Vardakas and Kanavas

FAMILY COURT OF AUSTRALIA

VARDAKAS & KANAVAS

[2011] FamCA 1028

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Parental responsibility
FAMILY LAW – CHILDREN – With whom a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vardakas

RESPONDENT:

Mr Kanavas

INDEPENDENT CHILDREN’S LAWYER:

Mark Finn

FILE NUMBER:

MLC

5221

2008

DATE DELIVERED:

22 December 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

16 August, 13-16 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Mort

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

McKean Park Lawyers

Orders

That all previous parenting orders be and are hereby discharged.
That the father have sole responsibility for the child, B born …, 2005 (“the child”).
That the child live with the father.
That the mother not spend time with the child or communicate with the child, save as follows:
4.1.by way of cards, letters or gifts; and
4.2.as otherwise agreed between the parents.
That the father attend upon Dr C, psychiatrist, or his nominee as directed and remain compliant with prescribed medications at all times.
That the father attend upon a family counsellor or child psychologist to assist him as follows:
6.1.in promoting the child’s awareness of her mother; and
6.2.in making age appropriate communication with the child about her mother.
That the father provide to the mother copies of:
7.1.the child’s annual school photograph and class photograph;
7.2.the child’s school reports; and
7.3.a sample of her work, including art work, projects, writing, or certificates of merit or award, each term.
That if the father travels with the child overseas, he shall be accompanied by a family member or other responsible adult.
For the purposes of paragraph 8 hereof, the mother shall execute the child’s passport application within 7 days of any request being made by the father and in the event of the mother failing, neglecting or refusing to do so, the father may apply for and obtain a passport without her consent.
That the mother be and is hereby restrained from commencing further parenting proceedings without first obtaining leave of a judge, and for that purpose she must include the following details in affidavit material:
10.1.the name and contact details of her treating psychiatrist;
10.2.the mother’s period(s) of attendance upon such psychiatrist;
10.3.the particulars of the mother’s diagnosis and prognosis;
10.4.full details of any treatment of the mother;
10.5.particulars of all medications prescribed by the mother’s treating psychiatrist including details of her management and compliance;
10.6.information relating to any other referrals made by the mother’s treating psychiatrist to other mental health professionals; and
10.7.an assessment of the mother’s progress in terms of her treatment including her level of insight into the child’s needs to have a meaningful relationship with both parents.
That each parent may provide a copy of the report of Dr D dated 20 January 2011, my Reasons for Judgment and these orders to any mental health professional they consult.
That each parent keep the other informed of any change of address within 24 hours of such change.
That the Order made for the appointment of the Independent Children’s Lawyer be discharged.
That it is further directed that all subpoenas be returned to the persons or entities named thereon.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That there shall be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Vardakas & Kanavas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5221 of 2008

Ms Vardakas

Applicant

And

Mr Kanavas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

B is 6 ½ years’ old.
Her parents started litigating over her shortly after separating in mid-2005, when she was just a few weeks’ old. In March 2007, after a contested hearing, Moore J made orders for the parents to share responsibility for the child, for her to live with Ms Vardakas and to spend time with Mr Kanavas, gradually building to alternate weekends from Friday to Monday and a night in between.
In June 2008, Ms Vardakas filed an application seeking to relocate the child with her to Queensland, saying that she wanted to study law there. At an interim hearing before Young J in August 2008, she made it clear that she would relocate even if she were not permitted to take the child with her. Young J indicated that at that stage he could not permit her to move the child away from Victoria, and away from the regular time that she was spending with her father and paternal family. Early the following morning, Ms Vardakas left for Queensland without the child.
Since then, the child has lived with Mr Kanavas and his parents and sister. Her mother has made no contact at all with her. She has seen her only once – in November 2010 – in the course of preparation of the Family Report in this case, when psychiatrist Dr D brought them together.
Ms Vardakas started this round of proceedings with an application filed on 7 June 2010. She said that, given the father’s poor mental health, and for that matter his family’s incapacity to meet the child’s needs, the child was not being properly cared for by him. Ms Vardakas wanted the child to come to live with her and to see her father in accordance with Moore J’s original orders. She did not seek to alter the shared parental responsibility order.
In his response, Mr Kanavas sought orders for the child to continue living with him, for him to have sole responsibility to make decisions for her, and for her gradual re-introduction to her mother, at first in a supervised setting and upon the conditions proposed by the Family Report writer. By the time this hearing started, his primary position was that there should be no contact at all.
The ICL’s position was that, as the mother had demonstrated no insight into her mental health issues, and no capacity or preparedness to commit to the Family Report writer’s recommendations to support the child through a gradual and safe re-introduction to her, there should be no face-to-face contact between them.
Obviously, the mental health of each parent, and its impact on their capacity to parent the child, was very much at the heart of the case and will be considered in detail below.
At the end of the hearing I told the parties of my decision and made orders for the child to live with her father, for him to have sole responsibility for decisions for her, for the mother to have no face-to-face contact with her, and for the mother to be precluded from starting further proceedings without the leave of the Court. The finer details of the orders can be referred to later.
I chose the unusual step of pronouncing orders before giving reasons. I wanted to ensure a prompt decision for the parties before the Christmas break and my absence from the Registry for several months. I was also conscious that this would be a hard decision for the mother to deal with. I wanted her to hear it as far as possible in advance of Christmas, with all its emotional overtones, and while her brother was in court to support her.
These then are the reasons for my decision.

BACKGROUND

Mr Kanavas is aged 42, and lives in Suburb E, a suburb of Melbourne, with his parents and sister. He trained as an IT analyst. For the last few years, he has not worked in that capacity. He says he manages his investments and looks after the child.
Mr Kanavas is diagnosed as suffering a schizophrenic disorder. For the last 11 years, he has regularly attended his psychiatrist, Dr C. His symptoms are well controlled by medication and counselling, and he is fully compliant with all aspects of his treatment.
Ms Vardakas is aged 43. She lives in a townhouse in Suburb F, also a suburb of Melbourne. Her brother and mother live in the adjoining townhouse. She is a student. She has completed eight of approximately 32 units of a law degree by correspondence with the University G. She is also a carer for her elderly mother. She pays child support to the father at the nominal rate of $30 per month.
The parents were married in 2003, and separated in July 2005. The child was born in 2005. Between her birth and August 2008, she lived with her mother. She saw her father regularly, save for some four or so months just after separation, until the father was able to obtain court ordered time with her.
After these current proceedings commenced, the matter came before Senior Registrar FitzGibbon for an interim hearing. It is clear from his Reasons for Judgment of 3 February 2011 that the mother refused any supervision or conditions for a gradual re-introduction to the child, and therefore would not engage with any contact at all.
The mother’s position was the same when the case first came before me on 16 August 2011.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon the following:
·Her application filed 7 June 2010
·Her parenting questionnaire filed 29 July 2011
·Her affidavit filed 28 October 2011
·Her case summary filed 7 December 2011.
The father relied upon the following documents:
·His response filed 2 July 2010
·His affidavit filed 28 October 2011
·The affidavit of his sister Ms H filed 28 October 2011
·His parenting questionnaire filed 27 July 2011
·His case outline filed 6 December 2011
The ICL relied upon the following documents:
·The family report of psychiatrist Dr D filed 21 January 2011
·The report of psychiatrist Dr C in relation to the father dated 26 October 2011 (ICL 2)
·The affidavit of Dr J, the mother’s psychiatrist in the report dated 18 October 2011 (ICL 3).
Ms Vardakas represented herself. I ensured that she had access to the s 60CC provisions as to relevant matters of a child’s best interests in the Family Law Act 1975. She is intelligent, and appeared able to comprehend material, understand instructions, know the questions she wanted to ask, and properly follow proceedings.
With the agreement of all parties, counsel for the ICL cross-examined witnesses before the mother, so that she had the benefit of that evidence before she herself was called upon to cross-examine.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the Court in determining what is in the child’s best interests. I will return to the detail below. Section 60CC(4) provides that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the Court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe a parent has abused the child or engaged in family violence, and if it does apply, it can be rebutted if the Court is satisfied it is not in the child’s best interests.
If there is an order for equal shared parental responsibility, the Court is obliged to consider whether the child spending equal time with each parent would be in the child’s best interests. No-one asked for that regime in this case.
If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ).

THE ISSUES

The issues can best be analysed under the umbrella of the s 60CC considerations. I will first consider the primary considerations under s 60CC (2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
The Family Report writer noted that the child “clearly has a meaningful relationship with her father and paternal extended family” but “no relationship to speak of” with her mother or maternal extended family.
Ideally, the child would have a meaningful relationship with both of her parents. Unfortunately, the child's experience of family life has not been ideal. It simply cannot be ideal for a child to be suddenly separated from and to have no contact at all with the parent who was previously her primary care-giver.
The parents’ perspectives differ as to how this has come about. The mother maintains that Young J took the child from her, and that since then, the father has made insufficient efforts to reunite them.
The father maintains that the mother chose to relocate to Queensland without the child, and has chosen since to have no contact with her, refusing to comply with any expert recommendations as to how a reintroduction could take place, refusing to acknowledge her mental heath issues and the treatment that would benefit her, and otherwise refusing to accept the importance of his role in the child’s life.
Those polarised positions will be considered in detail below.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
There is no suggestion of physical abuse or neglect when it comes to either parent’s care of the child. The mother does allege that there was family violence in the marriage and that she was frightened of the father. She took intervention proceedings in about late-2006. It seems they were settled, with an undertaking by the father for a period of three months, and a denial of any liability on his part. The evidence is too scant for me to make any findings. In any event, there is no suggestion of any on-going problem.
The issue of the child’s exposure to psychological harm is however a prominent one and, for convenience, shall be considered below in the relevant context. That is not to suggest in any way that it is less than a primary consideration.
I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Dr D described the child as a “somewhat shy, immature five-and-a-half-year-old” who was “unable to nominate any wishes.” He noted her family drawing as immature for her age, and that it consisted exclusively of her paternal family. He described her presentation otherwise as “consistent with her age and her prolonged separation from her mother.” She was not pressed for any views.
(b)the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)    other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
For the purposes of his parenting capacity, Mr Kanavas’ diagnosis with a schizophrenic disorder is a concern. That concern is significantly ameliorated by two factors.
The first is that he has shown long-term commitment to a counselling and medication regime, and his long-standing treating psychiatrist is satisfied that he has been consistently compliant with treatment.
The other is that he is fortunate to live in a close family unit with his 76-year-old father, 72-year-old mother, and 39-year-old sister, a qualified professional employed in a senior position with a large company. It is apparent that he also has the support of other family members, in particular his brother Mr K, a businessman, and his family, with whom he spends regular time.
There are deficits in Mr Kanavas’ capacity to meet all of the child’s needs. Although Dr D described the child’s relationship with her father as appearing to be “an appropriate relationship”, and that the father was clearly “dedicated” to his daughter’s well-being, when he observed Mr Kanavas with the child, he noted that he “demonstrated little real ability to play” with her. Dr D also said that Mr Kanavas appeared “somewhat anxious and solicitous in his approach to parenting.”
When Dr D formed the view that the child needed the “permission” of her father to see her mother, Mr Kanavas was “reluctant at first and wanted to phone his older brother for advice.” When his sister promptly told him to just tell the child it was okay, he complied. Dr D noted in his report that Mr Kanavas depended on his family for support. He has never cared for the child without it.
Dr D observed that although the father’s sister is a busy professional woman, she has no children of her own, and “appears to be a committed sister and aunt with a ‘practical approach’ to the child’s care”. As Mr Kanavas may find the task of raising a daughter “quite challenging”, particularly as she approaches adolescence, Dr D noted that her aunt is likely to be an increasingly important figure in the child’s life as she grows older.

In Dr D’s professional opinion, the child’s best interests call for her to live where she is living, with her father and his family. As Dr D said in answer to a question from Ms Vardakas, he was not called upon to assess the father’s capacity alone. He assessed it within the family unit and was satisfied that in that proposed setting, the child is well cared for. There is no suggestion that Mr Kanavas is going to move out of his parents’ home. Although his sister said that she may think of setting up her own home in the next year or so, it would still be very close to her parents’ home.
The only area for criticism relates to how the paternal family has dealt with the issue of the mother’s absence with the child. I shall return to that.
I note that Dr C, Mr Kanavas’ treating psychiatrist, commented favourably on Mr Kanavas’ parenting capacity. He concedes however that he did not have the benefit of seeing the child with her father, and that he based his opinion primarily on what the father and the father’s family members had told him. That significantly diminishes the weight that I can attach to that part of Dr C’s report, save that I accept that from his perspective, he has seen no medical or other reason that would interfere with Mr Kanavas’ parenting capacity. I accept his report too that the father has displayed “a great deal” of “quite appropriate parental behaviour” and a “great deal of happiness” in the child’s progress.
Even taking into account the father’s deficiencies in parenting capacity, the mother’s view of him, his capacity, and the capacity of his parents and family members, is excessively grim and unfairly harsh.
In her affidavit, she was extremely negative about the father and his family. She referred to Mr Kanavas’ “psychotic/schizophrenic idiosyncrasies, lack of financial resources and temporary lodgings”. None of those references were fair. His schizophrenic disorder is under control. Any lack of financial resources is no worse than hers, and he has not received any assistance from her other than a nominal sum of child support. And there is nothing to suggest that his home with his parents is “temporary”.
The mother’s concern of the father’s dependence on his extended family is put in these terms:
…His family does not owe a duty of care to this child, except for the provision of necessaries under its roof currently by law and has negligently advised to the father to pursue his parental autonomy through the courts knowlingly full-well he is unable to wash, feed, clothe, house, educate or splurge on his child in his present state or in the future.
She talks of the paternal grandparents as pensioners who are “old and sick” and makes serious allegations about the paternal grandmother’s parenting of her own children, and the concern that she will not be able to cope with a sick husband, “42-year-old sick son”, “40-year-old unmarried daughter” and a “demanding six-year-old granddaughter”. She described the home as “an unhealthy and dysfunctional environment for the child to live in”, that “will impact on her psychological well-being.”
Ms Vardakas refers to the paternal grandfather as “uneducated” and that he has had “heart problems including heart surgery”. She said those factors render him “physically unfit and mentally illiterate to keep up with an active and inquisitive young child.” She describes the paternal aunt as a full-time worker and absent from the child’s day-to-day care. She describes her as “time-poor”, with “no skills in motherhood”. She says “Children are not her priority.”
Ms Vardakas claims there is “no serious time invested on a continuous basis towards the child’s physical and academic education.” She is critical that, according to her, swimming lessons were stopped because it was winter. She says Country P language lessons have not even started. She says the child has “forgotten her mother/maternal family” and the father has no intention of letting his daughter live and get to know her mother “unless third parties are involved.”
Ms Vardakas says that:
The father and his family are carelessly putting their self-interests above the safety, health and emotional stability of this child and in doing so compromising its cultural, educational and mental/emotional/social development…
She claims that in the father’s care, the child is missing the opportunity for educational, cultural, religious, linguistic, musical, sporting and travelling activities, and that he restricts his daughter from choices and is developing in her “ignorance, fear and odd behaviour reciprocal to his own paranoid vulnerabilities and psychotic quirks.”
Ms Vardakas says that the father is “psychiatrically impaired and subsequently does pose an inherent danger to this child…”
Those criticisms reflect recurring themes not only in her affidavit, but also in her case summary, her evidence, and what she told the Family Report writer. In evidence, the mother was given ample opportunity to say something positive about the father or his paternal family. She really could not. She seemed oblivious to the fact that most of her allegations were broad and unsubstantiated. There was nothing in the evidence of the father, his sister, or the experts to suggest that the child was not being cared for well and lovingly amongst the paternal family members, with appropriate school, social, and extra-curricula activities and opportunities. She has done three years of ballet classes. She had swimming lessons, until recurring ear infections dictated that she stop until the warmer weather. And, in Grade 1, like her father and his siblings did at the same age, she will start at Country P School.
Ms Vardakas could not see the irony or inconsistency in her harsh and unmitigated criticisms of the father’s capacity to care for their daughter, and the fact that she nevertheless chose to move to Queensland without her, knowing the consequence was that the child would be cared for by him.
When I asked her about that inherent inconsistency, she was unable to grapple easily with the question. Her responses were consistent with the claim she has made since August 2008: that it was Young J who “removed” the child from her.
To understand the mother’s claim – whereby she is unable to acknowledge her own role in her separation from her daughter – it is important to briefly touch upon what occurred in front of Young J in August 2008, and what has occurred since then.
On 4 August 2008, at an interim hearing, Young J arranged for a Family Consultant to see the parties and to deliver an oral report in Court. She did so and was cross-examined.
At paragraph 10 of his Reasons give that day, his Honour made it clear that his judgment was:
…given late in the afternoon and without leaving the bench and in the circumstances where the wife has indicated that she will be travelling to Tullamarine airport at about 5.00am tomorrow to catch a 7.00am flight to Brisbane…
The mother had told Young J that a law course in Queensland that she wanted to undertake had already started, and so she was leaving. She told him that she was leaving the following morning “with or without her daughter”.
Young J noted that the mother had “little or no appreciation” of the benefit to the child of the current orders, whereby she was spending three days per fortnight with her father. He also noted the circumstances in which the mother had chosen Brisbane as the place of study as “somewhat troublesome”. He was not satisfied she had explored all the Victorian options. Indeed she had totally rejected some of them. He described the mother’s conduct as not seeming to be a “wise course of action”. He described it as “imprudent, too spontaneous and too ill-considered to be meaningful.”
But Young J made it clear that if the mother were remaining in Melbourne, and living in her Suburb F home, there would be no reason at that stage to change the primary position of the child living with her. He made numerous observations of his endeavours to have the mother “reflect and remain in Melbourne pending a more balanced outcome for her daughter.”
His Honour emphasised that it would be apparent from the way in which he conducted the hearing that he was “reluctant to bring about a situation where mother and daughter are separated.” However, he said he had “little or no choice”, in light of the mother having made her position “abundantly clear”. She would be on the plane the following day. She would not reconsider. It was, according to his Honour, “most unfortunate.”
Young J said the mother’s parents or other family members had obviously been unable to “give wise counsel and persuade her to stay.” He said the mother “challenged the court to make a decision.” He said he did not respond to that challenge. However, the circumstances and the attitude of the mother, the options she presented, and “indeed the somewhat selfish attitude of the mother” left him with little option. Doing the best that he could, his Honour continued the restraint against the child being removed from Victoria but adjourned the case for two weeks to give the mother’s extended family an opportunity to take legal advice. In the meantime the child was to live with the father.
It is apparent from Young J’s second judgment, on 18 August 2008, that the mother had taken the decision not to ring her daughter after the 4 August 2008 hand-over to the father. She said it was not in her daughter’s best interests to be upset or to have emotional disturbance. Likewise, the extended maternal family had sought no time or communication with the child.
The mother had flown from Brisbane however to appear in court. Young J described it then as a “tragic set of circumstances”.
At paragraph 5 his Honour said:
…The mother is involved at great detail to highlight to the court the past failures of the father, his psychiatric background (as alleged), his inability to care for his daughter and the failure of the paternal family to fully support him…
Young J turned then to the mother’s attitude, describing it as absolutely adamant and fixed on a return to Brisbane, still with or without the child. Again he noted that he had:
…perhaps, beyond that which a court would normally entertain, encouraged the mother to remain in Melbourne and organise a course of study in Melbourne or otherwise get a job in Melbourne so her daughter could be with her.
Young J noted that above all else, he had encouraged the maternal family to maintain a level of contact with the child. He said he had done all that he could “to encourage the mother to open her eyes to a level of reality”, but that unfortunately it was “not within the focus of the mother.”
His Honour went on to consider the inadequacy of the mother’s uncertain proposals in Queensland. He said he had endeavoured to obtain from the mother “a more meaningful proposal” to spend time with the child, to communicate with her daughter, or to establish a more appropriate and child-friendly regime. At paragraph 8, his Honour said, “Seemingly I have failed on every count of trying to organise some other arrangement.”
His Honour went on to say that he proposed to make an order for the child to live with her father. He said that he would prefer the mother and her family to spend time with the child but it seemed it was “not achievable in the mother’s current emotional and organisational circumstances.”
Finally, his Honour noted it as “unfortunate” that, as he was delivering his reasons, the mother was packing up her belongings and all of her documents, and not understanding “the gravity of the situation that she is bringing about for her family and the child.”
Young J’s judgments put a lie to the mother’s account that the child was “removed” from her. It is a distorted account. What in fact happened was that Young J initially made it clear that he simply needed more material before he could make a final decision about relocation. He was then forced to make some sort of decision when the mother was adamant that she was leaving, regardless, on the following morning. How his Honour agonised through his efforts to assist the mother in understanding the situation at that point was obvious. He adjourned the case for two weeks. Ms Vardakas had the opportunity to re-think her position. She remained rigid, inflexible, and committed to leaving Melbourne even without the child.
Senior Registrar FitzGibbon expressed a similar concern on 3 February 2011, when there was an interim hearing in the current round of proceedings. The Senior Registrar had the benefit of Dr D’s Family Report and the specific recommendations as to how to effect the re-introduction of mother and child. They were that the child should be re-introduced to her mother gradually, assisted by a counsellor upon whom the parents would previously attend. The proposal then was for the parties to share equally in the cost. Otherwise the mother was able to send gifts, cards, letters and perhaps photographs to the child, provided the ICL deemed them appropriate. The father offered that he would ensure that school photographs, reports and other documents about the child’s progress were forwarded to the mother.
The mother simply refused to accede to any of the recommendations made by Dr D. At paragraph 15 of his Reasons for Judgment, the Senior Registrar noted that the mother was insistent that if the Court imposed any supervision, she would not engage at all with the child. She offered no “middle ground”. He was satisfied that she would not adhere to any orders, other than Moore J’s original orders. He described the result by which he was unable to conclude that there should be any time spent between mother and child on an interim basis, as a “very unhappy result”.
When the case started before me on 16 August 2011, the mother’s position remained that she was not prepared to accede to any conditions that would enable her to start seeing the child. She told me “I won’t change my mind.”
Sadly for the child, the mother’s family had nothing to do with her either, after Young J’s orders in 2008. Although Dr D was critical of the father in his report, saying that he could have and should have done more to try to effect the relationship between mother and daughter, or to keep her front of mind with, for example, photographs in the home, and I am in part satisfied of that, in fairness to Mr Kanavas, his early overtures to the maternal family were not rewarded.
On 17 September and 19 September 2008, he called the maternal grandparents and offered them time with the child. They declined. On 24 September 2008, his solicitor wrote to the maternal grandparents, indicating effectively that “the ball was now in their court” as to whether they saw the child, as they had so far not taken up the father’s offers.
They still made no contact with the father or his lawyers, and made no efforts to see the child, or send anything to her.
As the maternal relatives were not produced as witnesses, I have only the mother’s evidence about their attitude. She was unimpressively vague and unclear as to why her family would not have seen their beloved granddaughter and niece, offering only that they “probably” thought it was unfair for them to have the “privilege”, when she was being “denied” the opportunity. Her interpretation is that it was solely the father’s fault. He had not complied with orders whereby he was to “encourage communications and meaningful time” between the child and her extended maternal family and to “use his best endeavours in that regard”. I find to the contrary. At the point at which he had been thoroughly rebuffed by them, the predominant fault must lie with them and not him.
I am satisfied that the mother is unable to show any insight into how the child’s change of residence came about, and most particularly that it was her decision to leave without the child, before the case was even concluded. I am satisfied too that since then, she has resisted and declined every opportunity, repeatedly extended by his Honour, and subsequently by other judicial officers, and refused to spend time with the child. Her family has done the same. She appears not to have encouraged them.
I do not find that Ms Vardakas is being deliberately dishonest or misleading in her account as to how the child left her care. Rather, she shows the same lack of insight into how those events unfolded as she shows into her illness, the treatment required by her, the need to comply with the recommendations for reintroduction to the child, and the child’s needs.
Ms Vardakas shows a marked lack of insight into her illness. The evidence of her treating psychiatrist, Dr J was so profoundly unimpressive that it could provide an explanation, but I am satisfied that her lack of insight is broader than that.
Dr J treated the mother between “the nineties” and 2005, resuming in late-2009, at which stage she had been released from placement as an involuntary patient in the L Unit, an acute psychiatric ward at the M Hospital, but remained on a community treatment order.
Unfortunately, when Dr J left Melbourne in January 2005 to take up a position in N Town, he had given the mother her file. He agreed that not all psychiatrists would regard the file as belonging to the patient. In any event, he gave it to her so that she could give it to her next treating psychiatrist. Instead, she destroyed it. The record of her psychiatric history was thus lost, for example to those treating her upon her admission to L Unit. Even Dr J cannot properly recall her history. He described her destruction of the file as “unwise”. Her conduct in that regard serves as an indication of her lack of insight into her psychiatric needs.
Dr J prepared a report for the ICL on 18 October 2011. He said:
…My clinical impression is that Ms Vardakas’s medical diagnosis is Adjustment Disorder unspecified.
As to medication, he said:
As far as her compliance with medication is concerned, she seems to have gain [sic] much insight over the years and she would take Risperidone when she encounter [sic] stressful psycho-social situation. [sic] She does not need to take Risperidone on a regular basis.
He described his on-going treatment of Ms Vardakas as “basically a supportive approach.”
In his report, Dr J said that he had seen the mother eight times in 2010 and seven times that far in 2011. He said he was seeing her “on a whenever necessary basis”, Ms Vardakas initiating all the consultations herself. He said that the appointments this year were “all about Family Court matters in relationship [sic] to the custody of their six-year-old daughter.”
Dr J said that Ms Vardakas would not benefit from on-going therapeutic cognitive behavioural therapy. He advised the ICL that in his opinion there was no “medical or other reason which would prevent Ms Vardakas from having either supervised or unsupervised contact” with her daughter.
In the course of preparation of his Family Report, psychiatrist Dr D spoke with Dr J on 11 January 2011. Dr J told him that Ms Vardakas has “an anxiety condition and has difficulty with adjustment as she has to be ‘Mrs Right’ ”. Dr J told Dr D that “the basic problem” was an anxiety condition, but he would not describe Ms Vardakas as suffering from schizophrenia or a schizo-affective disorder. He told Dr D that he believed she was admitted to the M Hospital as an involuntary patient in 2009 because she had “a temper tantrum” after an “unfortunate interaction” with staff at the O Hospital during medical screening. Dr D said:
When I pointed out to [Dr J] that [Ms Vardakas] had been admitted to [M Hospital] as an Involuntary Patient and that a Community Treatment Order had been upheld by the Mental Health Review Board, he repeated his earlier statement that she suffered from severe anxiety and a tendency to marked tantrums and becoming unreasonable.
Dr J told Dr D that he had taken a “laissez-faire” attitude to the mother’s treatment, meaning he saw her on an “as-needs” basis, at her choice.

Dr J’s report to the ICL, combined with his account to Dr D, suggested that the mother did not require a specific regime of medication or therapy, that she did not suffer any personality disorder, and that she could simply consult him when she felt it necessary. His evidence in court was quite different to that.
First, at times, Dr J was incomprehensible. I cannot put it in any other way. What he was actually saying was very hard to comprehend. He was vague and unreliable. He said he had no contact with doctors at L Unit, even though the mother returned to consult him while the Community Treatment Order was in existence. It transpired that in fact he had spoken to the treating doctor at L Unit. It was the mother who pointed him to the M Hospital notes to that effect. He had been told of the psychotic episode that had landed her in hospital as an involuntary patient. In that context, his self-confessed “laissez-faire” approach to her treatment was surprising. Moreover, he made very few notes, despite reasonably extensive consultations in the last few years.
The most shocking part of Dr J’s evidence was that when challenged by counsel for the father as to his diagnosis of an adjustment disorder, Dr J made a profound change to his diagnosis. He diagnosed Ms Vardakas as suffering from an histrionic personality disorder. He explained that his diagnosis of an histrionic personality disorder was what was referred to as an Axis II diagnosis, that is, relating to an on-going disorder. He described her as also suffering an Axis I disorder, being psychosis. Ultimately he said that she should be on a permanent medication regime of 1mg of Risperidone each day, and more at times of stress. He explained that the medication would not treat the personality disorder but would treat the potential for psychotic episodes. He said in his view the child should not live with her mother, but she should be able to see her.
This was not a situation where, having been informed of particular historical or factual details, the expert changed his opinion on the strength of that new information. Dr J’s explanation for his change to a more serious diagnosis included that he had “reflected for the last half hour or 40 minutes in the witness box”, that he was surrounded by so many “wise” people in the courtroom, and that, as he put it, he had sworn “to tell the truth, the whole truth and nothing but the truth.”
Dr J’s evidence was so unimpressive that I cannot fully rely on either his first or his second diagnosis, save that the second diagnosis – of a more serious personality disorder, with episodes of psychosis – is likely on the evidence, including Dr D’s evidence, to be the more accurate.
The day after Dr J’s evidence, I asked Ms Vardakas to return to the witness box. It struck me as fair for her to make any comments arising from Dr J’s substantial changes in his evidence, and it was important for me to hear her position following those changes.
Although Ms Vardakas said that she was “not totally impressed” with Dr J’s evidence, and that she was “taken aback” by the changed diagnosis and treatment regime, she said that she would “probably” choose to continue consulting him, rather than looking for another psychiatrist. She said she would comply with his treatment recommendations.
Being able to recognise the difficulties in Dr J’s evidence and approach to her treatment, Ms Vardakas again showed her lack of insight, in her preliminary decision to continue treatment with him. I do note however that her decision was made in the course of the case. She had overnight to reflect, but it may have been difficult to fully assimilate his evidence, in the heat of court proceedings. Hopefully it will not be her final decision on the topic.
It is hard for me to accept in any event that Ms Vardakas would comply with a treatment regime recommended by Dr J. First, she has – understandably – at least to some extent lost respect for the certainty of his judgment, and I can have no confidence that he will be strong or forceful with her in his advice that she must comply. Everything about his evidence showed an incapacity, at least to date, to strongly express his professional views to her.
The mother's lack of insight into her mental illness, and the help and the treatment that she urgently needs, is a significant concern for her own well-being. It is also a concern as it reflects the lack of insight she shows into the child’s current needs.
In considering whether Ms Vardakas has the capacity to meet the child’s needs, I need look no further than her decision to leave Victoria for Queensland, without her. She of course has the right to move wherever she chooses, but her decision to move despite not being able to have the child with her, and her consequential decision to leave the child in her father’s care, without maintaining any contact at all, are decisions germane to this case.
Ms Vardakas said she moved “to better herself”, and because she and her family value education. There is no reason for this Court to take a stand against any parent furthering themselves with good education. What was clear was that Young J had urged the mother to look for alternative ways to achieve that education, whilst keeping the child with her in Victoria and closer to her father and paternal family. She simply rejected that suggestion. Moreover, having chosen to leave Victoria, not only did she make no contact at all with the child while she was interstate, but, as already set out, nor did her family.
I bear in mind that arguably Ms Vardakas was not responsible for the action of her family members. However, she seemed to fully support and endorse the fact that they had not seen her daughter. Although she is quick to point out the trauma for the child in leaving her care, she shows no insight into the fact that she was the one best able to ensure that her child was spared that trauma, and at the very least spared the trauma of a sudden and total disconnection from both her mother and maternal family.
There was much evidence about Ms Vardakas’ admission to the M Hospital L Unit, as an involuntary patient in February 2009. Objectively, what that admission sadly reflects is her serious mental health issues at that time. I am satisfied that she suffered a serious psychotic episode. The fact that she was admitted as an involuntary patient, that she failed in an appeal to the Mental Health Review Board, and that she was then placed on a Community Treatment Order, are testament to the seriousness of her illness.
She however still does not concede that.
Dr J has done nothing to try to instil in his patient a comprehension of how seriously ill she has been, or at least not in a way that was apparent from his evidence.
It seems highly likely from all the evidence that she had also experienced a psychotic episode earlier in the 1990s in Country P. Dr J and Dr D believe that was the case. It was not clear that the mother accepted that either.
Whilst on the Community Treatment Order, the mother spent some six months in Country P. During that time, not only was she outside the purview of doctors in Australia but, also, she was away from any opportunity that would see her having contact with the child.
Although she has lived back in Melbourne since late-2009, she has still not seen her daughter, and, as noted, has rejected any opportunities to do so, save in Dr D’s rooms.
She has shown no insight into the likely impact on the child if she were now to suddenly change from her father’s care to live with her again. She is not able to realistically assess the child’s needs. Although the child is happy and settled within the routine and care of a loving family unit, and although the mother complains bitterly that a similar arrangement with her was in the past brutally and suddenly disturbed, she apparently sees no parallel in the child being disturbed in that way again.
I should put to rest the mother’s suggestion that she could not comply with recommendations for a re-introduction to the child, just because she could not afford a figure of $120 per hour, suggested at some point, for a paid supervisor. First, I did not glean from her evidence that has been in fact the only obstacle to her spending time with the child. She never exercised the option to see the child even before this proposal was made. In any event, according to her, her family has been helping to support her and is willing to pay for all sorts of extra-curricula and educational opportunities for the child if she comes to live with her mother. Although I did not have the benefit of hearing from them, it follows as a matter of high probability that they would have been prepared to meet an interim expense that could have seen the child reunited with her mother.
That Ms Vardakas is not presently able to show a true appreciation for the child’s needs was also apparent on the one occasion when she was brought together with the child in Dr D’s rooms in November 2010. In fairness to her, it must have been a momentous and emotional occasion. There is no question that she loves her child dearly, and she must have been longing to see her. There is no question too that the child’s reticence or shyness was natural, given the length of time since she had seen her mother, and did not in itself reflect poorly on their previous relationship. It is also apparent that the child warmed to the meeting after the initial shyness. Dr D fairly reflected those things.
The balance in Dr D’s account, as well as his expertise, leads me to accept the concerns that he expressed about that meeting between mother and child. He was concerned about the book the mother had chosen to bring as a present for the child. It was the story of “Dumbo the Elephant”. I do not accept Ms Vardakas’ claim of innocence as to her choice. She spoke of it as a “lovely” children’s story, and suggested that it was a random choice on her part. Dr D noted that it is a story about a little elephant being kept from the mother elephant, who had been placed “in isolation”. Ms Vardakas told the child “what he (Dumbo) loved most of all was being with his mother again.”
At the end of the meeting, Dr D noted the following sequence of conversation:
Mother: Do you love me?
[B] nodding.
Mother: Do you want to come home, there are lots of toys where you were born?
[B]: No reply.
Mother: Do you have your own room?
[B]: Yes.
Mother: With no-one else?
[B]: No.
Mother: Who’s next to your room?
[B]: The bathroom.
Dr D said that as Ms Vardakas appeared to be enticing the child with the toys available in her room at her mother’s house, he suggested that she limit the discussion. Ms Vardakas replied that she simply wanted the child to know that she “had options”. Dr D said that although the mother gave the child “considerable space” in the early part of the interview, she seemed “unable to contain herself” towards the end.
The mother’s choice of book for, and questioning of the then 5½-year-old child, fed into Dr D’s conclusion that the child would need to be re-introduced to her mother slowly and initially in a properly supervised setting. That conclusion too was based on his concerns as to the mother’s mental health.
In his report, Dr D had noted that he thought the mother may have a paranoid personality disorder, but he said he was not able to diagnose her on the strength of one session with her. When in evidence he was told that Dr J’s diagnosis had changed from the milder adjustment disorder to a more serious histrionic personality disorder, Dr D said that it did appear that the mother had a personality disorder, even if the precise nature or nomenclature for it could not be determined.
Dr D was concerned too that the mother would need to accept that the father has an equally important place in the child’s life as she does. He was concerned about her views as to what she described as the “natural law”, of a child being with the mother. Dr D’s concerns were bolstered by the evidence. After Moore J’s orders, the mother did comply with the child spending time with the father, but it was on a graduated basis, and within just months of the graduation increasing, she brought proceedings to take the child interstate.
In his evidence, Dr D was quite clear that in his professional opinion it is in the child’s best interests to remain living with her father.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother relies on the history of the period when the child was with her and that she complied with all orders for the father’s time with the child. As noted, at least by August 2008, according to Young J, she was not showing a true appreciation of the importance of the father’s role in the child’s life.
Her criticism – indeed the outright denigration of the father and his family – in the course of these proceedings, shows that her attitude in that regard has not changed. There was nothing that she said or did to show that she has a genuine appreciation of his role, and I would have little confidence that in her care the child would be free to continue the close and loving relationship she has with her father and paternal relatives.
The father and his family are not without fault when it comes to this issue. I have noted that Mr Kanavas did initially make reasonable overtures for the maternal family to see the child. I do not think it was unreasonable, after several refusals, that the matter was left with them to approach him if they changed their minds and chose to see her. The criticism lies in how he has kept the image of the mother alive to the child.
I made it clear in the course of the evidence that it was not hard to see that it was a difficult and delicate task to keep the child informed, in an age-appropriate way, when the mother’s absence was from every point of view a painful topic. It was potentially painful to the child, for the obvious reason that her mother had suddenly dropped out of her life. It was a painful topic for the father and his family from several perspectives. First, and understandably, they have felt greatly aggrieved by her harsh and unsubstantiated criticisms of them, when they had stepped up and stepped in and were caring well for the child. Secondly, I am satisfied they have been genuinely worried about upsetting the child’s equilibrium.
Although the father’s sister said that during 2010 she was speaking to a counsellor at her work about how best to approach the task, I am not satisfied that was sufficient. At least from early 2011, from the time of Dr D’s report, it was clear that Dr D had proposed that a photograph of her mother should be available to the child and that there needed to be age-appropriate ways of talking to the child about her. The paternal family’s expressed view that it was better to wait until she had finished the Prep year was probably not prudent in light of Dr D’s advice. That is not to say the decision was based on malice, but in this particular respect, they could have done more.
As it was counsel for the father who proposed the order I made for the father to have counselling and an expert’s opinion as to how to improve that situation, I can take heart that Mr Kanavas and his family are willing to learn so as to properly foster the child’s best interests.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If the child were to change homes as proposed by the mother, it would most likely be traumatic for her, compounded by the fact that it would be the second time in her young life that she would need to cope with being removed from her primary care-giver. That simply could not be in her best interests.
The orders I have made will mean that there is no change in her circumstances. That is not an ideal outcome. The ideal outcome would be that her mother would be part of her life. Hopefully that could occur in the future, but for now it is not realistic.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
I am satisfied that logistics have not kept the mother or her family from seeing the child. Like the child, the family have at all times been in Melbourne. Ms Vardakas was only in Queensland for a matter of months and has otherwise been in Melbourne, save for the six months or so in 2009 when she chose to go to Country P. And for the reasons I have already given, I am also not satisfied that expense has presented a genuine obstacle.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have already noted Dr D’s observations that as the child approaches adolescence, it may be a more challenging time for her father. Dr D was careful not to suggest that the paternal aunt could supplant her mother, but his evidence was clear that as the child has a close relationship with her, in the event that she is not seeing her mother, it is to her benefit that there is such a close female relative to help guide her.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have already noted that I cannot make any definitive findings about historical family violence. The short undertaking given by the father some years ago, with a denial of liability, is not sufficient for me to make a finding that there was on-going violence. If there had been violence during the relationship, there was no evidence that there has been any on-going problem.
(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;
If the child were living with her mother, I could envisage on-going proceedings about the father spending time with her. Her disrespect for him and his family is such that I would be concerned that he would not be able to have the appropriate relationship with the child without further litigation.
If Ms Vardakas were spending time with the child, I would also be concerned about future proceedings. Given her current mental state, it is easy to envisage that the father would bring proceedings to stop her time, in order to protect the child.
I am conscious that in arriving at a decision that at this stage the mother should not see the child, there is the likelihood of future proceedings on her part, in an on-going effort to come back into the child’s life. I have for that reason imposed some restraint on future proceedings.

CONCLUSION

Sadly, there is no real choice in this case. The child is settled and happy in the care of her father. His mental health is well controlled, and any deficiencies in his parenting are compensated by the strong support structure around him, with close family under the one roof participating in the child’s care.
The reality for the child is that these have been her living arrangements for 3½ years. For that same period, she has not been seeing her mother or maternal family. They have made no contact with her.
The mother’s proposal that the child will now come to live with her is simply unrealistic, when it comes to the child’s best interests. The upheaval would be confusing and unsettling. The mother’s incapacity to properly acknowledge the extent of her mental health difficulties, her lack of insight in having left the child and made no contact even until the present time, and her incapacity to recognise why the expert psychiatrist Dr D recommended a gradual supported re-introduction – something the mother has flatly refused – are stark indicators that sadly Ms Vardakas is not in a position to look after the child’s best interests.

As the child is only six, the hope is that her mother’s health and insight will improve, so that at some stage in the future there can be a re-introduction. The evidence is persuasive that although psychotic episodes can be well controlled with medication, the personality disorder is much harder to treat and would generally require long-term psycho-therapy. It means it is unlikely that the mother will soon be in a position to contribute to the child’s care.
I am satisfied that the presumption in favour of shared parental responsibility is rebutted in the circumstances of this case, where the mother has had no involvement for a substantial period now of the child’s life, and is not able to have involvement for the foreseeable future. Mr Kanavas must be free to make necessary decisions for their daughter. As well as the fact that Ms Vardakas cannot be across the child’s current needs, the capacity for communication between the parents is simply impossible. That was evident from the attitude each displayed, and the fact there has simply been no contact at all during the years since the child came into her father’s care.
With the conclusion that at the moment there can be no time spent between mother and child, the issue is raised as to when future proceedings can be commenced. The father’s position, that he and his family are emotionally and financially drained from on-going litigation, is entirely reasonable. However, if there is genuine change in the mother’s circumstances, she should be able to return to court to seek a change to the existing orders.
Counsel for the ICL proposed an order that the mother be restrained from returning to court without first obtaining leave of a judge, and that to do so she must file an affidavit from her treating psychiatrist. Counsel for the father suggested that the restraint should preclude her from returning to court at all before the child is aged 10. I made my view about that order perfectly clear. It was an arbitrary age. It is inappropriate to set an arbitrary age, when the child’s best interests may dictate a return to court at an earlier time.
If Ms Vardakas makes the progress and changes required, to ensure that the child’s best interests can be met with a gradual and supported re-introduction, then she should be able to return to court. To that end, I have made orders setting out some of the details required in the psychiatrist’s affidavit in support of any future application by the mother for leave.
Otherwise, I have made orders for the father to seek assistance in how he re-introduces the topic of her mother to the child. He was agreeable to that order.
I hope that Ms Vardakas will seek out the support of a well-qualified psychiatrist who can help her on the path to good mental health. In the meantime, having seen her brother with her in court throughout the hearing, I hope her family can assist her with the support she will need.

I certify that the preceding one hundred & forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 22 December 2011

Associate:

Date: 22 December 2011

[2011] FamCA 1028

Key Legal Topics

Areas of Law

Family Law