Wiles & Paglia (No 2)

[2018] FamCA 1119

FAMILY COURT OF AUSTRALIA

WILES & PAGLIA (NO. 2) [2018] FamCA 1119

FAMILY LAW – CHILDREN – Best Interests – Relocation – Where the mother consented to interim orders at the end of the trial for the child to live with the father – Where the father wants to return to live in Country FF with the child and the mother wants to remain in Australia with the child – Where the parties relocated to Australia just prior to separation – Where the mother suffers from pseudologia fantastica  syndrome – Where finding that mother poses an unacceptable risk to the child – Where no unacceptable risk to the child from the father - Where the Court finds it is in the child’s best interests for the child to live with her father and that he be able to relocate to Country FF – Where the father shall have sole parental responsibility for the child and orders shall be made for the child to spend supervised time with the mother.

Family Law Act 1975 (Cth)

Care of Children Act 2004 (Country FF)

AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Baghti & Baghti [2015] FamCAFC 71
Goode & Goode (2006) FLC 93-286
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69

APPLICANT: Mr Wiles

RESPONDENT: Ms Paglia

INDEPENDENT CHILDREN’S LAWYER: Sarah Vessali

FILE NUMBER: MLC 7708 of 2017

DATE DELIVERED: 21 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Carew J

HEARING DATE: 20 - 23 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Fisken

SOLICITOR FOR THE APPLICANT: Sayer Jones

FOR THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Devine

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: VM Family Lawyers

Order

1. All previous parenting orders be discharged.

2. The father have sole parental responsibility for B born … 2015 (“the child”).

3. The child live with the father.

4. The father be permitted to relocate the residence of the child to Country FF and for the purpose of this Order the child’s passports held with the father’s solicitors be returned to the father.

5. That the name of the female child, B born … 2015 be removed from the Family Law Watchlist and it is requested that the Australian Federal Police give effect to this Order by removing the child’s name from the Family Law Watchlist as at the date of this Order.

6. The father purchase a ticket for the mother to fly to Country FF forthwith upon the mother making that request and pay a rental bond and removal expenses, with the total of all such costs to be capped at $5,000.

7. That upon the child relocating to Country FF:

   (a)       In the event the mother remains in Australia, the child spend supervised time with the mother as follows:

   (i)On Saturday and Sunday from 10:00 am to 6:00 pm on three occasions per year, with the child to be brought to Australia by the father, or such person nominated by the father and known to the child, on dates to be nominated by the father and at the father’s cost.

   (ii)Upon the provision of 28 days’ written notice by the mother, on any other Saturday and Sunday from 10:00 am to 6:00 pm, on no more than two occasions per calendar month, with the child to spend time with the mother in Country FF.

   (iii)the child communicate with the mother via Facetime, Skype or similar electronic communication as is available to the parties each Wednesday between 6:30 pm and 7:30 pm and in the event that the child will be unavailable to take such call having regard to the child’s commitments, the father shall provide to the mother 24 hours’ notice in writing of an alternate time when such communication can take place.

   (b)       In the event the mother resides in Country FF in the same city as the child, the child spend supervised time with the mother as follows:

   (i)Each Wednesday from 4:30 pm to 7:30 pm;

   (ii)Each alternate weekend on Saturday and Sunday from 10:00 am to 6:00 pm on each day;

   (iii)On the child’s birthday for a period of three hours at times agreed between the parties and failing agreement from 3:30 pm to 6:30 pm;

   (iv)On Mother’s Day from 10:00 am to 6:00 pm;

   (v)On Christmas Day from 3:00 pm to 7:00 pm; and

   (vi)On the mother’s birthday for a period of three hours at times agreed between the parties and failing agreement from 3:30 pm to 6:30 pm.

8. The mother’s time with the child be supervised by either of the paternal grandparents, Ms F Wiles or Mr G Wiles or such other person nominated by the father who has read the reasons for judgment of the Honourable Justice Carew.

9. The mother’s time be suspended at the following times:

   (a)       On Father’s Day for the entire day; and

   (b)       On the father’s birthday for a period of three hours at times agreed between the parties and failing agreement from 3:30 pm to 6:30 pm.

10. All changeovers which do not occur at the child’s childcare, kindergarten or school will occur in a public place as agreed between the parties in writing.

11. This Order continue during school holidays unless otherwise agreed in writing.

12. In the event the mother lives in Country FF, the father can suspend the mother’s time on one occasion for two weeks and on two occasions for one week in each year with the father to provide the mother with 28 days’ written notice of such suspension.

13. For the purposes of paragraph (7), all times refer to the local time for Country FF, adjusted for daylight savings time in that location when necessary.

14. The father and mother otherwise communicate with each other via the MyMob application regarding the child.

15. The mother be permitted to send cards, gifts and letters to the child and the father will pass these on to the child.

16. The mother and father forthwith advise and keep each other advised of their postal address, telephone number, email address, and such other details to facilitate contact and communication pursuant to this Order, and promptly inform each other of any changes to same.

17. The father inform the mother promptly of:

    (a)       Any emergency, serious illness or injury involving the child;

    (b)       Any major medical attention or decisions regarding the child; and

    (c)       Any major decisions regarding the child’s education.

18. The parents be and are hereby authorised to communicate with:

    (a)       The staff of any childcare, kindergarten or school attended by the child; and

    (b)       All health professionals involved in any treatment of the child.

19. The parents be authorised to receive from the child’s childcare, kindergarten or school copies of all reports, notices and photographs and any other information which parents are entitled to receive.

20. The parents and independent children’s lawyer are at liberty to provide a copy of this Order to:

    (a)       H Kinder; and

    (b)       The childcare, kindergarten or school attended by the child in Country FF.

21. The father be permitted to provide to any court hearing any matter involving the parents, copies of the Family Report of Mr D dated 19 October 2017 and the psychiatric Report of Dr C dated 13 October 2017 (in relation to the mother), any affidavits filed in these proceedings and the reasons for judgment of the Honourable Justice Carew.

22. The mother either personally or by her servants or agents be restrained and an injunction hereby issue restraining her from attending the H Kinder or any other childcare centre or school the child attends without the prior written consent of the father.

23. Any treating psychiatrist for the mother be provided with a copy of  the reasons for judgment of the Honourable Justice Carew; Family Report prepared by Mr D and Dr C’s Psychiatric Report.

24. The independent children’s lawyer be discharged upon the child’s departure from the Commonwealth of Australia.

NOTATION:

A.It has been recommended by the independent psychiatrist, Dr Cs that the mother have at least two years of therapy with a psychiatrist who has experience in dealing with her psychiatric condition with such psychiatrist, in Australia to be nominated by the independent children’s lawyer within 28 days or in Country FF, to be nominated by J District Health Board.

B.This is a final Order and any further application ought not to be brought until such time as there is evidence that the mother has completed recommended psychiatric treatment.

C.It is requested that a Registrar of the Family Court of Australia provide the father with a signed certificate containing a statement that the Order is, at the date of the certificate, enforceable in Australia, to enable the father to register the Order in Country FF in accordance with s 81 of the Care of Children Act 2004 (Country FF).

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wiles & Paglia (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7708 of 2017

Mr Wiles

Applicant

And

Ms Paglia

Respondent

REASONS FOR JUDGMENT

1. Mr Wiles and Ms Paglia have one child, named B, who will turn four next year. The father and mother moved to Australia from Country FF in February 2017. The father wants to return to live in Country FF with the child but the mother wants to remain in Australia with the child. Each parent acknowledges that the other is a good parent[1] and that the child should have a relationship with each of them. Each parent concedes that they will live wherever the child lives although the mother contends that she would be unable to afford a move to Country FF for some considerable time.

   [1] Save for what has been described by the expert psychiatrist, Dr C, as the mother’s probable pseudologia fantastica syndrome commonly called compulsive lying.

2. For reasons which will be explained below, at the end of the trial the mother consented to an interim order that the child live with the father and spend supervised time with her.

issues

1. The issues which occupied most of the trial concerned the following:

   a)Is the mother a compulsive liar evincing a complex psychiatric pathology such that she presents an unacceptable risk of harm to the child and, if so, should the child live with the father? 

   b)Is the father a controlling, violent man and, if so, should the child live primarily with the mother?

   c)What parenting order should be made?

2. For the reasons which follow I have determined that it is in the child’s best interests for her to live with her father and that he be able to relocate with her to Country FF.

background

1. Before turning to consider the issues I note by way of background that the father and mother commenced a relationship in Country FF in the first part of 2014 and separated in 2017. The parents are in dispute about whether or not they were separated under the same roof from March 2017 until the father vacated their joint residence in July 2017.

2. The father is 41 and employed as a manager. The mother is 28 and employed in an operations support position.

3. The child was born in 2015.

4. The father was born in Country FF and has lived all his life there apart from the period since moving to Melbourne, Australia in February 2017.

5. The mother was born in the United Kingdom but has lived most of her life in Country FF apart from a period of about twelve months in 2012 when she lived in Australia and since moving to Australia in February 2017.

6. The parties agreed to relocate to Australia in February 2017. The reason for that move is in dispute. Upon their arrival the mother worked in a call centre while the father remained at home to care for the child for the first two months until he obtained employment. Upon the father obtaining employment the child attended day care four days each week.  

7. Prior to the move the father had been employed for nine years with K Ltd (“K Ltd”) in City N and had recently been promoted. He was receiving a good income and had secure employment. The mother was not employed at the time of the move.

8. The mother contends that the father was always controlling and physically violent to her on two or three separate occasions. An allegation by her that he had forced her to have sexual intercourse was not pressed at trial.

9. An intervention order was made against the father by consent without admission on 3 July 2017 and expired on 2 July 2018. The father did not return to the jointly occupied home after 3 July 2017 and did not spend time with the child for two months thereafter.

10. The mother has a history of depression and anorexia nervosa.

11. Evidence from the expert psychiatrist, Dr C, raised such serious concerns about the risk to the child if she remained with the mother that an interim application was made by the independent children’s lawyer (“ICL”) supported by the father for the child to be removed from the mother’s care. Ultimately the mother consented to that order stating that she only wanted what was best for the child.

Proposals

1. The father proposes that the child relocate with him to Country FF forthwith and that the mother spend supervised time with the child.[2] He also proposes that he have sole parental responsibility.

   [2] The father adopted the minute of order sought by the ICL (see exhibit 5) with an additional two paragraphs (see exhibit 6).

2. The mother proposes that she submit to a further psychiatric assessment and that the child remain living in Australia preferably with her and spend time with the father each alternate weekend from Friday until Monday and each alternate Thursday to Friday and half holidays. If the father is permitted to relocate with the child to Country FF the mother proposes that his departure with the child be delayed until she turns five in February 2020. If the father is permitted to relocate with the child now, the mother proposes that the father bring the child to Australia every third month at his expense and for half school holidays once she commences school. The mother’s proposes that the parents have equal shared parental responsibility.

3. The ICL proposes that the child relocate with the father to Country FF forthwith and that the mother spend supervised time with the child.[3] The ICL supports the father having sole parental responsibility.

   [3] See exhibit 5.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[4] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[5]

   [4] See Family Law Act 1975 (Cth), s 65D.

   [5] See Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.

2. The Court is not required to make findings of fact on every factual dispute raised by the parties.[6] The paramount issue for the Court is to determine what is in the best interests of the subject children in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” on every factual dispute.[7]

   [6]Baghti & Baghti [2015] FamCAFC 71.

   [7]M & M (1988) 166 CLR 69, 76.

3. The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make it clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child etc. (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.

8. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any Order made by the Court (s 61C).

9. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

10. Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.

11. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

12. Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[8]

    [8]Banks & Banks (2015) FLC 93-637.

13. The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”[9]

    [9] See ‘Unacceptable risk – A return to basics’ by the Hon. John Fogarty AM quoted with approval in Johnson & Page (2007) FLC 93-344, [68].

14. There are no special or additional requirements to consider in a parenting application involving the relocation of a child. There is no need for the father to establish a compelling reason for the relocation or for the mother to establish a compelling reason against relocation. [10]  

    [10]AMS v AIF (1999) 199 CLR 160.

15. The Court is required to make such parenting order as is considered appropriate having regard to the objects and principles of the Act, the rights of adults to freedom of movement and considerations as to what order will be in the children’s best interests in the particular circumstances of the case. The best interests of the children remain the paramount though not the sole consideration.[11] Where the legitimate interests of an adult conflict with the best interests of children, the former must give way.[12] 

Is the mother a compulsive liar evincing a complex psychiatric pathology such that she presents an unacceptable risk of harm to the child and, if so, should the child live with the father? 

[11]AMS v AIF (supra).

[12] Ibid.

1. As much of the trial focussed on the mother’s alleged lies, it should be acknowledged at the outset that whether or not the mother is a compulsive liar is not necessarily determinative of where the child should live. Rather, it is the extent to which such behaviour is likely to impact on the mother’s parenting ability and whether it indicates some underlying psychopathology which may expose the child to an unacceptable risk of harm.

2. Relevant to this issue, is the evidence from the father and six other witnesses who provide accounts of facts presented to them by the mother as true that were not. I set out the relevant evidence of each witness separately.  

The father

1. The father contends that when he met the mother she told him that she in a professional occupation in Country FF at Company M (a large business in City N) and he says he dropped her at work at the Company P building on many occasions. He contends that the mother regularly spoke about her work and how she worked for a particular manager in the business. The father contends that the mother told him she was made redundant.

2. The move to Australia was prompted by an alleged job offer for the mother in the same professional capacity with a prominent Australian business, Company L. The father contends that the mother travelled to Australia on three occasions for what she told the father were interviews and training for the job. On her return from one trip she told the father that she had been given a special bottle of whiskey and a phone by her new employer, Company L.

3. The father had just been promoted but the mother was so convincing about this being such a great opportunity for her that he agreed to move to Melbourne.

4. The father contends that his relationship with the mother disintegrated after the move to Australia when he found out that the mother did not work at Company L but rather at a call centre. This occurred in mid-March 2017. He contends that the mother apologised to him about lying and that they had a number of discussions about his returning to Country FF with the child. Physical separation occurred on 3 July 2017.

5. The father also produces various emails and other documents that on their face provide some corroboration for his evidence.

Mr Q

1. In 2010 the mother commenced a relationship with Mr Q. Mr Q is 41 with his own business as a builder in Country FF.

2. When he met the mother she told him she was 24 and a professional dancer with Company O. In the early months of their relationship Mr Q dropped her off at the rehearsal rooms regularly. She explained to him that she was not performing because of an ankle or foot injury but was nevertheless required to attend practice. When he dropped her off or collected her she was dressed in gym gear.

3. As their relationship continued the mother told him she had lost her position with the company because of her injury. After losing her position she told Mr Q that she was working on a casual basis with a local City R professional football club as an administrator or intern. The mother often spoke of well-known players with the team as well as the coach and the team manager.

4. Mr Q also says that the mother told him that prior to commencing a relationship with him she had worked in a business in City R. She also told Mr Q that she was of Italian decent, could speak Italian and had visited extensive family, including a grandmother in Italy.

5. Her relationship with Mr Q ended when she accused him of threatening to kill her and to punch her in the head. Mr Q denies the allegations. He attended court to defend the allegations and was not convicted of any offence but was required to attend an anger management course.

6. Mr Q says that after the relationship ended he discovered that the mother was in fact only 18 when they commenced their relationship; that her birth name was Ms S; that she had never been a dancer or a member of Company O; that she had never worked for the football club; was not known to the persons at the Club about whom she spoke; and that her family origins were not Italian.

7. Mr Q has never met the father but has spoken to him on the telephone and agreed to provide an affidavit. He does not know any of the other witnesses in the father’s case. He last had any contact with the mother in 2012.

Ms T

1. Ms T is a solicitor in Country FF and a personal friend of the father having met him in 2009 when she worked as a duty manager at a business in City N and the father worked for K Ltd who was a supplier for the business. Her sister, Ms U, and Ms U’s husband, Mr V, are close friends of the father.

2. Ms T met the mother on one occasion on 17 February 2017 at the farewell party for the father and mother prior to their move to Australia. She spoke to the mother throughout the evening and, based on their conversations, believed the mother was a qualified professional; had previously worked in her profession and was moving to Australia to take up a position. During their conversation the mother told her that she had a Master’s Degree which she obtained in Australia; that she worked at a business in Australia prior to moving to Country FF.

3. Ms T says that during the course of the evening the mother told her the following:

   (a)      She has the ability [to work] in Country FF;

   (b)      She could get a job …with a firm in City N if she wanted to but the salary is not as good as in Australia;

   (c)      She did not have to do [professional] courses in Country FF. These are courses I understand foreign [professionals] must pass to [work] in Country FF.  When I asked [Ms Paglia] if she had taken these … papers she told me words to the effect, “Australians don’t have to do those papers,” and abruptly turned her attention to a different conversation at the dinner table; and

   (d)      She had been offered a position at a prestigious [Company] in Melbourne …;

   (e)      She would be earning approximately $110,000 per annum.  Her new employer had paid for her travel to Melbourne for the interview process.  She would be working in a high-rise in the city which included a day care centre on the ground floor so she could take the child to work with her.

Ms U

1. As already noted Ms U is a personal friend of the father and has known him since 2012. She is also the sister of Ms T and has known Mr W (another witness) since 2012. She does not know Mr Q or Mr X.

2. Ms U is an account manager with Z Ltd, a company in Country FF.

3. Ms U first met the mother in early 2014 and met her on at least a dozen occasions before the mother and the father moved to Australia in February 2017. Based on her conversations with the mother she believed that the mother was a qualified professional and that she and the father were moving to Australia so that she could start a job with Company L.

4. When she first met the mother, the mother told her she was a qualified professional at Company M in the Company P building in City N. The mother talked a lot about her boss, telling stories about their days at work together and details about his personality.

5. The mother said she had completed a Masters Degree at a university in Melbourne where she said she had lived for a number of years prior to meeting the father. After completing her studies she said she worked at a large company in Melbourne and enjoyed “wining and dining” clients at expensive restaurants.

6. After she left Melbourne the mother said she worked in a position connected with the City R football team and said that her job involved representing the team but did not say in what capacity. She represented that she was good friends with various members of the team. She often mentioned one high profile player in conversation and on occasion said he had sent her a gift.

7. The mother told her that she had been for an interview in Australia in 2016 with Company L. When Ms U offered to speak to a friend who worked for Company L in City N to put in a good word for the mother, she was quickly dismissed by the mother who said “the offices are not connected in any way so the reference won’t help.”

8. In the weeks following, the father told Ms U that the mother had been offered the job in Australia and they were moving in February 2017. On 4 February 2017 Ms U had a birthday celebration at her home. During the evening the mother confirmed that she had the job at Company L and was excited. She spoke about perks in her new job such as subsidised Botox and child care for the child on the ground floor of the building where she would be working. She complained about having to switch from her Samsung mobile to an iPhone that Company L had given her as she did not like using Apple software.

9. Ms U attended the going away party for the father and mother on 17 February 2017 and the mother told her she was going to be paid $110,000 per annum which meant that the father would not have to rush to get a job and he would be able to stay at home with the child.

Mr W

1. Mr W is a friend of the father and has known him since about 2006. Mr W is a Manager with a professional rugby team in Country FF.

2. He first met the mother in 2013 and as a result of conversations he had with her he believed she had worked in a professional occupation in City N and was moving to Australia to work.

3. During his initial meetings with the mother she told him that she held a double degree, including and a Masters Degree. She told him she had worked in City N and for the City R football club.

4. The mother told him that she had accepted a well-paid position in Australia and that they had flown her to Australia for the interview process.

5. Mr W does not know Mr X or Mr Q and denied having discussed his evidence with Ms U or with Ms T other than to tell the latter that he would be giving evidence.

Mr X

1. Mr X is a friend of the father and has known him for almost 20 years. He is a senior manager for a large company in Country FF.

2. Mr X first met the mother in 2014 and has spent time with her on numerous occasions since then. When he first met her at his mother’s 60^th birthday party he asked her a few questions while getting to know her. The mother told him that she worked for a company in City N. He recalls that she mentioned the Company P building. She told him she had studied in Australia and that her then position did not pay as well as her previous position in Australia.

3. On a later occasion she said she was struggling to find a good job in City N mainly because her qualifications were completed in Australia.

4. At the child’s first birthday party he was told by the mother and father that they were looking at moving to Australia where it would be easier for the mother to get a job and earn more than she could in Country FF.

5. Mr X met up with the parents on 17 February 2017 at a bar in City N. The mother told him that she had secured a full time, good paying position with Company L.

Ms F Wiles

1. Ms Wiles is the father’s mother. She recently retired but prior to her retirement she was a manager in City AA, Country FF.

2. Ms Wiles first met the mother in 2014 when she and the father spent 10 days with them at a holiday home. She spent time with the mother on numerous other occasions and in particular in February 2015, February 2016 and July 2016. In addition she spoke to the mother from time to time on the telephone.

3. The mother told her on many occasions that prior to meeting the father, she had completed her degree at a Melbourne university and was a qualified professional. She told Ms Wiles that she had an outstanding student loan of about $130,000.

4. When they first met in December 2014 the mother told Ms Wiles that she had worked at Company M but had been made redundant. She told her that she nevertheless kept in contact with her boss and on one occasion Ms Wiles recalls that the mother told her she had been out for a meal and drinks with him the week before.

5. The mother told her that she has “high achieving asperger’s” and was on the “genius spectrum” and that this suited her profession because she did not have to deal with people.

6. Ms Wiles stayed with the father and the child in December 2016 while the mother was in Australia. Upon the mother’s return she informed Ms Wiles that Company L had offered her a job and that they were going to send her a contract to review over the Christmas break. She also told Ms Wiles that while she was in Australia she had to sit professional exam in case she needed to work there in the future. The mother showed Ms Wiles a bottle of whiskey and an iPhone and said they were a gift from Company L.

7. In early January 2017 the father informed Ms Wiles that he and the mother were moving to Australia so the mother could take up the position with Company L.

8. In February 2017 Ms Wiles stayed with the father and the child while the mother attended a training session in Australia and upon the mother’s return she told Ms Wiles that the training went well and she was looking forward to starting her new job.

The mother’s response

1. The mother denies almost every fact advanced by the father and his witnesses. In particular she denies that she ever told the father or indeed anyone that she worked in a professional occupation; that she worked for Company M in City N; had a degree or Masters; that she travelled to Australia for a job interview with Company L; that she received a bottle of whiskey and an iPhone as a gift; that she was offered a job and accepted a job at Company L; that she was a dancer with Company O etc.

2. The mother challenged each witness during cross-examination.

3. The mother sat in the witness box and denied categorically that she had said any of those things. The mother contends that the father and his witness have conspired against her to make her out to be a liar when she is not and that he has somehow inveigled six witnesses to give false evidence under oath.

The mother’s allegations of violence against the father

1. Before determining the veracity of the evidence on the matters set out above it is relevant to also consider at this point the mother’s allegations against the father.

2. The mother maintains that she was the victim of family violence from the father including physical violence on two or three occasions and controlling behaviour throughout the relationship and harassment and stalking behaviour subsequent to separation. She maintained that she was terrified of the father.

3. The mother had the support of a domestic violence worker throughout the trial; a duty lawyer on the last day of trial and declined the opportunity for special arrangements to be put in place to address any safety issues, in particular while she cross-examined the father.

4. The mother contends that she was controlled in most respects by the father i.e. financially; socially etc. The father denies that he was controlling and points to the fact that the mother had her own bank account in Country FF and made several trips to Australia before they jointly moved here in February 2017. He also points to the fact that as she was the only one employed upon arrival in Australia she had access to money and spent it as she thought fit. She also received an inheritance while they were in Country FF and used the funds for her own expenditure. The mother conceded during cross-examination that she was able to regularly go out in Melbourne because she was in part at least financially independent. She also conceded that her wage was at all times paid into her own account. Before moving to Australia the mother conceded that she had paid for three trips to Australia for herself from her own funds.

5. Upon the father learning that the mother had brought him and the child to Australia under what he regarded as false pretences the relationship deteriorated rapidly. The father wished to return to Country FF with the child and the mother wanted the child to stay in Australia with her. There were arguments between the parents some of which were in front of the child but the father refutes the suggestion that he did anything to cause the mother to be fearful of him and denies that she was fearful.

6. The father points to the many social outings the mother had in Australia which was a source of dispute between them but substantially because there were a number of occasions when she did not come home after a night out. On such occasions he did call her numerous times often because she did not answer or she would call him several times from bars and then turn her phone off. He was concerned for her safety. There were other times when she left the house to attend an appointment e.g. to have her legs waxed and would not return for hours and have her phone turned off. The child was left with him on such occasions. The mother concedes there were at least several occasions she went out with friends or attended to other activities and stayed out for extended periods.

7. On 2 July 2017 there was a heated argument between the parents. The father admits sending the mother a text message stating “If you think I was angry last time, you have no idea. I will not be lied to. You are fucking dead if you are not home in ten minutes”. He accepts it was threatening and expressed regret about doing so. He contends that it was sent in a state of absolute frustration and is completely out of character. The mother saw the text message after she had called the police and after the father had left the premises.

8. The mother contends that prior to leaving, the father struck her in the face with his phone; pushed her to the ground and attempted to strangle her. In her oral evidence the mother contends that she had red marks on her neck as a result of the attack. The father denies the allegations. He concedes they had a heated argument in front of the child but he says he left the home in order to cool down. When he returned he was surprised to find the police present. He was served with a family violence safety notice that prevented him returning to the home that evening. The father was charged with assault and harassment but the police withdrew the charges.

9. The police records for their attendance at the home on 2 July 2017 state, among other things:

   When the victim [mother] returned home at approximately 6pm, the accused has walked towards the victim and hit her on the left side of her face with his mobile phone. The accused has then punched the victim in her right arm and grabbed her by the throat, before pushing her against the wall, causing the victim to fall to the ground. …

   At approximately 6.25pm, Senior Constable [BB] and Senior Constable We arrived on scene. The accused was not on scene. The victim was very upset and crying. The victim stated she was not injured and police did not observe injuries on the victim.    

10. The police observations do not corroborate the mother’s claim that she had sustained red marks to her neck. I note that the police attended very promptly and it seems unlikely that there would be an absence of marks or injuries to the mother if she were the victim of an attack as described by her.

11. The mother contends she made three complaints to police other than on 2 July 2017. A subpoena to produce records did not result in the production of any documents other than for 2 July 2017.

12. The mother initially claimed that there were two further physical attacks on her by the father including being forced to have sexual intercourse with him. The latter allegation was not pursued by the mother as she stated that she did not think anyone would believe her. When asked about this allegation, the mother denied fabricating the allegation and said that the father had forced her to have sex on her birthday in 2017. There is no mention of such an allegation in her affidavits which refer to such an assault occurring in June 2017. The mother said the date in her affidavit was an error.

13. As to the incident on in 2017 (other than the sexual assault allegation) the mother says the father physically attacked her when he was looking for the child’s passport and that he said to the mother -“if you don’t give it to me I’ll smash your fucking head in” before punching her in the arm and shoving her while she held the child causing the mother to lose her balance. The mother says in her affidavit that she suffered a bruise to her arm as a result of the punch.  Later that evening the mother alleges that upon her return to the home, the father grabbed her by the back of the neck pulling her towards him to smell her breath (to see if she had been drinking).

1. The police records from the attendance on 2 July 2017 include the mother’s allegation about an altercation on the mother’s birthday in 2017 but there is no complaint by the mother of rape and the mother is reported as having said that she suffered no injury as a result of the assault i.e. no mention of a bruise.

2. The mother’s evidence about physical abuse is contradicted by the information she provided to Dr C on 13 October 2017 when she said there had been no physical abuse during the relationship. The mother said there was a “lot of silent treatment and put downs … snapping at me.” When challenged about the mother’s denial of physical abuse in her interview with him during cross examination, Dr C was absolutely adamant that the mother had denied physical abuse.

3. There are numerous inconsistencies in the mother’s account of the alleged incidents of physical violence.

4. There are numerous inconsistencies in the mother’s other evidence about a range of matters e.g. as to the father’s alleged paranoia and jealousy; as to the reasons she changed her name and the name used by her mother; her knowledge of or connection to Mr CC; her connection to accountant Mr DD; her actual job description and role at the date of trial; the father’s attitude to parenthood etc.

conclusion about whether or not the mother has lied

1. The father and each of his witnesses provided detailed and very plausible evidence.

2. Mr Q does not know the father or any of the other witnesses. He has had no contact with the mother in six years. He has moved on with his life. It is difficult to see what motive he might have in lying on oath to assist a man he has never met.

3. While all of the other witnesses have a connection to the father I find in difficult to believe that they would all be prepared to lie on oath to support him, including a lawyer, Ms T. Perjury is of course a criminal offence and the penalty if proven is a lengthy gaol term.

4. In order to believe the mother I would need to find that seven people including the father were prepared to perjure themselves. That seems completely improbable.

5. The mother’s evidence generally is replete with inconsistencies and contradictions

6. Accordingly, I reject the mother’s denials of the matters alleged against her by the father and his six witnesses and find that she lied repeatedly and extensively to them.  Further, apart from the admission by the father that he did send a text message that was threatening on one occasion, I reject the mother’s allegations of family violence. In coming to this conclusion I have also taken into account the observations made of the child and the parents by Mr D set out below.

7. The consequence of these factual finding has a significant impact on the expert evidence, particularly from the psychiatrist, Dr C.

Expert evidence

Dr C, psychiatrist

1. Dr C is a consultant psychiatrist and a Fellow of the Royal Australian and Country FF College of Psychiatrists (RANZCP) with over three decades of psychiatric experience in Australia and overseas. He consults in medicolegal psychiatry, whilst maintaining an active clinical psychiatric practice. For twenty years he was involved in consultation-liaison and training programs at the interface of psychiatry and medicine.

2. The mother was assessed by Dr C in October 2017 and he opined at that time that the mother appeared to be suffering from a “major depressive disorder recurrent”  and that there also seemed to be a significant possibility that the mother suffers from a personality disorder although it was not possible at that time to highlight anything other than the mother’s acknowledged history of “longstanding self-esteem issues, leaving aside possible features of histrionic personality disorder, characterised by excessive emotionality and attention-seeking behaviours.”

3. Dr C noted the mother’s “lack of robust psychiatric or psychological treatments and her aversion to such”. In his view:

   Given the longstanding recurring and complex nature of her psychiatric symptoms, as well as a possible compulsive lying disorder (also known as pathological lying or pseudologia fantastica), there is a significant likelihood that [Ms Paglia’s] behaviours will remain unchanged into the foreseeable future.

   …

   The totality of the information provided by both [Ms Paglia] and [Mr Wiles] raise significant concerns about [Ms Paglia’s] ability to provide a reasonable level of positive parenting without fluctuating psychiatric symptoms leading to distorted views about what can or cannot be regarded as normal behaviours. In turn, this must raise psychiatric concerns about her ability to provide consistent modelling and emotional care of her daughter.

   …

   The examiner is of the opinion that [Ms Paglia] requires robust psychiatric treatment but she appears unlikely to engage in such in the foreseeable future.

4. The mother was critical of Dr C’s ability to diagnose her in the short period of about an hour and a half but I am satisfied that Dr C is well experienced and more than appropriately qualified to provide the opinions offered.

5. Notably, despite the opinions expressed by Dr C, the mother provided no evidence that she had undertaken any treatment which would be of assistance. The notes from a psychologist, Ms EE, upon whom the mother attended, were tendered but offer no indication that the mother has undertaken any relevant treatment.  

6. Dr C gave oral evidence and was cross-examined by the parties. He opined that there is a very strong likelihood the mother suffers from a syndrome called pseudologia fantastica. He opined that pseudologia fantastica is not a mental illness or condition described in the Diagnostic and Statistical Manual of the American Psychiatric Association (DSMV). While no one is an expert in the syndrome given its rarity it is recognised in psychiatry. Dr C explained the syndrome in the following terms:

   One of the issues around pseudologica fantastica as a syndrome is that it overlaps with so many psychiatric disorders, so my first 15 years full-time in community mental health was – meant that I dealt a lot with schizophrenia and delusional disorders, and there’s a quite an overlap between pathological lying, which is the other commonly used phrase for pseudologica fantastica, and schizophrenia, and I have seen it in relation to people who have been significantly depressed, but then I have also seen elements of it in people with personality disorder.  It’s a spectrum.  When we – when we – when psychiatrists end up using that label, it’s – as the label suggested, it’s when the pseudologia becomes fantastic. 

   …It’s when it becomes extreme.

   … I’m not an expert in pseudologica fantastica.  I don’t think anyone is.  It’s one of those conditions which is deemed rare, but which is probably, just in varying degrees, a spectrum, and not uncommon in small doses.

   … 

   The personality disorders with which it’s often said to be associated are both histrionic and narcissistic personality disorders.

Mr D

1. Mr D is a clinical psychologist with nearly forty years’ experience and has particular expertise in child psychology. He prepared a family report in October 2017. He was deeply troubled by the bizarre nature of the evidentiary dispute between the parties and raised the possibility of one or other of them (depending upon the findings of the court) suffering from pseudologia fantastica. He said he had never seen anything like this case in practice before.

2. One particular paragraph in Mr D’s report is of particular significance to the determination of what parenting order is proper and also to the issue of family violence. I set it out in full, although quite lengthy:

   49.       In a matter where the allegations and the counter allegations are so extreme, my observations of [the child] herself take on very significant importance. The fact that she was unable to see her father for a period of two months is significant, if only from the perspective of how easily, comfortably and confidently she engaged with him now. The child showed an abundance of behaviour to suggest that she has a secure attachment to both parents, that by implication must draw attention to the history of caregiving, the quality of that caregiving, the sensitivity of that caregiving, and the overall quality of that caregiving. Whilst it is true that [the child] shows very similar behaviour in relation to both parents, and in a matter where there is so much to be concerned about, this one observation is a standout beacon, the other significant implication is that by virtue of her behaviour and her interaction, it is clear that she perceives both of her parents, but specifically her father, as a safe base and secure haven, that she perceives him as a source of comfort and reassurance, that she is able to regulate her own emotions as a consequence of his physical presence, and that he is attuned to her. These observations in and of themselves direct clearly to the understanding that he has been a stable, consistent, predictable, sensitive, attuned and capable parent historically, but even more so, what we know about family violence suggests that exposure to family violence compromises the quality of the interaction between children and both their parents, evidence of which was simply not forthcoming. Put simply and directly, [the child] does not present with any features of having been traumatised. The changes in her behaviour, the regression and the clinginess could all easily be explained on the basis of age and stage consideration, and especially so if it emerged in the context of the inevitable tensions that must have been present between [Ms Paglia] and [Mr Wiles], regardless of whose story is believed. She clearly has a good relationship with her parents, but more importantly that they are interchangeable in terms of having her needs met, and whilst one might ponder the hierarchy of that attachment, it seems abundantly clear that she has a good attachment and a secure relationship with both.

3. I accept the observations and opinions of Dr C and Mr D and I found the evidence of Dr C particularly helpful in determining the risk to the child if she were to remain with the mother or spend unsupervised time with her.

Is the father a controlling, violent man and, if so, should the child live primarily with the mother?

1. I have already rejected the mother’s allegations about family violence. In any event and despite the allegations made by the mother she did not submit that the child should not spend significant time with the father. The mother acknowledged that he was a good father to the child.

what parenting order should be made?

1. As already noted it was as a result of Dr C’s concerns of immediate risk to the child, that an interim order was made removing her from the mother’s care at the end of the trial. The fact that the mother denied ever saying the things attributed to her by the father and six other witnesses was clinically significant and more worrying than if the mother had acknowledged her lies.  

2. In Dr C’s October 2017 report he said that if she does suffers from the condition he identified, “the pattern of lying and fantastic lying continues indefinitely, or at least that’s a significant risk.” He opined that the condition is similar to a personality disorder with narcissistic and histrionic features and the risk to the child growing up with such a parent was described by Dr C in the following terms.

   I think it can be wide ranging and in many areas – some or many areas it can affect basic levels of trust; confidence; self-esteem; relationships with other children and, later on, relationships with adults; intimate relationships;  employment relationships.  I mean, at the end of the day chronic psychosis is going to influence personality often, and so, by and large, when one is thinking about these issues, one comes back to thinking about what’s the impact of personality disorder on someone’s life, because at some level it’s really like having a personality disorder, and the significant risk that the child will develop a personality disorder.

   …

   My concern about individuals and these kinds of scenarios is that whilst they might perceive themselves and even appear to be well in control of their lives and to be coping with either significant stressors, that nevertheless internally and underneath it all there is some kind of brittleness, some kind of malfunction.  So my concern, I guess, is around acute decompensation, and that’s no different to anyone who doesn’t have a personality disorder.  Everyone has got their limits, and everyone can suddenly decompensate, but my concern is that – there’s a kind of paradox to the perceived and apparent significant ability to be in control and – and – and so on – that there would be a breaking point that would come even earlier than it might with some other individual.  But the concern is around impulsivity. Impulse – despair combined with impulsive decision-making.

3. In his oral evidence, Dr C opined about the risks to the child of living with or spending time with the mother in circumstances where she suffers from the conditions identified by him:

   I thought, and did think at the time long and hard about that, and I think I have had to bring in my long general experience as a psychiatrist, clinical psychiatrist as well as medicolegal, and I finished up making the comment, as you know, in my report that if it was deemed this was a likely diagnosis, that that would cause me significant concern with regard to the influence that a mother might have on a child by way of sharing their distorted views.  One of the difficulties for psychiatrists, and this is acknowledged in the literature, and, of course, I have had another look at the literature, worldwide literature, is that these individuals don’t tend to engage in therapy, and so there’s not a lot of literature about their functioning and their prognosis and anything, and certainly not, as far as I can find, what happens to the child, so I tend to – start to think about well, what’s – what is it like for a child living with a parent who is repeatedly telling lies.  What’s the risk of ongoing – well, I think the risk of telling ongoing lies is high when someone is suffering from that condition, and it’s a little bit like what’s it like living – for a child to live with a mother with delusional disorders, schizophrenia.  Now, that I am very familiar with, and that really – really depends on how much sharing takes place, so some people with schizophrenia and delusional disorder can keep their delusions and their strange ideas to themselves, and they know or they learn and they’re advised to keep the child out of it, but once they start bringing the child into it, it can be very destructive. 

   …. there would be an enormous risk of manipulating a child into certain beliefs, just as the parent with – I have had, you know, lots of patients, adult patients over the years who were originally raised by psychotic parents, talk about the difficulty that they had, and still have, of working out what’s real and what’s not because yes, they’re an open book and they believe what the parents are telling them, so if the mother is telling them all sorts of falsehoods about all sorts of things in life, that’s a real worry.

   …

   … she has also suffered from significant depression and she has had anorexia in the past and other acknowledged mental health issues, so if, on top of those issues it was deemed that she had spun a real – a really fantastic web of fantasy in amongst truth, I would be very concerned.  My fall-back position in – when I’m thinking about all sorts of things in psychiatry and prognosis and management and children staying with mothers is just to come back to would I want a child known to me to be spending too much time with a parent with a condition like that?  Well, the answer is no, I wouldn’t. 

   It’s hard enough at the best of times for an individual to traverse the important developmental needs of a child in terms of truth telling and fantasy.  Look, I would have very strong concerns.  It saddens me to say that, but I really would have very major concerns that an individual spend much unsupervised time with a child, particularly if there was a lack of monitoring and particularly – particularly in a scenario where there would likely be a significant risk of depression and reaction to stressful events, and such stressful events, of course might – may include not perceiving that one’s legal matters went fairly.    

4. I accept Dr C’s opinions.

5. Although the child has a close attachment to the mother, the risks to the child of living with her or spending unsupervised time with her are unacceptable. Dr C was concerned at the end of the trial about the risk of physical harm to the mother and/or the child as a result of the mother suffering “acute decompensation”. The long term risks are of psychological harm. In his view the mother requires “robust” psychiatric treatment from a psychiatrist with a full knowledge of the background and factual findings. The difficulty will be that the mother currently has limited, if any, insight into her condition. The fact that she consented to the interim order might be a good sign for the future prospects of her being able to address her issues although she maintains that she should be further assessed by someone other than Dr C. The mother’s complex psychopathology certainly requires monitoring. 

6. The paternal grandparents or either of them were appointed supervisors of the mother’s time pursuant to the interim order. The paternal grandfather is technician due to retire and the paternal grandmother has already retired. They live in City AA and offer their support to their son and granddaughter should they relocate to Country FF. It is proposed that they continue to supervise the mother’s time if the father and child relocate to Country FF.

7. The father and child have a home ready and waiting for them in City AA i.e. with the paternal grandparents and the father is more than capable of making appropriate arrangements for the child upon relocation.

8. The mother says she works and has worked since arriving in Australia yet contends she cannot afford to relocate to Country FF and in any event she will find it difficult to support herself if she does relocate. It seems she nevertheless will move if she has assistance and the father offers to make a sum of up to $5,000 available to assist the mother with such a move.

9. Given the history of this matter and the mother’s complex psychiatric issues I find that it would not be in the best interests of the child for the parents to have equal shared parental responsibility and as the child will be living with the father I consider it appropriate for him to have sole parental responsibility.

conclusion

1. The mother has lived in a fantasy world for many years. She is a practised and convincing liar such that all seven witnesses in the father’s case were caught up in her web of deceit for years. The mother also has a history of depression and anorexia and in addition Dr C considers it very likely that the mother has pseudologia fantastica or, in other words, is a compulsive liar. Her condition is complicated by the rarity of the condition and the interrelationship with personality.

2. There is an unacceptable risk of long term psychological harm to the child if she were to live with or spend unsupervised time with the mother. There is also an unacceptable risk of physical harm if the mother were to suffer acute decompensation particularly in the period immediately following this decision.

3. The father has a close and loving relationship with the child and has the means and support to provide for the child in the future. It is in the child’s best interests to relocate to Country FF with the father.

I certify that the preceding one-hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 December 2018.

Associate: 

Date:  21 December 2018