SHIREMAN & KATSAROS

[2015] FamCA 896

FAMILY COURT OF AUSTRALIA

SHIREMAN & KATSAROS [2015] FamCA 896

FAMILY LAW – CHILDREN – Best Interests – Change of residence – Parental responsibility – Where the child is three years old and has lived in the maternal household since he was about one month old – Where there has been a complete breakdown of communication between the parents – Where the mother has not promoted a relationship between the child and the father and has failed to comply with Court Orders providing for the father to spend time with the child – Where there are serious allegations of family and sexual violence made by the mother against the father that are not established by the evidence before the Court – Where the reports of supervisors indicate the potential for the development of a close and loving relationship between the child and his father – Where the single expert agreed that there could not be any relationship between the father and the child if he continued living in the maternal household – Where this harm must be balanced against the psychological harm the child may suffer if removed from the primary care of his mother at a young age – Where the single expert opined that if alienation is the dominant issue then a change of residence may need to be contemplated – Where the Court is satisfied that the father would encourage the child’s relationship with the mother if the child lives with him – Orders made that the child live with his father and spend time with his mother – Orders made that the father have sole parental responsibility for the child.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 65DAC, 65L

APPLICANT: Mr Shireman

RESPONDENT: Ms Katsaros

INDEPENDENT CHILDREN’S LAWYER: Independent Children’s Lawyer

FILE NUMBER: SYC 1081 of 2013

DATE DELIVERED: 23 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 31 August 2015, 1, 2, 3, 4, 7 and 8 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Gillies

SOLICITOR FOR THE APPLICANT: Streeton Lawyers

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cook

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: KD Holmes Solicitors

Orders

IT IS ORDERED

1. That the father shall have sole parental responsibility for the child, B (“the child”), born … 2012.

2. That the father shall keep the mother advised in writing of any major medical issues for the child, including any emergency treatment, chronic conditions, or surgery.

3. That the father shall authorise any school that the child may attend to forward to the mother, at her request, copies of all school reports and school photograph order forms.

4. That the father shall advise the mother in writing of any overseas travel for the child no later than 60 days prior to the proposed departure date by providing her with an itinerary, including flight details and accommodation.

5. That the child shall live with the father.

6. That the child spend time with and communicate with the mother as follows:

   6.1    That the parties each provide to the other by email within 48 hours of these Orders with a skype address, and the mother advise the father of a day and time on up to two occasions each week when she will skype with the child from the rooms of her counsellor Ms NN, or such other therapist or counsellor as the mother may consult, and all such communication shall be supervised by the mother’s therapist or counsellor for a period of one year from the date of these Orders.

   6.2    That in the event that the mother is unable to arrange for Ms NN, or such other therapist or counsellor as the mother may consult, to supervise the skype communication between her and the child pursuant to Order 6.1 herein, the skype communication may be supervised by Sydney Children’s Contact Centre.

   6.3    From one month after the making of these Orders the time between the child and his mother shall be supervised by Sydney Children’s Contact Centre, or other supervisor or Contact Centre as agreed by the parties, for a period of up to two hours on a weekly basis at days and times agreed between the Centre, or supervisor, and the parties.

   6.4    From six months after time in Order 6.3 herein commences, the time between the child and the mother shall increase to four hours on a fortnightly basis supervised by Sydney Children’s Contact Centre, or other supervisor or Contact Centre as agreed by the parties, at days and times agreed between the parties and the Contact Centre or supervisor, subject to the supervisor being able to accommodate the increase of time.

7. That the father will consider any members of the mother’s extended family as supervisors, other than Ms KK Katsaros or Ms NN Katsaros, on their giving a written undertaking as expressed in the terms set out in Order 7.1 herein and that this shall be treated as an undertaking to this Court. Any supervisor proposed from the maternal family is also to meet with the father to discuss issues relating to the child and the progress of his time with the mother as requested by the father prior to and whilst visits are supervised by that person.

   7.1    That the written undertaking referred to in Order 7 herein be expressed in the following terms:

   1.     I --------------- of -------------------- undertake that I will supervise time between Ms Katsaros (“the mother”) and B (“the child”) by remaining within sight and hearing of the child at all times. My concern during any period of acting as supervisor shall be the child’s welfare.

   2.     In giving this undertaking I acknowledge that I have read the Judgment of the Honourable Justice Rees of the Family Court of Australia delivered on 23 October 2015. I understand that I am bound by this undertaking as it is an undertaking to the Family Court of Australia.

   3.     I will ensure that if the mother speaks of Mr Shireman (“the father”), or any member of his family, as physically, emotionally or sexually abusive I will remove the child from the mother’s presence and return him to the father.

   4. Should the mother be unable to contain her own distress to the extent that she is distressing the child, I will remove the child from the mother’s presence and return him to the father.

8. That should time be supervised by a member of the mother’s extended family Ms KK Katsaros and Ms C Katsaros are not permitted to attend that time until the supervisor has supervised three visits with the mother without them present, and the father agrees to their presence.

9. That should the time be supervised by a Contact Centre, the Centre has a discretion to involve other members of the maternal family in accordance with their policy, and should the mother be unable to attend for time with the child then Ms KK Katsaros or Ms C Katsaros may substitute for the mother to spend time with the child.

10. That the father keep the mother advised of the name and address of any school, pre-school or day care the child may attend from time to time, and the mother is restrained from attending any such place that the child may attend without the father’s consent.

11. That the mother and father will keep each other advised of their current residential address, telephone number and email address.

12. That the parties shall maintain a communication book which shall be provided to the other party at changeovers and each party shall use the book only to communicate relevant matters about the child’s health and progress such as health issues, changes to the child’s routine, dietary needs and the like.

13. That each of the parties shall be restrained by injunction from denigrating or criticising the other party or the other parties’ family, in the presence or hearing of the child, or allowing any other person to do so.

14. That the mother shall provide to any psychiatrist, counsellor, or therapist she may consult the Orders and Judgment of this Court, and the report of Dr D.

15. That the mother and father have leave to provide to any member of the mother’s extended family who may be proposed as a supervisor a copy of the Orders and Judgment of this Court.

16. That pursuant to s 65L of the Family Law Act 1975 (Cth) the Director of the Family Consultants at the Family Court of Australia, Sydney, give such assistance to the parties as may be reasonably requested by the parties in relation to compliance with and carrying out these orders.

17. That in the event that the mother provides to the father a report from a psychiatrist, who has been treating the mother, that demonstrates that the mother is able to accept that the child is not at risk of being killed or sexually assaulted by his father, and will not communicate those matters to the child, the parties shall attend mediation for the purposes of considering an increase in time between the child and the mother, and the possibility of unsupervised time.

18. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shireman & Katsaros 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 1081  of 2013

Mr Shireman

Applicant

And

Ms Katsaros

Respondent

REASONS FOR JUDGMENT

1. B (“the child”) is the child of Ms Katsaros (“the mother”) and Mr Shireman (“the father”). the child was born in 2012. He is three years old.

2. The parents did not live together before the child was born. They spent their time together either in the home of the mother’s mother (“Mrs Katsaros”) where the mother and her sister, Ms C Katsaros (“Ms C”), then lived, or in the home of the father’s parents (“Mr Shireman Snr and Mrs Shireman”) where he then lived.

3. After the child was born, a flat was rented so they could set up a home together with the child. When the mother and the child were discharged from hospital after the child’s birth, they lived together. Sadly, that arrangement lasted for less than three weeks. The date upon which they separated is disputed. The mother left the flat and returned to live in the home of Mrs Katsaros. Since then, the child has lived with his mother, Mrs Katsaros and Ms C.

4. Thereafter the relationship deteriorated and the father’s time with the child was increasingly restricted by the mother.

THE PROCEEDINGS

1. In March 2013 the father commenced proceedings in the Federal Magistrates Court (as it then was) seeking orders that the child spend time with him for three hours on Saturday morning and two hours on Wednesday evening. His application envisioned that the time would be extended as appropriate to the child’s age.

2. The mother in response sought an order that she have sole parental responsibility for the child, orders in relation to the father’s alleged use of alcohol and illicit drugs, and orders for supervised contact, in a contact centre, for two hours every three weeks.

3. An Independent Children’s Lawyer (“ICL”) was appointed for the child.

4. On 20 May 2013, the parties entered into interim Consent Orders which provided that the child live with the mother and spend time with the father for a one hour period on Saturdays and on Wednesdays at the E Club (“the Club”), such time to be supervised by Mrs Katsaros. One of the father’s parents or his sister was also permitted to attend.

5. On 12 June 2013, after a defended hearing, interim Orders were made which provided for the father to spend time with the child as agreed or as provided for in the Consent Orders dated 20 May 2013. The Consent Order of May 2013 that provided for supervision by Mrs Katsaros was amended to allow each party to nominate in writing a suitable adult supervisor known to the child. A notation to the Orders of 12 June 2013 stated that the father’s time with the child would take place on that same day and that such time would be supervised by Mrs Katsaros and Mr Shireman Snr.

6. On 31 July 2013, after a further hearing, Orders were made by consent for the father’s time with the child to occur each Saturday commencing on 10 August 2013, supervised by a professional agency, F Group. Also on that day, the proceedings were transferred to the Family Court of Australia.

7. The supervised visits commenced and continued for a time. The course of that contact between the child and his father will be considered in detail later in these reasons.

8. On 20 November 2013, the Orders were varied so that the mother delivered the child into the care of a F Group supervisor at a designated venue located within a 10km radius of her home.

9. On 23 April 2014 the hearing was expedited.

10. On 4 August 2014, the Orders were further varied. The Sydney Children’s Contact Centre (“SCCC”) was to be the venue for the contact. Alternate arrangements were made until the SCCC became available.

11. On 2 October 2014, Dr D, a child and family psychiatrist, was appointed as single expert.

12. Dr D conducted interviews in October 2014 and her report was released on 20 January 2015.

13. The matter came before Le Poer Trench J for hearing on 11 May 2015. It was adjourned on the application of the mother. No trial affidavits had been filed in the mother’s case in preparation for the hearing. The contact Orders were again varied, over the opposition of the mother, to provide for the child to spend time with his father in the home of the paternal grandparents and under the supervision of one or both of them. Orders were also made for the father to undergo random urinalysis testing as requested by the ICL.

14. Procedural Orders were made for the hearing of the matter. Relevantly, each party was permitted to rely on one affidavit of evidence in chief and one affidavit of each witness, sworn after 14 August 2014. Each party was directed to file one updating affidavit of evidence in chief and one updating affidavit of each witness not later than 28 days prior to the hearing date.

15. On 2 February 2015, the father filed his trial affidavits by himself, his father and his mother sworn on this same date.

16. On 26 August 2015, the father filed updating affidavits by himself, Mr Shireman Snr and his mother (“Mrs Shireman”) sworn on this same date.

17. The mother filed a further affidavit by Ms C on 26 August 2015. She also filed an updating affidavit by herself on 27 August 2015 and an affidavit by Mrs Katsaros on 28 August 2015, this being the Friday before the hearing was to commence on Monday.

18. The matter came before the Court for hearing on 31 August 2015.

THE OBJECTION TO THE MOTHER’S EVIDENCE

1. Objection was taken to a portion of the mother’s affidavit. After hearing submissions, I did not permit the mother to rely on the objected portion and indicated that I would give my reasons in the substantive judgement. These are the reasons.

2. The mother had filed a substantial affidavit in the proceedings in the Federal Circuit Court sworn on 29 July 2013. When the matter came before the Court for hearing on 11 May 2015, she had filed no further trial affidavit.

3. The father’s trial affidavit, sworn and filed on 2 February 2015, annexed 35 reports from F Group, setting out the observations of the supervisors of each occasion when contact was scheduled to occur.

4. Annexed to the affidavit of the mother filed on 27 August 2015 was a document of some 82 pages which set out her response to each and every one of the F Group reports. Those reports had been available to the mother from the commencement of the supervised contact. Her first response is dated 21 September 2013. No reason was advanced on behalf of the mother for withholding that evidence which could have been made available to the father and the ICL at any time, up to and including the last scheduled visit on 14 December 2014. No reason was given for the failure to provide her response to the F Group reports after they were attached to the father’s February affidavit and it was clear that he relied upon them.

5. The mother’s responses to the reports were clearly available to her and could have been filed before the matter was listed for hearing in May 2015 or in a timely manner before the hearing commenced on 31 August 2015.

6. Reports had been provided by eight separate supervisors. In order to meet the material upon which the mother sought to rely, it would have been necessary to call those eight report writers to give oral evidence, where their reports were challenged by the mother. The hearing was listed for four days. The mother’s decision to withhold evidence, which she had readily available, meant that there was no opportunity given to the father or the ICL to call evidence to rebut the mother’s challenge to the reports.

7. For that reason, the mother was not permitted to rely on her responses to the F Group reports. She was, however, in the course of the hearing and before her cross-examination commenced, permitted without objection to file a further affidavit of some 17 pages and 193 paragraphs setting out her observations of the child’s behaviour before and after the contact supervised by F Group.

THE ISSUES

1. It was the father’s case that the mother, Mrs Katsaros and Ms C have sought to exclude him from the child’s life. He denied each and every allegation of violence or inappropriate behaviour on his part made by the maternal family.

2. The father sought orders that the child live with him and have, after a settling in period, supervised time with the mother. The father’s proposed orders were amended after the evidence was completed. He ultimately asked the Court to order that the child live with him, that the mother initially have contact with the child by Skype on two occasions each week supervised by her counsellor or another suitable person and that, after a month, there be contact between the child and the mother supervised by the SCCC. The father’s proposed orders also contemplated contact between the child and the mother supervised by a member of her family other than Mrs Katsaros or Ms C.

3. It was the mother’s case that the father had been the perpetrator of family violence (physical, emotional and sexual) upon her throughout the whole of the relationship until separation. It was the mother’s case that the father had been violent towards the child from his birth until separation and that, in that time, the father had physically and sexually abused the child. It was the mother’s case that the father had perpetrated further sexual abuse upon the child during supervised contact.

4. The mother sought orders that the child live with her and spend no time with the father unless the child requested time. She sought further orders restraining the father from approaching her or contacting her, other than through her lawyers.

5. It is necessary to consider the mother’s allegations of family and sexual violence, directed to her and to the child, before moving to consider the factors set out in s 60CC of the Family Law Act1975 (Cth) (“the Act”).

6. Thus the issues to be determined are:

   ·    Did the father perpetrate family violence upon the mother as she alleged?

   ·    Did the father perpetrate violence upon the child?

   ·    Is there a risk that the father will be violent to, or cause physical harm to, the child in the future?

   ·    Did the father sexually abuse the child?

   ·    Is there an unacceptable risk that the father will sexually abuse the child in the future?

   ·    Does the father abuse alcohol and illicit substances such that his use is of relevance to his being able to care for the child?

7. Each of the parties sought an order that he or she have sole parental responsibility for the child. Counsel for both parties submitted that a sole parental responsibility order was necessary, no matter what order was made for the child’s future. Having regard to the complete absence of any communication to date about the child between the parents since about June 2013, I accept those submissions and orders will be made for sole parental responsibility to be exercised by the parent which whom the child lives.

THE HEARING

1. The father, Mr Shireman Snr and Mrs Shireman were cross-examined.

2. The mother, Mrs Katsaros and Ms C were cross-examined.

3. Dr D was cross-examined.

4. The matter which was originally listed for four days was completed in seven days.

THE ALLEGATIONS OF FAMILY VIOLENCE AGAINST THE FATHER

1. These are serious allegations by the mother. They include rape, physical violence, emotional violence and coercive and controlling behaviour. The mother bears the onus of proving her allegations on the civil standard. However the provisions of s 140 of the Evidence Act 1995 (Cth) (“Evidence Act”) govern the determination of those allegations.

2. The provisions of s 140 are set out below:

EVIDENCE ACT 1995 - SECT 140

Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. Dr D, in the course of cross-examination by counsel for the mother, gave evidence about the manner in which victims of violence typically disclose their experiences. It is important, in considering and assessing the mother’s evidence, to have regard to that evidence.

2. Dr D gave evidence that victims of domestic violence typically have difficulty seeking help or disclosing the abuse, during the relationship and even after the relationship has ended. She said that it is not unusual for a victim of domestic violence to fail to take adequate protective measures for themselves and their children. Part of the dynamic of domestic violence is that the victim may love the perpetrator so that the victim excuses or ignores the level of abuse because she/he wants the relationship to continue and even after the relationship has ended. Dr D described an ambivalent mixture of love and fear in victims. She gave evidence that victims are often secretive about the level of abuse, even from those close to them.

3. Dr D said that the fact that the mother did not report the abuse, or coercive behaviour, to police at the time it occurred does not mean that the abuse did not occur. Similarly, the fact that the mother did not tell her mother or her sister about the abuse at the time it occurred cannot be given any weight in determining the validity of her complaints.

4. In relation to the suggestion that the mother’s complaints about abuse by the father have escalated over the course of the proceedings, Dr D said that this could represent a retrospective reconstruction of the events or more information being disclosed with time, as a consequence of therapy, or being better able to identify what is, or is not, abuse.

5. However, Dr D said, in relation to the relationship between the father and the mother and the alleged controlling and coercive behaviour:

   [DR G]: In many cases that I’ve seen, I wouldn’t be surprised.  In this case, I think maybe more difficult to conceptualise it that way, because this couple didn’t have a lot of time on their own and so it’s – you know, they were living a lot of the time in the home of [Mrs Katsaros].

   COUNSEL FOR THE MOTHER: And the paternal grandparents, too, I should say and ‑ ‑ ‑?

   [DR G]: And the paternal – yes, so I would think that coercive, controlling behaviour on the part of [the father] would have been pretty smartly identified.

6. Specifically in relation to the mother, Dr D said that she was modest in terms of her sexual education and matters of nudity and the like. It appeared from the evidence of the mother and Mrs Katsaros that this was the mother’s first relationship and her first sexual relationship. Her failure to disclose abuse of a sexual nature, when it occurred, would be consistent with that presentation, as would her making disclosures well after the event.

7. Dr D said that it was not unusual for perpetrators of family violence to perform well under scrutiny and for there to be a difference between their public and private behaviour. However, in relation to the father, Dr D said:

   I agree with you that often abusers can present very well and can interact well with a child in the short term.  I would put a – make one proviso here, though, that this has been a long period now of enormous frustration where [the father] has had a great deal of difficulty having regular contact with the child and yet he seems to have coped with that level of frustration very well, as far as we know.  I’m not aware that he has behaved badly.  He has coped with disappointing experiences of turning up to the contact centre and so forth.  I mean, it is possible for abusers to present extremely well to the rest of the world, yes.  I would think over this period of time, with so much frustration and disappointment there would have been a chink in that presentation at some point.

8. I accept the evidence of Dr D. The fact that the mother did not report the asserted abuse, either at the time it occurred, or to the police when she sought an Apprehended Domestic Violence Order (“ADVO”), or to her doctors, or, in some instances, at all, does not demonstrate that the abuse did not take place. However, neither does it assist in substantiating that abuse did take place.

9. Dr D also gave evidence about the effect of the mother’s epilepsy on the reliability of her memory. The mother, at the commencement of the relationship and until 2010, suffered severe effects of her epilepsy. She had fits that caused her to lose consciousness many times each day. In about March 2010 her neurologist changed her medication. In his letter to the mother’s general practitioner, Dr H, dated 15 March 2010, the mother’s neurologist, Dr I states “There are multiple old scars over the face due to her previous injuries. There are also two new recent bruises over the face due to recent falls/seizures”. Dr I suggested that the medication be changed to Keppra which was effective. After she commenced taking Keppra, the mother became seizure free.

10. Dr D gave evidence that the mother’s memory would be disrupted by the level of fits she experience up until she started taking Keppra. The mother’s memory of events which occurred before March 2010 cannot be relied upon and her evidence of those events, in the face of the father’s denials, does not establish to the requisite standard of proof that the events occurred.

11. Some of the mother’s allegations are set out in her affidavit sworn 25 August 2015. Other allegations were made only during her oral evidence. Specifically, in her oral evidence the mother alleged that there had never been consensual sex between her and the father and that the child was conceived by rape.

12. In her affidavit the mother made the following allegations:

    a.      That in 2008 she woke up and the father was over the top of her with his hands around her neck, squeezing it.

    b.      That on a trip to J Town on 12 and 13 January 2008 the father burnt the mother twice with lit cigarettes. Firstly the father stuck out his arm with a lit cigarette as she walked past him and burnt her knee. The father laughed and said to the group of people who were present “I just burnt her knee!” The other men present joined in the laughter. The second occasion occurred when the father was standing over her with a lit cigarette. He said to her “Do you know what a burnt chicken smell is?” and before she could turn around she felt the lit cigarette being twisted into the skin on her arm, burning the hair on her arm and the skin. The father laughed.

    c.      That on 1 March 2008 the mother and the father took an overnight trip to the Region K and stayed at a resort. They went for a walk. During the walk the father said to the mother “A man needs to hit a woman every once in a while”. The mother replied “Are you being serious? You never hit a woman or anyone else for that matter. Why would you say that?” The father  became angry and said “You need to put her back in line in case she slips up. My father always said that”. The father then grabbed both her wrists and started to drag her along. The father then pointed to the edge of the cliff and said “It’s a big drop if someone was to fall”. The mother said that this was said in a threatening manner and she was frightened that he would push her down into the drop.

    d.      That on 30 January 2010 the mother and the father attended the wedding of the father’s friends. Mr and Mrs Shireman were also present at the wedding. The mother walked outside and the father followed her. The father appeared intoxicated and forcefully gripped her wrists with his hands and hurt her.

    e.      At paragraph 92 of her affidavit the mother deposed “[The father] also threatened to kill me on three occasions that I remember. I am not sure when these occasions were”.

    f.       That during the time when the mother was pregnant with the child the father called her cruel names and swore at her. During that time the father would also refer to her as epileptic and clinically depressed.

    g.      That in the last trimester of the pregnancy the father and the mother were driving on L Street, not far from their home. The father was waving his clenched fist near her face and screaming at her.

    h.      On 14 November 2011 during an argument the father shoved his elbow into the side of the mother’s stomach, putting pressure on her stomach.

    i.       That on 1 December 2011, when the mother was 26 and a half weeks pregnant, the mother and the father had an argument at a club. The mother left and started to walk home alone. The father followed her in the car and screamed at her to get in the car. She refused. He parked the car, ran towards her, grabbed hold of her ponytail and pulled it and swore at her.

    j.       That when she was 26-28 weeks pregnant, the father placed his open hands on her collarbones and pushed her. Her knees buckled and she fell backwards, bruising her ankle.

    k.      That on Christmas Day in 2011, as the mother and the father were driving to the father’s sister’s home for Christmas lunch, the mother felt sick and asked the father to stop the car. He then alternated between accelerating and braking in quick succession and refused to stop the car, making her feel stressed.

    l.       That towards the end of 2011 when the mother and the father were watching television, the father was flicking through television channels and stopped on a channel playing the movie “Se7en”. The mother started walking out of the room to get ready for bed and the father said “Don’t go to your room yet, just stay long enough to see the next scene”. The scene showed a box being opened with a woman’s head inside. The father put his index finger to his neck and moved it across from one side to the other and made a clicking sound. He said to her “It’s an awesome way to get back at an ex”. The mother said that she was worried and concerned about her safety.

    m.     That prior to the birth of the child the father grabbed the mother by her dress and flung her against the wall, causing her to feel pain in her stomach and left shoulder.

13. The mother also alleged that the father engaged in behaviour which was controlling and coercive. In her affidavit she referred to the following incidents:

    a.      The mother alleged that in February 2008 the father forced her to terminate a pregnancy.

    b.      The mother alleged that during the birth of the child when she told the father that she wanted her mother to be in the theatre with her, the father refused and insisted on remaining with her.

    c.      The mother alleged that after the birth of the child, during a grocery shopping expedition, she picked up a bottle of fabric softener and placed it in the trolley and the father insisted that she remove the item because it was too expensive. On that occasion, she alleged, the father screamed at her and swore at her.

    d.      The mother alleged that on long car trips the father would forbid her from getting out of the vehicle to stretch her legs, go to the toilet or to get a drink.

    e.      The mother alleged that after the child was born, the father on numerous occasions threatened to take the child away from her. She alleged that the father threatened that if she left him he would take the child and that he would get custody of the child.

    f.       The mother alleged that, on a number of occasions during the relationship, the father told her that he would have her followed and threatened that that if she left him he would have her followed. The mother alleged that on occasions at the home of his parents the father would lock her inside the house and prevent her from leaving.

14. The mother also made specific allegations of sexual violence in relation to the father. In her affidavit she alleged:

    a.      That the father forced her to have sex with him many times during their relationship, that he was excessively rough and caused her to bleed during sex.

    b.      That in March 2008 on a trip to the Region K, only a few weeks after she had a termination of the first pregnancy, the father forced her to have sexual intercourse over her protests that it was too soon after the termination.

    c.      That “After one sexual abuse event [the father] rubbed his semen on me and said ‘I am rubbing you up like a roast chicken.’”

    d.      That on another occasion the father pinned her down with his knees on the bed, pulled up her dress and forced her to have sexual intercourse.

15. Each and every allegation referred to above was put to the father and he denied each and every allegation.

16. In her oral evidence the mother alleged that every act of sexual intercourse between her and the father was an act of rape and that the child was conceived in rape. Given that her affidavit was sworn only days before the commencement of the trial, this is a significant escalation of the mother’s allegations in a very short time and causes concern about the veracity of her reporting. Dr D recorded that the mother told her that the father had forced sex upon her many times. However, the mother did not tell Dr D that all sex between them had been non-consensual.

17. Neither did the mother tell Dr D that the child was conceived in rape.

18. In cross-examination, Dr D agreed that the mother’s allegations were escalating, and that this was a matter of concern.

19. Further causes for concern about the reliability of the mother’s evidence were her emphatic and consistent denials that she had ever suffered from depression and her denial that she had discussed having a baby with Dr I. The concerns become apparent when the notes of the mother’s treating doctors were examined.

20. It is necessary to have regard to the circumstantial and documentary evidence in order to determine whether the mother has discharged the onus of proof as required in s 140 of the Evidence Act.

21. From 2007 the mother has consulted a general practitioner in Suburb M, most usually Dr H.

22. Between 29 August 2007 and 19 May 2013, the mother saw Dr H or another doctor at the practice on 92 separate occasions. On six of those occasions the doctor noted that the presenting problem was depression. The mother in her oral evidence denied strongly that she had ever been depressed or had ever discussed depression with Dr H or any other doctor.

23. On the mother’s first visit to Dr H on 29 August 2007 the presenting problem was that the mother perceived that she was being harassed in her work place and she was very stressed, teary and anxious. Counselling was suggested. The mother again presented before the doctor, complaining of stress at work, on 19 November 2007. The doctor noted that the mother wept throughout the consultation and was unable to answer questions, which were instead answered by Mrs Katsaros. In a visit on 29 January 2008 the mother apologised to the doctor for her abrupt “snotty behaviour” and the doctor suggested that there must be other issues to talk about that were making her be rude. The doctor suggested that there were psychological issues.

24. The mother had a termination on 15 February 2008 and saw Dr H on 3 March 2008. I infer that the occasion to which the mother referred when the father forced her to have sexual intercourse against her will, (as is set out in paragraph 56(b) of these reasons) a few weeks after the termination, occurred between the termination and her seeing Dr H on 3 March 2008. Dr H’s notes record “No vaginal bleeding, bleeding stopped one week after termination.” There was no complaint to Dr H about the incident referred to in paragraph 56(b) and the complaint of the mother is not consistent with Dr H’s observations and notes.

25. The first mention of the father in the notes produced by the general practitioners is on 18 September 2011, when the mother was pregnant with the child. The general practitioner ordered some screening tests and counselled the father, presumably in relation to the screening tests. On 19 October 2011, the notes indicate that the father was present for an antenatal visit.

26. On 11 July 2012, after the mother and the father had separated, the general practitioner recorded (repeated verbatim):

    Psych: Poor sleep. Early morning wakening. Depressed mood. Low self esteem. Irrational fear. No compulsive behaviours. has had relationship for 4 years and had one baby. now they separated and worried about the child custody. she lives with her mother. baby is well looked after by her and mother help. counselling done, may needs to refer to psychologist

    The notes indicate that a mental health plan was prepared and accepted by the mother.

27. On 15 July 2012 the general practitioner noted: “Early morning wakening. Poor sleep. Depressed mood. Low self esteem. Irrational fear…Relationship with partner is not going well.”

28. On 26 July 2012 the general practitioner noted: “Requests STI check previous partner may have been unfaithful ceased intimate relations when pregnant with her 4 month old baby window periods discussed.”

29. On 3 April 2013 the general practitioner noted (repeated verbatim):

    HER PREVIOUS BOY. FRIEND NOT LIVING WITH HER ANY MORE. HE IS TAKING HER TO THE COURT. SHE IS GOOD MOTHER. SHE DOES NOT WANTS HER BOYFRIEND AROUND HER ANYMORE. BECAUSE WHEN SHE FIND OUT SHE IS PREGNANT HE WANTED TERMINATION. SHE DISAGREE. SHE HAD FORCED TERMINATION BEFORE IN THE PAST. [THE FATHER] HER EX BOFRIENG HAS DRINKINH AND DRUG ISSUES.

30. The records produced by the general practitioners do not suggest that the mother had ever complained of physical violence perpetrated upon her by the father. More relevantly, they do not suggest that the mother had ever needed treatment for injuries caused by the father, although it is her evidence that injuries occurred such as, for example, the cigarette burns and bleeding after sexual intercourse.

31. Also produced by the general practitioner is the correspondence from Dr I. Dr I noted that on 15 March 2010 the mother presented for a consultation with the father and Mrs Katsaros.

32. On 30 August 2010, Dr I noted that the mother presented to see him urgently. She complained of abdominal pain, chest pain and paraesthesia in her scalp. She seemed very anxious. She said that she had been “pushing loved ones away”. Dr I told Dr H “However if she continues to have marked anxiety it could be worthwhile referring her to a clinical psychologist – patients who have had refractory seizures for a long time and then become seizure free can often have an adjustment anxiety disorder and may need support to get through this.”

33. On 24 January 2011 Dr I reported that the mother presented for a follow-up session with the father. Dr I reported “She has symptoms that support major depression with poor sleep, constant spontaneous crying, low mood, and very high levels of anxiety.” Significantly Dr I reported “She is currently taking folic acid, and her husband and she are planning to try and start a family in 2012.” That would seem contrary to the mother’s statement to Dr H on 3 April 2013 that when the father found out she was pregnant with the child he wanted her to have a termination. It is also contrary to the mother’s assertion that the child was conceived by rape. Notably the mother does not, in her affidavit, make that allegation. Dr I continued:

    [The mother] has depression. This may well be due to adjustment following her being rendered seizure-free. Alternatively it could be the Keppra which may (sic) contributing to her depression. Given it has rendered her seizure-free and there are other possible causes for her depression, I will not stop this for the moment but rather would aim to treat her depression in the first instance and see what develops. If she gets any worse, particularly if she develops any suicidal ideation, we may have to review the situation.

1. On 2 May 2011 Dr I reported that the mother presented with the father for follow-up and seemed very happy. The mother and the father discussed with Dr I the need to minimise her medication given their plans for a pregnancy.

2. On 1 August 2011 Dr I reported a further visit where the mother was accompanied by the father and Mrs Katsaros. They discussed the medication regime in the context of the pregnancy.

3. On 16 January 2012, the mother again attended upon Dr I with the father and Mrs Katsaros and they discussed the importance of her taking Keppra during labour.

4. During the period of the visits to Dr I, to which reference has been made above, the father and the mother were not living together. The mother was living with Mrs Katsaros, although the father spent time with her at Mrs Katsaros’ house and she spent time with the father at the house of his parents. The father accompanied the mother on a number of visits to Dr I and the mother does not suggest in her affidavit that he did so other than at her invitation. Certainly she does not suggest that she asked the father not to come or that she was unhappy that he attended with her.

5. On 30 August 2011 the mother attended an antenatal visit and was assisted to complete a document entitled “Comprehensive Screening Assessment Form”. In the section entitled “Partner History” the mother indicated, in relation to consumption of alcohol, “occasional beer” and in relation to marijuana, “not now”. Under the heading “Risk of Depression” and in answer to the question “Have you ever had treatment in the past for mental health problems/psychosis/neuro problems from a GP, Psychiatrist or Mental Health Team?” the mother indicated “yes”. She also indicated “yes” against “Past Depression”. The mother indicated that there had been a family history of depression. In oral evidence the mother strongly denied that she had given that information, although there was no explanation from her as to why the information would appear on the form.

6. In relation to questions under the heading “Personal Safety” the following questions were asked:

   1.      Within the last year have you been hit, slapped or hurt in other ways by your partner or ex partner?

   The mother answered “no”.

   2.      Are you frightened of your partner or ex partner?

   The mother answered “no”.

   3.      Are you safe to go home when you leave here?

   The mother answered “yes”.

7. Under the heading “Sexual History” the mother indicated that she had a regular sexual partner and under the heading “History of Sexual Assault” the mother answered “no”.

8. Annexed to the mother’s affidavit was a document entitled “RPA Women and Babies PsychoSocial Referral Form” which appears to have been completed in consequence of a referral to the N Hospital, on 12 December 2011. On the form under the heading “Reason for Referral: (tick one or more)” the reason is indicated as “present relationship difficulties”. There is no tick against the boxes for past domestic violence or present domestic violence. Under the heading “Brief explanation for the referral and any other relevant information” the document recorded “Pt came to Reg Clinic Appt - asked her ex-partner to leave, she feels ‘choked up’ when he is around.” The form noted that the mother’s ex-partner was at the last appointment four weeks ago, so he knew about this appointment. The mother conceded in cross-examination that the father was her present partner and not her ex-partner at the time.

9. The mother was referred to a social worker. Ms Katsaros was also present during their discussions. The notes record that the mother told the social worker that her ex-partner and the father of her baby was verbally abusing her and threatening her, which was causing her a lot of distress. She said that her ex-partner was also stalking her by following her to appointments for the baby, so she did not feel that she could be as honest with the doctors as she wanted to be because he was always in the room.

10. The social worker explained to the mother that the best thing she could do was apply for an Apprehended Domestic Violence Order (“ADVO”). Mrs Katsaros told the social worker that she knew what to do as her own husband had been violent and that she could support the mother to get an ADVO to help protect her. The mother told the social worker that she knew how to contact police if anything happened. There was no suggestion made by the mother or Mrs Katsaros to the social worker that there had been any physical violence perpetrated by the father towards the mother.

11. On 1 August 2012, after the father and the mother had separated and the mother had returned to live with Mrs Katsaros, the mother made a statement to police in support of an application for an ADVO. At paragraph 4 of the statement the mother said:

    During the entire relationship there were ongoing issues and incidents were (sic) [the father] would verbally abuse me, threaten me, stand over me and talk down to me, there was pushing and shoving and on occasions he physically assaulted me by hitting me with both closed and open hands.

    At paragraph 6 of the statement the mother referred to the incident that she alleged took place at the father’s friends’ wedding but she does not allege that the father forcefully gripped her wrists and hurt her as she said in her affidavit.

12. At paragraph 8 of the statement the mother said:

    [The father] used to tell me often and even in social circles would often comment that the way he would kill someone was to poison them. When we lived together the comments previously made by [the father] in relation to poisoning someone became a real fear that he may in fact try to kill me this way. If [the father] would not allow me to assist in the preparation of food I would be concerned and refused to eat these meals. This would sometime (sic) trigger a verbal argument with [the father].

    This allegation is not contained in the mother’s affidavit.

13. Significantly the mother in her police statement does not mention any incident of sexual assault or rape. Neither does she mention the incidents which have been detailed at paragraph 54a, b, c, e, f, g, h, i, j, k, l or m of these reasons.

14. The mother’s application for an ADVO was heard on 26 September 2012 and, after evidence and cross-examination, was dismissed.

15. In cross-examination at the Local Court on 26 September 2012, the mother agreed that the father had had no contact with her at all since 27 July 2012 when she requested him to stop calling her and he complied with her request. In evidence before me the mother agreed that the father had not contacted her between 27 July 2012 and the date of the hearing, despite the fact that the father was at all times aware of her residential address.

16. In relation to the mother’s allegation that the father had raped her on every occasion when they had sexual intercourse, the mother told the cross examiner “Anytime I didn’t – I refused intimate contact he would pin me down and force it upon me.” She did not say that there had never been any consensual sexual intercourse between them.

17. In her police statement the mother said at paragraph 23:

    I disclosed numerous incidents to my doctor who was the person who told me to come to the police.

    That statement is not supported by the records of her general practitioner.

18. In re-examination the mother was asked what made her go to the police station in August and she replied “Okay, so I had disclosed numerous incidents to my doctor and she was the one that said to me…”

19. An examination of the general practitioner’s records indicates that the mother was not telling the truth. There was no disclosure made to the general practitioner. In re-examination in relation to the allegations of rape, the mother said “He forced me more than once to have sex with him against my will”. She did not say that every act of sexual intercourse was forced.

20. In the hearing before the Local Court on 26 September 2012, the mother gave evidence and was cross-examined about the alleged sexual assaults on her by the father. By contrast, the notes produced by the Sydney Women’s Counselling Centre, referring to a session of counselling on 4 February 2013, record “Client reported feeling nauseated and distressed as memories of sexual assault by ex partner surfaces. Client said she was reflecting on the statement/interrogation process with domestic violence officer at police station when reported domestic violence incident.” When it was pointed out to the mother that she had given evidence in the relation to sexual assaults by the father during the ADVO proceedings and that was inconsistent with her statement to the counsellor that the memories were surfacing in February 2013, the mother was unable to explain the inconsistency.

21. The mother saw Dr D, in the course of the appointments for the preparation of the report, on 14 October 2014. Dr D reported that the mother told her:

    There was ‘violence, from the outset: hitting and throwing things, verbal put downs; it was quite scary’. She doesn’t like to think about it; she is trying to move on. [The father] said if she left him he would have her followed; she was ‘always afraid’. She was ‘very naive sexually’ and he was ‘sexually violent and physically violent’ and became more so during the pregnancy. He would pull her hair or step on her foot; he forced sex on her many times; he wanted it frequently and was often violent; at first she refused but in the end ‘I went numb and couldn’t stop him’; she felt she was not in her body; then afterwards she felt ‘disgusting’. Often [the father] would ‘attack from behind, like pounce on me’; sometimes with is (sic) hands around her neck: ‘I couldn’t breathe; I was stuck and so I’d leave my body. I would pray that it would be over quickly’. She has never felt that way before.

    Dr D noted that the mother displayed marked dissociative symptoms.

22. Dr D further noted:

    Early in the relationship, in 2008, [the mother] became pregnant; [the father] was angry about it; she got no support from him; he wanted her to terminate; she didn’t want to but felt ‘it was not my decision’; she felt rather ashamed because it was only three months into the relationship and she was already pregnant, so she complied. In 2010 [the mother] found that [the father] was cheating on her and using drugs and accessing porn; they broke up but only for a few weeks; he asked for another chance and she believed him and took him back.

23. Dr D reported that the mother told her that when she became pregnant with the child the father was angry and wanted her to terminate the pregnancy and she refused. She said the father did not want to be involved with the pregnancy. That would appear to be quite inconsistent with the father’s attendances with the mother upon Dr I to discuss the effects of her medication on the pregnancy.

24. In relation to the mother’s allegations that the father was violent towards her during the pregnancy, Dr D reported that the mother told her:

    [The father] didn’t give her any support and during the pregnancy he was violent: he hit her in the abdomen; she was very scared she would lose the baby. They weren’t living together at the time; mostly they were living in her home and sometimes at his parents’ home. Her mother and sister were not aware of what was happening except that one time when he injured her ankle her mother asked had [the father] hit her but she denied it: ‘I didn’t have the courage to tell them’.

25. Significantly the mother did not tell Dr D that there had never been consensual sex between her and the father or that the child was conceived by rape.

26. Mrs Katsaros swore an affidavit on 27 August 2015. In relation to any complaint to her by the mother about violence perpetrated by the father, Mrs Katsaros said that she recalled one occasion at her home when the mother was about six months pregnant and was crying in her room. Mrs Katsaros went in to check on the mother and said to her “Are you ok? Did he hit you?” The mother said “I just need some space Mum”. Mrs Katsaros noticed that the mother had a red mark on her lower calf area but did not press her for any more information. Mrs Katsaros said that the mother had since told her that the father pushed her on that day and hurt her leg. The mother did not, in her own affidavit, make that allegation.

27. Mrs Katsaros deposed that during the time when the mother was pregnant the mother telephoned her and said to her “mum [the father] just said he would punch me. If I come home black and blue you know why that is.” The mother arrived home moments later. The mother did not tell Mrs Katsaros that she had been hit, either in the phone call or after she arrived home.

28. Mrs Katsaros deposed that she was concerned that there were signs that something was not right about the relationship between the mother and the father. She had herself been in an abusive and violent relationship with her husband, the father of the mother and Ms C. She tried to speak with the mother on a number of occasions but the mother did not disclose that she was being abused.

29. Mrs Katsaros does not mention having seen the cigarette burns which the father is alleged to have inflicted on the mother.

30. The mother’s sister, Ms C, also swore an affidavit on 25 August 2015. She deposed she first met the father in 2007, at a celebration of her birthday. Of that occasion she deposed “I also noticed straight away that [the father] was very quiet and that he drank quite a lot. To me overtime (sic) it became clear that [the father] was a heavy drug user.” No weight can be given to such sweeping observations.

31. Ms C deposed that on the occasion of her birthday party the father “was trying to convince me that I had drunk more than I actually had. I felt as though he was trying to manipulate me”. In cross-examination it was put to Ms C that she was, on that occasion, drinking Long Island Iced Tea and that the father was trying to warn her that there was great deal more alcohol in the drink that she had herself anticipated. Initially Ms C denied that she was drinking Long Island Iced Tea but after a while admitted that she had been. She was not prepared to concede that there might have been any possibility that the father was simply trying to warn her and insisted that he was trying to manipulate her.

32. It would seem that from the very moment that Ms C met the father she was suspicious of him. In her affidavit she deposed that she does not remember having many positive interactions with the father while he was in a relationship with the mother. In cross-examination she conceded that there had been an occasion when she and Mrs Katsaros had accompanied the father and the mother on a holiday to Thailand and that that had been a pleasurable experience. That experience is not reflected in her affidavit.

33. Ms C was critical of the father for suggesting that the mother suffered from depression. She deposed that the father had a conversation with her where he told her that the mother was depressed and needed assistance. Ms C deposed “I did not at the time and do not believe that [the mother] was depressed at that time.”

34. Ms C would not accept that medical practitioners had determined that the mother suffered from depression over a significant period of time.

35. Ms C deposed that the father was disinterested in the pregnancy with the child.

36. No complaints were made by the mother to Ms C during the course of the relationship with the father about any incidents of violence perpetrated by the father towards the mother.

37. Ms C deposed to an incident which she said took place in the backyard of the home where she lived with her mother and sister. Ms C said that she saw the father pick up a pet rabbit by the neck and start to choke the rabbit. Ms C deposed that she said to the father “Let him go you are choking him” and the father did not stop but just said “he’s OK”. Ms C took the rabbit from the father.

38. This allegation was put to the father. He denied it absolutely. Nobody else was present. Having regard to the evidence about Ms C’s attitude towards the father and her staunch support of the mother’s case, to which reference will be made later in these reasons, I am unable to accept that her version of that event should be accepted over the father’s denial.

39. The father, in relation to the allegations of violence, relied upon text messages which had been sent between the father and the mother between 22 March 2012 and 25 April 2012. The mother agreed that, with the exception of one message, the text messages were sent by her or received by her. The one message is of no relevance. The text messages cover the period when the parents were living together after the child’s birth and continue after they separated. The messages are largely unremarkable and represent communications between young parents managing a new baby with one of them working fulltime and the other at home with the baby. There are numerous messages every day about day to day domestic matters.

40. Nowhere in any of the messages is there any suggestion on the part of the mother that the father has been violent towards her either at that time or at any time in the past. I accept the evidence of Dr D that that does not of itself support a submission that no violence was occurring but neither does it support the mother’s case.

41. Dr D expressed concerns about the reliability of the mother’s reporting. In cross-examination she gave the following evidence:

    COUNSEL FOR THE FATHER: So would it be a fair summation of your view now with respect to domestic violence and [the father] that you don’t accept the mother’s version of events so far as it relates to domestic violence?‑‑‑

    [DR D]: I think it’s difficult to know what the – what the reality was.  But certainly, her version of what has transpired since – since the separation is obviously highly questionable.  So that tends to cast (doubt) on all – all the aspects of the history. 

42. There is no corroboration from any external source of the mother’s allegation that the father committed acts of violence upon her. Such little extrinsic evidence as exists, mainly from the files of the treating doctors, does not support the mother’s version of events.

43. There are discrepancies in the mother’s reporting of the allegations between the allegations in her affidavit, the reports to Dr D, and the reports to the police.

44. I am not satisfied that the mother’s evidence is sufficiently reliable that it can be accepted over the denials of the father. The mother’s allegations of family violence are not made out.

ALLEGATIONS OF FAMILY VIOLENCE TOWARDS the child

1. After the child was born, the parents lived together in a unit at Suburb M from the mother’s discharge from hospital on 14 March 2012. The mother asserted, in these proceedings, that they separated on 12 April 2012. The father asserted that the date of separation was 14 April 2012. The date of separation has some significance, which will be seen when the mother’s allegations are set out in detail.

2. In the police statement which the mother gave on 1 August 2012, the mother stated that the separation occurred on 14 April 2012. In cross-examination on 26 September 2012 before the Local Court, the mother in her sworn evidence said that she moved out of their shared flat on 14 April 2012. In her affidavit filed in these proceedings the mother deposed that after a particular incident toward the end of March 2012, which will be referred to later in these reasons, she spent her nights with the child at the home of Mrs Katsaros but did not move out of the shared flat until 12 April 2012. The mother was not challenged in relation to her assertion that she spent some nights at her mother’s home prior to moving out of the flat.

3. Text messages between the mother and the father, from about 9 April 2012 to 12 April 2012, seem to suggest that they were living in the same premises. The messages over the relevant period contain numerous messages of love and affection from each of the parents towards the other.

4. Given the mother’s own evidence in the police statement and before the Local Court, which corroborates the father’s evidence regarding the date of separation, I find that it is likely that the mother finally moved out of the shared premises on 14 April 2012 but that she spent her nights at Mrs Katsaros’ home for a period of time before that. I am unable to determine on the evidence what that period might have been.

1. The father also gave evidence that his current employment offered flexible working hours.

2. While the mother, Mrs Katsaros and Ms C make a number of allegations regarding the father’s poor parenting capacity, from what has been observed of the father’s interactions with the child by professional supervisors and Dr D it appears that he has demonstrated the ability to behave in an appropriate, caring and child focused way with the child.

3. The father has also maintained his financial responsibilities toward the child.

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

1. The mother made serious allegations of family violence by the father against her, including allegations of rape, physical violence and coercive and controlling behaviours which have been set out earlier in these reasons.

2. The nature of these allegations intensified through the course of the proceedings and some allegations, such as the allegation that there had never been any consensual sex between her and the father and that the child was conceived by rape, were only made in the course of the mother’s oral evidence.

3. The mother also made extensive allegations of the father harming, or attempting to harm, the child.

4. The allegations are denied by the father.

5. I accept the evidence of Dr D that the fact that the mother did not report the alleged incidents of abuse at the time they occurred does not in itself prove that the abuse did not take place.

6. However, given the discrepancies in the mother’s reporting of the allegations, the absence of extrinsic evidence and the inherent implausibility of certain allegations, for example that the father sexually abused the child at the Club in the presence of Mrs Katsaros and Mrs Shireman and during supervised contact by F Group, I do not accept the mother’s evidence over the consistent denials of the father.

7. I do not find that the mother has proven her allegations in relation to acts of family violence by the father, against her or against the child, to the standard required by s 140 of the Evidence Act.

8. The mother’s allegations of family violence will not be taken into account when determining the spend time and living arrangements for the child.

(v) any other relevant matter;

1. Dr D’s evidence regarding the mental health of each of the parents and the enmeshed nature of the maternal family was set out earlier in these reasons.

2. Dr D identified that the mother presented with features of a personality disturbance while the father did not present with evidence of psychiatric disturbance.

3. Significantly, Dr D opined that if there is no sound basis for the concerns raised by the maternal family regarding the father, there was then “considerable cause for concern regarding the risk of psychological harm in the context of the maternal family”. Dr D described the maternal family as an “an enmeshed system with anxious and controlling behaviours and possible alienation.”

4. It was the view of Dr D that this enmeshed family context could pose a significant risk to the child’s mental health in the future.

5. Dr D also commented that contact between the child and the paternal family may provide a balance against the emotional enmeshment in the maternal family.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. The history of this matter suggests that any order that the child live with his mother and spend time with his father will lead to further litigation. If the child is to live with his mother, then he will have no relationship with his father. I am not confident that the mother would facilitate even the type of “recognition” contact every six months that Dr D said would be necessary.

2. The only basis on which the Court could be assured that a residence order in favour of the mother would not lead to further litigation is that there be no order for any contact between the child and his father.

CONCLUSION

1. If the child remains in the care of his mother, he will have no contact or relationship with his father or his paternal family. He will grow up believing that his father is a “monster” who will harm him or kill him given any opportunity. He will be alienated from his father. He will grow up in an enmeshed family with consequent risks of anxiety and depression, somatic and internalising problems. He will be parented by the mother and maternal family who have not demonstrated that they are able to provide the child with the emotional support he needs but have, by their behaviour, heightened his alarm.

2. There may be difficulties for the child in the future, for example with medical practitioners and schools, if the mother’s past behaviour towards professionals who do not agree with her views is any indicator of her future conduct.

3. There is no moderating influence upon the mother’s beliefs and behaviours which appear to be unconditionally supported in the maternal household.

4. There is no likelihood that the mother’s attitude towards the father and the consequent effects on the child will change. She has been in counselling for a long period of time. There is no evidence that she is likely to undertake the specific therapy which Dr D recommends, nor is there evidence that her mother and sister are likely to participate.

5. However, if the child remains in the care of his mother to whom he is primarily attached and his maternal grandmother and aunt to whom he is also attached, his Country MM heritage will be fostered and maintained.

6. If the child lives with his father, he will suffer real trauma at the loss of his mother. Dr D has given evidence of the seriousness for the child of the trauma of the loss.

7. However, I accept the evidence of Dr D that he will be well cared for by the father and the paternal family. Most importantly, he will not be subjected to negative views of his mother and will be encouraged to have a relationship with her.

8. Whether the mother is capable of constraining her behaviour such that she can spend time with the child remains to be seen but she will have the opportunity to do so.

9. In circumstances where Dr D has made it clear that there is no safe alternative for the child, his best interests are served by his living in a household where he can have a relationship with both of his parents.

10. B will live with his father.

PARENTAL RESPONSIBILITY

1. Parental responsibility is defined by s 61B of the Act as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

2. Each of the parents sought an order that they exercise sole parental responsibility for the child.

3. The decision about parental responsibility must be made on the basis of the child’s best interests.

4. Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. Section 61DA(4) provides that this presumption may be rebutted by evidence that satisfies the Court that this would not be in the best interests of the child.

5. It is clear from the evidence before the Court that there has been a breakdown of all communication between the parents. The father has been excluded from all decision making in relation to the child. As outlined earlier in these reasons, he was unaware of the fact that the child was attending pre-school until the hearing of this matter. It was the mother’s evidence that she had not told the father that the child attended pre-school because it would pose a risk of harm, not only to the child but to all the children at the school.

6. Having regard to the past behaviours of the mother and the maternal family, and the current fears expressed by them in relation to the father, it is unrealistic to expect that these parents have the ability to consult with each other and make a genuine effort to come to joint decisions in relation to major long term issues for the child as required by s 65DAC. Imposing such a requirement is likely to heighten the mother’s anxieties and increase the potential for conflict between the maternal and paternal families, which in turn will be harmful to the child who has already been observed by supervisors to have become distressed by his mother’s anxious presentation at changeovers.  

7. It was agreed by both the parties that an order for equal shared parental responsibility would not be appropriate in the circumstances of this case. Both parents sought that an order for sole parental responsibility be made.

8. An order for sole parental responsibility does not relieve the parent exercising that responsibility from having to communicate about their child and to pass information about them to the other parent.

9. In circumstances of this case, it is appropriate that there be an order that the father have sole parental responsibility.

HOW CAN THE CHANGE OF RESIDENCE BE ACHIEVED?

1. The father proposes that, initially, the child and his mother use Skype or Facetime on two occasions each week, supervised by the mother’s counsellor. After one month, the father proposes contact supervised by the SCCC for two hours each week. After six months, the time at SCCC is increased to four hours each fortnight. Mrs Katsaros and Ms C can participate in the visits, subject to the discretion of SCCC.

2. The father will consent to the child’s time with his mother being supervised by members of the maternal family (excluding Mrs Katsaros and Ms C). There is no evidence before me that there is any member of the maternal family willing and available to supervise. No doubt, if one should emerge, arrangements can be made by agreement.

3. The father, in his minute of orders, proposes appropriate machinery orders to facilitate the mother being provided with information about the child. The father also proposes that the mother’s time with the child increase if she is able to provide a report from a treating psychiatrist which states that the mother accepts that the child is not at risk in his father’s care.

4. No alternate proposal was made on behalf of the mother, in the event that the child lives with his father.

5. Whether the mother will be able to contain her behaviour in the child’s presence, such that time with her is able to continue, remains to be seen. It is appropriate that the mother’s contact with the child be monitored by professionals who are able to recognize inappropriate interaction and stop it. Counsel for the mother submitted that the mother may not be able to afford to have the electronic contact supervised by her counsellor. If that is the case, then, in the absence of agreement, the Orders will provide for the electronic contact to be supervised by the SCCC.

6. The father’s proposal is appropriate in the difficult circumstances of this family.

I certify that the preceding five hundred and forty-nine (549) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 October 2015.

Associate:

Date:  23/10/2015