Tindall & Saldo - [2012] FamCA 1156

FAMILY COURT OF AUSTRALIA

TINDALL & SALDO

[2012] FamCA 1156

FAMILY LAW – CHILDREN – Communication with child – risk of child being exposed to physical or psychological harm – benefit of the child maintaining contact with the father - where the Court ordered for the father to communicate with the child three times each year for recognition and reassurance of the paternal relationship – orders provide for the mother to inspect all correspondence the father sends before passing that on to the child – orders provide for the mother to assist the child to write letters to the father three times a year if she so desires – where the father was convicted of several serious offences for which he is currently serving a custodial sentence of five years – where the father made cross-allegations that the mother had fabricated the incidents for which he was later convicted – where the mother wished for the child to have no contact and no relationship with the father – where the child had a positive relationship with the father – where the mother had protected the child from the truth about her father’s imprisonment and criminal convictions – where the child lives with the mother and spends no time with the father – where there were previous orders for supervised contact with the father – where there were prior contravention proceedings.

FAMILY LAW – EVIDENCE – Agreed facts - where the father had signed agreed facts in prior criminal proceedings as to his convictions – where the father denied he had ever committed the crimes set out in the agreed facts – where Court relied on the agreed facts and presumed the truth of the convictions for the purposes of the hearing pursuant to s 191of the Evidence Act 1995 (Cth).

FAMILY LAW – EVIDENCE – Adversarial expert evidence – where the mother sought to adduce her own adversarial psychiatric assessment – where the Court found psychiatrist had not provided therapeutic treatment to the mother and evidence of the single appointed expert under Pt 15 of the Rules was to be preferred – where the adversarial expert admitted he may have come to a different conclusion if he had interviewed both parties – where Court’s single appointed expert had made adverse findings as to the credit of the mother’s allegations against the father – where the Court appointed expert subsequently reviewed his opinion based on his review of the agreed facts signed by the father and mother in criminal proceedings.

FAMILY LAW – EVIDENCE – Expert evidence – where the Court relied on the expert witness’s evidence as further indication of the mother’s express wish for the daughter to have nothing to do with the father – where the mother had sought to adduce further expert evidence without leave during trial without prior notice to the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004, Pt 15

APPLICANT:

Ms Tindall

RESPONDENT:

Mr Saldo

INDEPENDENT CHILDREN’S LAWYER:

Boyd Olsen Lawyers

FILE NUMBER:

NCC

3176

2008

DATE DELIVERED:

6 September 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

24, 25 and 26 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms V Carty

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boyd Olsen Lawyers

Orders

That all previous parenting orders be discharged.
That the mother shall have sole parental responsibility for the child T Tindall born … 2006 (“the child”).
That the child live with the mother.
That the father may communicate in writing with the child three times in each calendar year at the following times:
(a)       once on or around the child’s birthday;
(b)       once on or around Father’s Day; and
(c)       once around the Christmas/New Year period
with the first such communication to be in December 2012.
Such communication referred to in Order 4 may be a letter or a card and/or a gift on each occasion subject to the following conditions:
(a)The father shall ensure at all times:
(i)that the contents of his communications with the child and gifts for the child are age appropriate
(ii)the father shall not refer in such communications to the child’s mother or any member of the maternal family; and
(iii)the father shall not make any comment which refers to the previous or existing living arrangements for the child or any proposed change to those arrangements
The mother shall:
(a)forward to the father within 14 days of these Orders a postal address to which the father may address the letters, card and gifts for the child and shall inform the father in a timely manner of any change to such address; and
(b)ensure that the postal address location is checked at appropriate intervals to ensure that any communication addressed to the child is received in a timely manner by the child.
The mother shall be entitled to read any written communication and examine any gift herself or by arrangement with any adult nominated by her, have that person review correspondence and gifts AND in the event that she consider that communication does not comply with these Orders, shall return the material to the father or his nominee using the envelopes referred to in Order 8.
The father shall provide to the mother three stamped self-addressed envelopes each year.
In the event that the child expresses a wish to communicate in writing with the father, then the mother is to facilitate such communication for the child by using the envelopes referred to in Order 8.
The mother shall not denigrate or criticise the father to or in the presence of the child or permit the child to remain in the presence of any other person denigrating or criticising the father.
The father shall not denigrate or criticise the mother to the child in any communication with the child.
The mother may supply a copy of the Orders and Reasons for Judgment together with the three reports of Dr R to any clinical psychologist or psychiatrist she consults about the implementation of these Orders.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tindall & Saldo 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 NEWCASTLE

FILE NUMBER: NCC 3176 of 2008

Ms Tindall

Applicant

And

Mr Saldo

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings are the parents of a six year old daughter, T (“the child”). The applicant is the mother Ms Tindall (“the mother”), aged 31 years. The respondent is the father Mr Saldo (“the father”), aged 35 years.
The parties met in 1998 and conducted a violent, episodic, emotionally charged relationship over 10 years until final separation late in 2008.
The child T is living with her mother in the home of her maternal grandparents and has not seen her father for two years.

The issue for determination

The issue in dispute was defined by an order of the Court made on

29 September 2011 as follows:
(1) …….
(3)The single issue to be considered in the determination of these proceedings is the manner of communication between the child and the father (see Orders 5 and 7 proposed by the applicant and Orders 4 to 7 inclusive proposed by the respondent) it being agreed:
(a)the mother have sole parental responsibility for the child;
(b)the child shall live with the mother;

(c)all previous orders regulating the expenditure of time by the child with the father be discharged;

(d)the mother does not press her application for Order 4 (no time to be spent with the father);

(e)the mother does not press her application for Order 6 (restraining order against father);

(f)the mother consents to Order 8 proposed by the father (non-denigration); and

(g)the mother consents to Order 9 proposed by the father (parenting course).

Since 29 September 2011 the mother had resiled from her position in two ways. Firstly, she no longer consents to an order that she complete a Parenting after Separation Course and is now unwilling to attend such a course. Secondly, she proposes that there be no written communication between the father and child, on any occasion under any circumstances. Until 13 January 2012 her proposal had been for written communication three times per year.
The mother presently wishes the Court orders to reflect the wish she has held for some time that the relationship between the child and the father come to an end on a permanent basis.
By the conclusion of the hearing, the father also had changed his position. Having heard the evidence of Dr R, the father reduced the number of times he sought to be permitted to communicate in writing from 15 to four times per year.[1]
[1] Amended Response filed 22/09/2001 (Orders 5 & 7)
The Independent Children’s Lawyer proposed communication by letters, cards and gifts on no more than three occasions each calendar year, subject to certain conditions for the implementation of that communication. Dr R supported this proposal.

The Evidence

The mother relied on the following documents:
a)Further Amended Initiating Application filed 13 January 2012.
b)Affidavit of mother sworn 23 January 2012 filed 24 January 2012;
c)Affidavit of Dr L sworn 17 January 2012, filed 19 January 2012.
d)Affidavit of Dr N sworn 16 January 2012, filed 19 January 2012.
e)Affidavit of Mr W sworn 14 June 2012, filed 15 June 2012.
f)Affidavit of Dr N sworn 26 June 2012, filed 3 July 2012.
g)Affidavit of Ms S sworn and filed 20 July 2012.
h)Affidavit of Ms S sworn 4 May 2012, filed 7 May 2012.
The father relied on the following documents:
a)Amended Response to Initiating Application filed 22 September 2011.
b)Affidavit of father sworn 19 February 2012, filed 24 February 2012.
The Independent Children’s lawyer relied on the three reports of Dr R dated 20 January 2010, 7 June 2011 and 18 August 2011.

Conviction and imprisonment of the father

The father has been in gaol since July 2011 for assaults on the mother. He is serving a five year sentence with a non-parole period of two years six months. The sentencing Judge recommended release to parole on 18 January 2014.
The father was convicted of three counts; one of assault occasioning actual bodily harm and two of kidnapping (one aggravated and one non-aggravated).
The father pleaded guilty to these three counts on day four of a criminal trial in the District Court. The mother had given evidence and the pleas came after a negotiated plea agreement between the parties. The father signed agreed facts.
Two further matters were taken into account:
a)an assault occasioning actual bodily harm from 12 May 2002 (the broken glass incident); and
b)an assault involving the holding of a knife against the mother’s chest accompanied by a threat (1 July 2007)
Two further matters were dismissed. Alleged assaults occasioning actual bodily harm on 10 September 2006 and 8 November 2004.
An Apprehended Violence Order (AVO) was made for five years. It will expire on 19 July 2016.
The father has since denied that he assaulted the mother in the manner to which he pleaded or at all. This denial extends to all matters taken into account by the District Court.
The father asserts that the mother has lied about the assaults and manipulated him, the police and other-third parties, including professionals. He further asserts that he pleaded guilty, despite his innocence during his criminal trial proceedings, on legal advice. His counsel he said, asked him whether he wanted to see his daughter when she was six or 20, and thereafter he made the decision to plead guilty. This is a reference to the outcome of a possible additional charge of sexual assault on the mother.
The father pleaded guilty in August 2010. His sentencing was deferred to July 2011 to allow the father to undergo back surgery.
The mother asserts that the father did assault her and is attempting to manipulate this Court by denying the assaults and his own habitual violence.

Impact on the proceedings of counter allegations by the parents

The denials by the father and the reaction of the mother to those denials, was undoubtedly a complication in understanding and determining this matter. However, it was made clear to the parties from the outset that I would be proceeding on the basis that the father has assaulted the mother, in accordance with the agreed facts signed up to by the father on 10 August 2010[2] .
[2] Annexure ‘A’ to Affidavit of Mother filed 02/09/2010
The possibility exists that the father did not assault the mother and did plead guilty to the charges out of pragmatism rather than acknowledgement of guilt.
However, in this instance I refuse leave to depart from those agreed facts (s 191 of the Evidence Act 1995 (Cth)) and, in any case, I cannot and will not take into account that possibility in determining the issue at hand. I do, however, take into account that the assertions of innocence by the father and the outraged response of the mother to the father’s stance aggravated the dispute, such that the three hearing days allocated to the issue at hand were just sufficient.

The mother’s case

One aspect of the expansion of the proceedings was the evidence of Dr L, who provided an affidavit and also gave oral evidence.
Dr L had prepared a report on the adverse impacts and various consequences of domestic violence. Dr L had not met the mother, but had read some of the documents for these proceedings before her report was prepared. The evidence of Dr L was drawn from her own academic research.
A further report was prepared by Dr L after she had met and interviewed the mother. The report was produced on the first day of hearing and was not accepted into evidence.
The reasons for rejection of the second report went well beyond the filing of it without leave. The second report appeared to be an application of theoretical material to information provided by the mother to Dr L, with a view to proving that the mother had in fact been coercively controlled and repeatedly assaulted by the father during the parties’ relationship.
Despite the inherent problems with the reliability of such evidence, the issue of whether or not assaults had taken place was not being re-determined and therefore the report, even if unreservedly accepted into evidence, could not have assisted the Court.
The evidence which was admitted, both written and oral, related to conduct by the mother which included:
(1)continuing in a relationship with the father despite alleged violence;
(2)retracting statements to the police about alleged domestic violence;

(3)forwarding graphic sexual images of her genitals to the father in the weeks after the events in July 2007, for which the father was subsequently imprisoned four years later;

(4)sending an enormous number of letters, cards and texts in the nature of ‘love letters’ to the father throughout the relationship imploring him to ‘continue in the relationship’;

(5)consenting to Orders for contact between the father and the child after the July 2007 assault; and

(6)contacting the father’s best friend and inviting him to an intimate encounter with her (the mother) at a time when:

(i)the parties were separated under the one roof; and

(ii)she was angry with the father for pursuing a relationship with another woman interstate.

To the extent that it is relevant, I accept Dr L’s evidence that such behaviour by the mother could be consistent with perpetration of domestic violence, including coercive control by the father of the mother. However, on that evidence there remain other explanations more favourable to the father. In any case, I do not consider that the evidence is relevant to any degree, given that the assault on the mother was already established.
The fact that such evidence was commissioned and relied on by the mother is of some assistance in determining the issue at hand. I find that the mother wished to take every possible action and course to persuade the Court to permanently terminate the relationship between the child and her father.

Evidence of Dr N, Psychiatrist

The applicant mother relied on two affidavits by Dr N, psychiatrist. Dr N was required for cross-examination and gave evidence by phone.
The mother in her affidavit, referred to Dr N as her treating psychiatrist[3]. This assertion requires careful consideration. This is because the mother says she relied, at least to some extent, on the opinion of Dr N when she instructed her solicitors to file a further Amended Initiating Application in January 2012, resiling from any future written communication between the father and the child.
[3] Affidavit of the mother filed 23/01/2012, p 7, par 25
During his oral evidence, Dr N spoke of the first appointment with the mother which took place in the doctor’s rooms in Sydney on 27 February 2010. On that occasion, the mother attended her appointment and handed a letter to

Dr N from Dr J, a specialist General Practitioner (GP) on the Central Coast. Dr N, to the best of his recollection, had had no previous referrals from this doctor.
The letter dated 26 February 2010[4] advised Dr N as follows in relation to the mother:
·       she is involved in Court proceedings in Newcastle Family Court;
·       there is a “custody battle” between the parents;
·       she alleges assault by her ex-partner;
·       the Court had ordered a psychiatric review of the parents;
·       she had told her GP that the psychiatric assessment by Dr R suggested that “she had made the whole thing up and alluded to her having a mental disorder”; and
·       her solicitor would like an independent psychiatric review.
[4] Exhibit ‘1’ - letter of Dr J to Dr N
This letter from the GP was not referred to or included in either of the affidavits of Dr N. It casts a different complexion on the professional relationship between the mother and Dr N. This initial meeting was clearly for a psychiatric assessment in a legal context.
Dr N said he met with the mother on the following eleven occasions:
i)      27 February 2010;
ii)     2 March 2010;
iii)    17 March 2010;
iv)     5 May 2010;
v)      13 May 2010;
vi)     29 October 2010;
vii)   21 January 2011;
viii)     23 February 2011;
ix)    3 March 2011;
x)      16 January 2012; and
xi)    12 March 2012.
Dr N annexed to his affidavit six documents of which he was the author, relating to the mother.
The first report was addressed directly to the mother’s general practitioner, the second was “To whom it may concern”. The following four were letters to the mother’s current solicitors.
Those reports are dated:
i)      8 March 2010;
ii)     21 May 2010;
iii)    21 January 2011;
iv)     16 December 2011;
v)      20 December 2011; and
vi)     15 June 2012.
Dr N conceded that he had not seen the mother on any regular basis, weekly or monthly for instance. Rather, her visits tended to cluster at the time of the preparation of a letter or report. There were two periods of many months passing without the mother consulting Dr N at all.
For the first report, Dr N took a history from the mother over two one hour periods. Dr N readily conceded in his oral evidence that he had only obtained information from the mother when he came to the following conclusions:
I am of the opinion that she is a normal caring young woman who met and had a relationship with a very disturbed violent uncaring untrustworthy and drug abusing young man...
She has told me about the report and conclusions by the Psychiatrist working for the Court and I formed the view that this psychiatrist’s view is not correct.[5]
[5] Affidavit of Dr N, filed 19/01/2012, p 17

In answer to a question, Dr N said that he had kept in mind the possibility that the mother may not be telling the truth, could be exaggerating or mistaken. However, there is no expression in the reports of any such qualification or reservation in views expressed.
I accept that Dr N was entitled to be an advocate for his patient however; he took up that role without any prior knowledge of the mother in a treating therapeutic relationship.
In the second report dated 21 May 2010, Dr N refers to having had a further three interviews with the mother where “she has continued to provide further information about herself and about the time she spent with [the father]” (17 March 2010; 5 May 2010; 13 May 2010).
Dr N expressed his opinion about the mother in his second report as follows:
[she] is not suffering from and has not previously suffered from a mental illness
[she] does not have a personality disorder [;and]
[she] is of good character and is a capable parent and is fully able to care for her daughter[6].
[6] Affidavit of Dr N filed 19/01/2012, p 18
Clearly, on the evidence of the doctor himself, no treatment was provided in these first five sessions. I am confident in so concluding because there was no condition to treat in the doctor’s own view. Rather, there had been a gathering of information about the history of the mother and her relationships.
After the provision of the first two reports, there was a period of five months where the mother did not consult Dr N at all, up until 29 October 2010.
On 21 January 2011 the mother’s current solicitors wrote to Dr N asking for a report and posing 10 questions. There is no reference in this letter to that the mother’s previous solicitor had advised the mother to obtain a psychiatric review.
It is not clear to me whether the current solicitors for the mother knew how the relationships between the mother and Dr N began. Counsel for the mother informed the Court that the solicitors did not have files of previous firms, of which there have been two. The letter from the mother’s current solicitors begins:
We represent Ms [Tindall]…. We note that you have previously treated our client and that you saw her on a number of occasions between February 2010, until about November 2011[7].
[7] Affidavit of Dr N filed 19/01/2012, p 5
However it came about, the affidavits of Dr N did not accurately reflect the reasons that the mother consulted Dr N initially.
Dr N saw the mother on 21 January 2011. That is also the date of the letter from the solicitors for the mother. Dr N responded with a written report on that same day[8]. In answer to question two:
What have you treated [the mother] for?
The doctor responded:
My assessment of diagnosis is that [the mother] is suffering from Major Depressive Episode, Anxiety Disorder and Post Traumatic Stress Disorder caused by many years of psychological and physical abuse by her partner [the father] and in particular by the serious assault on her and [the child] by [the father] in July 2007.
Further in the report there are these passages.
I have been seen (sic) [the mother] for supportive psychotherapy to assist her recovery. She will continue to need supportive psychotherapy in the future…
In my opinion [the mother] is depressed, anxious and severely psychologically ill due to the criminal actions of [the father] toward her and [the child] and in my opinion she is surprised and frightened by the arrangement being made at [the father’s] request to see [the child] and his seeing [the child] would worsen her illness and jeopardise her recovery.
[8] Affidavit of Dr N filed 19/01/2012, p 14
This is the first diagnosis by Dr N of any mental ill health. Between the May 2010 report and the January 2012 report, Dr N saw the mother once (29 October 2010). On 21 January 2011 the request for a report was made, the mother was seen and the report was written.
The consultation on 29 October 2010 is the only occasion when Dr N had an opportunity to properly review the mother. Logically the diagnosis must arise from that one visit. Dr N said he had come to the diagnosis gradually, 10 months later.
Eleven months later, on 9 December 2011, the solicitors for the mother requested a further report, essentially “an expert report for [the mother] to rely upon at that hearing.” Excerpts from reports of Dr R were included. It is a six page letter of information and instructions.
One week later, on 16 December 2011, Dr N sent a brief report to the solicitors declining to comment on Dr R’s reports without being given them to read, advising that there are “literally thousands of references” to the impact of domestic violence. At that time the mother had not consulted

with Dr N for nine months, since 3 March 2011. The doctor telephoned her and arranged an appointment.
Three days after the receipt of the doctor’s report, on 19 December 2011, the solicitors for the mother wrote to Dr N again pressing for his views on the issue of the number of letters per year that the father should be able to write.
On 20 December 2011, Dr N returned a report still not having seen the mother, expressing a view that:
Any correspondence by [the father] to [the mother] would be a serious and terrifying adverse psychological influence on [the mother] and that it would have an adverse affect on her parenting of [the child][9].
[9] Affidavit of Dr N, filed 19/01/2012, p 4
My impression of these last two reports is that they were comparatively short and tense reflecting the frustration perhaps of being asked to advise on a patient he had not seen for so long.
On 16 January 2012 Dr N saw the mother as arranged by phone when he had telephoned her after the request for a report on 9 December 2011. The mother saw him then and once more on 12 March 2012.
On 15 June 2012 the solicitors for the mother wrote to Dr N asking for another report. The letter raised apparently conflicting opinions expressed by Dr N over his previous five reports. An explanation was requested. There was no enquiry about ongoing treatment.
On that same day Dr N provided a report in response
Dr N stated that “serious psychiatric illness” really referred to Manic Depressive Disorder, Psychosis and/or Schizophrenia[10]. There was otherwise no explanation for his early opinion being so starkly different from the later diagnosis.
[10] Affidavit of Dr N, filed 02/07/2012, p 7
The mother has not consulted with Dr N for the four months since that report and only twice in the past 16 months.
I do not consider that Dr N has been a treating practitioner for the mother, although I accept that he did advise her to consult for therapeutic treatment regularly. She did not take this advice from the outset. Dr N was engaged to carry out a psychiatric assessment of the mother for use in Court proceedings. The mother met with Dr N at times when reports were sought and otherwise sporadically and more importantly, not at all in the nine to 10 month period before the report on the impact of written communication.
Dr N is not a Court appointed joint expert. He properly conceded in cross-examination that in the role of family therapist, seeking information from all affected parties including family members, he may have come to a different view.
In those circumstances, I am not assisted by the opinion of Dr N on the issue of written communication between the child and her father, as expressed in his report addressed to the mother’s lawyers on the 20 December 2011.

Evidence of The Court appointed expert Dr R

Three reports were prepared by Dr R, namely 20 January 2010,

7 June 2011 and 18 August 2011. The first report was prepared prior to the criminal trial and conviction of the father. The doctor interviewed the parents and the child, plus 12 other friends and family members.
The recommendation of the first report was for shared care week about. The doctor’s opinion was that the child had a close and loving relationship with each of her parents and that each of them cared a great deal about her and wanted to act in her best interests. About the mother Dr R said this:
She has significant personality difficulties with borderline features of poor sense of self, erratic relationships, attempts at self harm, anger and also some over suspiciousness and histrionic features.[11]
[11] Report of Dr R dated 20/01/2010, pp 16, 17
About the father, he noted no drug or alcohol history, no history of violence or forensic history suggestive of an antisocial personality and that he had become “embroiled” in a relationship with the mother and unable to extricate himself.
The doctor stated that the allegations of the mother were spurious.[12] This is apparently a reference to allegations of sexual abuse of the child by the father, but it may be a reference to all allegations, including assaults on the mother. The doctor expressed grave concerns for the child and if the parents were unable to support the relationships of the other with the child; the father should have care of the child. This opinion triggered the mother consulting with

Dr N.
[12] Report of Dr R dated 20/01/2010, p 22
When the second report was produced, the father had been convicted, but not yet sentenced. Unfortunately in this second report, the doctor omitted to refer to the provision to him of documents by the father and his current partner,

Ms Y, during interview in May 2011. Subsequently, a letter came to light in the material produced by Dr R in response to a subpoena. Dr R acknowledged the omission and apologised.
In his oral evidence the doctor agreed that the material provided to him was influential in his thinking. The doctor expressed the view that unless the Family Court found that the father “is not violent”, despite his convictions for assaults against the mother, the child would need to stay with the mother.
The third report was one month after the sentencing of the father in 2011.

Dr R had been provided with the agreed facts on which the father has been sentenced. The doctor resiled from his previous position.
I now believe that I was at fault in my previous report for not recognising the degree of violence and threat that had been perpetrated by the father against the mother and the child. Therefore I would like to apologise to the Court and to the mother for under-estimating the degree of violence perpetrated against her and what the father was capable of perpetrating.[13]
The doctor went on to revise his assessment of the mental state of the mother:
The violent events that occurred could well have induced some anxiety and possible post-traumatic stress symptoms in the mother.[14]
[13] Report of Dr R dated 18/08/2011, p 5
[14] Report of Dr R dated 10/08/2011, p 6
The doctor confirmed his earlier view that the mother had personality disturbance and was very dependant on others.
The doctor also revised his assessment of the father, “to be capable of such violence does cause concerns about personality which at least has anti social traits.[15]” Unacceptable risk to the child when there was conflict between the parents was identified.
[15] Report of Dr R dated 10/08/2011, p 7
Ultimately, the doctor recommended recognition contact between the child and her father. The doctor noted that despite everything, the child was “functioning reasonably normally, and that she may suffer significantly should she lose the relationship with her father.”
Dr R changed his view about the father after learning of the detail of the agreed facts in the pleas, however he did not change his view that the mother had personality problems (aggravated by the violence which induced mental illness). The doctor identified the risk of the mother forming unstable relationships in the future (as this relationship was). The significance for the child losing the relationship with her father being amplified by that risk.
The change of view by Dr R confirmed in his oral evidence further confuses the issues of:
· the mental and psychological state of both parties; and
· the reasons for the lack of focus by both parents on the needs of their child.
The observations of Dr R with the child and her father are of assistance in determining the issue in dispute. The strength and warmth of the bond observed is consistent with the observations in contact reports[16] for the period between 17 October 2009 and 20 February 2010.
[16] Affidavit of father filed on 24/02/2012, Annexure ‘E’ (11 Contact Reports)

Evidence of the mother

The oral evidence of the mother also confirms the bond between the child and her father and is quite poignant. I note the following responses during the mother’s cross-examination:
Q.       Would [the child] be happy to get a letter from her father?
A.It would cause her some distress [due to] the fact she can’t see him.
Q.       Does she ask about him?
A.        Yes, she says ‘where’s Dad?’
Q.       When did she last ask about him?
A.        A few weeks ago.
The many photographs relied on by the father also reflect a close, affectionate, loving relationship between the father and the child throughout her early life[17]. This is confirmed by the mother’s comment about one photo of the child with her father, “I was happy she was happy.” The mother rejected the father’s proposition that the photographs generally captured happy family outings. The mother took the majority of the photographs herself. She gave an explanation. One photograph showed the parties at a pool, “The father was angry and abusive the entire time.”
[17] Affidavit of father filed on 24/02/2012, Annexure ‘B’
The father put into evidence a card of the kind he would be likely to send to the child. It is a photograph of the father and the child at Sydney Aquarium. I note that the mother’s reaction was to push it away with the words “get that away from me.” For the mother, in retrospect, nothing about the relationship was good. Such a reaction is understandable. The mother wants no intrusion into her life by the father. However, she had not considered the child’s independent needs. When asked by the Independent Children’s Lawyer, she said she had not thought about the possibility of the child feeling abandoned by her father, she said she would be concerned if that was what the child felt.
The hearing had heightened intensity largely because of the mother’s perception that she again needed to prove the assaults on her. That was not so, but her case was conducted in that way.
I had the clear impression that the mother was intent on proving by her every word and gesture the depth of her hostility to the father and the strength of her opposition to being involved in these proceedings. By arrangement, the mother sat in a separate room and at her request, the video screen was muted so she did not see the father’s face. The mother left her court room crying after being questioned by the father in relation to the family photographs taken by her.
However, I accept the evidence of Dr R that the mother is a loving mother who wants what is in the child’s best interests.
To the great credit of the mother, the child’s love for her father is apparently undiminished. She has not been told of the assaults on her mother, the trial or the incarceration of the father. She asks where he is. She has been told he is in Queensland.

The best interests of the child

The child T is a six year old girl. When she was last observed by the Court appointed expert she was reported to be “progressing well and attending preschool and appears to be developing well visually.”[18] At that time (May 2011), she had just turned five. I accept the opinion of Dr R that she was too young to form a clear view about what is in her best interests.
[18] Report of Dr R dated 07/06/2011, pp 15, 16
She had positive feelings about her father, “loved him, liked to play with him and liked his friend [Ms Y].” I accept that she has an attachment to the father and would like to continue a relationship with him as was assessed.
At six, the child is presumably now at school and more conscious of the presence of fathers in the lives of her friends at school. However, she does not know and has been appropriately protected from the knowledge of the violent assaults on her mother by her father. She does not have sufficient maturity to cope with that information. She is asking about her father, which indicates that she thinks about him and wonders where he is.
The child is being well cared for by her mother and grandparents. She does not see her father or extended paternal family. The mother has sole parental responsibility. All aspects of her care must be undertaken by her mother as well as long term decisions.
The father spends no time with the child. The mother does not wish to take the child to visit the father in gaol, although there is play equipment and facilities for families in the prison he is in. This is understandable in the circumstances of this case.
The father would like to communicate with the child. The mother opposes all communication.
The mother bears the full financial responsibility for the child. When the father is released from prison he will likely obtain part-time employment as well as engaging in his proposed university studies. The father has provided for the child in the past and will likely do so again when he can.
The proposed change of circumstances is that rather than having no communication at all with her father, the child will receive a card/letter/photo or gift at special times; for her birthday, around the time of Father’s Day and at Christmas. There is some difficulty for the mother in establishing this line of communication, but no expense. The difficulty may be reduced by involving a trusted third person to help the child enjoy and keep the written evidence of her father’s love for her.
The mother has the capacity to meet most of the child’s needs. However, there remains some risk on the evidence that the mother’s dependent personality may leads to her becoming involved in other unstable relationships. She has been adversely affected by violence, assault, the giving of evidence in a criminal trial and quite likely by these parenting proceedings.
Her capacity to meet the child’s needs to have a relationship with her father has been empowered by stated events. She does not appear to understand that her needs are quite different from those of the child in relation to the father. This issue needs time to be addressed therapeutically.
The child is a six year old girl. She has no siblings. There remains the risk of damage to self esteem and personality disturbance if she is deprived of all contact and knowledge of her father. Dr R in his oral evidence said children can become angry in teenage years if they feel they were abandoned by a parent. Dr R readily conceded that not every child who loses contact with a parent feels abandoned.
In this case, provided the child is safe, the benefit of keeping the relationship between her and her father, although at some emotional cost to the mother, outweighs the possibility that she might feel abandoned if the relationship is lost.
These are tragic circumstances where there has been significant and destructive family violence. It is for that reason that the scope of the dispute is so very narrow.
In this matter the child is progressing well, however the truth of her circumstances will inevitably be revealed to her. She will discover that her father assaulted her mother and went to gaol, she may also be told that she herself was present at an incident (aged 15 months) where a sword was held to her mother’s chest.
She needs to have the confidence and the love of both her parents for her to make her own decisions about her parents as she grows up.
The orders put in place will provide for limited written communication for recognition and reassurance.

Conclusion

I have found that it is in the child’s best interest to have sufficient written communication with her father to confirm that he is present in the world and most importantly thinking about the child in a loving and affectionate way. In that way the child can be reassured that nothing she has said or done has caused her father to lose interest in her and that one day she may be able to see him again.

The orders provide time for the mother to address her feelings around a continuing relationship between the child and her father. The first communication is in December 2012 for that reason.
It may be that the letters/cards/gifts are directed to the home of a friend or family member and that they are kept there for the child to look at from time to time. That is a matter for the mother. Her obligation is to nominate an address for correspondence and arrange for herself or someone she trusts to pass the letters/cards on to the child provided they are appropriate.
The mother may need assistance to deal with the separate needs of the child in this matter. The mother wants nothing to do with the father ever again. That is not the child’s view. The child needs to know that her father loves her and that although he is in Queensland she is in his thoughts and available to her in time.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 September 2012.

Associate:

Date: 6 September 2012