Giltson and Basfield

FAMILY COURT OF AUSTRALIA

GILTSON & BASFIELD

[2014] FamCA 319

FAMILY LAW – CHILDREN – Best interests – Where the orders the father sought changed throughout the course of the proceedings – Where the child is currently in the primary care of the mother – Where the mother sought orders that the child spend no time with the father and that the mother have sole parental responsibility for the child – Where the hearing was adjourned part-heard so that the father could attend to certain matters including accommodation and employment as he was not in a position to take the child into his care pursuant to orders he originally sought – Where after the resumption of the hearing the father was again not in a position to have the child in his care and, as a consequence, the father amended the orders he sought with respect to the child – Where there was a history of non-compliance with court orders by both parties – Where there was evidence of the mother’s psychological state – Where the court found that the mother suffers from post-traumatic stress disorder and that contact, even indirectly, with the father exacerbates her severe anxiety – Relevant legal principles applied – Where the mother’s emotional and psychological state and such transfer to the child will continue so long as there are attempts to have the child spend time with the father – Where the single expert regarded the child as possibly having a post-traumatic stress disorder by association with the mother – Where the court found that the child’s behaviour has changed so markedly not because of the contact with the father per se but from the reaction of the mother to such contact – Where an anxious parent’s anxiety that impairs their parenting ability and negatively affects a child is a relevant factor to take into account when making parenting orders – Where the presumption of equal shared parental responsibility has been rebutted – Where order for no contact made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA

A & A (1998) 22 Fam LR 756
Donaghey & Donaghey (2011) 45 Fam LR 183
Russell & Close 25 June 1993 unreported

APPLICANT:

Mr Giltson

RESPONDENT:

Ms Basfield

INDEPENDENT CHILDREN’S LAWYER:

Ms Warda

FILE NUMBER:

SYC

3063

2012

DATE DELIVERED:

16 May 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

27 - 30 August 2013

31 March 2014
1 – 2 April 2014

REPRESENTATION

THE APPLICANT IN PERSON:

Mr Giltson

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Spain

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley Lawyers

Orders

That the mother shall have sole parental responsibility for the child E Dillon born … 2006 (‘the child’).
That the child shall live with the mother.
That the child shall spend no time with the father.
That the father shall be restrained from:
(a)contacting the child, in any manner, without the consent of the mother;
(b)coming within 500 metres of the child, her home, her school or any place where she is known to be by the father;
(c)approaching or contacting the mother or her husband Mr Basfield other than through legal representatives.
That the mother shall be at liberty to change the child’s surname from ‘Dillon’ to ‘Basfield’ and that to give effect to this order the father shall forthwith do all acts and things and sign all documents necessary to give effect to such name change.
That all previous parenting orders are hereby discharged from the date of these Orders. For the sake of absolute clarity this Order shall include a discharge of Order 4 made by Judge Monahan on 17 December 2012 which caused the child’s name to be placed on the Airport Watch List.
That pursuant to s 65Y(2) of the Family Law Act1975 (Cth) the mother shall be at liberty to remove the child from the Commonwealth of Australia from time to time.
That the father shall do all acts and things and sign all documents requested of him so as to cause the issue of an Australian Passport in the child’s name.
That forthwith, upon a request by the mother, the father shall do all acts and things and sign all documents to ensure the child maintains a current Australian passport.
That the mother shall retain possession of the child’s passport at all times.
That in the event that either party refuses or neglects to execute a document necessary to give effect to these Orders then the Registrar of the court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such document in the name of the defaulting party and do all acts and things necessary to give validity and operation to the document.
That pursuant to s 65DA(2) and s 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 applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3063 of 2012

Mr Giltson

Applicant

And

Ms Basfield

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern whether and to what extent E Dillon, born in 2006, (‘the child’) should spend time with the father.
Over the course of the proceedings, which were part-heard for some months to enable the child to spend some time with the father as a trial, the parties, and the Independent Children’s Lawyer (‘the ICL’) appointed to represent the child’s interests, changed the orders they proposed considerably.
The hearing of these parenting proceedings commenced on 27 August 2013. At that time Mr Giltson (‘the father’) sought the following orders in relation to the child:
·     That he and Ms Basfield (‘the mother’) have equal shared parental responsibility for the child.
·     That the child live with the father for three months with no contact with the mother during that time.
·     That after three months the child communicate and spend time with the mother overnight each second weekend following which the child would resume living with the mother and spend time with the father.
·     In the event that the mother fails to comply with the orders any future contact between the child and the mother is to be suspended for three months.
The mother sought the following orders:
·     That she have sole parental responsibility for the child.
·     That the child live with her
·     That the father be restrained from contacting the child in any manner without the consent of the mother, coming within 500 metres of the child, her home, her school or any place where she is known to be by the father and approaching or contacting the respondent mother or her husband Mr Basfield other than through legal representatives.
The court had the benefit of an expert report from Dr S. The mother sought to rely on a report from Dr F. Dr S and Dr F met and produced the following joint recommendation:
· That over a period of three months there should be fortnightly, supervised visits of two hours increasing to three (after one month), then to four hours (after two months) over the course of three months at a supervised contact centre.
· At the end of that time there would be a review by Dr S and after discussion with Dr F, they would decide what to do further about the contact. If the mother was uncooperative, as in the past, that the next step would be to place the child with the father for three months as outlined in Dr S’s report.
The proceedings continued for some days until the following orders were made, most by consent, on 30 August 2013:
3.    That, pending further order, orders are made in accordance with paragraphs 1, 2, 3, 4 and 6 of the Minute of Order Proposed by the Independent Children’s Lawyer, as set out herein:
1.That the child, [E Dillon] born on … 2006 (“the child”) shall spend time with the father as follows:
a.Each alternate Sunday for 2 hours at the [B] Contact Centre in [Suburb A]; and
b.That the father’s time in Order 1 (a & b) hereof shall extend to 3 hours if the father has spent 3 consecutive periods of time with the child and only if the Director of the [B] Contact Centre approves availability to extend the father’s time to 3 hours.
2.    That forthwith upon the making of these orders the parties do all acts and things and sign all documents as are necessary and attend the first available intake assessment at the [B] Contact Centre.
3.That the father be permitted to take his mother, [Ms Giltson], to the Contact Centre when he spends time with the child.
4.That upon the child having spent time with the father in accordance with Order 1 hereof, each of the parties and the child shall attend appointments as scheduled by the Independent Children’s Lawyer with Dr [S] for the purpose of Dr [S] providing an updated report reviewing the progress of the father’s time with the child.
6.The father shall be restrained from consuming alcohol and/or illicit drugs in a 48 hour period leading up to the father spending time with [the child] and during periods [the child] is spending time with the father.
4.    That orders are made in accordance with paragraphs 5, 6, 7(b) to (d) inclusive, 11, 12 and 13 of the Orders Proposed by the Mother, as set out herein:
5.That upon [the child] having spent time with the father for a period of 3 months there be a formal review of what time the child should spend with the father moving forward and for this purpose:
a.The mother shall forthwith do all acts and things to cause [the child] to undertake therapeutic counselling with [Mr C] from the [Practice D] ("[the child’s] therapist") and attend such counselling sessions as and when required by [the child’s] therapist from time to time;
b.The mother's solicitors shall forthwith provide to [the child’s] therapist a copy of the following:
i.Dr [S's] initial report;
ii.Dr [F's] report;
iii.the affidavit of [Ms I];
iv.the joint report prepared by Dr [S] and Dr [F];
v.the final orders and any reasons for judgment that may be published;
vi.a copy of these orders.
c.The counselling referred to in paragraph 5(a) shall be fully reportable and [the child’s] therapist shall provide to both the mother and father in writing each month a report summarising [the child’s] process;
d.To the extent so required by [the child’s] therapist both the mother and father will participate in such counselling sessions so required by [the child’s] therapist from time to time;
e.To assist in the preparation of the report, [the child’s] therapist shall, if he considers prudent, observe generally changeover and the interaction between the child and the father.
The hearing resumed on 31 March 2014.
The mother continued to seek the same orders as before, namely that she have sole parental responsibility for the child, that the child live with her and the father have no contact with the child.
At the conclusion of the hearing the ICL, reluctantly, supported the orders sought by the mother.
Mr C, the therapist appointed pursuant to the above orders, proposed that the child’s best interests would be served by attempting to re-establish a relationship with the father by the child seeing the father with him every six weeks for a year at which time a review would be undertaken to see whether the continued contact would be beneficial. Mr C thought, however, that this attempt would be unsuccessful, but was, nonetheless, worth trying.
Dr S, upon becoming aware, for reasons which shall be discussed shortly, that the father was unable to have the child stay with him overnight, recommended that the child spend time with the father at his mother’s premises in Town K, Queensland during school holidays and that the child otherwise live with the mother.
The father sought the following orders:
1.That I attend counselling sessions with [Mr C] and [the child].
2.That [the child] spend every Sunday from 8.30am to 4.30pm with her father [Mr Giltson].
3.That [the child] this Easter holidays spend one week with her father and grandmother in [Town K, Qld].
4.After three (3) months [the child] spend every second weekend with me from Friday night 6.00pm till Sunday evening 6.00pm.
5.After this three (3) month period [the child’s] contact be increased to include another night’s sleepover being Sunday with me dropping her at school.
6.That after this period a joint assessment be made between [Mr C], [Dr S] and the independent solicitor to decide on increasing contact between father and daughter and that both parties agree with their recommendation.
After hearing the recommendations of Mr C and Dr S the father then added their suggestions to his proposed orders. Thus, the orders finally sought by the father were a collation of the orders proposed by him and the recommendations of both Mr C and Dr S.
Dr S’s original recommendation was that the child be removed from the mother for a period of three months and placed with the father. This was because she was of the view that the mother would not let the child form a relationship with the father and was actively undermining him in any role that he might play in the child’s life. As has been seen, that recommendation was embraced by the father. Whether that was the mother’s behaviour, and the effect, if any, on the child remains the major issue in the proceedings.
Dr S changed her recommendation because it had been overtaken by practicalities.
At the time of the hearing in August 2013 the father did not have any permanent accommodation and was unemployed. He was not in a position to take the child into his care. He was, he said, about to commence a job and about to obtain accommodation. Part of the reason for the adjournment, as can be seen from the above orders, was that he would attend to those matters.
At the resumed hearing the father was living in a boarding house. He had commenced employment on 4 March 2014, on a casual basis. He was being employed only as a trial period of three (3) months.
The father was again not in a position to have the child placed in his care.
It was in response to those facts that Dr S made her modified recommendation and, as far as I could observe, for no other reason.

Brief background

The father was born in 1968 and the mother in 1976. They commenced a relationship in October 2002.
The child of the parties was born in August 2006.
The parties separated in February 2008.
For some months after that the child spent time with the father under the supervision of the mother.
From June 2008 to the end of 2009 the father spent seven and a half hours each Sunday with the child. The mother estimates that approximately thirty per cent of those scheduled visits did not take place.
In January 2010, the mother alleged that the child had become repeatedly sunburnt whilst in the care of the father and reduced the time the child spent with the father to every second Sunday.
In July 2010 a third party driver was hired by the mother to attend changeovers. She said this was because she felt threatened and harassed by the father.
In January 2011 the time that the child spent with the father was reduced to three to four hours every second Sunday.
From April 2011 the child did not spend time with the father until after the orders were made in August 2013.
In May 2011 the mother commenced to reside with Mr Basfield. They married in September 2011.
On 25 January 2012 the mother commenced counselling at Organisation L. She commenced victims counselling on 25 June 2012.
On 3 September 2012 Federal Magistrate Monahan, as his Honour then was, ordered that:
1.[The child] live with her mother.
2.[The child] spend supervised time with the father for at least two hours each weekend at [B] Contact Centre, [Suburb A] and the costs of supervision be shared equally by the parties.
That order was never complied with by the mother.

The mother’s psychological condition

The mother asserts that she is in a very poor psychological state which she attributes entirely to the actions of the father. She said that she is very stressed, in complete fear of the father, fearful he will harm the child and cannot get on with her life if the father is a part of it. She said frankly, ‘I am a mess’. She also said that the child has picked up on her stress and fear. She also says that the child does not want to see the father, is distressed by seeing the father and suffers from nightmares and other distressing behaviour as a result of seeing him.
In short, her position was well summarised by Mr Basfield who said that he believed ongoing contact between the child and the father ‘would destroy the family because the mother can’t cope with it, [the child] can’t cope with it and, importantly, [the child] can’t cope if her mother can’t cope’. He agreed that the child is picking up on the mother’s distress and that the child is also frightened and upset.
The mother attributes her psychological state to the actions of the father during their relationship. She says that he was emotionally controlling and abusive of her. More particularly, she said that on a number of occasions throughout the relationship she would awake to find the father engaging in intercourse with her. The mother also said that in 2005 she was anally raped by the father. In her affidavit sworn 6 June 2013 the mother said of this:
72.I did not speak to anyone concerning my sexual encounters with the applicant (other than [Ms M] and later with my husband [Mr Basfield], [Ms N] of [Organisation O] and [Sydney Suburb P] Police domestic Violence Officer). I was embarrassed more than anything of being in a position that I was. I considered myself to be a proud woman and I found the whole situation demeaning.
73.Having to prepare this affidavit has been very difficult and traumatising for me. Following our separation I sought assistance and help from [Mr Q], [Religion R] psychologist about how to deal with the Applicant at visitations. Things settled down and I felt stronger and happier when [the child] and the applicant stopped spending time together. When the applicant advised that he would turn up at [the child’s] first day at school in 2012 I turned to [Organisation L] for assistance.
74.It has only been since these proceedings were instigated and I have had to prepare detailed accounts of the events that took place during the relationship that these horrifying memories have come back into my mind and I have found it extremely difficult to deal with.
The father denies that the events described by the mother took place.
Mr Basfield found that from his observations of the mother she suffered considerable distress in any dealings with the father. She became quiet and distant. At times she would shake uncontrollably, she appeared to be very scared of the father, would become tense and edgy. She would not be able to eat properly.

In discussing this with the mother, over a period of time she revealed to him the difficulties in the relationship as a result of which, in December 2011, he suggested she get help.
When served with the application the mother became ‘deathly pale, fearful, quiet, distant and withdrawn’. As the court processes continued, he says, the mother has become more and more distressed and is often unsettled and unable to sleep.
After the counselling commenced the mother slowly started to reveal her allegations of sexual assault.
It was the father’s case that these allegations were essentially contrived for the purpose of denying him contact with his daughter and that the mother had not and does not suffer from any relevant psychological difficulties.
In that circumstance, there is no point in trying to determine whether or not the alleged sexual abuse actually occurred or not. If the mother has a genuine belief that she was so assaulted, that belief will be unaffected by whether or not the assaults actually occurred. The fact that she might be mistaken about the cause of that belief will not alter her belief. If it is not genuine then it would follow that the assaults did not occur. The genuineness of the belief is thus the critical issue.
It would, in any event, be difficult to determine this issue as it would depend almost entirely upon making credit findings adverse to the mother or the father. Having seen the parties give evidence I would not be prepared to do so on their demeanour alone. In any event, that is a most unsatisfactory basis for determining such a significant issue.
Ms I is a clinical psychologist. She has been treating the mother for anxiety and depression since September 2012.
As part of the mother’s treatment Ms I has undertaken psychometric assessment of her at various times. Such assessments at the start of therapy showed depressive symptoms in the moderate range and levels of anxiety and stress in the extremely severe range.
For the purpose of her report in June 2013 there was a re-assessment. The results were consistent with a diagnosis of post-traumatic stress disorder with clinically significant levels of anxious arousal, anger/irritability, intrusive experiences, defence of avoidance, disassociation, sexual concerns and impaired self-references.
Some of the tests incorporated questions designed to assess validity of the results. Ms I said that results supported the view that the test results were valid and that there was no psychosis or exaggeration.
In summary, Ms I said that her psychological assessment showed that the mother had symptoms consistent with post-traumatic stress disorder and that the most likely traumatic event leading to these symptoms was the experience of chronic victimisation in the relationship with the father.
Ms I said that therapy has assisted with a resolution of these issues and that progress is good. The mother is managing her anxiety and, in the absence of stressors, is fairly normal. She can also manage the stressors in a better way.
However, it remains her view that the mother has a post-traumatic stress disorder with anxious arousal as the main symptom, particularly in relation to certain stressors. The stressors are factors related to the original problems – in short, the father and his seeking contact with the child.
Mr C has been acting as the child’s therapist since his appointment pursuant to the orders in August 2013. He, of course, is the child’s therapist, not the mother’s. He did, however, express the view that the mother’s behaviour, was not, to his knowledge, characteristic of an alienating parent. He described ‘alienating’ for the purpose of that answer as a conscious process, a deliberate drum beat of negative views imparted by the parent.
Dr S had a different view. It is Dr S’s view that the mother’s mental health is not as bad as she makes out, that she is not genuine in her complaints of anxiety and that she is consciously and unconsciously trying to drive a wedge between the father and the child as a consequence of anger and no anxiety.
Essentially, Dr S does not believe the mother’s complaints are genuine.
Dr S saw the mother once for the purpose of a report in December 2012. In her extensive report she said the following at various parts of the report:
·     She showed no outward sign of anxiety such tremulousness or pallor, she denied feeling depressed or suicidal and she did not appear either agitated or psychomotor retarded (reduced activity due to Depression). She appeared to withhold emotion.
She exaggerated the frequency and extent of the injury to [the child], such as the child’s sunburn.
She had no insight into the father’s frustration at the mother withholding the child.
·     In this case, the child appeared to be securely attached to the mother. The child seemed very comfortable in the waiting room, playing with a dolls house and exploring the strange environment while the mother attended to the baby. This is indicative that the mother’s mental state at the time of [the child’s] early life from the age of zero to two years was largely normal. It is not consistent with a mother of post natal depression or an Anxiety Disorder resulting from a violent rape incident.
·     I got the impression that the mother like to control her environment in order to reduce her own anxiety. She appears to have convinced the child that her father is a dangerous person and has enlisted the child in the mother’s reality of being a victim to the father.
·     When I did the assessment of the mother’s mental state, she did not admit to feeling depressed or suicidal; however, the stepfather told me she was not eating or sleeping properly. These are two biological symptoms of Major Depressive Disorder. I wondered if she were ameliorating her mood.
·     When considering the veracity of the mother’s allegations about the sexual abuse in the marriage, a marriage of Post Traumatic Stress Disorder – a severe Anxiety Disorder – would be supportive. When considering the aggressive violence of the alleged sodomy incident, I would have thought the resultant Anxiety Disorder would have been much more likely and would have pervaded her behaviour from the time of the incident, rather than the time of disclosure, so the chronology was puzzling.
If the mother had not been entirely honest about the sexual abuse and had only divulged the story since August 2012 for the benefit of the stepfather, the timing of her anxious behaviour would fit in much better. She had been behaving like a victim, largely since that time. But her parenting appears not to have suffered greatly as both her children appear secure and well adjusted.
The unfolding story of increasingly complex allegations seem to start from the middle of 2011 to justify cessation of contact.
·     My impression is that if the mother were truly depressed or overwhelmed with anxiety her parenting would have deteriorated. On the contrary, she has raised two well-adjusted children.
In relation to the last point the mother’s youngest child at that time was but eight months old. Dr S did not explain how she determined that the child was well adjusted.
She said in cross-examination that from a brief view of T, the younger child, she could see he was happy, well-nourished and secure.
In cross-examination Dr S agreed, not having seen the child again but having read further material provided in the case, including Mr C’s report, that the child was no longer well-adjusted and that this has obviously changed in the last seventeen months. When asked if that could be as a result of the mother’s anxiety she said she could not give an opinion because she has not seen the child but thought that the child might herself have a post-traumatic stress disorder from observing the mother’s trauma and learning that behaviour. She considered this to be emotional abuse by the mother and poor parenting.
There is force in the reasoning of Dr S that the events alleged by the mother may not have occurred in the way alleged to have occurred. This is so given the delayed recollection and complaints.
However, Dr S’s reasoning did not depend upon those matters alone. In cross examination she said:
…Now, the way that [the mother] told me about what she felt traumatised by was an episode that she described as, you know, a violent sodomy and that was all horrendous to hear; however, she also told other people, such as [Ms U], the child’s psychologist in 2011, that she then proposed marriage to you after she found out that she had become pregnant. So, in my opinion, that course of events indicates to me that the mother may have exaggerated or lied about what had happened during your relationship, or the deterioration of it, and that she was actually happy to be pregnant and got engaged and that you were both happy about that at the time. Now, for some reason, the story has completely changed, and I think the mother has now dug herself into a deeper hole…
Sadly, experiences teach us that a victim returning to live with a domestic violence abuser, even to the extent of formalising a relationship, is not a sign that in fact the abuse did not occur, but is rather a feature itself of the abusive relationship. I would not be as ready to conclude, as Dr S concluded, that the fact that an engagement and a relationship continued after some of these events, of itself, indicates that the events did not occur.
It was unfortunate that, although Dr S had been provided with the report of Ms I, she had either not read it or was not able to recall reading it. Thus she did not take into account, in her views, the opinions or the psychometric testing undertaken by Ms I.
Part of Ms I’s testing was to test for validity of results. Taking that into account together with the greater contact between Ms I and the mother and taking into account what I find to be the less than persuasive reasons of Dr S for not accepting the evidence of the mother as to her present mental condition I accept the opinion of Ms I. I note it is supported to a limited extent by that of Mr C.
I find that the mother, accordingly, suffers from a post-traumatic stress disorder and that contact, even indirectly with the father, exacerbates her severe anxiety. The mother’s symptoms will be ameliorated if there is no contact between the child and the father.

The father’s conduct

Different issues arise in relation to the father. It is submitted that he is so unreliable that it would not be safe for the child to spend any extended time with him at all. The mother also submitted that he is a recreational drug user.
Perusal of diaries and other records kept by the mother indicates that between 13 April 2008 and 17 April 2011, when the child ceased spending time with the father, his regular weekly time prior to the suspension did not occur for a number of reasons. Many of the scheduled occasions when the child was to spend time with the father from October 2008 onward were cancelled by the mother due to her increasing concerns about the father’s behaviour and the child’s reaction to that. Earlier there had been a number of occasions where the father had cancelled on short notice because he was working or was too tired. On some occasions he cancelled for no reason. It is difficult to draw anything from this other than that the time supposed to be spent did not go well or occur always as planned.
When the hearing commenced in August 2013 the father was living in Town K, Queensland with the paternal grandmother.
The father said that he had three contracts for work ready to go. Two were in Queensland and were fly-in and fly-out jobs. The third was in Sydney Suburb P, NSW. The father said that he was not taking the jobs in Queensland but was going to take the job at Suburb P. He had not yet accepted it, he said, because ‘you cannot take a job and then take a week off immediately to attend a court case’. The Suburb P job involved him working between 7.00am to 3.00pm for five days a week and possibly six. The father said he had the option of starting at 9.00am.
The Suburb P job did not eventuate. The father did not explain why.
The father had no accommodation in Sydney then but had been looking on the internet and felt sure that he would be able to find appropriate accommodation in the Sydney Suburb P or Suburb V area (which is where the child and the mother live) within two days. When questioned as to whether anyone would assist him to look after the child, given his hours of work, he said that his mother and a number of family members such as his sister-in-law or aunt would assist. The father then accepted that none of them lived in New South Wales. The father then offered that he would employ someone, particularly after seeing how the trial contact went and if it went well the paternal grandmother was prepared to move to Sydney. She said that she was prepared to move to Sydney for six months to assist her son. The paternal grandmother had, however, only seen the child three or four times prior to the parents’ separation.
All this indicates that the father had not given any useful thought to the practicalities of having the child in his care or have proper knowledge of, or regard to the responsibilities of caring for her.
When asked whether he had records in relation to his proposed employment at Suburb P the father said he had many emails and text messages which he was prepared to forward to the ICL.
For the reasons that have been given earlier, the proceedings were adjourned and the orders made as set out above. Those orders required the father to provide to the mother’s solicitors and the ICL a number of documents including documents relating to accommodation since January 2001 and employment from 1 July 2012.
That order was, by and large, ignored by the father. The mother’s solicitors made many requests of the father in writing seeking information about his residence and about his employment. They did not receive the information they sought.
On 17 December 2013 I heard an application by the father for extended time with the child at Christmas to take place in Queensland. I dismissed that application. During the course of hearing that application the lawyer acting for the mother raised the issue of the failure of the father to provide the documents relating to his accommodation and employment and to the repeated requests. The response of the father was to the effect ‘I refuse to give any information to [the mother’s lawyer]’.
At a subsequent directions hearing the issue of the father’s employment and accommodation was again raised with the father saying that he was not willing to provide that information due to harassment from the mother’s lawyer. He referred to the mother’s lawyer issuing subpoenas to his previous employers. He regarded this as improper as such subpoenas included requests for the production of any documents in relation to random drug testing.
In an affidavit sworn shortly prior to the resumed hearing, the father gave his address as care of the paternal grandmother’s address in Queensland. He did not, in that affidavit, refer to his accommodation, his employment or to what his accommodation and employment had been since August 2013. He did not proffer that evidence-in-chief. When asked by me, he said that he had started work with a firm at Sydney Suburb W three weeks before. He said that he had two to three addresses since the last occasion but was still looking for something permanent.
It emerged in cross-examination that the father was presently living at a boarding house at Sydney Suburb X. His employment was casual, had commenced on 4 March 2014, he had worked a total of seventy-four hours up to 21 March 2014 and was on a trial period of three months.
The father had said that the employment he had had since August 2013 had been three weeks working for one company and assisting a friend on a casual basis for about a week.
Thus it seems that the prospect of employment was not as secure as the father thought.
Difficulty in obtaining employment and thus accommodation is not of itself evidence of poor parenting ability but what is concerning is the lack of disclosure and, indeed, the deliberate refusal to disclose information sought by persons who have a relevant interest in that information and when ordered to do so by a court. Such information was, of course, highly relevant to an inquiry concerning the best interests of the child.
Such conduct undermines, to a very great degree, the confidence a court could have in statements by the father as to what he would do in the future in respect of caring for the child.

The father’s application for adjournment at the conclusion of evidence

At the conclusion of the evidence and in the course of submissions, the father applied for an adjournment of the proceedings for three months. The purpose of this adjournment was twofold. Firstly, the father would secure employment and accommodation within that time. Secondly, Mr C would have had the opportunity to observe the father and the child in therapy sessions and be in a position to report to the court on how those went.
I refused the adjournment application and said I would give my reasons in this Judgment. These are my reasons for such refusal of the adjournment.
One of the reasons for the adjournment of the proceedings in August 2013 was that the father’s employment and accommodation were not yet certain. The adjournment gave him the opportunity to establish employment and to establish a place of residence which he could then demonstrate as a suitable place for the child to live if she were to live with him. It would also enable him to secure evidence as to how the child might be looked after given his hours of employment.
Not only was that opportunity not taken up, the employment not gained and accommodation not found, the father was markedly uncooperative in providing information of his attempts to the mother, the ICL or to the court. It is no answer to say, as the father asserted, that this failure was due to him representing himself. There is no difficulty in providing details of your accommodation and employment, whatever they may be, as and when requested. Indeed, the father’s present living arrangements only emerged in cross-examination. This means there can be no confidence that, given an adjournment of three months, or any other time, that the father would not be in the same position again.
This case has had two hearings in six months. In addition to the appropriate use of court resources, parenting proceedings are expensive and stressful for the parties but also, as many cases clearly recognise, stressful for the children, in particular. I did not feel that it was in the child’s best interests for this position of uncertainty to continue, particularly when I could not be satisfied that the uncertain nature of the father’s arrangements would have become clearer on any adjournment.
Finally, once it became clear that the father was not in a position to have the child overnight, the order for the removal of the child for three months was no longer an option. This was recognised by the father who now proposed orders that the child spend time with him every Sunday, the holidays and eventually weekends.
If the father were to obtain regular employment and accommodation the issue of a removal could, and no doubt would, again be re-agitated. Given that the application for an adjournment was made at the close of the evidence counsel for the mother and the ICL had conducted the case on the basis of the new orders sought by the father and not on the basis that an immediate removal was an option. Thus, if the case were to be adjourned and the father were to obtain permanent employment and accommodation, it is inevitable that that option would once again be raised. This is so because Dr S is firmly of the position that such order that is in the best interests of the child.

That being so, on any resumed hearing the case would effectively have be re-opened and started again. That would be most undesirable and clearly not in the interests of the child.
Thus, I refused the adjournment application.

The orders of 30 August 2013 for urinalysis

The orders of 30 August 2013 made provision for random urinalysis and hair follicle testing of the father. Those orders arose in this way. The mother alleges that the father, throughout their relationship, was a regular and heavy user of cocaine, cannabis and ecstasy. The father said that he had an accident at work in late 2007 and for six months afterwards was unable to work due to pain and a post-traumatic stress disorder. In his affidavit affirmed 5 August 2013 the father said:
10.At this time I self-medicated and occasionally smoked small quantities of marijuana as I noticed that when I smoked marijuana the pain I was feeling from my accident eased. Prior to my accident I smoked marijuana occasionally and socially, and never to excess. Sometimes I saw [the mother] smoking marijuana also at these times. Sometimes [the mother] and I used cocaine and ecstasy at the same time. I ceased using marijuana, cocaine and ecstasy in about middle 2008. Since middle of 2010 I am required by my employer to undertake random urinalysis for the presence of drugs of abuse. These tests are conducted by [Company Z] and I believe there is a chain of custody associated with the conducts of the test my urinalysis test results for the presence of drugs of abuse have been negative, in the sense that there has not been the presence of drugs of abuse in my urine.
The father attached a negative urinalysis test result dated 29 March 2012.
The father told Dr S that he had used marijuana when recovering from his bike accident using two to three joints a day. Prior to meeting the mother he had used five to six joints per week. The father told Dr S that he would have used ecstasy once a month and cocaine every six months. He said that he had not used illicit drugs for years as he had been on random urine drug tests for two years whilst working at Company BB.
When asked about the drug testing the father told Dr S:
I could have had a hair analysis done within 24 hours. I have been tested repeatedly and they’ve all been clear. The last one I did, my creatinine was low but it was a supervised test. I have no current drug use.
Dr S appeared to accept those statements because she noted a ‘past’ history of poly-substance abuse.
The father agreed that after the child was born the mother had asked him on occasions to stop using drugs but that he had never told her that he had stopped. He agreed that, more than likely, he would have been dismissive of her concerns.
When the matter was adjourned in August 2013 and in the course of considering what interim orders should be made the issue of random drug testing was raised.
The father said repeatedly that he had nothing to fear from such testing as he was tested all the time for his work.
As it had emerged during the hearing that the father was dismissed from his employment on 30 May 2013 and had not subsequently gained permanent employment, that assurance carried little weight.
In any event, the father was happy to consent to orders providing for random drug testing. He recognised that testing may be a useful and practical way of putting a concern of the mother to rest.
When the precise orders were shown to the father he protested about the hair follicle testing saying he was concerned about the results because what if, for example, he wore a hat at work that someone else had used who had taken drugs or if he went to a music festival and stood next to a person smoking marijuana and the smoke might get in his hair.
Ultimately, the orders were made by consent.
Pursuant to those orders the father was sent twelve requests to undertake a urinalysis test within twenty-four hours. He complied with three of those requests. One of his reasons for not complying with the requests was that, for some time, the lawyers for the mother, when making the request, had not nominated a testing laboratory. Firstly, the orders did not oblige them to do so. Secondly, they did not know where the father was so it would be difficult for them to nominate a local testing laboratory.
The first of the three tests was negative but the test sample had been excessively diluted. The father said this was because he had been training that morning and drunk a vast amount of water. The second result was negative. The third test was not in fact tested because the sample had not been signed.
None of the requests for hair follicle testing were complied with. The father said that he had not complied with those orders because he had been molested as a small boy and did not want a man to approach his genital area (it seems that the testing laboratories generally use pubic hair).
That is not consistent with what the father told me in August 2013 or what he told Dr S in late 2012. When these failures were put to Dr S she put them down to mere disorganisation on the part of the father. She said:
Yes. He has been extremely disorganised in his ability to arrange the blood, the urine and hair follicle tests, and his disorganisation has been a part of all my interactions with him. For example, as it said in my report, he turned up an hour early to the second day of the assessment. He was also supposed to pay me $50 a week. He only managed to do that twice and, then, his mum paid the rest. This is a reflection of his lack of organisation, but that is not a reason to stop someone seeing their child.
When asked, by myself, to assume the failures were deliberate Dr S said:
His Honour: Dr [S], would your view be any different if you were to assume that the failure to have the drug testing wasn’t as a result of disorganisation but was a result of a deliberate decision by [the father] not to undertake it?
Dr [S]:If he – if he was deliberately trying to avoid testing because he had been using drugs you would have to eventually get a positive test to see how strongly positive it was because , you know, someone who has a joint on a Saturday night, well, it might turn a cannabis test positive and…
His Honour: But if someone doesn’t comply… with a court order to have testing how would you ever get a positive test?
Dr [S]:Well, that’s right. It’s – it’s impossible to say even if the – the test was positive, and I put this question to the mother when I saw her, ‘Even if he went to drug rehab, even if he had positive tests, would that be enough to reassure you?’ and in the end she said, ‘No, it wouldn’t.’ So under no circumstances, even if ever[y] test, you know, every week was taken and it was clear that wouldn’t be enough to reassure her.
It is of concern that Dr S did not see a deliberate failure to comply with orders that had been made as troubling in itself, regardless of the results. This gave me the view that she was, at least in part, an advocate for the position of the father, or at least the view that she had come to for the resolution of this matter.
The failure to comply with the request for drug testing was not simply as a result of disorganisation. Part of it was due to a deliberate decision of the father not to make himself available to be tested within twenty-four hours (such as by going camping for days) when the orders clearly contemplated twenty-four hours’ notice. There was a complete refusal to comply with a court order for hair follicle testing. His actions in doing so were deliberate.
Such a deliberate refusal does not establish that the father is currently a drug user and that the level of his drug use causes a risk to the child if she were to be in his care. As Dr S rightly pointed out only a positive test or similar evidence could establish that.
What this finding does establish is that the father has an entirely cavalier attitude to his obligations not only to comply with court orders but to the child. The orders proposed were ultimately for the child’s benefit. The idea, in part, was to assuage the mother’s concerns about the father’s drug use which would remove an element of concern which hopefully would not be passed on to the child. In that sense the orders were in the child’s benefit. It is concerning that the father did not comply with them and saw little problem with his non-compliance.

The principles to be applied

I must apply the relevant principles of the Family Law Act 1975 (Cth) (‘the Act’) having regard to the objects of the part of the Act dealing with children as set out in s 60B. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.
Section 61DA provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the children’s parents to have equal shared parental responsibility for the child.
...
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)Family violence;
(3)…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Given the time that these proceedings were commenced the relevant definition of family violence for the purpose of that provision is:
Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.
It is important to understand the distinction between s 61DA(2) and (4). If the court is satisfied of the material contained in the sub-sections the first renders the presumption inapplicable whereas by the latter the presumption is rebutted.
Section 60CC raises two primary considerations.
The first is the benefit to the child of having a meaningful relationship with both of the child’s parents. It is clearly desirable, where possible, for a child to have a meaningful relationship with both parents. Mr C said:
Because for a child not to have any relationship with a parent can of itself have negative outcomes but exposure of the child to chronic stress should be avoided.
Mr C said that there was a remote chance of re-establishing the relationship between the child and the father. When asked why an attempt to do so should be made he said:
Your Honour, unfortunately, I have given this much thought and I don’t know what other course there might be. I have left open the possibility that if the relationship between the father and daughter in this instance can be better managed, and I have the opportunity to assist the father to respond in an in-tune way to what [the child] is actually saying, then the possibility is that things will improve and it could go back to a contact centre. Or the other alternative would be if there is another person with whom [the child] feels safe who could, for the early meetings at least after they have met a few times, if there was such a person available then that would help [the child] feel safe with [the father], but I hasten to add, your Honour, I can’t say I’m optimistic and I do think this is very long term. I just don’t find it palatable to easily dispense with the possibility of there ever being a relationship between [the child] and her father. And in this regard, whilst she … through her middle years, one of the thoughts I had was at the very least this relationship can be maintained at a minimal level until such time as she’s more able to develop nuanced thinking. So in summary, your Honour, I’m pessimistic, really, about all alternatives. However, I aver from saying there should be no contact whatsoever at the present time because I think: (a) my role has been therapeutic. I haven’t met [the father]. I don’t know how well he and I, if he were to come and see me, would be able to work. All of this is yet to be found out.
Dr S said that all children yearn for contact with their biological parents and that it is in the child’s best interests to have some kind of contact. She said:
My concern is that [the child] will not develop – not – not develop fully as a human being to her – to the best of her ability unless she has her father in her life and, given the fact that he hasn’t been able to organise himself into regular accommodation nearby, the only thing that I can think of that might be helpful would be for her to spend school holidays together with the father at the paternal grandmother’s home in [Town K, Qld] at intervals in the school holidays until such time as he would be able to live in the Northern Beaches area.
In relation to the proposed orders that the child spend no time with the father Dr S said:
Well that’s certainly one option that the court can consider. I don’t think that’s ideal, by any means; however, given the mother’s past record in discouraging [the child] from having contact and actually training her not to take his phone calls and to, you know, act out on her own wishes for [the child] not to go, I think that would be extremely unfortunate; however, if that were the case they will still be left with [the child] as she is at this point in time. The mother might feel a lot better, having to have no contact whatsoever with the father and the father’s extended family, but what they’re left with is a very disturbed little girl who’s going to need a lot of help because up to this point she has been trained by the mother in how to be defiant, so she has learnt by modelling to take on the mother’s attitudes and behaviours. So we now have a girl who, when she doesn’t like someone, can write something that says, ‘I hate him, I hate him, I hate him’. This is like training someone on how to be a bully, basically, and they will have a lot of difficulty when [the child] decides that she doesn’t want to go to school. She will say ‘I hate school. I’m not going. I hate it, I hate it, I hate it. You can’t make me’. And the same kind of behaviour that she’s using to avoid going to contact with the father she will use in normal sort of activities which she doesn’t like but is – it’s necessary for you to do that, and that’s – that’s the reality of what will happen if there is not contact or whether there isn’t. It’s just at the moment, the behaviour is being blamed on the incredibly limited amount of contact that she has had. In three years, what, she has had maybe seven contacts with the father of two hours each. How can they blame her current behaviour on that limited amount of contact: it’s just ridiculous. She has been modelling her behaviour on her mother.
Dr S agreed that contact between the child and the father will be quite stressful. Thus a relationship may be able to be established between the child and the father but it is by no means certain and will, in any event, come at a cost to the child. Whether that would be a meaningful relationship is hard to tell. Nevertheless, the experts agreed that if such a relationship could be established without excessive cost to the child it would be beneficial.
The child has a very close and deep relationship with the mother.
The second primary consideration is the need to protect the child from physical or psychological harm from being subject to or exposed to abuse or neglect or family violence.
There is no suggestion that either of the parents have subjected the child to family violence. The mother alleges that the child has become sunburnt on occasion whilst in the care of the father. The mother alleges that the father has been violent to her. That is something that will need to be considered in its appropriate place. There is thus no evidence of there being the exposure to the child of abuse or neglect or family violence at the hands of the father.
I have already noted that Dr S considers the mother’s behaviour towards the child to be a form of emotional abuse.
There are a number of secondary considerations which are required to be taken into account.
The child is 9 years of age.
At the time of the assessment with Dr S she had not seen the father for some two and a half years. Dr S said after twenty-five minutes she behaved normally with the father and clearly enjoyed the contact.
The first occasion of supervised contact pursuant to the interim orders took place on 14 December 2013. Mr C was present. He noted that the child was unwilling to engage with the father for about fifteen minutes but then appeared to enjoy the balance of the time she spent with him. Subsequent visits were similarly mixed. There were periods when, according to the contact notes, the child and the father seemed to get on well and there were periods when they did not.
For example, on 8 February 2014 the notes show the child screaming: ‘I don’t want to be here’, ‘You aren’t my father, you are [a form of the father’s given name]’ and ‘Why are you taking this to court’ but seemed to have a good time with the father between those events.
On 8 March 2014 the child initially ignored the father and watched a movie. Several times she said to the father, ‘I don’t have to visit you’ and ‘I don’t want to have a relationship with you’. On the other hand part of the visit was spent with the child chasing the father around throwing water balloons at each other and she appeared to have a good time.
Mr C recorded the child to have a number of beliefs that emerged in therapy. The foremost amongst these were beliefs were that the father is seeking to take her away from the mother, that the father poses a threat to the mother and herself and that his presence in her life jeopardised the integrity of her family. By family Mr C understood the child to mean the mother, the stepfather and the new baby. He noted that the child tends to view the mother and her family as all good and the father and his family as all bad. Mr C believes that the child genuinely believes the father is a threat to her.
Mr C said:
The mother openly acknowledges that [the child] would likely be aware of her own (that is the mother’s and the maternal grandparents angry and fearful feelings with respect to the father). It is noted that she refutes the suggestion that she consciously behaves in a manner that would be consistent with an alienating parent.
I have already recorded Dr S’s view that the child’s views are as a result of training by the mother.
Whichever view is accepted it is clear that the views and beliefs of the child have been much influenced by the environment in which she lives. It is not appropriate in those circumstances to give them any weight.
The child has a close relationship with the mother, her stepfather, her brother and the maternal grandparents. There is no doubt that the attitude of each of those adults towards the father is extremely negative.
The maternal grandmother did not give evidence. Both the stepfather and the maternal grandfather were clear in their views. Mr Basfield said that he saw no benefit whatsoever from the child having a relationship with the father and that it would just bring distress to her. He said that it would be just too hard to repair the relationship for the child let alone all of us.
The child’s maternal grandfather said that he did not support any contact with the father because it was not in the child’s interest and any contact would be detrimental to her well-being.

I have already recorded Dr S’s view of the nature of the relationship between the child and the mother.
The reality is however that all of the orders proposed by the parties and other persons with interest in this case will see the child continuing to reside with the mother. That will be so regardless of whether the child has contact with the father or not.
That means that the child will be spending most of the time living with the mother. The mother’s behaviour will continue whether or not it is conscious or unconscious, whether or not it is the result of a genuine disorder or merely just anger. The mother’s emotional and psychological state and such transfer to the child will continue so long as there are attempts to have the child spend time with the father. This will cause the child to be in a poor psychological and emotional state. She presently is in such a state. Dr S regarded the child as possibly having a post-traumatic stress disorder from association with the mother. The evidence suggests that should a no contact order be made the relationship between the child and the mother will return to what it was previously.
This consideration strongly supports the orders sought by the mother.
There was a disagreement between Mr C and Dr S as to whether or not the child had a secure attachment to the father.
Mr C’s view was that the development and maintenance of a secure attachment to non-resident parent requires each parent to be able to communicate positive feelings to the other parent and there needs to be a continuity of contact.
On the other hand, Dr S said that a secure attachment occurs in the first two years of life and lasts forever.
A court is not in a position to decide that fundamental difference of psychological theory in the absence of considerable evidence on the subject, and, quite possibly, not even then. There was no such evidence here.
The reality is that the child has not seen the father for some time and says that she is scared of him. There have been times when she has seen him at the contact centre and they have enjoyed each other’s company, there have been times when she has not.
Not surprisingly given the occasions on which the father has seen the child over the last few years and given what appeared to be her views towards him the relationship between them is tenuous.
The child has seen her paternal grandmother on only three or four occasions prior to separation and only a few occasions since. It would be difficult to assert that she had any existing relationship with her at all. It is necessary to consider (given the time this application was filed) the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
The mother’s written submissions said:
…the evidence is overwhelming that the Mother is virtually incapable of facilitating or encouraging a close or continuing relationship between the child and her Father. The Mother has in the past found herself unable to make the child available for contact notwithstanding the existence of an order of the Court. More recently since the adjournment of this hearing in August last year, the Mother has complied with this Court’s orders for contact between the child and her father at a contact centre for a limited number of hours on one day of each alternate weekend. She has found compliance with that order extremely difficult. It has come at the cost of increased anxiety and distress on the part of the Mother. She acknowledges that she is unlikely to have been successful in disguising her feelings of anxiety and distress from her daughter. Without the active involvement of her parents in facilitating the delivery and collection of a child to and from a contact centre it is unlikely that the Mother could have complied, as she acknowledges that she would find it too stressful to herself to participate in the delivery and collection of the child. The Mother is firmly of the belief that it is not in her daughter’s best interest to have ongoing contact with her Father and this is clearly a belief shared by her own father and her husband.
I have already found that the mother’s beliefs about the father, even if mistaken, are genuine.
Dr S said that the mother would, whatever the orders of the court may be, not facilitate and would even try to stop any continued contact between the child and the father. Dr S said that this has always been the mother’s intention.
Of her own proposal (that the child spend part of school holidays with the father in Queensland) Dr S said:
Mr North:Doctor, in the event that [the child] were to spend time with her father at her grandmother’s house in [Town K, Qld] over holidays do you expect that that will be stress free for [the child]?
Dr [S]:No, I think it will be quite stressful for her for a little while, and I think that if the mother were able to encourage her to go, as you do to a child who goes to school when they don’t want to, that the experience could be quite positive for [the child].
Mr North: And if she were not able to?
Dr [S]:I think that’s much more likely, that the mother will feel that she’s very anxious before the event and that [the child] will get more and more worked up and that an excuse will be made and the contact would never happen. That’s the most likely outcome.
I accept those submissions and the evidence of Dr S that any order for contact is unlikely to happen. It is also likely that the conduct of the father is likely to be such that the mother could easily justify that course to herself. For whatever reason there is no doubt that the mother will not take any step to facilitate and encourage a relationship of any kind between the child and the father and will do what she can to stop it.
A particularly remarkable example of this is that not only was the father not invited to the child’s first day of school or even told about it but when he asked for a picture of the child on her first day of school he was sent a photograph of the back of a head of a child which may, or may not, have been the child.
Given that the father has not had significant time with the child for a number of years it is not possible to determine what his willingness and ability to foster a relationship with the mother is.
His current orders provide for the child to live with the mother so that relationship will continue. Even the removal order sought, in due course, proposed the child returning to live with the mother.
Each of the proposals presently before the court involves a change of the child’s circumstances.
The child’s present circumstances are that she lives with the mother and spends time with the father every alternate weekend for a few hours at a contact centre. No-one proposes the continuation of that regime.
For the reasons identified earlier it is not necessary to consider the effect of a removal from the child from the mother’s care.
I have already identified Dr S’s views as to the effect on the child if she does not see the father. The submission of the mother is that if a ‘no contact order’ is made that would be for the child’s benefit because the child is picking up on the mother’s reaction to the father’s contact. If the mother’s poor psychological state is assuaged by there being no contact it is submitted that will be a follow on effect to the child.
In this regard it is necessary to consider the child’s present condition. When she saw Dr S she was described as a happy, well-adjusted child. Dr S agrees that she is no longer.
Mr C is clearly of the view that the child’s disturbing behaviour is a result of contact with the father. He said:
For the most part, the therapeutic sessions that have taken place to date have been primarily geared to developing a safe psychological context through which [the child] can express any fears and anxieties that she might have in relation to family issues. It would appear, based on [the child’s] presentation on her mother’s comments, that this much has been achieved. Whereas in earlier sessions she was only able to engage in conversations about family issues indirectly, through play activities, she is now a little more able to express herself, in this regard, more directly.
Several key themes that have emerged in the context of [the child’s] therapy to date. Foremost amongst these has been her beliefs that: her father is seeking to take her away from her mother: the father poses a threat to her mother and herself; and his presence in her life jeopardises the integrity of her family which she considers to be her mother, her stepfather and the new baby [T].
(As per original)
In cross-examination, in what he said was a simplistic way of describing this behaviour, the child was stressed because she feels she is letting the mother’s side of the family down. He said that he thought the frequency of the contact was a source of considerable stress to the child unless the mother’s comments about the child’s reaction to contact were completely fabricated. I find that they are not.
The mother described the child’s behaviour as becoming increasingly difficult in the lead up to contact. She is quick to shed tears and runs through the room screaming and crying or storming around the house slamming doors and yelling at the top of her voice. It takes considerable effort to calm her down. The mother described the child having nightmares saying she is scared and being watched. She needs lots of hugs and kisses to settle down. She has started to behave inappropriately with other children and has complained of stomach pains.
The mother said that these complaints were alleviated somewhat when the family went away to South Australia in February 2014 with no contact with the father.
The mother’s evidence as to the above is supported by Mr Basfield and Mr Dillon.
The child wrote a note. It consists of a drawing of a girl and the following:
Stop this nonsens I think that this is crassy lillsen I hate t [a form of the father’s given name]. I hate that stuipn contar senter. I cepe on saying I wish I code go to cout and say to the silly old JuJe I hate it I am telling that I hate it, I hate it, I hate it a lot. I just want to be an audenerry kid with a mum named [a form of the mother’s given name], a dad called [Mr Basfield’s given name], a brother [the child T’s given name] and go to … school evrey day so stopand rembe this I hate, I hate, I hate, I hate, I hate, I hate, I hate I hate I hate I hate… [a form of the father’s given name].
(As per original)
Such a note is most concerning. If it was written unaided by the child it shows a desperately unhappy child, or at least one prepared to write such a note and would seem to be written attempting to please the mother. If it was written at the instigation of the mother it is stark evidence of the mother’s problems.
The evidence of the mother, her husband and the maternal grandfather is corroborated by Mr C and this note.
Dr S said that because of the limited contact between the child and the father one cannot blame her current behaviour on this short contact and that it is just ridiculous to suggest so.
Whilst the contact may have been limited, the lead up to it and particularly the mother’s anxiety in relation to the contact is long standing and extensive. Whilst the contact visits may have been relatively short for the child she is being constantly exposed to the stress and anxiety and negative feelings of the mother towards that contact.
Dr S provided no explanation as to what might have caused the child’s behaviour to change except to say that the child is modelling her behaviour on the mother’s. If the mother’s behaviour is as it is because of the contact with the father then, at least indirectly, the contact is the cause of the child’s present difficulties.
I find that the child’s behaviour has changed markedly because of the contact with the father not so much from the contact per se but from the reaction of the mother to that contact.
The fact that a parent is an anxious parent and that anxiety impairs their parenting ability and negatively affects the child is a relevant factor to take into account (In the marriage of Russell & Close (25 June 1993 unreported) A & A (1998) 22 Fam LR 756 and Donaghey & Donaghey (2011) 45 Fam LR 183 especially at [224-229]).
If a ‘no contact order’ is made the mother’s level of apprehension anxiety should, one hopes, fade. Thus the impact upon the child should also fade reducing her stress and anxiety. Whilst the long term adverse psychological effects as noted by Dr S remain, on balance, there should be an improvement.
Such an order will effectively deprive the child from a relationship with the father for many years and possibly forever. The significance of this is not to be understated. It is an order that requires the utmost consideration.
The proposal that the child see the father every six weeks in the presence of Mr C and that the position be reviewed after that time is a minimal change. The mother will still be anxious and apprehensive about the contact in a negative way which she will continue project on to the child. The uncertainty as to what will happen at the review at the end of the year will exacerbate that problem. As far as the child and the mother’s anxiety levels are concerned it will be, at best, a continuation of the present situation.
The proposals of the father and Dr S will magnify this. Each requires that there be significant contact between the child and the father.
Dr S is of the view that the mother will do what she can to stop it. Mr C said that the child is very close to the mother who is a source of security to her and that she is very conscious of her relationship with the mother. Speaking of an extended break from the mother Mr C said it would be likely to cause the child chronic anxiety.
Mr C also said that the child would not perceive a sense of loss if no relationship with the father developed.
The weight of the evidence therefore establishes that any continued contact is likely to prove traumatic for the child and the mother.
Ms I said that for the mother to have had no contact with the child would be the most intensely stressful thing that of which the mother could think. She thought it would be very hard for the mother to cope with the regular Sundays proposed by the father.
The weight of the evidence, accordingly, establishes that continued contact of any kind will be intensely stressful for the mother which will be negatively projected to the child adversely affecting her psychological well-being. Thus, whilst there are advantages and disadvantages in each of the proposals the proposal that is likely to be the least disadvantageous for the child is the no contact proposal.
Save for the mother’s physical inability to attend to dropping off and collecting the child from contact there is no practical difficulty and expense associated with the child spending time with the father.
The capacity of the mother to provide for the needs of the child including her emotional and intellectual needs has been extensively discussed. What has not been mentioned is the clear evidence that the mother lacks any insight into the need of the child to have a relationship with another parent even if that parent’s views of the other parent are entirely negative. That is not going to change.
Whatever be the cause, until relatively recently the child was a happy, well-adjusted child. She became such primarily in the care of the mother. The recent events associated the contact with the father have caused the child, through the mother, to become less than well adjusted. Hopefully, in the absence of contact with the father, there will be a return to that.
The paternal grandparents and Mr Basfield also contributed to the child’s early condition but also, picking up on the mother’s anxieties, her present condition.
The capacity of the father to provide for the needs of the child including her emotional and intellectual needs is untested. Certainly, his ability to provide to her physical needs at present would appear to be questionable. From the limited contact with the child the father has been observed to play and respond with her and to her appropriately.
The mother is an intense and committed parent and takes her attitudes to parenthood seriously. Indeed she might be said to be hyper-vigilant in that regard. She has allowed her fears and anxieties about the father to be projected on to the child.
The child has been essentially maintained by the mother and Mr Basfield. Given his lack of employment it is not surprising the father has not paid a financial contribution.
The father’s attitude towards obtaining accommodation and employment and his attitude towards the drug testing causes serious doubts about his approach to the responsibilities of parenthood. His failure to provide the required information overlooked that it was in the best interests of the child that she would be housed and looked after in a safe and secure place. Perhaps more importantly, it also overlooked the need, in the circumstances of this case, to provide a measure of comfort (albeit a measure of comfort that the mother may not have accepted) that the father was taking steps to behave more responsibly. He seems to have no understanding that the negative attitude of the mother to him is adversely affecting the child and that his conduct might, in turn, be adversely affecting the mother’s. The father’s attitude to this matter was unfortunately cavalier.
He refused Mr C’s approach to attend counselling with the child.
These considerations also support the order sought by the mother.
It is necessary to turn to the question of parental responsibility.

parental responsibility

In order for there to be equal shared parental responsibility there would need to be some degree of communication between the parents. This is not possible in this case as one parent simply will not communicate with the other. As was submitted by the ICL, the mother has placed herself in the centre of this and made herself the victim. She has a belief, supported by her husband and the maternal grandfather, that the child’s father should not be a part of the child’s life.
Any forcible communication between the mother and the father is going to adversely impact the mother’s psychological well-being and hence the child’s psychological well-being. If one adds to this the father’s unreliability it can be seen that there is no possibility that shared parental responsibility would work.
It was submitted that the family violence directed towards the mother by the father was of itself a ground for finding that the presumption in favour of shared parental responsibility did not apply. On the evidence of this case, I am unable to make such a finding – it is not possible to make a determination between the assertions of the mother and the denials of the father. I did not find Ms M’s evidence (she was told at some time but cannot remember when, of the allegations of sexual assault) to be of much assistance.
There is, however, ample evidence to rebut the presumption of equal shared parental responsibility particularly when the child will be living with the mother in any event.
The question then is what orders are to be made.
I have already discussed the proposal of Dr S that the child spend the school holidays with the father in Town K, Queensland. I do not see how that is readily possible given that the father has just started a new job in Sydney. The father said that he would be able to get the time off. I do not accept that. It seems to be another easy and empty promise by the father.
Secondly, I have already said that I do not understand and do not accept the logical basis upon which that order is proposed as a substitute for a three month block of no contact with the mother.

Whilst there is a benefit to the child spending the school holidays with the father in that it would attempt to maintain a relationship between them it would come at a cost to the child by being exposed to the mother’s continued and increasing anxiety and negativity. That cost is too high. It would not have the benefit, if there be one, of a long period on no contact with the mother in an attempt to break the unhealthy aspects of the relationship between the child and the mother.
Mr C described the present regime thus:
It’s better if there has been an attachment relationship and it’s hugely more enhanced if the parents can begin to promote each other, so there’s a lot going against this working out in the long term, but, you know, one can never been 100 per cent and I must say I would find it difficult to totally negate any opportunity for the repair of a relationship between the father and a child. What I would say in that regard, as I think the whole thing needs to be slowed down, it seemed to me to be getting rather out of control, but one would need to look at – as I’m sure the court will – the notes from the contact centre.
Ms I and Mr C are well placed to give an opinion as to the present state of the mother and the child respectively. Whilst it is true that they are providing therapy to the child and to the mother respectively they are uniquely placed to give a valuable insight.
Whilst Dr S had the opportunity of seeing all of the parties it was some time ago and only on a few occasions.
I also have some difficulties with some of Dr S’s conclusions. In her report Dr S said, at page 36:
I understand there has been no application for residence by the father and that it would be extremely difficult for him to have the child full-time, given his working hours and lack of family support in Sydney. Sometimes and in some situations, a period of three months of no contact with the mother is required to reinstate regular contact with the father. Given that this child has never slept at the father’s home and that he currently lives in the Eastern suburbs, it would be difficult to arrange but it could be considered by the Court if the mother remains implacably adverse to contact. The father indicated to me his willingness to move to the Northern Beaches of Sydney.
The father’s application to see the child for one-and-a-half hours on Thursday mornings seemed impracticable and disruptive to a child’s school week.
Having discussed with the paternal grandmother the possibility of her being involved in the reinstatement of contact with the father, and her commitment to making herself available in Sydney, I am convinced that [the child] would be able to tolerate with discomfort a brief change of residence. Clearly, she would miss her mother, but, given her secure attachment to the father, I believe this would not be as damaging as the forced separation from her father and paternal extended family.
Dr S’s recommendation was that the child spend three months resident with the father with no contact at all with the mother and thereafter the contact be resumed for one week by telephone or Skype, then overnight weekends every second weekend for three months and then a change to living with the mother and spending five days a fortnight with the father.
As has been seen this was the alternative option proposed in the joint expert’s report.
Dr S did not explain the basis for those orders but I infer from the comments quoted above that the purpose of the contact was to give the child the three months with the father with no contact with the mother would give the child the opportunity to develop a meaningful relationship with the father without the malign influence of the mother and for there to be a gradual reintroduction between the two so as to try to establish a more normal relationship between the mother and the child as well as develop a relationship between the child and the father.
As noted by Dr S, the child living with the father on a full-time basis was not a practical option at the time she wrote her report. Despite having the benefit of that report it was not a practical option at the time of the first hearing in August 2013. It remains an impractical option.
In response to that Dr S proposed that the child spend school holidays with the father. Dr S acknowledged that in the lead up to that the mother will come under pressure which will be transferred to the child. On return there will be the same pressure on the mother and hence with the child.
Dr S said it would be quite stressful for the child to attend contact. Indeed as quoted earlier she thought an excuse would be made and contact would not take place. She said there was no prospect that the mother’s conduct would change.
In those circumstances Dr S did not explain why her proposed orders would be in the best interests of the child. It would certainly enable her to see the father but whether that would, in the circumstances, lead to the development of a meaningful relationship, given the mother’s attitude, was not explained. Dr S did not explain why the benefit outweighed the cost.
I had understood the order for three month no contact with the mother by Dr S to have the effect of breaking the influence of the mother and enabling the child to develop a normal relationship with the father prior to the resumption of a more normal and more usual living arrangement. Dr S did not explain how holiday time would achieve this same end. I do not understand how it would.
The orders proposed by the father proposed regular, frequent contact between the child and the mother. They are not in the child’s best interests because they will perpetuate on an even more frequent basis than presently occurs the anxiety felt by the mother which is transmitted to the child in relation to contact.
That then leaves the two orders proposed mainly for consideration are the no contact order or the proposal by Mr C that there be a year of therapy with attendance with the father every six weeks and the child having individual therapy on at least two occasions between each of those visits. Mr C proposed this because he accepts that it is always in the best interests of children to have a relationship with both parents. He frankly thought that the attempt to re-establish the relationship was going to be very difficult and was going to take a long, long, long time, if it happened at all.
For this to occur, Mr C said, there would need to be a harmonious relationship between the parents, regular contact and for the father to be able to establish to the child that he will not take her away and that he is not a threat to the mother or to the family.
Mr C opined that it would be very difficult for the mother and father to have a harmonious relationship which will, accordingly, make it difficult to repair the relationship between the child and the father. I think that is an understatement and I think it is impossible that there will ever be a harmonious relationship between the mother and the father.
Mr C thought that it was in the child’s best interests to give this proposal a shot.
It is accepted by the experts, including Dr S, that the child’s behaviour has deteriorated over the last seventeen months. Whilst Dr S said that it was ridiculous to suggest that this had occurred as a result of the contact she offered no other explanation.
It is the obvious explanation. The mother’s anxiety has been transmitted to and picked up by the child was the only cause in her change in behaviour suggested by any person.
Whilst the reduced frequency of contact between the child the father and the presence of Mr C would ameliorate the child’s discomfort to some extent it will still be extremely stressful for the mother and hence the child.
For such an arrangement to work one would have to rely upon the reliability of the father to attend regularly as required.
I am not convinced that the father has prioritised the child’s interests over his own after the last six months. I am not convinced, given his past actions, that any guarantee could be given that he would attend as required. There is no evidence that the father would be able to afford such visits based on his recent past it is more likely than not that he would not be in that position. It would definitely not be in the child’s interests for this proposal to start and falter on the basis of the father’s unreliability or non-attendance for whatever reason.
There is a requirement that the court should consider whether or not the orders made are more likely or less likely to lead to further litigation between the parties. Any order that provides for contact of any kind is likely to lead to further proceedings. There are two main reasons for that.
Dr S said that ultimately contact will be refused by the mother leading, inevitably to contravention proceedings or reconsideration of the removal of the child from the mother for a fixed period of time. Secondly, if Mr C’s proposal is put in place it is inevitable that there will be a reconsideration of whether or not contact should continue and if so on what basis in about a year’s time. Given the history of these parties that will only lead to another court case.

Conclusion

All of these factors support that the best interests of the child are served by there being an order that the child not see the father.
This view is reached most reluctantly because it will, at least in the short term, deprive the child of a relationship with the father which all the experts agree would, if it could be achieved, would be in the child’s best interest. However the cost to the child is simply too great given the mother’s mental state. Given the stress the child is under from the mother it is not in the child’s interests to continue to put her through the stress of contact.
The ICL said in submissions that the mother has placed herself at the centre of this and made herself the victim. She has been supported in that by her husband and her father all of whom believe that the father is not worth the part in the child’s life. The order, as the ICL submitted, appears to reward the mother for her conduct. It may well have that appearance. The purpose of the order is to act in the child’s best interests having regard to the reality that under all of the orders proposed by the court the child will continue to live with the mother for most of the time. The mother’s conduct will not change so her malign influence on the child will continue so long as that contact continues.
The purpose of this order is to cease that influence. Hopefully as the child becomes older and more independent she may choose to seek out the father and attempt to develop a relationship with him.
In the event that that order was made the mother sought an order that she be at liberty to change the child’s surname from Dillon to Basfield. The child lives with family where the mother is known as Ms Basfield, her stepfather Mr Basfield and her brother T Basfield. Dillon is the family name of the mother. In those circumstances the change of the name is justifiable and can be seen as in the child’s best interests as making her part of this family. Given the nature of the orders being made it is appropriate for that to occur.
The order may well be otherwise if the child had been known as Giltson.
The mother also seeks orders permitting her, in due course, to take the child out of Australia. Given that she has sole parental responsibility and given that there is no evidence that the parties are a flight risk, save that for Mr Basfield having relatives in the United Kingdom it is appropriate therefore to make the orders as sought.
The ICL sought an order that each party pay the ICL’s costs of $14,000 in equal shares.
Given the father’s employment position and given that it was clearly in the child’s best interests the ICL to appear and provide the helpful assistance which she did such an order will not be made.
Accordingly, orders are made as set out at the commencement of my reasons for Judgment.

I certify that the preceding two hundred and thirty-seven (237) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 May 2014.

Associate:

Date: 16 May 2014

[2014] FamCA 319

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