Vile and Probszic

FAMILY COURT OF AUSTRALIA

VILE & PRABSZIC

[2009] FamCA 25

FAMILY LAW – CHILDREN – in child’s best interests for there to be a radical change - mother to have sole parental responsibility for the child on the condition that father consulted about child’s long term care, welfare and development – mother has history of mental illness but mental health has improved – father displays narcissistic and obsessional personality traits - father expressed concerns for child’s safety whilst in the care of the mother- whether the father’s attitude and personality trials are negatively impacting upon the relationship between the mother and the child

Family Law Act 1975 (Cth)

APPLICANT:

Ms Vile

RESPONDENT:

Mr Prabszic

FILE NUMBER:

SYF

2098

2005

DATE DELIVERED:

28 January 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

1 - 3 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Hedberg

SOLICITOR FOR THE RESPONDENT:

Vincent Verduci & Associates

Orders

The mother have sole parental responsibility of the child … born … October 2001 (“the child”), upon the condition she reasonably consults with the father prior to her making any decision about the child’s long term care, welfare and development. “Reasonably consults” means, prior to making a decision:
1.1.The mother gives written notice to the father of what she is proposing for the child;
1.2.The mother allows reasonable time for the father to respond in writing;
1.3.The mother considers any views expressed by the father; and
1.4.The mother, if she believes it appropriate, enters into further written discussion with the father.
The child live with the mother.
The child spend time with the father as follows:-
3.1.For six months from the date of these orders at Central West Contact Service Centre at such times and at such frequencies as can be accommodated by the centre at the father’s cost (but not on a Sunday) and thereafter;
3.2.After the period referred to in Order 3.1, for a period of three months each Sunday from 9.00 am until 5.00pm and thereafter;
3.3.After the period referred to in Order 3.2, each alternate weekend from after school Friday until before school Monday;
3.4.In the event that Order 3.3 means that the child would spend time on Mother’s Day with his father then the child shall spend the weekend on which Mother’s Day falls with his mother and spend time with his father from after school Friday until before school Monday on the following weekend;
3.5.In the event that Order 3.3 means that the child would not spend time on Father’s Day with his father then the child shall spend the weekend in which Father’s Day falls with his father from after school Friday until before school Monday and not spend time with his father on the following weekend;
3.6.In the event that the child is with his mother on his birthday he will spend three hours with his father on his birthday and in the event that the child is with his father on his birthday he will spend three hours with his mother on his birthday;
3.7.The child is to spend time with his father from 12.00 noon, 24 December until 12.00 noon, 25 December in the year 2009 and each alternate year thereafter and from 12.00 noon, 25 December until 12.00 noon, 26 December in the year 2010 and each alternate year thereafter;
3.8.The child is to spend time with his mother from 12.00 noon, 25 December until 12.00 noon, 26 December in the year 2009 and each alternate year thereafter and from 12.00 noon, 24 December until 12.00 noon, 25 December in the year 2010 and each alternate year thereafter;
3.9.From the commencement of the 2010 school year for one half of the New South Wales gazetted school holiday period being the first half in the year 2010 and each alternate year thereafter and the second half in the year 2011 and each alternate year thereafter;
3.10.The paternal grandmother and/ or the paternal aunt may be present at any of these times.
At the commencement of time that the father spends with the child, the father is to collect and deliver the child from and to the usual place of residence of the mother unless changeover is to occur at the child’s school or time spent is at the contact centre.
The child spend time with the paternal aunt for a period of six months from the date of these orders each Sunday from 9.00am until 5.00pm provided that during such time the paternal aunt do all things to ensure that the child does not come into contact with the father and/or the paternal grandmother.
The mother attend Dr P with the child to seek Dr P’s recommendation as to whether the child would benefit from therapy and the mother ensure compliance with any recommendations made by Dr P in relation to any therapeutic program recommended for the child.
The mother provide copies of Dr P’s reports, copy of the judgment and orders of the court to any therapist recommended by Dr P.
The father be and is hereby restrained from denigrating the mother or members of the mother’s family in the presence or hearing of, and to, the child.
The father be and is hereby restrained from discussing these proceedings with the child.
The father be and is hereby restrained from doing any acts and things as to cause the child to attend upon any clinical psychologist, psychiatrist, therapist or any other health care professional without the written consent of the mother or an order of the court save and except in the case of an emergency.
The mother and father are to do all things to arrange to attend a post separation parenting program and I request that the lawyers for the wife nominate an appropriate program and facilitate the father’s introduction to that program.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2098 of 2005

MS VILE

Applicant

And

MR PRABSZIC

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case is about what time the parties’ child, aged 7 years (born in October 2001), will spend with each of his parents and whether or not his parents will have equal shared parental responsibility or one of them will have sole responsibility.
The parties commenced residing together in 2000 and married in April 2001.
The parties separated in January 2005 when the mother and the child left the former matrimonial home. The father commenced proceedings immediately for orders under the Family Law Act 1975. The police applied for an Apprehended Violence Order against the father but those proceedings were withdrawn.
By late May/early June 2005 the mother’s mental health had deteriorated. She had suicidal tendencies and in mid June, whilst the child was with his father, the mother attempted suicide. The father asserted that the child was in the mother’s household when the police were called to her home on two occasions in early June 2005. I am not, on balance, satisfied that that was so. The mother was admitted to Liverpool Mental Hospital and diagnosed with a major depressive illness. She was discharged in July 2005 but was readmitted shortly after that time.
An interim order was made, by consent, for the child to live with his father and to have supervised time with his mother.
In August 2005 the mother travelled to Sweden with the maternal grandmother and grandfather. Upon the mother’s arrival in Sweden in August 2005 she was admitted to H Hospital where she stayed until 7 September 2005.
On 9 November 2005 ex parte orders were made by Justice Rose in relation to both parenting and property matters. The parenting order provided for the child to live with the father and for the father to have sole parental responsibility. That order is still in place.
Between 18 January 2006 and 24 February 2006 the mother was readmitted to H Hospital in Sweden following a suicide attempt.
The mother remained away from Australia after her discharge from J Hospital and did not return to Australia until December 2006.
There is a dispute between the parties as to what attempts the mother made to contact the child during the period of time that she was absent from Australia but it is an agreed fact that there was no face to face time between the child and his mother between 9 June 2005 and when an interim order was made on the mother’s application on 26 March 2007. That order was for the child to have supervised time with his mother for two hours each week. It is not a matter of contest that between 13 December 2006 and 26 March 2007 the father resisted face to face contact between the child and his mother on the basis that he would not consent to supervised time until he was “completely satisfied about [the child’s] safety”.
The matter first came into my docket on 3 September 2007 and on that day Dr P was appointed as the single expert to provide a report in the matter.
On 17 September 2007 an order was made for the mother to spend supervised time with the child from 9.00 am to 5.00 pm each Saturday with Ms S supervising the mother’s time.
In January 2008 Ms S indicated that she was no longer available to supervise time with the child. The matter came back before me on 18 February 2008. The parties had interviews with Dr P. Dr P had not finalised his report but provided a short report dated 14 February 2008. The report included an assessment by Dr P that the child should continue to see his mother and that that time did not require ongoing supervision for that to happen. Counsel for the father on that day asserted that Dr P did not have all the information he needed to have (particularly records from Sweden). I made a direct request to the solicitors for the parties to attempt to work out some arrangement whereby the child could spend time with his mother. At that time the child had not seen his mother since sometime in January 2008. There was a problem at that time in accessing a child contact centre because of lack of vacancies.
Dr P had originally prepared a report dated 22 March 2007. He provided a short report to the Court dated 14 February 2008. His final report dated 24 April 2008 (although the front page is dated 25 March 2008) was forwarded to the Court on 1 May 2008. He provided an addendum to the final report on 13 May 2008.
On 7 May 2008 Dr P’s final report was released. The matter was listed before me on 19 May 2008. The father wished to cross-examine Dr P in relation to the mother’s interim application to have unsupervised time with the child.
On 28 May 2008 Dr P was cross-examined by electronic means and an order was made for the mother to spend unsupervised time with the child. Prior to cross-examination Dr P was provided with Exhibit “G” which was a translation of the Swedish hospital records and, in particular, the admissions of the wife in Sweden on 9 September 2005 and 27 February 2006. The doctor was asked questions about what was in those records. Dr P indicated that he had not changed the opinion and the recommendation he made in his final report and he said that there was no reason why the child could not see his mother on an unsupervised basis.
The father’s lawyer on 28 May 2008 submitted that a period of time should elapse before the final hearing took place in order to assess how the interim arrangements in relation to unsupervised time worked out for the child. Counsel for the mother pressed that the matter be prepared for hearing at the earliest possible time. Directions were made in order to facilitate that happening.
Notwithstanding that however there were further attempts by the father at procedural hearings to delay the final determination of the matter.
The father appeared before me on 28 July 2008 representing himself for the first time. He was initially agitated and belligerent. He initially resisted my advice to him that the other members of his household should give evidence in the proceedings. He seemed to settle after his sister spoke to him.
When this matter was before me on 20 October 2008 for a compliance check the father made an application for a vacation of the hearing dates. His submissions were set out in Exhibit “AA”. The thrust of his submissions was a complaint about the mother’s lack of co-operation in getting documents from Sweden. That application was refused. The father also displayed a somewhat belligerent attitude during this court event.

THE APPLICATIONS

There was a variation in the applications made by the parties during the course of the case. Both parties formulated a variation of their initial applications in final submissions.

The Father

The father initially opposed the child having any unsupervised time with his mother.
The father’s application at the commencement of the final stage of the hearing (on the morning of 1 December 2008) was in the following terms:
A.That the father have sole parental responsibility for the child.
B.That the child lives with the father.
C.That the child spends time with the mother:
-Each alternate week from the conclusion of school on Wednesday afternoon until commencement of school on Friday morning.
-Each alternate weekend from the conclusion of school on Friday afternoon to the commencement of school on Monday morning.
-Half of each school holidays.
-Any other times that are of particular significance to the child or the mother, such as the mother’s birthday and Mother’s Day should they fall on a day when the other is not spending time with the child.
-Christmas, Easter and New Years Eve on alternate years.
In final submissions on 3 December counsel for the father indicated that the father sought an order that the child live equal periods of time with his father and his mother and that this arrangement be phased in over a period of three months. The father sought an order for equal shared parental responsibility for the child and to facilitate that the father proposed an order that the parties attend a post-separation parenting programme. The father agreed, pending judgment, that the child cease seeing Ms C, a psychologist that the child had attended upon (see more detailed discussion below). The father consented to Orders 9 and 10 as sought by the mother.

The Mother

At the commencement of the trial the mother sought orders in the following terms:
1.That the parties have equal shared parental responsibility of the child, […] born […] October 2001.
2.That the child live with the mother.
3.That the child spend time with the father during the New South Wales school term as follows:-
(a)Each Wednesday from after school until before school Thursday;
(b)Each alternate weekend from after school Friday until before school Monday extending to before school Tuesday in the event of a public holiday.
4.That the child spend time with the father during the New South Wales school holiday period by agreement failing agreement as follows:-
(a)For the first half of the school holiday period in the year 2008 and each alternate year thereafter and for the second half of the school holiday period in the year 2009 and each alternate year thereafter provided the period 12.00 noon on 24 December until 12.00 noon on 26 December is excluded.
5.That notwithstanding Orders 1, 2, 3 and 4 above, the child is to spend time with each parent on the following occasions:
(a)The child is to spend time with the mother from 12.00 noon on 24 December until 12.00 noon on 25 December in the year 2008 and each alternate year thereafter and from 12.00 noon on 25 December until 12.00 noon on 26 December in the year 2009 and each alternate year thereafter and the child is to spend time with the father from 12.00 noon on 25 December until 12.00 noon on 26 December in the year 2008 and each alternate year thereafter and from 12.00 noon on 24 December until 12.00 noon on 25 December in the year 2009 and each alternate year thereafter.
Notation:
It is noted for the purpose of these orders that the school holiday period is deemed to commence at 9.00am on the Saturday immediately following the last day of the school term and conclude at 9.00am on the Sunday immediately prior to the first day of the new school term.
At the commencement of submissions, after hearing Dr P’s evidence the mother sought the following orders:
1.The mother have sole parental responsibility of the child […] born […] October 2001.
2.In the alternative and without concession the mother have sole parental responsibility of the child in relation to decisions concerning the health of the child except in the case of an emergency and the education of the child and otherwise the parties have equal shared parental responsibility.
3.That the child live with the mother.
4.That the child spend time with the father as follows:-
4.1For six months from the date of order at Central West Contact Service Centre at such times and at such frequencies as can be accommodated by the centre at the husband’s cost and thereafter;
4.2For a period of three months each Sunday from 9.00am until 5.00pm and thereafter;
4.3Each alternate weekend from after school Friday until before school Monday;
4.4From the commencement of the 2011 school year for one half of the New South Wales gazetted school holiday period being the first half in the year 2011 and each alternate year thereafter and the second half in the year 2012 and each alternate year thereafter.
5.That the father is to collect and deliver the child at the commencement of time to be spent and collect the child at the conclusion of time to be spent from and to the usual place of residence of the mother unless changeover is to occur at the child’s school or time spent is at the contact centre.
6.That the child spend time with the paternal aunt, […], for a period of six months from the date of these orders each Sunday from 9.00am until 5.00pm provided that during such time the paternal aunt do all things to ensure that the child does not come into account (sic) with the father and/or the paternal grandmother.
7.That the mother ensure compliance with any recommendations made by Dr [P] in relation to any therapeutic program recommended for herself and [the child].
8.That the mother provide copies of Dr [P’s] reports, copy of the judgment and orders of the court to the said therapist.
9.That the father be and is hereby restrained from denigrating the mother or members of the mother’s family in the presence or hearing of, and to, the child.
10.That the father be and is hereby restrained from discussing these proceedings with the child.
11.That the father be and is hereby restrained from doing any acts and things as to cause the child, […], to attend upon any clinical psychologist, psychiatrist, therapist or any other health care professional without the written consent of the mother or an order of the court save and except in the case of an emergency.

Current Interim Orders

On 3 December 2008 I made interim orders, by consent, in the following terms:
1.All previous parenting orders be discharged.
2.Pending further order, the parents have equal shared parental responsibility for [the child] born […] October 2001 (“[the child]”).
3.[The child] live with his father.
4.[The child] spend time with his mother:-
4.1.Each alternate week from the conclusion of school on Wednesday afternoon until the commencement of school on Friday morning.
4.2.Each alternate weekend from the conclusion of school on Friday afternoon to the commencement of school on Monday morning.
4.3.One half of the Christmas school holidays.
5.In the event that I do not deliver judgment before the commencement of school 2009, if [the child] is in his mother’s care he should be returned to his father two days before school is due to recommence.
6.[The child] is not to be taken by any person for further therapy with [Ms C] unless there is a further court order that that happen.
Notation:
7.[The child] was due to see his mother today but will now spend time with his mother from 4 December 2008 until the commencement of school on Friday morning.
8.The first alternate weekend will commence from the conclusion of school on Friday 12 December 2008.
9.The Christmas school holidays will be shared week about with the mother having from after school on 19 December 2008 through to 12 noon on Christmas Day. The father then have [the child] from 12 noon on Christmas Day through to 12 noon on 1 January 2009 and then week about until the end of the school holidays (subject to [the child] being returned pursuant to Order 5).

RICE and ASPLUND

Neither party submitted that the principles in the cases that follow Rice and Asplund (1979) FLC 90-275; (1978) 6 FamLR 570 apply in this matter. The current final order that is in existence was made on an ex parte basis when the mother was not in the country and was otherwise mentally unwell. There has been a significant and substantial change in circumstance as a result of the recovery by the mother of her health and her return to Australia.

DOCUMENTS READ

The following documents were read and relied upon at the hearing:-
29.1.Affidavit by mother filed 3 November 2008;
29.2.Affidavit by mother filed 18 July 2008;
29.3.Affidavit by father filed 28 July 2008;
29.4.Affidavit by father filed 18 September 2008;
29.5.Affidavit by the paternal aunt filed 18 September 2008;
29.6.Affidavit by the paternal grandmother filed 18 September 2008;
29.7.Reports of Dr P dated 22 March 2007 (Exhibit D), 14 February 2008 (short report) 24 April 2008 (dated 25 March 2008 on the first page ;Exhibit F; “the final report”); and an addendum to the final report.

CREDIT

Mother

It is the husband’s case that the mother has lied about the circumstances of the separation on 14 January 2005. There was much focus at the hearing on a copy of a police record that indicated that the mother attended a police station on 13 January 2005. The note said there was no assault and no injuries. Because this matter seemed to be the focus of a considerable amount of the father’s attention I will deal with that issue now.
The mother gives a version of being struck on the face, falling to the ground, hitting her shoulder on the back of her head and becoming unconscious. The father denies it. The incident is said to have happened about 2.00am on 13 January 2005. The mother gave evidence that she went to a swimming pool with friends and the child the next morning and then went to the police station in the afternoon. Her version is that she did not show the police officer her injuries; she did tell him about the incident but he said she could either make a complaint or not. She was unaware that he had written down that there was no assault. She subsequently made a full statement to the police, a 10 page document. Based on that statement the police took out AVO proceedings.
When the matter got to court it is the father’s version that the police prosecutor became aware of what were apparently conflicting statements to two different police officers.
It is the mother’s version that the police prosecutor explained to her the process that she was about to go through and persuaded her to agree to the police withdrawing the AVO complaint.
Counsel for the father refers to Exhibit “27” (which is actually attachment “27”) to the affidavit of the father sworn on 8 September 2008. This is a report from Dr T dated 12 March 2008. There the mother reports to Dr T that she had been mistreated by the father and his family while living with them in their house. The mother told Dr T that her husband’s violence culminated on one occasion when he physically assaulted her and forced her to leave the house. Counsel for the father submitted that the mother’s assertion (as recently as March 2008) cannot be accepted, because of the statement originally recorded by the police officer when the mother first attended the police station at that time (no violence, no assault).
I have no doubt that the relationship between the father and mother in January 2005 had become very dysfunctional and that there was a high level of conflict between the parents. The parties had counselling in July 2004 with respect to problems in their marriage. The mother’s evidence was that communication with her husband was poor and he did not allow her to express her opinion, nor to leave the house without being interrogated as to her purpose for doing so. She said she had to report to the father and to the father’s mother in relation to where she was going when she left the home. The mother gave evidence that she moved out of the household because of the way she was being treated in the household. I am comfortably satisfied that the mother was finding it extremely difficult to continue to live in the home which included the grandmother and the father who has obsessional and narcissistic personality traits (see below). Whilst the father feels aggrieved that the mother reported to various professionals that she had left the home as a result of family violence and wishes this to be a forum in which his version is vindicated, I am unable to do so. I find the mother was feeling oppressed in her household at the time of separation. I conclude this is not a part of the evidence which would have me make an adverse finding about the mother’s credit. In my view, it was not just a single incident of family violence that contributed to the onset of the mother’s major depressive illness but rather the situation the mother found herself in within the household and the effect of the father’s personality traits upon her.
Counsel for the father referred to the mother’s evidence in relation to her pension situation in Sweden and her evidence about how those benefits dovetailed with the benefits she is receiving from Centrelink in Australia, commenting that the evidence did the mother no credit. The effect of the submission was that the mother’s evidence is that she is telling the Swedish authorities one thing about her health but asserting another thing here. It was clear that the father was keenly interested in the question as to whether or not the mother was telling the Swedish authorities a different thing to what she was telling the Court. There is, however, no clear evidence that the mother has told the Swedish authorities anything that is inconsistent with what she has told the Court. I have scant information about the basis upon which the Swedish authorities continue to pay a pension to the mother and I am not prepared to draw inferences against the mother’s credit on the basis submitted by counsel for the father.
Dr P expressed the view that there was a consistency and coherency in his assessment of the mother that led him to conclude that there was nothing of significance that had been hidden from him in relation to the mother’s medical history. In the context of him assessing what is currently in the child’s best interests Dr P did not put great weight on the resolution of whose version should be accepted in respect of what happened in January 2005. Whatever happened, it was clear that there were difficulties and disagreements and an estrangement in the relationship between the parents and there is a difference of opinion about what happened between them at that time. Dr P’s view is that, from a psychiatric perspective, it is more likely that the estrangement in the relationship was part of the cause for the subsequent depressive episodes suffered by the mother.
The mother gave evidence before me for a day. She impressed me as being thoughtful, patient and even tempered. There was no sign or symptom of her being mentally unwell. She also impressed me as being an honest and thoughtful person who gave consistent evidence throughout.
The mother made appropriate concessions in cross examination. She readily conceded that it was reasonable for the child to live with his father at the time of her breakdown; that the father had done a good job with the child; that her mother-in-law had done a good job and that they were the people who had looked after the child when she was unable to do so. She conceded that it was reasonable initially for the father to require some professional reassurance as to her recovery from her mental illness.
The mother gave evidence that in 2005 she could not understand herself and why her world had come crashing down upon her. There is no doubt that she has travelled a horrible path and I find she showed insight as to where she had been.
The mother impresses as a perceptive person who has understood what she needed to do to be able to rehabilitate herself as a parent. She gave evidence about professional assistance she had obtained from Ms M which helped her shape the way she reintroduced herself to the child.
The mother is not in any way embittered as a result of the difficulties that she has encountered from the father in attempting to re-establish her relationship with the child and to spend time with him.

Father

During cross-examination the father was taken to paragraph 244 of Dr P’s report dated 25 March 2008. At that point Dr P records:
[The mother’s] presentation did not suggest any psychiatric diagnosis or psychological disability.
During the second morning of the final phase of the hearing, the father gave oral evidence that he accepted this opinion. It was unclear as to when he had accepted that opinion but it seemed in his oral evidence at that time that it was around about late May 2008 when Dr P gave evidence by electronic means. The father (in a complete about face) in oral evidence in the afternoon of the same day asserted that both Dr P had been duped and that the child was going to pay the price for his mother not being honest and truthful about her mental problems.
During his evidence Dr P commented that the behaviour by the father was a good example of Dr P’s overall experience with the father.
The father’s evidence about the frequency of the mother’s telephone calls from Sweden in the second half of 2005 was curiously inconsistent. Counsel for the father cross-examined on instructions about the frequency of the calls but those questions asked in cross-examination were not consistent with the various versions the father gave as to the frequency of telephone calls when he gave oral evidence.
Counsel for the father, when cross-examining Ms C, suggested to her that the complaint that the child clearly made about the paternal grandmother was in fact a reference by the child to grandparents in Sweden. Ms C made it very clear that that is what the child said to her. The father’s attempts to massage this part of Ms C’s report and his attempts to get her to alter it do not reflect well on his credit.
Another problem with important parts of the father’s evidence is the filter the father applies to what he observes or hears. It might be the father is making an accurate report when he says that in his view more often than not he has to persuade and encourage the child to go and see his mother because the child is either scared or he is bored. However, I find the child is saying things to his father that the child thinks his father wants to hear and his father does not have the insight to understand the dynamics of what is happening.

Conclusions on Credit of the parties

When pressed during submissions counsel for the father was unable to identify any essential or important factual controversies which I would need to determine on the basis of some finding as to credit. The primary issue in respect of which credit is relevant relates to what happened between the parties at the time of separation in 2005 and what happened in 2006 in respect of the mother’s attempts to make telephone calls to Australia. In areas where I need to make a finding of fact based on credit, I prefer the version provided by the mother to that of the father.

Paternal Grandmother’s credit

Dr P cautioned against accepting at face the history given by the paternal grandmother. In her interview with him he commented that she introduced new information in a way that had a dramatic quality. This raised concerns with him about the veracity of the history being given. My impression of observing the paternal grandmother in the witness box was that she was highly invested in assisting her son in achieving the outcome that he wished and I was unable to accept everything she told me as being accurate.

Mother’s mental status

Dr P’s opinion as to the mother’s current mental status is set out above but it is convenient to repeat it:
244. [The mother’s] presentation did not suggest any psychiatric diagnosis or psychological disability.
It is not a matter of contest that during 2005 the mother suffered a very significant psychiatric event. Dr P’s view is that the mother has no current or continuing impairment from that event. Whilst the aetiology of that event is not clear, I have found that the mother’s major depressive episode was to a significant degree a function of the dynamics in the household prior to separation. I find that the mother has shown a capacity to recover from the breakdown that she had in 2005 and 2006.
Dr P confirmed in his oral evidence that the mother in her current presentation and state, presents as a relatively ordinary human being who is quite capable to mothering the child and that in her past she had a significant and severe depressive illness. Before that, she had a significant struggle with pain and tinnitus and psychological-accompanying difficulties. In acknowledging and accepting that past history, the mother now presents with no longitudinal history of mental illness but previous episodes of psychological struggling and depression. She now currently presents as a woman who has been able to not only get appropriate and proper treatment for her previous depression, but also who has learned from her experiences in a way that she now presents as a relatively ordinary human being who is quite capable of looking after her child.

Father’s mental status

Paragraphs 247 to 249 of Dr P’s final report in the following terms;-
247[The father] presents as a self-absorbed man, living with his mother and sister.
248. He demonstrated no capacity for empathy with [the mother] and when challenged with such thoughts he resisted strongly as if wanting to not even allow himself to think about any contribution he may have made to the couple’s history.
249.He maintains his rigid belief about [the mother] despite an apparent open-mindedness in which invites others to convince him otherwise, although, he will remain unmoved.
Dr P observed that the father, during an interview with him, became angry and argumentative which contrasted with his otherwise smiling, calm and laid-back demeanour. He talked over Dr P, and he was focussed on the inadequacy of the documents which the mother had produced from Sweden. Dr P at paragraphs 143 to 147 made the following observations in relation to the father’s presentation and mental state:
143.He related from a self-absorbed perspective in a relaxed and smiling manner until challenged when he became uncharacteristically angry and argumentative.
144.As described above, he maintained a background smiling affect with a cynical flavour, unless challenged. He quickly regained his composure when moving to a different topic.
145.There was no evidence of a psychotic illness or a brain syndrome.
146.He appeared to have average intelligence.
147. He expressed no awareness or understanding that his own self-absorbed perspective or any contribution he may have made, or is making to the difficulties in his relationship with [the mother].
In his oral evidence Dr P elaborated on what he meant by the word “self-absorbed” saying that in his view the father is narcissistic. Dr P said that it is very difficult for people with a narcissistic trait to be able to put themselves in another person’s shoes. It was very difficult for them to have empathy and it is not uncommon that they have little, if any, empathy. Dr P was clearly of the view that the father lacked in the ability to empathise and that this personality trait created difficulties for the father being able to deal with the mother and difficulties in accepting the validity or legitimacy of any view that the child’s mother would have. Given this personality trait the father feels justified in dismissing the mother’s role in the care of the child. Dr P said that this personality trait in the father would mean that the child would find it very difficult to grow up separately and independently and that he would need to be “chip off the old block”. Dr P, when elaborating on his view about the father’s over-valued ideas, said that it was part of the father’s personality trait that he was obsessional (particularly in relation to collecting evidence).
In oral evidence Dr P said the father had over-valued ideas or an encapsulated delusion (which is a reference to the father’s view of the effect of the mother’s behaviour on the child).

Ms C’s therapy and her evidence

In about October 2008, the child was exhibiting certain behaviour at school (S School) which concerned the School Principal. On 8th October there was a meeting at the school between the School Principal, the School Counsellor (a psychologist), the father and the father’s sister. Advice was given that the child should see the School Counsellor. That advice was initially accepted by the father.
The following day, however, the father had thought the matter over. He telephoned the school and withdrew his consent for the counselling. I find that there were two reasons as to why he decided to withdraw his consent to the child being seen by the School Counsellor. The first reason was that he thought that the child might be embarrassed and bullied if it became known that the child had seen the School Counsellor. The other reason, and the one that I find was the more powerful for him, was that he was aware that the school would include the mother in consultations about the child’s counselling and the father had formed the view that there may have been a conspiracy between S School and the Catholic School at R which the mother was doing some voluntary work.
Exhibit “U” indicates that the father made the decision to seek the assistance of a psychologist away from the school on legal advice. The father fabricated having received legal advice when offering this excuse to the school.
Dr P formed the view looking at Ms C’s clinical notes (and it is recorded in her written report) that the father’s primary aim of taking the child to the psychologist was to obtain a report that could be used in court. The father disputes this was his primary motivation, saying that Ms C explained to him that she did not usually do reports for court and notwithstanding that he still agreed for the child to continue to be involved with Ms C on a therapeutic basis (seven sessions). I conclude based on Ms C’s report, clinical notes and her oral evidence that the father’s central purpose of seeing Ms C was to attempt to obtain a report for the Court that would support his application to this Court.
On three occasions Ms C advised the father against saying things to her which were not appropriate topics to be discussing in front of the child.
Ms C did produce a report (Exhibit “P”). The report not only recorded the child being critical of his mother but also critical of the paternal grandmother. The father attempted to persuade Ms C to have the negative references about his mother removed from the report. Left to his own the father would not have produced this report to the Court but to her credit counsel for the father advised him that disclosure should be made of the existence of Ms C’s report and of the fact that therapy had taken place to the extent it had.
Counsel for the father submitted that Ms C’s report concluded that the child was showing post traumatic stress disorder. In submissions counsel for the father agreed that it was symptomatology rather than a disorder that was talked about by Ms C. Ms C’s conclusions, however, about the child’s current problems have to be heavily discounted given Dr P’s critique of Ms C’s report, which I accept.
Ms C saw the child in a clinical capacity and also in a therapeutic capacity and provided a report to the court. Ms C gave oral evidence about some of the techniques she used in her emotional release counselling, including providing one photograph depicting how she had worked with the child using symbols and sand. Ms C said that the photograph of the sand play work showed that the child was progressing with his anxieties. Ms C in her oral evidence said that in her view it was not necessary, firstly, in her clinical and therapeutic role, for her to be advised as to the existence of Dr P’s reports, nor as to the contents of Dr P’s reports regarding the family. The mother had no knowledge of nor did she consent to the therapeutic process that the child entered into with Ms C.

Dr P had difficulty with Ms C’s methodology. Primarily that was based on the fact that Ms C had started with the assumption that the child was a disturbed child and that was a function of having a disturbed mother. Dr P commented that for Ms C to engage with a child with that assumption, without clarifying or checking that assumption, allowed the opportunity for the child to have confirmed by an adult, whom he may respect as a therapist, that his disturbance was due to his mother’s disturbance, whether in fact it is not. Dr P said that this was quite troubling and it was very important for a therapist to make very sure, when working with a child on the basis that the child needs to cope with their disturbed mother, that you did know that there was, in fact, a disturbed mother. Otherwise it would just reinforce the child’s false belief, which is quite damaging to the child and to the child’s relationship with the mother. Dr P took such a dim view of what had happened with Ms C as to describe it as abuse “within child protection areas” commenting that you do not lightly engage in a therapeutic process with a child unless you know what you are dealing with.
In my view the father, perhaps without any insight, exposed the child to the risk of harm and danger by involving him in a therapeutic process that was flawed. The therapeutic process was based on the assumption that the cause of any of the child’s problems was a sick mother. Ms C did not think it appropriate to obtain a history from the mother or interview her prior to involving herself in extensive therapy with the child. That is a dangerous course and in the circumstances of this case has had the affect of exposing the child to further risk of harm.
Ms C had given evidence that she thought that if the Court intended to stop the child coming to her for therapy then there should be a closure session. Dr P’s view was that it was best to err on the side of not needing to have a closure session. His conclusion was that although theoretically it was ideal to have a closure session he thought that it was likely to be more detrimental to the child to go to a further session than to miss out on the opportunity of saying goodbye to Ms C.

Dr P’s evidence

Dr P is a Child and Family Psychiatrist. His evidence is in the four written documents referred to above. He also gave oral evidence on the final morning of the trial.
Dr P also gave oral evidence by electronic means on 28 May 2008. He was cross-examined by the lawyer for the father on that occasion. He was asked about material, particularly in Exhibits “G” and “H”. The doctor’s evidence on that occasion is that material (which was historical) indicated an underlying vulnerability of the mother which was not outside a normal range. He said that maybe another woman might have been more robust than the mother and maybe another woman may not have had the episode that the mother had had but none of the material of a historical nature changed Dr P’s current opinion as to the mother’s current mental status.
I deal in more detail with Dr P’s evidence, at various places, later in the judgment.
Counsel for the father submitted that it has been 10 months since Dr P saw the parties and that his evidence has to be marked down for that reason. I do not accept that submission.
Counsel for the father submitted that I should not put too much weight on the recommendations of Dr P. I do not accept that submission.
In summary, Dr P’s view was that there is only one possibility that will serve the child’s best interests and that is for him to primarily live with his mother.

THE MATTERS I MUST CONSIDER

In deciding whether to make a particular parenting order my paramount consideration is the child’s best interests.
To determine what is in the child’s best interests I must primarily consider two things and additionally consider 13 other things pursuant to s 60CC of the Family Law Act 1975.
The primary considerations are:
77.1.the benefit of the child having a meaningful relationship with both of the child’s parents; and
77.2.the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
I will deal with the considerations using headings. Although I have considered them all, I only refer to those which I consider relevant in this case.

PRIMARY CONSIDERATIONS

Meaningful Relationship

It is beneficial for the child to have a meaningful relationship with both of his parents.
The argument that I accept is that it is more likely that the child will have a meaningful relationship with both his parents if he lives with his mother than if he lives with his father.
Dr P (who had recommended shared care) changed his mind on the final morning of the hearing once he had seen Ms C’s report and read Ms C’s notes. He concluded that the father could not be convinced to change his position and that the father’s modus operandi was to say at all times if you can convince me then I’ll change my position. Dr P reached the conclusion that there was nothing that was going to convince the father. The father had Dr P’s final report shortly after 7 May 2008. As set out above in paragraph 244 of the final report Dr P said that the mother was not currently debilitated as a parent by any mental illness. The father did not accept that. He then had Dr P’s oral evidence on 28 May 2008 which his lawyer tested in cross-examination. He did not accept that. He constantly asserted that the mother had undisclosed information from overseas that was relevant to the diagnosis of her mental status. At the end of the case he asserted that because the mother had on two occasions in her affidavits referred to herself as having been diagnosed with a manic depressive disorder (which Dr P agreed was a more complex mental status) that the father was misled by the mother as to what her mental status was.
I accept Dr P’s assessment of the husband’s personality traits. I accept that they mean that he is likely to have the overvalued idea that the mother is still mentally ill or alternatively has that idea as an encapsulated delusion.
I do not accept the primary submission by counsel for the father that it was only when Dr P was confronted with the “additional information” that the father could feel comfortable that Dr P had taken everything into account before he reached his diagnosis.
The “additional information” was old notes from Sweden and the police note which, on its face, indicated that the mother gave conflicting versions of an incident of family violence in January 2005.
The father could not point to any piece of medical evidence that would indicate that the wife had actually been diagnosed with manic depression. The Liverpool records had been subpoenaed to the Court for some time. I had Dr P check the two files from Liverpool Hospital. He confirmed that there was no diagnosis of manic depression referred to in those notes.
Dr P said in oral evidence that if the child remained in his father’s household, in his opinion, it can be anticipated that the child will either get to a point where he has to turn his back on his mother (which Dr P said would be devastating for the child) or he would have to continue to be responsible for the relationship with his mother in circumstances where his father did not support that relationship. Dr P said that the latter would be an intolerable position for the child to be in.

Protection from harm

In this case, the opportunities to allow the maintenance and development of a meaningful relationship with both parents needs to be constrained because of a counterbalancing need to protect the child from harm from being subjected to or being exposed to psychological abuse.
Dr P agreed with the proposition that there is a prospect that the child could be subjected to the risk of abuse in the wider sense of that term; that is, trauma and psychological injury, in the event that he continues to be primarily resident in the father’s home. I accept Dr P’s view about that.
The recent example of the father involving the child in therapy with Ms C without the mother’s participation is an example of the risk that the child faces if he continued to primarily reside in the household with his father. I have found above that the way in which the father involved the child in therapy with Ms C exposed the child to a risk of psychological harm. I accept what happened with Ms C led to a risk in a child welfare sense to the child’s wellbeing. The basis of the therapy proceeded on the assumption that the child was a disturbed boy as a function of having a disturbed mother and a therapy based upon that simplistic presumption, which had no current validity, was dangerous.
Dr P’s evidence was that when the child was giving details to him about abusive practices in his mother’s household he was not giving them in the way which had any emotional investment and that what was being said by the child was not consistent with the way in which he was reporting events. Dr P was of the opinion that he did not think what the child was reporting had ever happened. As already mentioned, Dr P gave evidence that, if the child spends substantial time with his father, it is likely that the child will become a “chip off the old block”. He indicated that there were two likely scenarios. One is that he will reject his mother in order to resolve the conflict that he feels exists between the two households or he will be psychologically torn as a result of having to manage the level of angst in his father’s household.
Counsel for the mother submits that there is, in this case, a risk if the child remains in his father’s care of grave psychological endangerment and damage to the child both in the short term and in the long term. Based on what Dr P has said I accept that risk exists.
I am comfortably satisfied that the child is not being subjected to any form of abuse whilst in his mother’s care.

ADDITIONAL CONSIDERATIONS

Views

Counsel for the father submits that every single time anybody has asked the child where he wants to live he says “with his daddy”. That overstates the evidence.
Dr P was of the view that the child knows well what is expected of him in his father’s household and he will mouth what is expected of him, particularly to somebody like a therapist or somebody preparing a court report.
I have evidence from a number of different sources about the child’s views. The evidence from the father is that the child would never lie to him and the child says that he does not want to see his mother and that he is either bored or scared. I say above that I do not accept that as accurately representing the true position. That is not what Dr P has found. At paragraph 39 of his last report Dr P says:-
39. When asked if he wished to see his mother he replied, “Sometimes, and sometimes on Saturday.”
40. On this occasion he spontaneously wished to spend “More” time with his mother.
The child on two occasions told Dr P about how he felt when leaving his father’s household to go to see his mother (paragraphs 16 and 42 of Dr P’s report). Both of those statements by the child to Dr P indicate how anxious and torn the child is in moving from one household to another.
The child is seven years of age. Views expressed by the child to his father (even if I fully accepted what his father said about that) and views expressed to the paternal grandmother (if I take fully at face the evidence given about that) carry little weight because of the dynamics in which the child is involved. I have found that the child is likely to say to his father things that he believes his father might want to hear. As mentioned above, the child has said things to Dr P about time with his mother without any emotional investment in what he was saying.
The mother has set out in her affidavit the enjoyment that the child has when he spends time with her (which is evidence supported by Exhibit “J”, referred to below).
I place little weight on any evidence about the child reporting negative things about his mother as an indication of the child’s true views.

Relationships

Dr P in his oral evidence elaborated upon what he said at paragraph 238 of his report and commented that the child actually showed no particular attachment to his father. He was familiar and comfortable with his father but given his age the child did not demonstrate the sort of emotional attachment you would expect of a child of his age to their primary parent. Dr P said that this was consistent with the father’s narcissistic personality trait. He commented that it was very hard to have an emotional attachment and involvement with someone when they are full of themselves.
The father gave evidence that on about the first 50 occasions when the child went to see his mother for supervised time he received great resistance from the child in terms of the child wanting to go. As I’ve said I have difficulty accepting that evidence as an objective recording of what happened, but counsel for the mother makes the point that, if it is true, it demonstrates a lack of capacity on the part of the father to appreciate that there must have been something that he was doing which was wrong. There is no suggestion in the father’s evidence that he has at any time attempted to seek any professional advice on how to better approach the problem that the father said was confronting him.
The paternal grandmother is a 71 year old woman who has had an involvement in the child’s life and who is described as involving the child in a challenge of the minds.The paternal grandmother has kept a diary where she has recorded things that the child has said to her when he has come back from his mother. Only negative things are recorded.
The paternal grandmother gave an expansive and spontaneous history to Dr P. Dr P opined that the history was given from a self-absorbed perspective. She told Dr P about her dedication to the child, the importance and success of her family and the sinister and violent behaviour of the mother. She told Dr P “ever since my grandchild gone. (sic) I dedicated my life to the child. Bringing up, feeding, teaching, grooming, things mother would do.” She alleged the mother was involved in extortion and blackmail (this related to the mother’s request that she receive some recognition on the title of the home). The grandmother told Dr P of other false allegations the mother had made. She accused the mother of physically assaulting the child, beating him across the back and leaving a mark on his spine.
The paternal grandmother told Dr P that “roughly a period of six months he ([the child]) would wake after nightmares shouting out, ‘save me grandma’. After that never mentioned his mother again”. Dr P commented the implication of that bit of history from the paternal grandmother was to confirm the mother had abused the child physically. The paternal grandmother claimed to Dr P that she was the main person in the household who provided care of the baby.
With reference to the child’s relationship with his mother, the paternal grandmother said “desperate, crying, wanted to be reassured that he wasn’t going back to his mother. For six months give him the bottle to console him and reassure him that he was wanted and loved.” The child was three years and eight months in June 2005.
This evidence is instructive in two ways:-
106.1.It gives some insight as to the dynamics in the father’s household which mitigate against the chances of the child developing a normal and stable relationship with his mother should the child remain in his father’s household; and
106.2.It gives some insight into the circumstances in which the mother found herself in the father’s household prior to the separation and her mental breakdown.
The paternal aunt was the most impressive of the three of the father’s witnesses and the person with whom the child has the strongest attachment in the father’s household. Whilst the paternal aunt gave evidence that she too had conversations with the child after he sees his mother about how he’s gone, the content and tone of the answers that she gave were very different from those of the paternal grandmother. Counsel for the mother submitted and I accept that although the paternal aunt is part of the father’s household, and whilst there might be some aspects of the aunt’s behaviour that are inappropriate, there are other aspects of her behaviour which set her apart. Counsel for the mother submitted that it was important for the child, if he was to live with his mother, for him to see his aunt during any period of transition, so that there is some degree of consistency in the child’s life. I accept that submission.

Willingness of parents to facilitate relationships and maintain the child

The mother freely acknowledged the father’s role in taking over the parenting of the child in circumstances where she had become mentally unwell. There is no evidence that the father has in any way attempted to thwart orders I have made for the child to spend time with his mother.
The father has annexed to his affidavit correspondence between himself and the solicitors for the mother. I accept counsel for the mother’s categorisation of the father’s attitude in that correspondence as the father putting up a wall and not allowing the mother to even speak to the child on the telephone. It was in these circumstances that the mother initially consulted Dr P and underwent a parenting course with Ms M. As already mentioned, she took positive steps to seek professional assistance and guidance as to how to reconnect with the child after being absent from his life for such a significant time.
As noted above, the father has been assessed by Dr P as a self-absorbed man demonstrating no capacity for empathy with the mother and who strongly resists wanting to even allow himself to think about his role in what has happened in the past. The fact that those attitudes currently exist was starkly demonstrated by the evidence, which I have already referred to, about the father’s attitude to the mother’s current mental status which was diametrically different during the same day of the father’s oral evidence.
Paragraphs 110 through to 141 of Dr P’s last report contain Dr P’s description of his interview with the father on 5 March 2008. That description is consistent with the father’s presentation before me. The father presents as an argumentative person who is capable of heated responses with an inability to consider someone else’s point of view. On the other hand, he can at times be charming and persuasive. Having seen the father on a number of occasions over a period of in excess of one year my impressions of the father coincide with Dr P’s assessment. These aspects of the father’s character will make it difficult for him now and in the future to allow the mother’s parenting role to blossom should the child continue living with the father.
I am of the view that the father’s self-absorbed character led him to embark upon a process that excluded the mother from any involvement in this therapy with Ms C.
I asked Dr P to comment upon the possible effect of the father’s rigid attitudes on the child’s relationship with his mother. The father’s oral evidence was that he was not sure if the child loved his mother, nor was he sure how the child received his mother’s love. Dr P commented that the father’s attitude was toxic to the child and it is destructive to his relationship with his mother. Dr P was troubled by the fact that the father’s views have not changed at all over a significant period of this litigation and the father still holds to the beliefs that he had at the beginning. As I have already said, Dr P described these beliefs as over-valued ideas if not an encapsulated delusion.
Dr P concluded that given the father’s ongoing perceptions as to the mother’s mental health and the rigid beliefs that the father holds about the mother’s dishonesty, it was going to be extremely difficult for the child to be able to hold onto his relationship with his mother in that atmosphere. It would be up to the child to be responsible for maintaining his relationship with his mother because in Dr P’s opinion the father would not have the capacity to support the relationship.

Until prompted the father was not able to say anything positive about the child’s relationship with his mother or the mother’s relationship with the child. That evidence is instructive of the attitudes of the father and in the father’s household to the child’s relationship with his mother.
The father in his affidavit sworn on 8 September 2008 at paragraph 154, expresses the opinion that the mother has not bothered to consider what is really in the child’s best interests. In part of that paragraph the father says;-
154(e) As a father who has seen his son suffer such horrendous trauma and experience horrific disgraceful violence whilst in his mother’s care I cannot and will not ever allow him to be put in the similar position again. If his mother is serious about doing what is in the best interests of [the child] take (sic) step back and realise the pain and suffering she has caused her son [the child].
(f) At this stage in his life [the child] dislikes his mother, he is afraid of his mum, he vividly remembers her previous violence and he doesn’t want to live with her. I think (sic) is extremely dangerous for [the mother] to believe that she can simply take over the running of [the child’s] life without any regard to his feelings and needs and his current living arrangements.
The father was given an opportunity during cross-examination to revise the attitude and opinions expressed in paragraph 154 at a time after he had heard Dr P’s evidence in full. It did not seem to me that the father had substantially changed his attitude or opinion having heard Dr P.
I accept counsel for the mother’s submission that, on instructions, counsel for the father focused heavily in cross-examination on events that had occurred between 2002 and 2005. Whilst it is clear that these events were traumatic for everybody concerned, that focus reflected an inability by the father to concentrate on the current situation (particularly in respect of the mother’s health) and to look forward to what arrangements are best for the child’s future.
I accept the expert opinion that there is a toxic environment in the father’s household around the issue of the child spending time with his mother.
There is evidence that refers to a time where the three adults in the household, the father, the father’s mother and the father’s sister are all crying before the child goes off to see his mother (see paragraph 16 of Dr P’s last report.) Dr P says at paragraph 42:-
Again he ([the child]) expressed his concern about the hurt to his father, aunt and grandmother when he sees his mother.
Dr P records how the child spontaneously told him “a long time ago my mum did something to me.” When Dr P asked what he was referring to, the child replied, “she did something to my mouth.” A little later when further questioned the child told Dr P that “[i]t’s something I told my grandmother and she reminded me. She wasn’t there.” I find that the child’s grandmother is telling him things of a negative nature about his mother and that this is occurring within a household where the father has knowledge of what is happening and where he is not doing anything to stop it.
Another example of a lack of willingness by the father to allow the mother to engage in parenting surrounds the father’s control of reading books from school. The reading records from school are in evidence. There is no evidence at all that the mother has had an opportunity to do anything with the child in relation to his reading, and the father conceded that that was so.
Even a recent suggestion that the parties meet at McDonalds for a small birthday party for the child drew a suspicious reaction from the father who thought he was being set up.
The paternal grandmother, in her oral evidence, said that the child did not like going to see his mother and that the child did not love his mother. She said the child went to see his mother because his father had told him the judge’s ruling was that he had to see his mother and he respected that ruling.

Effect of change

The thrust of Dr P’s evidence was that if the child was made to feel responsible for his relationship with his mother within his father’s household then there is a possibility that the child may turn his back on his relationship with his mother in order to make the members of his father’s household happy and if that happened it would be emotionally and psychologically devastating for the child in the short term and the long term. It would also be intolerable for the child if the child attempted to maintain the relationship with his mother against the background where the father could not support that relationship. If the father in the future attempted to deal with the child’s anxiety by obtaining therapy for the child similar to the therapy that the child has had with Ms C then Dr P’s view is that this would lead to a very poor outcome for the child.
Dr P said a change was necessary and acknowledged what he proposed was a radical change. Dr P recommended a transitional period and I agree there certainly has to be a transitional period. The effect of the current orders that I have made which has the child spending five nights a fortnight with his mother has for a short time created a period where the child is spending more time with his mother. There needs to be sufficient time for the mother to re-establish a parental relationship with the child; a time which is free from the father’s influence and any ability by the father to convince the child that he has been harmed by the change. I do not doubt that there will probably be unsettling behaviour exhibited by the child during the transition. The father should not be allowed the opportunity to fuel that unsettling behaviour because of his own attitudes. The transition should also be as free as possible from the paternal grandmother involving herself in any unsettling behaviour given my finding that the paternal grandmother is wholly supportive of her son, where she sees no wrong in her son and she sees the mother as violent and sinister. In the transition period the paternal grandmother is free to go to the contact centre with the father. I accept that Dr P’s recommendation is one which is in the child’s best interests.
Given that the child has the paternal aunt as his primary attachment in the father’s household, it is important, in the transition, for her to maintain time with the child. She’s indicated in her oral evidence that she would be prepared to be involved in that process, if I was of the view that such time should be ordered. Given that the nature of the transition is likely to be unsettling for the child, I find that the child needs to have a continuing regular involvement of a meaningful nature with his paternal aunt during the period of transition.
Counsel for the father submitted that Dr P is making sweeping recommendations that will turn the child’s life upside down and that he will basically lose his father and paternal grandmother. There is no argument that what is being proposed is radical change. The change, however, does not lead to the result that counsel for the father indicates. After the transitional period the father will have a level of contact with the child which will allow him to maintain a meaningful relationship with the child and the paternal grandmother will also continue to see the child at those times.
Dr P’s evidence was that the child has the capacity to deal with the change.

Difficulty and expense of time and communication

There is no evidence that there has been any logistical problems in the child moving from one parent to the other. The father has currently been doing the travelling and there was no suggestion that such a situation should change.

Capacity to provide for child’s needs and attitude to the child and to responsibilities as parent

Counsel for the father submitted that the mother has not given an adequate explanation for what she was doing between February 2006 and December 2006. The mother was overseas at that time and it is submitted that she has not explained why it was she could not organise herself to come back and visit the child on some type of visitor’s visa. Whilst the mother’s explanation is not fulsome I accept, that in the context of her previous health problems, she was doing what she could to get her life back together in order to get back to Australia. The mother could not have any confidence, had she had the ability to come to Australia on a temporary basis during 2006, that the father would make the child available to see her.
I accept that the mother demonstrated sensitivity to the child’s needs when she attempted to get close again to the child following her return to Australia. She wanted to approach it softly so that she did not hurt the child in the process. I have already mentioned how she sought professional assistance to assist her in that endeavour. Paragraph 107 of Dr P’s final report refers to the mother’s consistent acknowledgements of her own conduct and shortcomings.
The father’s character and personality traits, as already described, are demonstrated in his affidavit evidence, amplified by the evidence of Dr P and confirmed on a number of occasions by reactions and statements made by the father during the period when he gave oral evidence during various stages of the hearing.
Counsel for the father submitted that the father’s attitude is understandable given what counsel for the father described as the horrific incidents that happened in June 2005. It was submitted that any parent who had seen a child in that situation would be “very fearful” that it would happen again. Counsel for the father submits that it has been reasonable right up until the final day of the hearing for the father to continue to hold that fear and to have the attitude that he wanted to make sure that something like that never happened to the child again. I do not accept that submission.
I have already commented upon the restrictions the father’s narcissistic personality traits place upon his capacity to parent the child. It is this fundamental problem that has led Dr P to recommend what I have noted above, what Dr P describes as a radical change.
I do not accept there is any validity in the father’s proposition, which he asserted during oral evidence, that the mother cannot fulfil a parental role unless she is honest and truthful. The father on more than one occasion attempted to delay the finalisation of the hearing of this matter on the basis that the mother retained undisclosed information about her psychiatric treatment overseas during 2005 and early 2006. I find that the mother has done what she reasonably can to obtain records from overseas. I find the mother has not deliberately attempted to hide material from the Court. At the time of her major breakdown in the middle of 2005 the mother was hospitalised in Australia. A complete set of her hospital records are in evidence. Dr P has seen the mother on more than three occasions. He has also had access to all the relevant documentation. I accept his opinion as to the mother’s current mental status. I do not accept that there is any validity in the father’s assertion that the child must pay the price for his mother not being honest.
Exhibit “J” is a project book prepared by the mother containing photographs of herself and the child particularly during 2008. Those photographs do not show a boy who is having the types of reaction with his mother that are described by the child upon his return to his father’s household.
Rather hauntingly the book also contains a photograph of the mother in August 2005, presumably taken for her passport to enable her to travel overseas. The mother does not look well in that photograph whereas the mother before me in the witness box and in the photographs in the project book presents as someone who is well and healthy. The mother’s presentation before me was consistent with Dr P’s current diagnosis of the mother.
I asked Dr P whether or not there should be a safety net by the mother being involved on a regular basis with a General Practitioner (she does not currently have a regular General Practitioner). Dr P said she does not need one. The only reason for requiring that would be to give comfort to others, primarily the father.

Family violence

I have concluded that at the time of the separation there was some incident involving some violence by the father but that incident is of no great significance to what I have to determine in this matter. The more important feature in the father’s household prior to the separation was the oppression that the mother felt. I conclude that the father’s personality traits contributed to the feeling that the mother had. However, in this case, there has been no significant history of family violence and it is not a matter upon which I place any weight, as I look forward to decide what is in the child’s best interests.

Family Violence Orders

As mentioned earlier, in January 2005 the police on behalf of the wife applied for an AVO against the father. Those proceedings were withdrawn. No final Family Violence Order has ever existed.

Order least likely to lead to further proceedings

This is not a matter of any great weight or relevance in these proceedings.

CONSIDERATION OF PARENTAL RESPONSIBILITY AND TIME

Should an order for equal shared parental responsibility be made?

Counsel for the father submitted that an order for the child only to see his father from Friday to Monday every second weekend was not an order for meaningful time, particularly in circumstances when the father took on the responsibility for the child when the mother’s life fell apart and that he had been the person primarily responsible for the child for the last 3½ years.
There is a presumption when making a parenting order, that it is the best interest of a child for both parents to have equal shared parental responsibility.
The presumption does not apply if it is reasonable to believe a parent has engaged in abuse of a child or family violence. Counsel for the mother submitted that the father has been involved in abuse of the child in the wider sense of that term in as much as the father has indulged in behaviours that have placed the child in grave psychological endangerment and have damaged the child with both long term and short term effects. The use of the term “abuse” in s 61DA(2) of the Family Law Act 1975 is one which is narrowly defined in s 4(1) of that Act as relating to physical assault, sexual assault or sexual activity. The provisions of s 61DA(2) of the Act are therefore not satisfied and in final submissions counsel for the mother did not rely upon this submission. That, however, is not the end of the matter.
The presumption may be rebutted if there is evidence that it would not be in the child’s best interests to apply it. Counsel for the mother relied upon s 61DA(4) of the Act to say that it was not in the child’s best interests for the parties to have equal shared parental responsibility in circumstances where there is, at the moment, no ability for the parties to communicate with one another. The father up until now has relied upon the ex parte order that he obtained for sole parental responsibility to exclude the mother from any decision making in respect of any long term or important issue in the child’s life. An example of that was the decision by the father to put the child into psychological therapy. That decision was made by him in the child that I have described above. Another example relates to the child’s dental treatment.
On the s 61DA(4) point counsel for the father submitted that the parties cannot meaningful communicate and, taking into account the evidence given by Dr P about the father’s personality, and my observations of the father whilst in my courtroom, I agree with that there is no likelihood in the near future that the parents would be able to compromise and reach a meaningful decision about matters, in respect of which they disagreed, relating to life-shaping decisions for the child. The father’s propensity for argument and heated response and his rigid belief about the mother despite an apparent open-mindedness will create a difficult barrier to overcome in terms of the parents moving to a position where they are able to openly and freely communicate with one another about the child’s needs. There is not one piece of evidence before me that provides an example of the mother and father communicating together about the child’s welfare.
I find that there is no current capacity for the parties to be able to consult with one another, nor could it be currently said there any reasonable expectation that one could be developed.
The one glimmer of hope is that the father has agreed to attend a post separation parenting program with the mother. This may over time improve the relationship between the parties as parents but I am unable, at this time, to predict a dramatic improvement, given what Dr P has said about the father’s personality traits. Any movement, however, that can be made in the direction of improving the dialogue between the parties as parents needs to be encouraged and I will make an order that the parties attend a post separation parenting program.
I find that it is in the child’s best interest to put sole parental responsibility with the parent with whom the child ordinarily lives but on the basis that this parent consult with the other and obtain feedback before making any final decisions and in that regard I shall define, in the orders, what the word “consult” means.

Time

Even when no order is made for equal shared parental responsibility, I still may consider whether it is in a child’s best interest and “reasonably practical” to make an order for “equal time” and if not, for “substantial and significant time”.
In determining what is “reasonably practical” the most important thing to which to have regard is the parties’ current and future capacity to communicate. I do not believe it is in the child’s best interests to have an arrangement where he would be spending equal time or substantial and significant time with two parents who have no ability at the current time to communicate with one another.

Conclusion in respect of best interests

I do not accept the submission made by counsel for the father that the father will be marginalized in the long term as a result of the orders made. There is a need, however, in the child’s best interests, given the level of communication between the parents, to select one of them to be the primary person with whom the child ordinarily resides and to be the person who has the ultimate decision-making responsibility in relation to long term issues concerning the child’s care, welfare and development.
I accept the thrust of Dr P’s evidence. He said on a number of occasions that the father has been unable to gain any insight or benefit from what has been a long assessment process that has occurred over a period of more than 18 months. The father still has an entrenched position and is unable to evolve. This presents dangers to the child in being able to develop and maintain a relationship with his mother. Dr P’s evidence was that the only possibility to deal with the current entrenched attitudes by the father and in the father’s household is for him to live primarily with his mother. I find that that is in the child’s best interests.

PROPOSED ORDERS

Dr P’s evidence was that it is probably given the father’s personality traits that he will not be able to lose an opportunity when the child is with him to attempt to convince the child that the Court and the court expert were wrong. The father’s personality traits mean that he needs to be able to prove and demonstrate that he is the correct one and that the father would need to do that with his son because it is important that his son can look at him as an important person.
Dr P believes there needs to be some attempt to create a space that is free from any back-lash or contamination from a reaction in the parental household, particularly from the father. There still should be the ability for contact and Dr P suggested an ongoing relationship during the transition period with the person to whom the child is most strongly attached to the father’s household, namely the paternal aunt. Any face to face contact during the transition period should be done in a well contained supervisory environment and in circumstances where if the observers felt that the father’s engagement with the child was inappropriate, then the engagement between the child and his father could be terminated.

Counsel for the mother proposes the paternal aunt’s time with the child would take place at a time that was different from the time the father and paternal grandmother saw the child at the contact centre. The father has given evidence that he has the capacity to attend Central West Contact Service at times other than a Sunday.
I find that it would be appropriate that there be a transition period of six months and in that time the child would see his paternal aunt every week on Sundays and see his father at another time during the week for a short time in a controlled environment.
Dr P was not convinced that the child needed therapy and that any therapy would have to come out of a full and proper assessment and such assessment would have to include the mother. I will order the mother to see Dr P to seek his further recommendations. She should implement what he recommends.

I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 28.1.2009

[2009] FamCA 25

28 January 2009

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies