [Mr Fontana] spending supervised time with the child away from the Contact Centre.…
We would be pleased therefore if you could address the following in your report:
…
5. Whether, having reference to all of the above points your view as to whether [Ms Bouras’] parenting capacity would be compromised or affected if [Mr Fontana] was to spend supervised time with [the child] away from the confines of the Contact Centre and if you are of that view, the manner in which the compromised parenting would manifest itself…
In her report dated 21 April 2016, Ms S opined inter alia:
It remains my view that the symptoms reported by Ms Bouras during the assessment phase of her intervention met the criteria for a diagnosis of Adjustment Disorder with Anxiety … The external stressor that triggered her symptoms was her ex-husband commencing legal proceedings to gain unsupervised access to their daughter …
…
[Ms Bouras’] symptoms have fluctuated during the course of her treatment. She experienced some reduction in the severity of her anxiety symptoms during the later part of 2015 when she felt that the supervised access visits between [Mr Fontana] and [the child] were being conducted in safe environment and manner. [Ms Bouras’] symptoms escalated again recently due to a requirement to change contact centres, along with the setting of dates for the trial to commence in August.
…
While progress has been made, [Ms Bouras] continues to experience marked anxiety symptoms related to the current legal process. Her fear about the outcome of this process remains high and her concerns about the safety of her daughter have increased with the approaching trial date.
[Ms Bouras] will require continued psychological counselling in the lead-up to the trial, likely on a more frequent basis. Depending on the outcome of the trial, [Ms Bouras] may also require further psychological support in the medium to long-term future.
…
[Ms Bouras] displays high levels of emotional distress when presented with the idea that the current custody orders might change. In her view [the child] would be a risk of emotional and psychological harm if allowed unsupervised access with [Mr Fontana]. [Ms Bouras] relates strongly to her own experiences of fear and intimidation throughout her relationship with [Mr Fontana] when she considers the idea of [the child] being in his care. She remains convinced that [Mr Fontana’s] influence on [the child] would be damaging.
… [Ms Bouras] does not consider she would be able to cope with a situation where she felt she was not able to protect [the child] from potential harm, which would be the case if the child were to be unsupervised with [Mr Fontana].
[Ms Bouras’] beliefs on matters related to [Mr Fontana] and [the child’s] safety are inflexible and firmly held. The impact of these beliefs is directly connected to her experience of anxiety and emotional distress and will in turn have a direct impact on her capacity to cope with any potential changes to the custody arrangements.
…
[Ms Bouras] holds such strong concerns about [Mr Fontana’s] risk of causing emotional and psychological harm to their daughter that I consider it to be almost a certainty that [Ms Bouras] would experience a deterioration in her psychological functioning should [Mr Fontana] be able to have unsupervised access with [the child]. [Ms Bouras] would likely experience a marked increase in symptoms of anxiety and stress, leading to reduced functionality in her everyday life, and potentially strained connection with [the child]. While [Ms Bouras’] practical capacity as a parent would remain, she would be less able to manage her parental duties independently and would likely require additional supports from her extended family. Any deterioration in [Ms Bouras’] psychological state is also likely to impact negatively on her emotional connection with the child.
(emphasis added)
Dr W
Dr W is a psychiatrist and was retained by the mother on 31 May 2016 to provide advice on whether there is any other course of treatment that the mother could or should undertake that may assist her.
Dr W reviewed the background material from the mother and her treating practitioners.
In his interview with the mother he noted her comment that if the father decided to leave Australia and return to Europe it would feel as if she were “completely free” and she believed that many of her symptoms would resolve. The mother confirmed to Dr W that she had been seeing Dr R weekly for approximately forty-five minutes to discuss day to day coping strategies in addition to “how she can adapt to the prospect that her ex-husband may be allowed unsupervised access to their daughter”. The mother said that her “anxiety would escalate if the father were allowed unsupervised access, as she believed he lacked the capacity to for a healthy relationship with anyone”.
As to her sessions with Ms S, the mother informed Dr W that “she had found the sessions to be very helpful as they had assisted her to understand the potential difference between real and perceived threats”.
Dr W notes the mother is currently completing her Masters qualification in addition to working. The mother described her life generally to Dr W including: “enjoys spending times with the dog, catching up with childhood friends, reading, and going for walks”.
In his mental state examination of the mother, Dr W opined that the mother presented as ‘mildly anxious’ and focussed primarily on the welfare of the child and the risks that she perceived would result if the father spent unsupervised time with the child. He was of the view that the mother had insight and ‘recognised that she had to develop a means of regulating her anxiety, not excessively catastrophizing, and ensuring that there are appropriate interpersonal boundaries allowing appropriate filtering of information between her and [the child].’
In his view the mother has a significant anxiety disorder “triggered and perpetuated by the ongoing tension associated with her former husband’s application to have unsupervised access to their daughter”. In his view the ongoing court proceedings have exacerbated her anxiety.
Dr W diagnosed the mother with a Post-Traumatic Stress Disorder and noted that while her treating clinicians diagnosed an Adjustment Disorder, he was of the view that the two conditions reflect the same underlying psychopathology and are not either qualitatively or quantitatively significantly different. Dr W commented:
Hypothetically, in [Ms Bouras’] case, the fear of the court granting unsupervised access to the father could perpetuate her emotional distress, impair her mothering capacity, provide the basis for unsupervised access being denied and, therefore, create resistance to therapeutic improvement in order to preserve the status quo. In my opinion, [Ms Bouras] was not manifesting any outwardly conscious desire to perpetuate her sick role so as to gain an advantage in a court determination.
Dr W did not suggest any significant change to the treatment being undertaken by the mother but felt she would particularly need ongoing support in the lead up to the trial.
(emphasis added)
Dr X, psychiatrist
Dr X has practised as a psychiatrist since 2006 and he provided two reports in this matter, the first dated 10 December 2013 and the second dated 28 July 2016.
As a result of his recommendations in 2013 the mother was prescribed Pristiq 100mgs and attended upon her treating psychiatrist on a more regular basis. When interviewed by Dr X on 26 May 2016 the mother informed him inter alia:
[After starting Pristiq] I noticed immediately a difference, my sleep improved. I was not so emotional and I felt I could cope better with other stressors in my life [I note [Dr Y’s] comments that other stressors for the [Bouras] family including the financial strain of the litigation]. The doctor has suggested trying a higher dose of medication but it does not make a difference when it comes to this, I feel really well apart from when this comes up. …
…
[what she felt would be the best outcome now of the Family Court process] That he has no contact and she is allowed to develop and be strong and not be subjected to his abuse. … it is for her safety [referring to the child]. …
Dr X opined inter alia:
On cross-sectional assessment I could find no evidence of psychosis. Her views with respect to the father appear to have arisen understandably, and even if they do display a tendency to jump to conclusions they could not be described as psychotically based beliefs. The mother continues to describe significant anxiety and depressive symptoms despite being engaged in relatively intensive psychological and psychiatric treatment and this appears to have heightened in the context of recent changes in supervision arrangements as well is the need for an updated report by myself. I note she remains on only a moderate dose of prescribed medication despite the recommendation by her treating psychiatrist that she noted an improvement in her symptoms and overall functioning when commencing medication as recommended by myself previously.
She appears to have ongoing significant anxiety about the welfare of the child in the care of the father even in a supervised basis and appears to question the motivations and expertise of various supervisors and continues to feel overwhelmed by the prospect of [the child] spending time with the father. She continues to express the view she cannot see any benefit in the child having a meaningful relationship with the father. The Family Court process appears to have continued to exacerbate the mother’s anxiety as she becomes aware of other allegations with respect to the father in previous and subsequent relationships.
…
The mother does appear to continue to have a tendency to jump to conclusions and has formed fixed ideas with respect to the father but it appears these beliefs have arisen within the context of the relationship with the father as well as the mother’s underlying personality vulnerabilities rather than evidence of an underlying psychotic illness such as Schizophrenia. Although the beliefs certainly have a number of features of delusions, in that they are fixed, intrusive and distressing, the falseness of the allegations would need to be determined by the Court. Another description would be of an overvalued idea with a highly ruminative quality which would be seen more as a function of an anxiety disorder rather than an underlying psychotic illness.
… The presence of neurovegetative symptoms as well as the apparent remarkable improvement on commencing anti-depressant medication would suggest that there is in fact a biological basis for her illness which would normally be understood to take the illness out of the realms of an Adjustment Disorder and in my view would meet the threshold for a true anxiety disorder. There also appear to be panic features associated with the mother’s illness. There certainly appears to be an obsessive quality about the way in which the proceedings have been conducted as well as the mother’s concerns about changes within supervisory arrangements historically, as well is the ruminative nature of her concerns and feelings with respect to the father but it is not my view that this would normally be understood under the rubric of Obsessive Compulsive Disorder but again is perhaps more a function of her underlying personality structure.
I note [Dr W’s] diagnosis of Post Traumatic Stress Disorder and would certainly see this diagnosis as not unreasonable. I would however have concerns if the Court were to be guided by the presence or otherwise of this diagnosis as evidence or otherwise that the trauma did in fact occur as in my view this is highly problematic.
As to the mother’s personality, I would be somewhat sceptical of the view that she had no personality vulnerabilities prior to engaging in a relationship with the father and suspect there have been dynamics within her family of origin where her temperamental anxiety may well have been exacerbated and this has been further exacerbated by the failure of her relationship with father. There certainly appear to be obsessive compulsive personality traits in the mother as well is potential paranoid traits but it is not my view that the mother suffers from a personality disorder per se. The histrionicity exhibited by my initial assessment appeared to have diminished significantly on the updated report interview which would suggest that this behavioural manifestation was a function of her then undertreated anxiety disorder rather than a pervasive mode of interacting. If my formulation is correct, one would expect that these vulnerabilities would become more apparent when burdened by the presence of an anxiety disorder (PTSD or otherwise) as well is in the context of the Family Court process and associated conflict.
It would appear the mother struggles with even minor changes in supervisory arrangements to a degree that is quite extreme and seeks significant reassurances with respect to the safety of [the child] within that context which in my experience would be significantly higher than the norm.
…
I note the issue of ‘genuineness’ of the mother’s beliefs has arisen in the documentation. I would posit the view the genuineness or otherwise of the mothers beliefs are ultimately unknowable when relying solely on self-report of the mother but I would agree with [Dr W] that there would be a decreased motivation for her to in fact change or adapt her strongly held views if she were to form the view that her ongoing illness would in fact inform the Court’s decision making around the custody of the child and her interests. Again, whether this is occurring consciously or unconsciously is ultimately unknowable for a psychiatrist.
…
… I would strongly recommend [the mother] continue to seek treatment with her mental health team including her private psychiatrist as well as psychologist. I would make the observation that she continues to experience significant exacerbations of anxiety, plus or minus panic at quite minor changes to the supervising arrangements (although not always minor in nature) and continues to experience significant neurovegetative disturbance which in my mind would suggest further treatment at a higher dose with her antidepressant medication would be indicated especially if the mother is not experiencing any significant adverse side-effects.
I would have some concerns the mother’s anxiety would be further exacerbated if the Court were to find it in the child’s best interests to have unsupervised contact with the father either now or into the future. I do observe, however, that the mother’s anxiety with respect to previous supervisory arrangements has settled once she has had the experience of [the child] engaging in such contact with the father and would predict that her anxiety which, as commented on by [Dr W], is anticipatory in nature and would be expected to diminish once she is exposed to the anxiety provoking event. One would envisage that she would require significant emotional and psychological support if such times were to occur so as to protect [the child] from her own negative emotions and views with respect to the father so as not to cause emotional harm to [the child].
(errors in original and emphasis added)
In support of his opinion that the mother would be able to adjust to ongoing supervised time between the child and the father I note the following exchange between the mother’s counsel and Dr X:
Yes?--- So I guess if there was a proposal that supervised contact continue and the supervised contact was continuing to do well, I would predict that the mother’s anxiety would reduce about that.
Right. On what basis given the history of this matter?--- well, on the basis that that’s what the mother told me that happened when she was in a supervised environment with a certain individual before it had to be changed because of a conflict of interest that arose.
Yes. But I thought you had said in evidence you accepted that there were extreme periods of exacerbation of anxiety, but at no time did her anxiety actually go away; is that not right?---Well, that her anxiety about being –having to think about unsupervised contact. So, yes, when she’s not thinking about unsupervised contact, it doesn’t appear – I meant, I may stand corrected, but on the information I had that she’s not, you know, overly anxious and functioning well.
Right?---It’s when she’s having to think about that prospect that she continues to become overwhelmed, so that was – and that appeared to be occurring in the context of therapy that was undertaking.
Discussion and conclusions about the mother’s mental health
In my view the evidence overwhelmingly supports a finding that the major trigger for the mother’s anxiety symptoms is the prospect of the child spending unsupervised time with her father and that when that prospect is diminished the mother functions well in her day to day life.
That is not to say that there are no other stressors that trigger symptoms of anxiety, such as the litigation itself, the mother’s beliefs about the father and changes to the supervised arrangements.
I was impressed by Dr X’s explanation of the mother’s particular personality vulnerabilities and the spectrum of anxiety disorders, of which Post Traumatic Stress Disorder is but one. I accept his opinion that the mother has an underlying predisposition to an anxiety form of mental illness that will need ongoing treatment and monitoring and that her anxiety is, to a significant degree, anticipatory in nature. While I accept the opinions of Drs W and X that labelling the mother’s particular form of anxiety illness is perhaps academic given the treatment regime will be the same, I prefer Dr X’s opinion that it is more likely the mother suffers from an Anxiety Disorder with panic features. I further accept his opinion that the mother has appeared to adjust to changes in circumstances in the past which have been very distressing initially so that her anxiety diminishes significantly.
Indeed, the mother has continued to work as a public servant since separation. Apart from a couple of occasions when she left early or became distressed at work there is no evidence that her capacity to function as a public servant has been compromised. When not thinking about the prospect of unsupervised time the mother enjoys life as described by her to Dr W.
Importantly, I find the same can be said for her parenting capacity as supported by the observations made by Dr R and the presentation of the child herself as a happy, well-adjusted little girl who is meeting all developmental expectations.
While there is some evidence from the mother that she was not been able to contain her anxiety in front of the child in April 2016, arising from a combination of factors including the need to change the supervision arrangements; providing instructions to the new supervisor; providing instructions for her affidavit; the impending trial and a feeling that the Court might make an order that would put the child at risk; generally, the mother has managed to protect the child from exposure to her anxiety. While there is some evidence of the child experiencing separation anxiety on occasion and demonstrating oppositional behaviour on occasion there is nothing to suggest that this is out of the realms of normal developmental change, although I accept that there may well have been occasions where the child’s behaviour has been exacerbated by her exposure to the mother’s anxiety. Overall, the child appears to be progressing well in life generally and at school and she is surrounded by loving and caring adults.
Counsel for the mother submitted that had the mother and her family not protected the child from their anxieties about the father there would not have been a case because the child would have been saying she was frightened of her father and no order for time would have been made. I consider such a submission to be regrettable. The fact that the mother and her family have facilitated the child spending time with her father is to be commended given their view of him, however, in my view they did so because of their very great love of the child and for no other reason. Involving children in conflict is one of the sure ways to cause psychological harm to a child and it does not surprise me at all that the mother’s family have not done so. Indeed, had they acted in a way that caused the child psychological harm, there may well have been a very different application before the Court.
In summary, I do not accept the submission that the mother’s condition is likely to deteriorate with ongoing supervised time as proposed or that any ongoing anxiety is likely to have any significant impact on the child.
A complete recovery remains a possibility (but I am unable to find it to be a probability) once the stress of these proceedings comes to an end and particularly if the mother no longer has an unconscious need to perpetuate the ‘sick role’. I do not find it necessary to make a finding about whether or not the mother has this unconscious need but it is raised as a possibility by both Dr W and Dr X. Even without a complete recovery I am satisfied that her condition will be manageable and that apart from the periods in the immediate lead up to the child spending time with her father and perhaps for a time in the immediate aftermath of that time, the mother will function to a high level as she has in the past, as noted by her treating psychiatrist. The mother also has the support of her loving family and they will continue to be a significant part of the child’s life.
Whether the child should spend time with the father
It is common ground that the child enjoys her time with the father. She is currently spending time with him each fortnight supervised by Ms C.
The father’s proposal is that the time be reduced to four times per year in recognition of the impact on the mother. Given the cost and the father’s limited financial means, more frequent time would seem to be prohibitive.
Mr Q, psychologist
Mr Q prepared two family reports in this matter, the first arising out of interviews conducted in August 2013 and the second arising out of interviews in July 2016.
Mr Q interviewed the child on 30 May 2016 and when he asked her if he would like her father, she responded, “Well, he’s very nice. I think you might like him”, and when asked why, she responded, “He teaches me a lot of things” (about whales and sea snakes and eels). In his observation of the child with her father he noted the child gave her father a hug in greeting, was happy to see him, maintained good eye contact and that their verbal interactions were reciprocal and warm. When the mother was invited to observe the interaction behind one-way glass she appeared stressed but said she knew that the child would have a nice time. Mr Q opined that the child appeared to be very open and trusting with her father and that they engaged enthusiastically with each other.
Mr Q opined that if the child’s time with her father were minimised or stopped it is unlikely that in the short term this would cause her any great sadness or grief. This is because she has only ever known her father as someone she sees at a contact centre or more recently at Ms C’s home for brief visits. She has never experienced him as part of her daily life. As she grows older she is likely to become inquisitive about her father. She should be told something and it may be sufficient initially for her to be told that the Court has decided she will not see her father or only see him on a minimal basis. Once she reaches adolescence this is unlikely to be sufficient and it will have to be explained to her in a sensitive way why she does not have a normal relationship with her father. Depending on what she is told there are a number of possible outcomes: she may accept it and may not be troubled by it; she may be confused given her memory of her father; she may take her mother’s side and not want to see her father; she may not accept what she is told and may challenge her mother. I had the impression Mr Q felt that his opinion in relation to outcomes and possible results could be no more than mere speculation.
If long term supervised time were ordered Mr Q nevertheless saw a benefit for the child, even if she were to see her father once or twice per year, as she would be able to be reassured that her father still loves her and cares for her.
Advantages and disadvantages of the child spending time with her father
The child has a statutory right to know and spend time with her father.
The child knows her father and has a relationship with him. My concern for the child if she spends no time with her father is that she may come to believe that he does not love her and does not want to spend time with her. She may feel abandoned by him. Despite her limited relationship with him, he is a significant person in her life.
An order for her to spend no time with the father will not remove the possible hurdles for her in the future. For instance, once she reaches adolescence she may seek him out on her own and that may be more stress provoking for the mother than if she knows her daughter to be seeing her father in what she regards to be a safe environment. The possible outcomes as identified by Mr Q do not disappear with an Order for no time.
In my view the advantages to the child in spending even limited time with her father outweigh the disadvantages.
Family violence
Protection Order
A Protection Order was made in favour of the mother on 13 April 2010 pursuant to the Domestic and Family Violence Protection Act 1989 (Qld). The father was named as the respondent. The Order was made after a contested hearing however the brief Reasons for Judgment (which are annexed to the mother’s affidavit of evidence in chief) do not identify the evidence upon which reliance was placed to find that an act of domestic violence had been committed or that further domestic violence was likely if an Order were not made. The father denied that he had committed an act of domestic violence. The learned Magistrate rejected the father’s submission that his misunderstanding of English compromised his ability to truthfully answer a question relating to an allegation of violence made by a former partner, Ms I, and this seems to be the principle reason for the finding against him.
I note that the mother’s Application for a Protection Order makes no mention of rape or intent to murder.
Allegations
Although not pressed at the hearing given the father’s concession as to supervised time only, the mother initially contended that the father presents an unacceptable risk of harm to the child, both physical and psychological, because of his history of violence perpetrated or threatened against the mother and others.
The mother contends that the father’s pursuit of time with the child is not about him actually spending time with her but rather about seeking revenge, controlling her and causing her and her family pain.
The mother’s affidavit material and those of her witnesses contain many assertions of fact but little evidence to support those assertions. So much of the evidence relied upon by the mother is mere speculation or supposition.
When serious allegations are made against a person it is expected that the ‘accuser’ will be able to provide full particulars, details and context. Without that, it makes a defence of the allegations problematic and often leaves the court with a bare accusation and a bare denial which makes an assessment of the truth or otherwise of an allegation well-nigh impossible.
By way of example the mother made the following assertions relating to the allegation of family violence:
a)The father would force her to remove her makeup sometimes forcing her into the bathroom and rubbing her face (the father denied this);
b)He would refuse to leave the house until she complied by removing her makeup (the father denied this);
c)He told her not to leave the house with the child (the father denied this);
d)He would put on the house alarm to prevent her leaving the bedroom at night (the father denied this and explained how it would set off the alarm if there was any movement in the bedroom if this were the case);
e)If she complained during sexual intercourse that he was being too rough and hurting her, he would ignore her and become even rougher (the father denied this);
f)He frequently left knives around the home including under their mattress and in bedroom drawers (the father denied this and I note the mother told Dr W that when she questioned the father about this he told her they were for protection. She had noticed him becoming “increasingly concerned about his safety”, not wanting to have his face on the Internet and putting blankets on windows and setting the burglar alarm to cover the whole house);
g)In August 2009 he said “It’s better if I leave you because one day I’m going to really hurt you” (the father denied this);
h)In September 2009 he said “I have never smashed a woman but I really want to smash you” (the father denied this);
i)She found a selection of knives, a hammer, three metres of ‘butcher’s bag’, pieces of rope and shovel in his car after separation (the father denied any knowledge and pointed out that he did not have exclusive use of the vehicle which remained with the mother after separation);
j)He owned two guns, a cross-bow and flick knife (the father admitted owning and having a licence for two guns at the time of separation that were stored in a safe at the Bouras family home, admitted to owning a bow and arrow (which is how Ms O Bouras described it) but denied owning a flick knife (I note the Reasons for Judgment at the contested Domestic Violence hearing refers to a flick knife having been confiscated by police but it is not clear what the source of that information is);
k)He would drive her to remote places in the dark knowing she was terrified (the father denied this).
For such accusations to have any prospect of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding one would expect to see dates, times, places, circumstances leading up to incident including direct conversation, description of surroundings, explanation of why a fact is recalled etc.
One allegation made by the mother for which sufficient particulars were provided related to an allegation that in November 2009 the father threatened to put his drum sticks through her eyes and she gave an account of where, how, when and why this occurred. As a consequence the father was able to respond to the allegation and he gave a plausible account of what had occurred. I observe that the account of the incident by each party was remarkably similar and involved the mother startling the father when he was playing his drums. Ultimately, the allegation turned on the words “I could have put this drumstick through your eyes, next time I will”. The father conceded saying the first part but denied stating that ‘next time he will’. In my view, the mother’s memory of what was said is clouded by her perception of the father formed after separation. This was not an allegation relied upon in the February 2010 Protection Order Application.
Likewise, the mother and members of her family provide various versions of the father threatening a neighbour for playing music too loudly. While the mother’s version gave the impression the father threatened the neighbour with an iron bar, Ms O Bouras deposed that the father had dropped the iron bar. On any version, including the father’s, the incident was a ‘storm in a teacup’. No one was injured. The police did not attend. The mother’s brother, Mr N, was so disinterested he did not even leave the Bouras family home.
I note that apart from a mention by the mother of ”early signs of his volatile mood” there is no record in Dr R’s file of any particular complaint of family violence in her early sessions although she refers to having obtained a Protection Order. There are general descriptions of his uncaring behaviour disclosed it seems in 2012 and occasions when she felt fearful e.g the father driving along an isolated beach against her wishes. Dr R notes complaints of “differences in their parenting style” with a reference to the father feeding the child age inappropriate food, dunking her head in water and rubbing his beard against her face until she cried.
The mother informed Dr R that “the last straw that precipitated their separation in February 2010” was her finding out he was having an affair. He had not been sleeping with her since the birth of the child and had been spending time away from the home. The mother complained that after separation she found out that the father had two other children in Europe.
I accept the mother’s evidence that her marriage was an unhappy one. She was living under the scrutiny of her family and the father became more and more distant and spent less and less time with her and the child. Indeed all the family complain about his absences and the mother deposes to him rarely being at home after the child was born. The mother describes her own mother as being someone in whom she has always been able to confide and yet there is no temporal complaint or concern made to her mother (with whom she lived) that the father was coercing her, controlling her or threatening to harm her.
To the extent that the mother and family complain in hindsight about the father’s ‘control’ of the mother e.g. making her drink protein drinks; not permitting her to leave the house; causing her to take her make-up off etc., I am not satisfied given the general nature of this evidence that it is probative of the father behaving in such a way that coerced or controlled the mother at the time. It is a further example, in my view, of at attempt to make the evidence fit the facts as they are now believed to be.
I find that the mother’s stated beliefs about the father e.g. that he was planning to murder her and had drugged and raped her, are more likely than not to be overvalued ideas with a highly ruminative quality (as explained by Dr X) which would be seen more as a function of her Anxiety Disorder.
The overwhelming impression I have formed of the Bouras family is that upon the breakdown of the mother’s marriage they saw the father through a prism that was entirely suspicious and critical. They did not like him. He had betrayed the mother by having an affair, which they discovered after engaging a private investigator.
After his betrayal was discovered I find that the family looked back over all of the perceived misdeeds of the father, whether it be a cross word or an irritable response or a drive along an isolated road and created a ‘monster’. Examples are amply provided in the affidavit of the maternal grandmother who blames the father for a burglary in 2007 and the death of the family dog; the evidence from two employees of the mother’s brother who spoke of a conversation during ‘smoko’ many years ago where the father had allegedly said he would kill a wife (he not being married at that time) if he found her with another man and would kill the man too even though Mr AA talked of Mr BB (one of the mother’s brothers) and himself ‘joking’ about the discussion after the event; the mother’s evidence of the father letting the child’s head drop into the water as a baby when she and other family members were present; attributing to him feelings of enjoyment at seeing her upset; and the allegation that he purposefully gave the child a cherry as a baby.
The fact is the mother’s family had suspicions about the father as early as August 2007 when Mrs Bouras senior reported her belief that the father had burgled their home on 1 August 2007 to Police. Subsequent to separation it is fair to say, as noted in Mr CC’s notes (the mother’s treating psychologist shortly after separation), that “[Mr Fontana] and his whole existence has become an obsession”. As they discovered more information about him after separation they viewed merely mundane things in a sinister light e.g. making the mother drink protein shakes; telling her she should give up work because she looked tired; rubbing his beard on the child; ringing her regularly; the father smiling etc.
I would go so far as to say that the family have created an environment of hysteria where the father is concerned. Their view of him is typified by the comment made by Ms Bouras: “[Mr Fontana] coming into our lives has ruined our family”.
In my view the family hoped, by these proceedings, to remove the father from their lives. But as counsel for the Independent Children’s Lawyer observed the mere fact of the child’s existence will make that outcome impossible. The child has an existing relationship with her father. She enjoys spending time with him. She bears his name. An order for no time cannot turn back the clock.
The mother did not present as ‘terrified’ of the father during the trial although this is what was alleged. She was briefly upset at the commencement of her evidence but then answered questions posed by the father in an articulate and confident way without showing any sign of being ‘terrified’. There were times during the trial when she was relaxed enough to enjoy a laugh at things said by her mother in the witness box. She certainly became teary at the mere mention of the possibility of unsupervised time.
Evidence from the father’s former partners – relied upon by the mother
Ms G
Ms G is a former de facto partner of the father. Ms G appeared at court in answer to a subpoena to give evidence. She had declined to provide an affidavit.
Ms G and the father lived together from June 2010 until about October 2013. They have a child together, E, born in 2011. E spends unsupervised time with the father each week including overnight. There is no evidence that E has come to any harm in his father’s care. Ms G concedes that the father and E have a close and loving relationship.
Ms G is from the South East Asia. She has lived in Australia for ten years and has a degree. She works in T Town.
During the family report interviews with Mr Q in 2013 Ms G was interviewed as the then partner of the father. During her interview she made statements to Mr Q which caused him to form the view that she may have been subjected to family violence by the father. By the time of trial Mr Q had little independent recollection of the interview but incorporated his notes made at the time in his 2016 family report. His notes reveal the following:
In relx [relationship] with .. [father] – any violent behaviour? – I do
I am worried because I knew [Mr Fontana] just wanted to see the child so much and he has been waiting for ages
Have you been worried about [Mr Fontana] being violent?
I did
Many times
I cried because I thought I can tell you – note 2nd warning given re lack of confidentialityBut I will worried about the impact
Of his case of his daughter
But I am a mother and I want the best interests of [E] and [the child]
Believes he is capable of being a good man but at the moment it is just too much
Always calls her names – deficient
Will say it is a joke
But never worried about [the child] because she knows he is a capable man
He is very loving to [E]
I really don’t want [E] and [the child] to see that behaviourReported incidents of phys violence
And I leave
Where does he hit you?
Its really bad
I was so much fed up that most of my things were broken
E.g. my radio he broke and my shoes – he stamped it
And I take his drums and then when I take his drums – he said did you say goodbye to your computer
He choked her with the laptop computer (meaning the cord)
She fled to her friend – stayed away for the night
Returned to look after [E]
Went to her fiend that night – 3 nights in allThe DV occurs in front of [E]
Has never called the policeWont leave because [the child] and her son have a really good relationship
They are amazing and inseparable togetherWorries about her a sepn would impact upon her son
Knows about the DVO
Before she was thinking he was a very good man – spoked of her sensitivity to DVSees something good with [Mr Fontana] but would like him to seek help
Gave incidents of kindness – e.g. to a homeless man when he was cycling
Drove to find him and gave him food
One Sat each month they go to the nuns to see the homeless people
Feels [Mr Fontana] will change
But hopes the child and [E] will not see the bad things about him(errors in original)
It is common ground that on the release of the family report in 2013 the father picked up Ms G from university and said something to her indicating his displeasure about what she had said to Mr Q.
The father maintains he told her in a ‘firm’ way that ‘the things she had said were not true’ that ‘she would now have to pay half the expenses’, ‘he could no longer trust her’, and he concedes that he mentioned the money he had spent and lost on the Court case. They separated that night when he drove her to her friend’s home.
Ms G contends that when he picked her up he was very angry and yelled at her that she had cost him $2000 and he could no longer trust her and that she had to leave. She contends that he drove her to her friend’s house after she collected some things for herself and E.
I do not find it necessary to make a finding on the precise details of what occurred on that evening. Suffice to say the comments by Ms G as reported by Mr Q were the catalyst for the separation between Ms G and the father.
The notes of Mr Q indicate that Ms G alleged that the father had tried to choke her with the cord of a laptop computer. The evidence she gave in court involved the father pushing a laptop up against her throat. There was no mention of a cord or of the father choking her. Her evidence leading up to this incident involved an allegation that the father had thrown a box of shoes off the bed. She retaliated by throwing his drum kit. While she was standing in the toilet attending to E the father came at her with her laptop and said “Did you say goodbye to your laptop” and proceeded to push the laptop against her throat. She said he was very angry and, “It was a blessing in disguise that he never killed me”.
The father’s version was that he had placed the shoes on the floor saying it was not hygienic to have them on the bed. Ms G threw his drum kit. He then picked up her laptop and said “say goodbye to your laptop” but denies pushing it towards her throat. He contends that his intention was to retain her laptop because she had damaged his drum kit.
There is another version of this incident in the material produced by the Department of Communities, Child Safety and Disability Services which refers to the father allegedly closing a laptop on Ms G’s head.
I am not satisfied on the balance of probabilities that the father attempted or intended to kill or injure Ms G. There are startling inconsistencies in her evidence as given to Mr Q and the description given by her in oral evidence. Her evidence had the quality of overstatement and hysteria.
Ms G also gave an account of an incident that occurred in the kitchen of the house she shared with the father. She said that the father “cornered” her in the kitchen and that he had a knife in his hand. She said he did not say anything but he was very angry. Other than hold the knife he did not do or say anything. She said that she thought he was going to kill her. She said that she would like to think he was just cooking but does not think he was because of the look on his face. They were arguing about her not doing the household chores. She said they were both tired. She conceded that he did cook meals but said she did not think he was cooking on this occasion.
The father gave a different account of this incident. He agrees they were arguing but that he was at the bench with his back to Ms G chopping up onions. He denies that he ‘cornered’ her and said she was in fact in the lounge room during the argument.
Exhibit 3 is a diagram showing the relevant parts of the house and where each of them contends they were standing at the relevant time.
It is common ground that there was an argument and that the father had a knife in his hand. It is also common ground that he was in the kitchen and that it was not unusual for him to prepare meals. Given that the father did not say anything or do anything to indicate an intention to harm Ms G I am not satisfied that he intended to kill her or cause her harm.
As to the occasion that the father collected E from day care without her consent I note her evidence that E was returned to her by the father that evening. She accepted that there has never been a repeat of that conduct which occurred some years ago. In any event I note that the father contends that he collected E because Ms G had failed to permit him to spend his usual weekend time with his son.
When asked if she had ever sought the assistance of police (in the context of her relationship with the father) she replied -“Yes, many times”. Upon further questioning, however, she could only give two examples, neither of which were corroborative of a violent relationship with the father. The first example involved her going to police after the father had made a complaint about her conduct in Woolworths where she had approached the father accusing him of lying to her about being in a new relationship with Ms DD. The second example arose when she went to police after the father had picked up E from kindergarten and she was told there was nothing they could do.
The only evidence of physical violence were those committed by Ms G against the father. Ms G conceded slapping the father on the face on two separate occasions.
E has spent ongoing weekly unsupervised time with the father and Ms G makes no complaint about the father’s time with him and in fact encourages the time to continue. I do not find that Ms G would be so overborne by the father as to agree to his spending time with E if she considered her son to be in danger.
Ms I
Ms I (“Ms I”) provided an affidavit sworn 12 August 2014, translated from into English. She and the father were married in 2005 in Europe and moved to Australia in 2006. She left Australia in or about 2006.
She deposes to the father “kicking me around, humiliating and abusing me, both mentally and physically”. The particulars of this abuse are as follows:
8. I remember once I visited him at work (he worked as a receptionist in [Europe]) and this made him mad. After work, he got on our scooter, smiling. I thought that we were going back home, but instead he drove faster and faster and took me to the fields beyond [the city], a remote place where he beat me up and kicked me. He said it was because I was ruining his relationships at work.
…
33. [After they moved to Australia] At first we lived with [Mr Fontana’s] aunt [Ms EE] and his uncle [Mr FF] and [Mr Fontana] would assault me so many times on the sly.
34. We would often sleep a knife under the bed and I could not tell anything to anyone.
…
39. I called [Mr Fontana’s] aunt [Ms EE] for help but she told me that she would not interfere.
40. One day [Mr Fontana] came home from work and soon after he started to beat me, kick me and bang my head against the wall on the floor. I cried.
41. He then locked the door so that I could not run away, but I did not even have the strength.
42. [Mr Fontana] tied the knobs of the bathroom and lounge room doors with string to block my exit.
43. It was a terrible night, I hurt all over.…
44. I remember that he placed a large kitchen knife on the bedside table and told me to sleep lying next to him. I prayed for him to fall asleep.
45. In the morning, daybreak, I checked what I was wearing and remembered where I kept my documents. I begged him into letting me go to the toilet.
46. When I left, I put my clothes on top of my pyjamas, took my handbag and quickly ran out of the house.
…
51. Straight away I called my friend, [Ms GG] to come and pick me up. I was so bruised and swollen that she said that she barely recognised me in the street.
52. [Ms GG] drove me to the police.
…
54. I made a report to the police in [HH Town] .
Exhibit 1 contains the record of information provided to police at the HH Town Police Station by Ms I on 27 August 2006. It records as follows:
At approximately 1.00am 27/08/2006 the respondent [the father] has returned home. The aggrieved [Ms I] has asked him where he had been and the respondent has shouted ‘why are you asking, it’s none of your business’. The respondent has then started to wave his arms about and look for something in the kitchen. The respondent has then pushed the aggrieved around the kitchen. The aggrieved has started to scream and the respondent has grabbed her from behind and covered her mouth with his hand. The respondent has pushed the aggrieved to the ground using his body weight and the aggrieved was face down on the ground with the respondent still covering her nose and mouth. The respondent has then straddled the aggrieved and then put his hands around her neck from behind. The respondent has then punched the aggrieved in the back of the head. This has forced the aggrieved head to hit the ground, creating grazes on the inside of her lips. The aggrieved has then went to the bathroom to clean up her face as it was bleeding and the respondent has entered the bathroom with a knife. The respondent then told her to clean up her face and then told the aggrieved they were going to bed and he was still holding the knife. The respondent has then told the aggrieved if he heard her leaving he would kill her and has then placed the knife on the bedside table. The aggrieved has woken up at about 8:20am and has had to wake the respondent so he could unlock the door for her to go to the bathroom. The respondent has later went to the bathroom and while he was there the aggrieved has got dressed and left the residents. The aggrieved attended the station with [redacted] who helped with the translation for the statement. Police contacted the respondent by phone, who stated they did have an argument but denies it was physical.
The father denies paragraphs 4 to 54 of Ms I’s affidavit. In relation to the alleged incident in Europe he contends that he worked only night shifts at the hotel from 11pm until 7am and denies that Ms I ever visited him at his work. He contends that the only way to get to the hotel was by motor vehicle as there was no public transport at that time of night. He contends that Ms I could not drive either a car or a scooter. He contends that as he worked night shift he was the only employee there at that time. He contends that Ms I never visited him at the hotel.
The father contends that Ms I was never happy in Australia and was constantly asking to go back to Europe. He contends that they had a number of arguments about this. He contends that one morning Ms I left as a result, he believes, of being upset from the night before from an argument about returning to Europe. He contends that he did not know she had left permanently until he spoke to police later that day when the police called him and told him that she had moved into a refuge and wanted to go back to Europe. He contends that they also stated that she wanted to go back to the unit to pick up her belongings which duly happened. He contends that Ms I rang him a number of times asking him to come and collect her from the refuge, but he did not. He contends that one day he received a call from Ms I from Europe asking him to return but he declined.
Generalised statements as contained in Ms I’s affidavit do little to advance the ability of the Court to make findings of fact. On the two incidents where particulars were provided, I am not satisfied on the balance of probabilities that the father assaulted Ms I as described or at all in Europe. The father has provided a detailed response in his affidavit to the factual circumstances surrounding this alleged incident which I accept as plausible. As to the second incident involving Ms I making a complaint to the police I note the very different versions contained in exhibit 1 (page 7) and her affidavit. Most striking though is her statement that she was so bruised and swollen that her friend said she did not recognise her, yet there is no record of any injury being noted by police. On the evidence before me I am not satisfied that the father was violent to Ms I.
Conclusions as to family violence
On the evidence before me I am not satisfied that the mother was the victim of family violence throughout her marriage.
In making the findings I have in relation to the Bouras family I do not necessarily attribute to them any malevolence but rather take into account the observations made by Mrs U Bouras’ psychiatrist:
The stressors and anxiety arising from her daughter’s marital distresses and the issues concerning protection of granddaughter from any potential harm are entirely consistent with her socio-cultural background and her traditional [religious] views of family and the care and protection of children. …
…
… It is important to briefly discuss the cultural-bound context and factors in this case. The deep importance of the family unit and life within … [her religious] Tradition, with a [Country M] or otherwise cannot be underestimated. These socio-cultural factors are central to [Ms U’s] (sic) anxiety. Within the [the religious faith], the union of two persons in Holy Matrimony is a Mystery .... It is in fact, celebrated as a [highly significant event] before God... The [religion] regards a marriage as an icon of the union .... A marriage between a [traditional religious person] person and a non-[traditional religious person] is only permitted if the non-[traditional religious person] confesses belief in the [religion] …, and that their children are raised [as a traditional religious person]…. Children are one of the principal joys of family life, and are at the centre of attention. The role of grandparents in raising children is highly valued and respected, and grandmothers are universally loved and venerated. Grandparents are the focal points of respect in unity within the family.…
It follows that when a family is threatened by any potential harm or a breach in their protection of a child, there is considerable anguish especially when they cannot control the circumstances, let alone when they believe harm will befall the child if another were permitted to have custody as in this case, and especially when they are uncertain of the cultural background and perspective of the other.…
I have no doubt that these proceedings have been an enormous source of stress for the Bouras family and that the conclusion will afford them the ability to reclaim their lives.
Sole parental responsibility
The father consents to the mother having sole parental responsibility but, in any event, given the complete inability of the parents to communicate, I find that an order for equal shared parental responsibility would not be in the child’s best interests. The father should receive information about the child as sought by him.
Cost of supervision
As to the cost of supervision, the father submits the costs should be met equally. In the circumstances of this case where the father pays such a modest sum by way of child support (about $30 per month) I am of the view that he should be solely responsible for those costs.
Injunctions
The mother seeks an order pursuant to s 68B of the Act restraining the father from:
a)Living with, spending time with or communicating with the child;
b)Directly or indirectly approaching and/or communicating with the mother and/or the child (including but not limited to) in person, by telephone, email, SMS, facsimile and/or letter;
c)Going within 500 metres of any home or place where the mother or the child are or generally living or staying;
d)Going within 500 metres of any school where the child attends, visits or is enrolled;
e)Going within 500 metres of any place of employment where the mother may be working; and
f)Going within 500 metres of any other place where the mother and/or child may be present.
The father opposed the granting of the injunctions submitting that he had not done anything to warrant them and did not want to be prevented from communicating with the child should she contact him at some future time.
Section 68B empowers the Court to make such order or grant such injunction as it considers appropriate for the welfare of a child and includes the power to grant an injunction for the personal protection of a parent; to restrain a parent from entering or remaining in a place of residence, employment or education of the child or another parent.
The only basis argued to support the injunctions was a submission that such an order would provide ‘some peace of mind to the mother’. While the mother’s peace of mind might tip the balance of convenience in favour of granting the injunction, there nevertheless has to be some evidentiary basis for and some utility in granting the injunction and, if granted, the injunction should be to the minimum extent required (Johnson and Page (2007) FLC 93-344).
As to the first injunction sought, the order I propose to make will provide for the child to live with her mother and for the father to spend time with the child.
There is no evidence that the father has sought to communicate with the child and given his concession in relation to the cause of the mother’s illness I consider it unlikely that he would do anything to exacerbate the mother’s condition.
I consider the father’s position to be reasonable viz that he would not wish to be prevented from communicating with the child in the future were she to initiate that communication. If any communication from her were met with silence it may have a detrimental impact on her in that she may think her father does not wish to communicate with her.
As to the remaining injunctions, there is no reliable evidence that the father breached the Protection Order made against him on 13 April 2010 and no evidence that he has approached the mother or the school since separation. I have not found him to pose an unacceptable risk of harm to the child. The breadth of the injunctions could result in the father unknowingly breaching the injunction and lead to unnecessary litigation.
I am not satisfied that the possibility of such injunctions providing ‘peace of mind’ to the mother is a sufficient basis to grant the injunctions sought.
Substitute supervisor
I propose to accede to the request of the mother and the Independent Children’s Lawyer to permit the mother to choose a replacement supervisor should the need arise. The mother has shown the ability and willingness to do so in the past and in order to provide the best prospect of the supervised time being a success I am of the view that the mother needs to feel confident in the arrangements. I did consider requiring the mother to provide a panel of three appropriate supervisory placements but as it may be practically difficult to do so I would not want the time to fail because the mother could not comply with the requirement to provide a panel.
Overseas travel and passport
The mother will have the ability to travel overseas with the child on holidays and for that purpose will be able to obtain a passport and necessary travel documents without the father’s consent but again he should be kept informed of those matters.
Name change
The child has been known by the name, B, since birth. She is enrolled in school and extracurricular activities in that name. She is in her second year of schooling at F School. She is aware of her name. She knows she has a different name from her mother. She knows too that she is part of the Bouras family having always lived in the Bouras family home. The mother ultimately withdrew or application to remove the child’s middle name but pressed for a hyphenated surname for the child of “Bouras-Fontana”. Apart from a conversation between the mother and child in December 2014 I have no evidence that having a surname different from her mother has caused her any confusion. With the proposed change of name the child would continue to have a different surname to her mother.
In relation to this issue, the guiding principle is that ‘the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interests of the parents’ (Chapman and Palmer (1978) FLC 90-510).
Having regard to the matters discussed above and given the attitude of the mother and her family to the father I consider her surname to be an important connection to her father and I am not persuaded on the evidence before me of a need to change her name in any respect.
Summary
I accept that the mother suffers from an Anxiety Disorder and that the major trigger for her symptoms relates to the thought of the child spending unsupervised time with her father. I am satisfied that if the mother has confidence in the supervisor her symptoms are manageable and her functioning as a parent will not be compromised.
The mother’s condition has improved at times to a point where her treating psychiatrist describes her as being able to function very well until she believes unsupervised time is a real possibility. The Order I propose to make will remove that as a possibility.
While an Order for long term supervised time is unusual it is an appropriate Order in this case and it will enable the child to know that her father loves her and has not abandoned her but it will not be so frequent as to interfere with the child’s life generally as would be the case if it were fortnightly or even monthly. In any event the cost of more frequent time would be prohibitive.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 15 August 2016.
Associate:
Date: 16 August 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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