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Pedrana & Cox [2012] FamCA 739

Categories: Enmeshment, False Allegations of Child Abuse, Obstruction of Contact with Child, Parental Responsibility, Risk of Psychological Harm, Sole Parental Responsibility, Supervised contact with Child, Unsupervised contact with Child, With whom a child lives with, With whom a child spends time with
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Judge Name: Bell J
Hearing Date:
Decision Date:30/08/2012
Independent Children s Lawyer: Leisa Toomey, Solicitor
Applicant: Mr P Pedrana
Respondent: Ms Cox
Solicitor for the Applicant: Everingham Lawyers
Counsel for the Applicant: Mr Linklater-Steele
Solicitor for the Respondent: DA Family Lawyers
Counsel for the Respondent: Mr Jordan
Solicitor for the Independent Children s Lawyer: Schultz Toomey O’Brien Lawyers
Counsel for the Independent Children s Lawyer: Mr Thiele
File Number: BRC 7647 of 2007
Legislation Cited: Family Law Act 1975 (Cth) – s 60CC, s 121
Cases Cited: Rosa v Rosa [2009] FamCAFC 81
Jurisdiction: Family Court of Australia
Parental Responsibility Outcome: Sole Parental Responsibility - with Father
Residential Outcome: Sole Residence - limited, supervised, or no physical contact with Mother


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Orders

UPON THE UNDERTAKING OF THE MOTHER TO COMPLY WITH THE PROVISIONS OF S 121

AND UPON THE UNDERTAKING OF THE FATHER NOT TO BRING THE CHILD, C PEDRANA-COX BORN … MAY 2005, INTO THE PRESENCE OF MR S AND TO ONLY BRING THE CHILD INTO THE PRESENCE OF MR D PEDRANA (THE FATHER’S BROTHER) AT FAMILY FUNCTIONS

IT IS ORDERED THAT:

All previous Orders be discharged, save for Order (16) of the Order of this Honourable Court dated 16 April 2008.

The child, C PEDRANA-COX born … May 2005, live with the Father.

The Father to have sole parental responsibility for the child.

The within Orders hereby authorise the school/s attended by the child to provide to the Mother, upon her request and at her cost, copies of school reports, school newsletters, applications for class photographs and the like AND FURTHER to provide information to the Mother in relation to the child’s educational and social progress.

The within Orders hereby authorise any medical and/or allied health professional consulted by the child to provide to the Mother, upon her request and at her cost, copies of documents and/or information in relation to the child’s health and welfare.

The Mother and Father to keep the other informed as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to each party.

The Mother and Father keep each other informed of their residential address and landline and mobile telephone numbers and provide details of any change within forty-eight (48) hours.

None of the parties shall denigrate any other party involved in this matter within the child’s presence or hearing, and shall remove the child from the presence of any other person so doing.

IT IS FURTHER ORDERED THAT:

The Mother spend no time with the child for a period of two (2) months from today’s date.

The Mother communicate with the child by way of telephonic communication and/or electronic communication on no more than three (3) periods per week, such periods to extend for no longer than forty-five (45) minutes.

The Independent Children’s Lawyer be responsible for the organisation of on-going counselling for the child.

Leave given to the Independent Children’s Lawyer to supply to the counsellor referred to in Order (11) hereof, any documentation from the Court file including subpoenaed documentation, if necessary.

After the expiration of two (2) months from today’s date and for a period of three (3) months, the Mother spend supervised time with the child each alternate Saturday and Sunday from 10.00 am until 4.00 pm each day, with the Independent Children’s Lawyer to nominate such supervisor.

After the expiration of three (3) months hereinbefore referred to in Order (13) hereof, the Mother spend unsupervised time with the child each alternate weekend between the hours of 9.00 am Saturday until 5.00 pm on Sunday, and thereafter as agreed between the Mother and the Father.

The Mother and Father to share the cost of the Mother’s travel for spending time with the child.

Should the Independent Children’s Lawyer not be funded by Legal Aid, the Mother and Father to share equally the costs of such further representation.

Leave be given to the Independent Children’s Lawyer to apply to re-list the matter before the Honourable Justice Bell on two (2) weeks notice to all parties.

(18)Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Cox has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

REASONS FOR JUDGMENT

Introduction

The issue now is whether the Mother is capable of appropriately caring for C, (“the child”), despite her medical issues and importantly, whether she is capable of facilitating a meaningful relationship between the Father and the child. This requires that the Father have unsupervised time with the child. The difficulty is the risk of the Mother falling into her anxious states when confronted with the Father spending unsupervised time, which she has a previous history of doing, and the effect that this would have on the child and his relationship with his Father.

In relation to the Mother’s ability to facilitate a meaningful relationship with the Father, a chronology of the circumstances of this case must be outlined.

Background

The parties married in December 1999. The Father was diagnosed with Multiple Sclerosis in October 2000. The Mother suffers from hypertrophic cardiomyopathy and is prone to experiencing cardiac arrhythmias. She has suffered from two cardiac arrests, one when she was 12 years old and one in 1998. After the second incident, she had a defibrillator implanted. This has improved her condition however she is still prone to tachycardia and cardiac arrhythmias.

The child was born in May 2005. The parties separated in February 2006 and the child has lived with his Mother since this time. Originally the parties informally agreed that the Father have unsupervised contact with the child.

Multiple Sclerosis Concerns

In or around November 2006, the Mother raised concerns about the Father’s ability to care for the child unsupervised due to his Multiple Sclerosis. In this time, contact increasingly occurred with the Mother present. The parties attended the Father’s neurologist and psychologist to address these concerns and the Father was cleared of any health issues that might affect his ability to parent the child without supervision or support. The parties entered into a parenting agreement on the 23 March 2007 providing for unsupervised time pending suitable medical clearance. Despite the doctor’s approvals, the Mother’s concerns regarding the Father’s Multiple Sclerosis continued and the Mother continued to supervise the Father’s time. The Father filed an Initiating Application on 26 June 2007 and Consent Orders were made on the 4 September 2007, which provided for the Father to spend unsupervised time with the child every third weekend with overnight visits to commence in February 2008.

Incest and February 2008 Incident

The Father spent the first initial periods of unsupervised day time contact with the child during November and December 2007. In December 2007, the Father’s sister, Ms W, told the Mother that the Father, along with two of his brothers, Mr D Pedrana and Mr Z Pedrana, had sexually abused Ms W as a child. While there is inconsistency between the Father’s and Ms W’s accounts on what had happened, the Father now readily acknowledges that a sexual relationship occurred for two years from when the Father and Ms W were 11 and 10 respectively. He acknowledges it was wrong and damaging for many reasons, but that, at the time neither appreciated this and both were responsible for what occurred. In relation to Mr D Pedrana, the abuse had occurred when he was 15 and Ms W was nine. Mr D Pedrana had been subsequently charged but the charges were later dropped.

The Mother stated that after receiving the information surrounding the incest, she became concerned that the Father would harm the child and his family would not protect the child from harm. She says that the Father had ‘started to make “secrets” with the child to be kept from me and this concerned me greatly’.

The Mother stated that she had spoken to the police prior to December 2007 about the Father’s sexual abuse of herself. She stated that she believed that the Father was a sexual abuser after speaking with Ms W. She outlined a list of sexual manipulations that had occurred while she was in a relationship with the Father which included raping and sodomizing her, causing her on one occasion to bleed for five days and seek medical treatment. The Mother states the Father was abusive towards her during the marriage and when Ms W told her about the incest in 2007, “everything became clear”.

The Father denies the allegations of sexual abuse against the Mother and states that all sexual activity was consensual. There is no record of the Mother’s report of abuse from the subpoenaed records from the Queensland Police Service. The Mother was evasive in her evidence surrounding such complaints. She did make a notification under Project USA.

In relation to the Mother’s claims regarding the forced anal sex, the Father states that this was one consensual attempt that did not go well as the Mother complained it was hurting, and they stopped. He states that the Mother did experience some bleeding and discomfort and sought medical treatment. In the Mother’s cross-examination, she concedes that at this time she also found out that she suffered from internal haemorrhoids. The Mother stated in her Patient Health Summary that she had PR bleeding, rectal bleeding, since she was 11; however, she stated in her cross-examination that she had only written this to protect the Father and this statement was not true.

Notably, since the Mother’s conversation with Ms W and despite her already firm belief that the Father was a sexual abuser, the Mother allowed the Father to have six unsupervised visits with the child. This included an overnight stay in the Mother’s home. The Mother stated that she was very cautious about the time the Father spent with the child during these visits and had set up an alarm system with the elderly couple next door for the overnight stay. She states that she decided to continue the current orders, ‘whilst I sought expert advice about how to proceed and not react in panic’.

It was not until February 2008, that the Mother confronted the Father about her concerns. The Father arrived at the Mother’s house to spend time with the child and was confronted by the Mother, the paternal grandmother and the Mother’s priest about the Father’s sexual relationship with his sister. The Mother read to the Father a pre-prepared statement about her concerns surrounding the Father’s abuse of his sister and the child’s safety. The Mother presented the Father with three different versions of draft consent orders and asked him to choose one to sign. The Consent Orders were later made on 16 April 2008 and provided for the Father to spend supervised time with the child on every fifth Saturday.

At this time the Father was living in Central Queensland and the Mother was living on the Sunshine Coast.

The Father’s Application and the December 2009 Incident

In December 2009, the Father sought to change his orders to allow him to spend unsupervised time with the child. He states he only agreed to the previous orders of supervised time because he felt manipulated by the Mother. The Father states that he felt he had walked into an ambush. He states that he had said to the Mother that he would provide an answer to the consent orders in a few days but in the meantime, he had received a phone call from an old friend, whom the Mother had told about the incest and the Father’s alleged rape. He states that the Mother said that if he did not sign one of the consent orders she would lodge a Notice of Abuse and the Mother had been telling his mother that he had raped her and could be a homosexual. The Father says that due to these and other incidents, he agreed to sign the Consent Orders.

On 18 December 2009, an incident occurred when the Father’s partner, Ms G attended the Mother’s home. The Mother states that Ms G became verbally abusive and intimidating and that this caused stress to her heart. Ms G denies being abusive and says she was there only to drop off Christmas presents to the child. The audio recording played during the trial of this incident indicates the Mother was immediately extremely distressed at the presence of Ms G on her property. There does not appear to be untoward conduct on the part of Ms G. The Mother became so distressed that an ambulance was called and she was taken to hospital. The child, at the age of four, witnessed this incident and was notably the one to call the ambulance and accompany the Mother to hospital.

The Mother’s Allegations

What transpires around this time is an array of allegations made by the Mother about the Father, such as the Father did not love his son, that he was grooming the child for paedophilia, that he was role-playing sodomy with his nephew, that he was a rapist, homosexual or bisexual, pornographic voyeur, and potentially a murderer. The Mother further indicated that the Father was wanted for another sexual assault.

The Mother’s belief that the Father would harm the child springs from a number of issues identified most comprehensively in Professor F’s (psychologist) report:

[The Mother’s] concerns about [the Father’s] risk of sexually abusing [the child] seem to spring from three main issues: 1) his sexual involvement with his younger sister [Ms W] during their childhood and early adolescence; 2) the alleged rape and other abuse she asserts occurred during her marriage with [the Father]; and 3) the content of emails and websites said to have been found by her father on the computer previously owned by [the Father].…

[The Mother] has raised numerous additional concerns that she links in one way or another to these three main concerns. The most relevant seem to be: 4) her alleged observation of [the Father] playing inappropriate sexual games with his nephew and other behaviour (eg. encouraging [the child] to keep secrets) which she seems to have construed as sexual grooming; 5) [The Father] arranging to maintain the salary of an employee and brother of his business partner [Mr H], [Mr S], who had apparently been imprisoned for sexual offences, as well as his once close relationship with his own brother [Mr D Pedrana] (who was charged in 1989 with the sexual abuse of [Ms W]), with the implied suggestion that [the Father] has had close and improper relationships with ‘other’ sex offenders; and 6) the 2009 ‘Christmas present incident’ (involving [Ms G], [the Mother] and [the Mother’s] mother and sister), in which she asserts [Ms G] acted improperly and which therefore casts doubt on the capacity of [Ms G] to assist [the Father] to properly care for the child. The implication seems here to be that [Ms G] cannot be relied upon to prevent the child being groomed and eventually sexually abused by [the Father].

In relation to the emails and websites, the maternal grandfather’s evidence is not persuasive. He conceded that he cannot remember exactly what was on the computer. The references to homosexuality was in relation to homosexual jokes but he could not outline specifically what were the references that he found disgusting nor recall the paedophilic content except to say one contained a site called ‘Kitty sex’. The Mother has never seen any of the content.

The Father has maintained throughout the matter that all sexual activity between the Father and the Mother during their relationship was consensual. The Father stated that he addressed his issues to do with what occurred with his sister with a psychologist.

What has transpired since the allegations is a multitude of experts who have unanimously found that the Father poses minimal to no risk to the child.

The Mother has had available to her affidavits of Dr L, psychiatrist, filed 19 October 2010, 3 March 2011 and 28 November 2011 (Exhibit 22), along with an affidavit of Ms I, psychologist, filed 20 July 2011 and five independent expert reports, three from Mr J, psychologist and two from Dr K, psychiatrist.

Despite this, the Mother has persisted with her allegations and consistently maintained her deep fear that the Father would harm the child if he was to have unsupervised time. This position was maintained until the release of Professor F’s report.

The Mother’s Physical and Emotional Issues

The Mother has had a strong physical and emotional response to any suggestions that the Father should be spending unsupervised time with the child. Mr J states that when the Mother was asked about the Father spending time with the child unsupervised, the Mother became:

…visibly distressed. She became breathless and her face blanched. I had to interrupt the interview to allow her to settle. She explained that she experienced a cardiac arrhythmia. She became clearly very anxious and had a very apparent physiological response.

The Mother’s psychiatrist, Dr N has previously stated that he feared the mental state of the Mother would be severely affected if an order of unsupervised contact occurred. After correspondence with the Mother’s cardiologist, Dr N suggested an unsupervised time order may have a serious impact on the Mother’s physical state “such that she may develop an arrhythmia that needs defibrillation internally, or that such arrhythmia may lead to a stroke”.

While other reports indicated there was no evidence to support this theory that unsupervised contact would cause such deterioration in the Mother’s cardiac condition, it cannot be denied that the Mother has shown great distress in relation to her fears. The Mother, by her own admission, was so distressed upon receiving a letter from the father’s lawyer asking why the child could not spend time with the Father, supervised by Ms G, that she attended a medical centre after experiencing breathlessness, anxiety and minor cardiac symptoms.

The severity of the Mother’s anxiety issues were evident during the trial where the Mother suffered two emotional collapses with the ambulance being called, one which resulted in the Mother spending a night in hospital. On this occasion, the Mother states she was greatly distressed by a comment made by myself in relation to the child spending unsupervised time with the Father.

Dr N believes the Mother ‘is suffering from an adjustment disorder with anxious mood’. Dr A, the Mother’s treating cardiologist, states that the Mother has non-obstructive hypertrophic cardiomyopathy and that she has ‘consistently reported an association between emotional stress and symptoms of palpitations and chest discomfort. It is clear that this is impacting on her quality of life’.

While the Mother has stated that she has still sought to encourage a relationship with the Father and the child, it is clear that this was not a meaningful one. All visits since the allegations began have occurred supervised by the Mother. The Mother does not even allow the Father to take the child to the toilet and all telephone calls have been placed on loud speaker. In particular, Mr J stated in his last report, ‘that while the Mother may have facilitated the Father’s relationship with the child, this has only been on her terms’. The main issue is the Mother’s emotional and physical distress she experiences at the thought of harm coming to the child. Mr J stated:

If the court were to allow the father to spend unsupervised time with [the child], the mother may continue to demonstrate these anxiety symptoms and physiological reactivity, in front of [the child]. If she does so, [the child] would most likely be sensitive to his mother’s response and become anxious himself about separating from his mother and spending time with his father, without his mother being present…

…My suspicion is that she would say the right things to [the child] about spending time with his father. I am less confident that she would be able to transmit a message to [the child] that she feels confident about [the child] spending unsupervised time with his father. I think that there is a reasonable chance that she will transmit a message to [the child] that she is very worried about [the child] spending such time with his father and this message may be transmitted by [the child] witnessing his mother experiencing further “episodes” of anxiety, chest pains, breathlessness and tachycardia, etcetera.

This raised concerns that if the child were to live with the Mother, the child would not be able to develop a meaningful relationship with his Father. This is because, no matter what anyone said, the Mother’s view that the Father would harm the child was not going to change and she would not cope with the thought of unsupervised contact.

The Father orally amended his application upon adjournment of the July 2011 trial, seeking that the child live with him. He asserts that after seeing the Mother’s cross-examination and the numerous allegations she raised and, in particular, the events of 18 December 2009, he formed the view ‘that the environment that the child is currently in with the mother is unhealthy and detrimental to his welfare’ and that there was no alternative but to seek residency if the Father was to have a relationship with the child.

The Mother’s Rigid Adherence to her Belief

Dr N, the Mother’s psychiatrist stated:

In my opinion, [the Mother] will never accept such a finding from court

[that the Father poses no risk]

and any such finding would in no way alleviate her concerns or convince her that her concerns were unfounded.

This view was reiterated by Mr J who stated that while there was insufficient evidence to indicate that the Father poses a risk of sexual harm to the child, the Mother continues to be ‘firmly convinced that the Father does pose a risk and that this risk is very high.’

Dr K stated:

Her treating psychiatrist has provided an opinion that regardless of the court or other authority stating that there is not such a risk she would not be satisfied. The implication is that her treating psychiatrist (who has seen her over a substantial period of time) is saying that the belief is fixed regardless of any evidence or opinion produced to the contrary. This suggests that the belief is not based on rational reasoning…

…In my opinion, on balance, these ideas in the mother are not delusional but represent an overvalued idea based on her pathological level of anxiety

It was in this report that Dr K also indicated, based on the updated evidence at the time, that he was less certain than previously about the Mother’s level of functioning as a parent.

Mr J, in his report of 28 November 2011, stated that the ‘Mother indicates nothing will change her mind with respect to her belief that the Father will sexually abuse [the child]’ and that the ‘Mother refused, in the face of expert evidence, to accept that the Father does not pose a risk’.

The following exchange took place during the cross-examination of the Mother:

HIS HONOUR: …What could [the Father] do to establish some trust in your view? Nothing. It’s done? — He keeps lying to me all the time. Even when he tells me things now, he then denies that he said them. It’s impossible to trust him.

All right. Well, you say there’s nothing: — I can’t think of anything

The Mother’s Conversion

The Mother has maintained, to use Mr J’s words, ‘obsessive and rigid adherence’ to this belief throughout the trial. This was until the report of Professor F was released.

Professor F filed his expert report on 29 May 2012. The Mother read this report the next day, and filed a new affidavit on the 4 June 2012 stating that she accepted the report and now believes that the Father will not be a risk to the child. She is now proposing orders that provide for unsupervised contact with the Father, similar to the orders the Father had sought initially.

The Father is seeking that the child lives with him and have supervised time with the Mother. The Father is not willing to accept that the Mother has changed her belief in one week and would facilitate the Father having a meaningful relationship with the child. He states that he is worried that the relationship between himself and the child will be damaged by the Mother’s inherent beliefs and does not believe the child can endure the current environment he is in without sustaining emotional damage.

The Mother submits that it was not a one week turn around of belief. She states that she has not believed the previous expert reports for various reasons, such as the experts have not been either objective or thorough enough for her to support them. She states the genesis for her change of position actually began with her meeting with Dr Q, psychologist, in September 2011. The report of Dr Q outlined what a comprehensive sex offender risk assessment that he would conduct would include. Dr Q had criticised the report of Dr L and it was on this basis that the Mother sought a further risk assessment be undertaken. The Mother states that she agitated in November 2011 for a risk assessment to be prepared. She states she had no control over the timing of the release of Professor F’s report. She states that now she has the correct assessment, she believes the Father poses no risk to the child.

It is important to note that even the Mother’s own psychiatrist has previously said that there is nothing that will change the Mother’s mind about the Father.

It is this firm opinion the experts all held, that the Mother would not change her mind, coupled with the Mother’s obvious physical and emotional distress at the very thought of unsupervised access, which occurred over a number of years, that makes it hard to reconcile the latest events, that being, the Mother now accepts the report of Professor F and believes the Father does not pose a risk to the child.

In Dr K’s view there are two possibilities to explain the Mother’s change in view:

One is that the person has held the views, has the anxiety and actually maintains the views but is now not telling the truth about them. The other possibility is that the views were adopted as a legal stratagem and were not true previously. Now matters of truth or not are really matters for the court.

In relation to the first possibility, Dr K was cross-examined further:

MR THIELE: Yes, your Honour. Just on the first of your explanation, what is the risk then if that is indeed what is happening in this matter? What’s the risk? Is it – is the risk that the mother won’t be treatable through cognitive behaviour therapy? — The risk is that she would – she will continue to act on the basis of those views she has previously held about the father.

So I understand what you’re saying is that even though she’s now saying to the court that “No, my beliefs have changed and I’m giving it a rating of nine, that the father won’t sexually abuse my son.”, the risk is that she holds more than just lingering concerns. It’s going to be an ever present concern for her?— As I’ve really stating, if you hold these very firm views about a person as a result of pathological mental processes, whatever their nature, and that persists over some years and is, you know, on the report of the treating psychiatrist is unlikely to change, then sudden change like this is just extraordinarily rare. I know I suppose it’s theoretically possible but if I were treating someone in that scenario and they had held those beliefs for that period of time, I would be deeply suspicious as a treating psychiatrist that they were not telling the truth about their beliefs.

In Mr J’s cross-examination on 5 June 2012, he indicated that he was also suspicious of the Mother’s change in position. In regards to his suspicions and the basis on which he held these, Mr J stated:

Given the strength of the views that she expressed when she was cross-examined, particularly by the father’s counsel in the transcripts that I read of that cross-examination, she basically said she would never accept the father was not a risk under any circumstances. And I’m – it seems that, you know, it’s reasonable I think to be suspicious given the time – the time before trial when she has changed her views.

The Independent Children’s Lawyer has submitted that she is:

left with grave reservations as to whether the Mother has wholeheartedly changed her view about the Father and is able to provide for the needs of [the child], particularly his emotional needs in being supported in having a meaningful relationship with his father.

The Independent Children’s Lawyer has pointed out that after reading Professor F’s report, the Mother had an overnight stay in hospital, made an appointment to see Dr Q again and twice consulted with Dr N. While the Mother expressly denies that she consulted Dr Q to ‘pick to pieces’ this report, the Independent Children’s Lawyer is still concerned that the Mother, while stating she was ‘quite relieved’ after reading the report, still needed to consult Dr Q and had the same anxiety upon reading the report of Professor F as she has had previously, resulting in hospitalisation. Since the Mother has now offered unsupervised contact, the Mother no longer considers the Father a risk nor can she hold the belief as set out in paragraph 16 of these my reasons, and has thereby abandoned such allegations.

The Mother’s Therapy

Regardless of the Mother’s attitude towards the Father, the experts have all indicated that the Mother is in need of therapy and treatment. Both Dr K and Mr J have indicated in their reports that the Mother should receive cognitive behaviour therapy.

Dr N originally had said that such treatment was not ‘relevant’ at this time; however, since the Mother’s change in position, the Mother and Dr N have indicated that the Mother will undergo such treatment.

The Father submits that the child is too far enmeshed with the Mother. Mr J indicated that he believes there could be a degree of enmeshment and dependency in the relationship. While there are no signs of the child rejecting his time with his father, Mr J points out that there was no reason for this to occur as the Mother has always been present during the time spent with the Father, and the Mother has not had any need to alienate the child as she has previously had control of the situation. Mr J agrees that it is a very positive goal to address the meta-messages and non-verbals she might send to the child and how she can encourage the child’s independence and that there is a need to separate from her and develop a relationship with his father.

The Independent Children’s lawyer submits:

…that the events of December 2009 are a stark example of the mother’s behaviour when she was not in control of the father’s relationship with [the child]. … That [the child] now views the Mother’s admission to hospital (and perhaps any future illness) as the product of “the bad lady” is another matter that speaks very poorly of the Mother and her support people at such time. … It is further submitted that this incident supports [Mr J’s] view that the Mother will enmesh the child in her own distorted or over-valued beliefs of the father.

The Child’s Emotional Welfare

The Father submits that the child is far too aware and emotionally concerned with the welfare of his mother. Dr N said in his report that the Mother would and has in the past, beared the anxiety herself without exposing to the child such a burden. However, he did go on to state that ‘some of the effects that may occur may be impossible to hide from [the child], for example severe anxiety, depression or increased hospitalisations. It is of course impossible to state with any certainty what the outcome of her parenting of [the child] would be.’

The child has already been subjected to the Mother’s ill health. He was the one who dialled 000 and went with his mother in the ambulance in December 2009 following the incident with [Ms G]. The Mother states:

I could see no way not to answer these questions in [the child’s] hearing as he was clinging to my arm and I was in severe pain, nauseous and having an oxygen mask applied

She acknowledges this is how the child learnt that it was the Father’s defacto partner that had caused her distress. The child suffered nightmares after the incident and referred to Ms G as the “mean lady”. He also developed a fear of black cars, as this was the colour of the car Ms G had arrived in, which he still had in 2011 and still carried a “baddy spray”, something made by the Mother and the child to keep the baddies away. An extract of the Mother’s diary relating to the Christmas incident is clear evidence in my view of the Mother’s inability to shelter or protect the child from her ill health and fears:

…[the child] said ‘but what if that mean girl comes back she might try to get into our house. I said it’s okay honey I’ve locked all the doors and I’m sure she’s a long way away from here now. [The child] said (distressed) but she might get into the garage!’ I said, look I’m just closing the garage doors now and I will lock it. I said remember [the child name] we’re quite safe, Mummy is with you and the house is locked up. [The child] said ‘and we told the police’. I said yes we did and we don’t need to worry about it anymore. [The child] said but that mean girl might get a chainsaw and make a hole in the roof’. I said, I’m sure that won’t happen.

…[The child] suddenly said, ‘there’s her car Mum, I saw a black car, look there’s that mean girl.’ I said no darling that’s not her car, that car belongs to someone else. [The child] said but how do you know Mummy? I said well I know her number plate said […] and everyone has a different number plate, that number plate says GLS so it’s definitely not her car.

…[The child] said, I feel sick and weak and dizzy, I need to sit outside your shower (I had said I was just going to have a quick shower). I said, ‘it’s okay sweetheart I’ll sit with you for a while, shall we say prayers again?…

…[The child] said I had a bad dream about that mean girl, will she come back to our house again? I said no sweetheart, I don’t think she will come back again. [The child] said, ‘she hurt your heart Mummy, how did she hurt it?’ I said well I wasn’t expecting her to visit, and I didn’t like it when she wouldn’t leave and that just made my heart go a bit funny. [The child] said and I called the ambulance. I said yes you did you were very brave and helpful.

…[The child] said why did Dad want to live with that mean girl? I said I don’t know sweetheart, you could ask him if you want to. [The child] said why did dad want that mean girl to come to our house? I said I don’t really know sweetheart. [The child] said I don’t ever want to see her again, she is a mean girl.

…In the afternoon I explained to [the child] that I had to go and see my heart doctor, [Dr M], in the morning. [The child] asked, because that mean girl made you sick? I said well a bit, but I know that I have to see him for checkups sometimes. [The child] said that the mean girl made me a bit sick too. I asked in what way darling? [The child] said she made me vomity and a bit weak and dizzy. But I’m not scared of her anymore; if she comes back I’ll shoot her. I said [the child name] I know that she shouldn’t have come to our house and I know you don’t want to see her again, but we don’t talk about shooting anyone, that’s not okay. [The child] said well she’s mean and she’s a baddie, she is. I know you are still feeling a bit worried, but we just don’t talk about shooting people honey. [The child] said:“I hate her”. I said would it help to talk with […] and […] about it? [The child] said no don’t tell mum I don’t want anybody to know that my dad lives with that mean girl (distressed) I said ok honey, but you know we are okay and we have spoken to the police, so I think the problem is solved. [The child] said I think the Police will put her in jail. I said well I don’t think that will happen, but they will probably speak to her. [The child] said, she’s a baddie. I said lets go and see where the kids are…

This looms large in my view and is also referred to under the heading, ‘The Mother’s Therapy’ (see also the reference to the Mother’s psychiatric issues by Dr L in his report dated 28 November 2011, exhibit 22).

In the maternal grandfather’s cross-examination, he acknowledges that the child is taken along to see his Mother in hospital on more than one occasion. Counsel for the Father asked:

Was it distressing, sir, to see his mother hooked up to various machines and had tubes stuck in her arm and —? — No.

It doesn’t distress him at all? — Not now, no.

Not now. He’s used to it? — He’s – he’s seen it before.

When the Mother discusses the child coming to hospital to visit her, she states that:

[The child] was too upset to look at me at first. He said he didn’t want to see the needles in my arm, the oxygen mask on my face or to see me so sick. [The child] then asked me, ‘did the mean girl hurt you again?’

Mr J was particularly concerned about the effect that the Mother’s anxiety and “episodes” that occurred when she was worried about the child spending time with the Father unsupervised, would affect the child and the relationship he was to have with his Father. While the Mother has now indicated in oral evidence and by affidavit that she is no longer worried about the child being harmed in the Father’s presence, it is difficult to reconcile this with her past evidence. Mr J has stated:

…If it is the Court’s view that the mother would behave in a manipulative fashion in the future for the purpose of obstructing [the child] from developing a positive and meaningful relationship with this father, then I think that it could be said that the Mother would not facilitate or encourage [the child] in having such a relationship. If the Court were to form that view, then in my opinion, the Father’s proposal that [the child] should live with him could be considered a reasonable proposal.

Mr J states that it would ‘be naive to think that [the child] might not have difficulties’ with the transition in primary care, acknowledging that there would be an impact upon the child’s sense of security at home, at school and in his entire social network. Mr J states:

It is not my view that this would necessarily result in long term psychological harm to [the child]. However, it may, and that would be a factor that would need to be balanced with the harm of not developing a meaningful relationship with his father, any harm that could come to him if he were to learn of his mother’s beliefs about his father and if he were to assume that those beliefs are true, and the benefits to be gained in developing a meaningful relationship with his father.

At present, the Father does have some form of relationship with the child. The family report indicates that the child is comfortable around his father and enjoys spending time with him. The Mother has never suggested that the Father and the child have anything other than a good relationship. She has indicated she does believe the Father loves the child.

The report of Professor F was not challenged by either of the parties. There is ample evidence to indicate the Father poses no risk to the child.

Mr H

On the final day of hearing the Mother sought an order notwithstanding she proposed, that any contact by the child with his father be unsupervised and Mr H should not in any way be brought into contact with the child. Mr H was married to Ms W (the Father’s sister) who appears to loom large in these proceedings. Mr H has separated from Ms W and is at present sharing parenting between himself and Ms W, of their child T. The Mother has never sought any written order to this effect but at page 6 of the transcript dated 5 June 2012, she was asked at line 6:

Okay. But you are fearful now, and you demand an order from this court, that [Mr H] have no contact with your son, yes? —Sorry, was that a question.

It is? — I’m sorry. What was the question? Do I ask for that?

Well, your proposal, ma’am, that you have in front of you, you seek an order from this court that my client’s business partner, [Mr H], have no contact with your son?—I ask that, yes.

Line 25:

MR LINKLATER-STEELE: And you advance in your affidavit that you filed yesterday that the reason you say that he is a person who you’ve deemed not to be appropriate to even come into the presence of your son is because of what you saw during this trial and the way he conducted himself under cross-examination, yes?—I’m sorry. Could you ask that question again?

Well, you told us, at paragraph 12 of your affidavit of yesterday, that the basis upon which you now seek this order against [Mr H], my client’s business partner, is that having seen him under cross-examination you’ve formed the view that his behaviour is such that he shouldn’t have any contact with your son, yes?—Didn’t I write that it was that and his affidavit? [sic]

Well, affidavit and his behaviour, ma’am?—Yes.

Do you say that that’s the reason?—Yes.

The Mother goes on to be cross examined as to her knowledge of Mr H, that she had known him for a considerable number of years and that she was aware that he was sharing parenting of his child [T] with [Ms W] (see: transcript 5 June 2012, page 7 line 19).

In the affidavit referred to and filed on the 4 June 2012, the Mother says at paragraph 12:

…I do also have some concerns about [Mr H] who appeared as [the Father’s] character witness. After listening to him repeatedly and aggressively denigrate the child’s Aunt [Ms W] ([Mr H’s] ex-wife) in affidavit and under cross-examination, I feel very concerned that he will continue this behaviour in front of the child.

This attitude of the Mother towards Mr H concerns me because it could be that this is the start of another fear of the Mother’s. First of all, the fear of Multiple Sclerosis and then the fear of those matters to which I have referred at length in this Court concerning the Father’s attitude towards his son, and now we have her fear of Mr H because of his aggressive denigration and that this will continue in front of the child and affect the child’s upbringing. I must say that I have no hesitation in saying I do not in any way consider that the evidence upon which she has relied is sufficient for me to say that any continued contact, and I say continued contact because Mr H has had contact with the Father as a result of his being a business partner, would in any way affect the child’s upbringing.

This concern of mine was suggested by Counsel for the Father at transcript of 5 June 2012, page 8 line 1, wherein he puts to the Mother:

…So what has happened, ma’am, I would suggest to you the focus has moved on. My client, he might not be a problem, but now [Mr H] is a problem. He is now a problem?—I was concerned about the way that he spoke about me in the trial and I was concerned about his affidavit and I didn’t want him talking like that in front of the child about the child’s aunt.

I will not make such an order.

I note in relation to Mr S; the Father has undertaken not to bring the child into contact with him.

Insofar as Mr D Pedrana is concerned, at paragraph 615 of the Father’s submissions, he indicates that he would on occasions have the child in contact with Mr D Pedrana, but only at family functions and I would accept there would be no likelihood of the child being alone with Mr D Pedrana.

The Maternal Grandparents

I must say that I was somewhat disappointed in the maternal grandfather’s evidence in which he endeavoured, as I read his evidence, and saw him put the worst light that he possibly could envisage upon the Father and in fact conceded nothing in the Father’s benefit. It does concern me that the maternal grandfather and the Mother have a close relationship and that he may, unless he is particularly careful, unfortunately exhibit either overtly or covertly his distaste for the Father in front of the child.

The other matters which I am concerned about are as follows.

Ms G – The Father’s Partner

As I am persuaded and will be ordering that the child is to go into the possession of his Father, the allegations made by the Mother concerning Ms G and particularly evidence in which the child has referred to Ms G as “bad lady” or “baddies” concerns me. Here it would be that Ms G is living with the Father, that the child will be placed in the possession of the Father and I would have thought will cause him a great deal of distress and I am minded that it may be that the presence of Ms G for the first few nights, may be somewhat concerning for the child.

There is evidence before us that the child is not referring to Ms G as much as he has done in the past, and I am hopeful that with a great deal of sensitivity there will be no resurrection in the child’s mind either once again overtly or covertly of the distress that he suffered as a result of the exhibition just prior to Christmas.

Mr J discussed in his report filed 31 March 2011, the complication of the child being introduced to Ms G and suggested that there would need to be a period of time where the Father spends time with the child on his own before the child would be introduced to Ms G. Mr J suggested a period of three months. He noted that Mr R, psychologist, has said that the child is capable of letting go of negative images quite easily and thought that the child could be psychologically assisted by Mr R to manage the introduction to Ms G.

Mr J however, was cross-examined about the child’s anxiety on 5 June 2012. He states that he is now ‘unsure as to whether those symptoms are symptoms that have been described to [Mr R] by [the child] or by [the Mother]’ at transcript dated 5 June 2012 page 87 line 41. Mr J is sceptical of Mr R’s diagnosis that the child suffers from post-traumatic stress disorder and no longer thinks there is value in holding off for three months before bringing Ms G into the scene: transcript page 94 line 5 on 5 June 2012.

Nevertheless, Ms G has stated at page 60 of the transcript dated 28 November 2011 at line 45:

…we’ve discussed that if [the child] needs time, just one-on-one with him, I’m willing to live somewhere else and be introduced to him when the time is appropriate.

I consider that we must take every step available to ensure that the child is not put in any greater position of discomfort then he will obviously be. In those circumstances I am not going to order that Ms G vacate herself from her and the Father’s residence in Town U in the north of Queensland, but request that she do so for a period of three to four weeks. I am sure that she says, through no fault of her own, the child has been somewhat concerned about her, that she will do everything that she can to comfort him by absenting herself for what will be an unfortunate period for her and for the Father.

Relocation and Rosa v Rosa [2009] FamCAFC 81

Further, since I am of the opinion that it is in the child’s best interests so that he may develop a meaningful relationship with his father, that he be removed from his mother’s possession. I have to consider the fact that the Father is living in Town U in the north of Queensland and what will be the effect of relocation of the child from the Sunshine Coast to Town U, naturally of course the authority of Rosa v Rosa [2009] FamCAFC 81 is raised in this case, and I would have to consider whether it is reasonably practicable for contact to take place between the Mother and the child subsequent to his relocation to Town U. The Father, I am quite satisfied will ensure that the child is adequately maintained and is adequately educated in Town U.

It will be a wrench for the child, and I am fully aware of that. Mr J had his mind directed to it and he considers that the child will be able to, with some difficulty, overcome the loss for a period of his Mother. Mr J has suggested that the child receive grief counselling from a person ‘who has experience with counselling for that type of transition on an adjustment’ and indicates he would prefer the child saw someone other than Mr R as he is concerned about Mr R being aligned with the Mother see: transcript page 94 line 5-16 on 5 June 2012. Mr J agrees there is merit in the Independent Children’s Lawyer continuing to have a role in determining the counsellor of the child. And as a result of the aforesaid, I consider it is essential that the child be supported by a counsellor and I will be ordering that he be supported by such counsellor as may be appointed by the Independent Children’s Lawyer.

The Child’s Surname

There is reference to the issue of the child’s surname in both parties’ submissions.

No application has been made to vary Order (16) of the consent Orders dated 16 April 2008.

No evidence to my mind was directed by the Mother or Father for the name change of the child and consequently I will not alter the Order of this Court without adequate evidence.

Consequently, notwithstanding, I will be discharging all previous Orders made in this Court; save for Order (16) of the Orders dated 16 April 2008.

Section 60CC

I will of course now have to consider the provisions of s 60CC of the Family Law Act 1975 as it relates to the child in these proceedings. I make it quite clear that I do not believe that I have to go through each of the sections seriatim, but emphasise those matters which I think are of grave concern to me in relation to this matter and as well as the sections which the Court has to consider.

Obviously there is a benefit in the child having a meaningful relationship with both parents (see s 60CC(2)(a)), but, in this case I am particularly concerned that a meaningful relationship means a relationship between both parties and that once again, because of the Mother’s unfortunate view of the Father initially and her subsequent reversal, the meaningful relationship would be at risk between the child and his father for those reasons referred to above.

I am of the belief that it is necessary for the child to be removed from the Mother because of psychological harm that he could be subjected to and I need go no further then refer to the extensive evidence and extensive expert evidence in relation to the Mother’s attitude towards the Father for a considerable number of years, not only going back to the Multiple Sclerosis, but also as to whether he in fact was a suspected murderer, rapist, paedophile and groomer. She insists that she would keep this from the child. I do not believe that that would be possible, and that the child would feel something in relation to his Mother’s attitude towards the Father. She appears now to have done a complete ‘volte face’.

The Father does not trust the Mother’s change in attitude. Counsel for the Mother put to the Father at transcript: 5 June 2012, page 61, line 16:

…So, what could she have done in the last week to satisfy you? Having received the report she asked for?—I do not believe with what is being put to this court and against me, to reverse everything in two days on the basis of a report by [F], Professor [F], sorry, that all is fixed. I’ve been accused of being a rapist, paedophile, etcetera, a potential murder and —

And that upsets you a lot, quite clearly – quite clearly?—I would think any normal person would be very distressed. I am.

But do you give her any credit at all for taking on board what Professor [F] has had to say?—I don’t trust what has happened here. I can’t answer your question directly as to why. I just do not trust what is going on here and that we are going to solve this matter and I will be back here again.

[my underlining]

Perhaps the suggestion that “I will be back here again” is prescient in that the Mother at the last moment endeavoured to exclude any contact by Mr H with the child. Whilst at this stage that does not appear of much importance, it is something which was raised as a “last ditch effort” rather then being raised with any force earlier than the end of the trial.

The child has a relationship (see s 60CC(3)(b)) with each of the child’s parents. He is very close to the Mother and I believe that there is sufficient evidence before me to be afeared of the question of enmeshment. This has been raised by at least one of the experts.

He is having a relationship develop with his father, notwithstanding the fact for a considerable period the only contact he has had with his father is with his mother being present, probably sitting in the back seat of a motor vehicle during such periods as the Father had contact once every fifth Sunday.

The Mother concedes that the child does have a relationship with the Father and that the Father loves the child.

Insofar as s 60CC(3)(d) is concerned, this is of grave concern to me. That is, that the child will be distressed. I cannot for one moment suggest to the contrary. Not only will he will be distressed but his mother will be distressed. I am particularly concerned that the Mother will exhibit such symptoms of illness, distress and some form of collapse which will necessitate her being removed to hospital. This is not to the benefit of the child and something which should not happen, but unfortunately it has on at least two or three occasions.

There is the difficulty and expense of spending time with and communicating with the parents since I have already touched on the fact that the Father lives in the north of Queensland and the Mother lives on the Sunshine Coast. What we are going to do with that is something which has caused me concern.

I believe that because the child is going to be gravely affected by his removal from his mother that it is necessary for him to have a period, and this is supported by the experts, a period during which he will have little or no physical contact with his mother. A period of three months was suggested by Mr J in his report filed 28 November 2011 at paragraph 1.37 and again in cross-examination on 6 June 2012: see transcript page 169 line 37. Mr J states in his cross-examination on 5 June 2012 transcript page 91 line 36, in regards to this three month period:

…Say, “three months”. Yes. I don’t know what’s a perfect answer there, but a period of time where mum is not going to have a lot of influence on him. He’s going to be free from observing or hearing any anxiety from mum.

The child must be given the opportunity of settling down.

Verbal contact by way of Skype or telephone communication will take place at least twice per week for periods of no longer than 45 minutes each. The issue of telephone communication between the child and the Mother was discussed in the cross-examination of Mr J transcript page 92 line 28 on 5 June 2012:

Would there be telephone time or telephone communication between [the child] and his mum during this moratorium period? — I think there has to be. He’s going to experience significant grief, so it’s a question of balancing the need for him to manage that, and know that his mum is still here, still loves him, still cares for him, that he hasn’t been abandoned, and – and at the same time protect him from any possible negative reaction that she may display.

Section 60CC(4) must be considered by the Court, as has been pointed out in authorities, and I am of the view that the child’s parents, in particular the Mother, has failed to facilitate the other parent’s participating in making decisions about major long term issues, spending time with the child and communicating with the child.

It appears to me from the evidence to which I have already referred to in this lengthy judgment, that it is patently clear that the Mother’s attitude towards the Father, until her conversion, was such that, whilst she denies ever having the child become aware of her view of the Father, must, in her general attitude towards the Father, of her insisting on being present at all times during supervised contact, and of her refusal to allow the Father to take the child to the toilet, indicate there to be something wrong with the Father. As a result, I am sure that the child’s obvious enmeshment is fear for the Mother as a result of her illnesses and an alleged fear of “bad people”, engendered by the attitude of the Mother towards the Father.

Section 60CC(3)(c) requires me to consider the willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent. As I have previously outlined in paragraph 28, the Mother has facilitated some contact between the Father and the child, and the Father does have some form of a relationship with the child, but this has not been a meaningful one. The Mother may now indicate a willingness to encourage the Father’s relationship with the child, particularly since her change in belief and proposal of unsupervised contact, which if it had been proffered at the commencement of the proceedings, would have alleviated this trial and expenditure of costs. However, it is difficult to believe this change in view as I have outlined above.

Consequently as I have already indicated, I am of the view that the child’s welfare will be properly and more properly maintained and encouraged by his being in the possession of the Father and I order therefore that the child be put into the possession of the Father and that the Father will encourage the child’s continued relationship with the Mother.

Insofar as contact is concerned, I am mindful of the evidence put before me by the experts, that there should perhaps be a “cooling off” period for the Mother, that the child should not be exposed to physical contact with the Mother who may or may not fall ill as a result of his being removed from her for a period. It was suggested by Mr J for some three months: see supra. I believe that is much too long a period for a child of this age and that I do order that the Mother do have no physical contact with the child for a period of some two months, that the Mother be entitled to contact the child by way of telephonic communication device and/or electronic communication on no more than three periods per week, such periods to extend for no longer than 45 minutes.

I have referred to the authority of Rosa v Rosa [2009] FamCAFC 81, and I think it is necessary for me to consider whether in fact the suggested contact between the child and Mother is significant and substantial and whether any contact is reasonably practicable. Obviously in a case such as this, acting upon the experts’ evidence, I have decided that for a period there should be no physical contact by the Mother with the child and in order to perhaps relieve the child from enormous pressure which may either be covertly or overtly applied to him by his physical contact with the Mother. Really the contact that I have envisaged at present is not significant, nor is it substantial. But it is significant in that the Mother’s existence will still be alive in the child’s mind.

The matter of face to face contact by the Mother with the child has caused me a grave deal of concern. Obviously, and supported by the experts, it appears to me as though the child must have some respite from the Mother, particularly to enable him to develop a greater relationship with his father without the restrictions of supervised contact as has taken place for some three years.

No application has been made by the Father in which he seeks orders for contact since his original application was only for contact itself and not for the child to live with him and for the Mother to have contact.

However in the Father’s submissions at paragraph 669 he indicates that he would be seeking an order that the Mother do have contact with the child, following a moratorium in relation to time spent with the Mother, but that such contact be supervised by the maternal grandparents.

I have formed the view as I have referred to hereinbefore, that the attitude of the maternal grandparents towards the Father is not conducive in my opinion to proper and adequate and meaningful contact taking place between the child and the Mother because of my fear that their view of the Father would be counter productive to the child being able to develop a greater meaningful relationship with his father.

What then are we to do? In the Independent Children’s Lawyer’s submissions at paragraph 27 it was proposed that the Mother do have contact with the child but such contact be supervised by a person nominated by the Independent Children’s Lawyer. This in all circumstances is preferred. I had initially thought that the Mother should not be given contact with the child at the end of the period of no contact, because I believe she should have a remedy in her own hands.

The Mother has exhibited behaviour in the extreme in relation to her allegations against the Father. It is the responsibility of the Mother to make changes and acknowledge her behaviour and the damaging effect it may have on the child. It is up to the Mother to seek the appropriate therapy. She needs to gain an insight into her behaviour and the effect that her anxiety is having and will have on the child.

Insofar as any subsequent treatment for the Mother is concerned, it has been suggested that there should be cognitive behaviour therapy for the Mother. That is a matter entirely for her. I would have sincerely hoped that she has read my reasons. I would have sincerely hoped that she has considered the evidence that she gave up until her conversion and her subsequent evidence, and do everything that she possibly can in her own power to make herself more amenable to the child’s future welfare.

Deciding to not make an order for contact would be unfair to two people. It would be unfair first of all to the Mother, and more particularly it would be unfair to the child who has, in my view, a close, warm and unfortunately almost enmeshed relationship with the Mother. Whilst I am concerned about the Mother’s attitude towards the Father, notwithstanding her “conversion”, it is necessary for the child’s emotional welfare that the child be able to still retain a relationship with his mother.

In those circumstances, I will order that the Mother, after the expiration of a two month period referred to hereinbefore do have supervised contact with the child for each alternate Saturday and Sunday from 10.00 am until 4.00 pm each day for a period of three months.

I further order thereafter that she do have contact with the child on each alternate weekend between the hours of 9.00 am on Saturday until 5.00 pm on Sunday. Such contact not to be supervised.

This however I would make it quite clear would be subject to any move on the part of the either the Father or the Independent Children’s Lawyer to extend the time for supervision.

As I have recognised before the tyranny of distance between the north of Queensland and the Sunshine Coast is such that I realise that there is going to be a considerable amount of expense involved in the child having contact with his mother. I regret that that is the case but unfortunately I feel that costs are secondary to the welfare of the child. I therefore order the Mother and Father to share the costs of the travel by the Mother spending time with the child.

Parental Responsibility

On the 16 April 2008, an Order was made by consent wherein it was agreed between the parties inter alia that the Mother and the Father have equal shared parental responsibility for the child. The Mother had been seeking an order that there be sole parental responsibility in her favour and the Father is also seeking an order for sole parental responsibility. Obviously there is the presumption for me to consider this and I have so considered it. The Mother has resiled in her current proposal from seeking sole parental responsibility.

I have always been of the view that joint parental responsibility becomes exceptionally difficult, if well nigh impossible, where the parties are unable to agree on even the smallest things. I am of the view and maintain the view, that once the parties come to Court disputing whether the parties should have joint parental responsibility then that in itself is sufficient for me to consider, and with great difficulty, ordering, for example, in effect “ramming” joint parental responsibility down one or other of the parties’ throats.

In this case the difference between the parties has, since the inception of this case, been huge. The Mother did not accept any of the protestations of the Father. The Mother on frequent occasions has, in effect, denigrated and vilified the Father in many ways and I need not repeat them.

The Mother and the Father on the other hand indicate that notwithstanding this vast gap in the attitude of each of the parties to each other, there has been communication and co-operation in relation to contact. Such co-operation is of course concerning where one of the experts, Mr J, was of the view that if the contact which has taken place between the child and the Father has done very well, since it was on the Mother’s terms.

As a result of my Order that the child will be removed from the Mother’s care and placed into the Father’s possession in Town U in the north of Queensland, I would have thought that it was absolutely essential that the tyranny of distance which I have considered in questions of contact and in relation to the matter of Rosa v Rosa [2009] FamCAFC 81, are of importance in relation to sole and/or joint parental responsibility. I am of the view that the child’s welfare requires that there be one person who is able to determine his future welfare and that would be the Father in these circumstances. I order that the Father have the sole parental responsibility of the child.

Costs and Injunction

On 11 April 2012, the Father filed a further Application in a Case which inter alia he sought an order for indemnity costs. No affidavit has been supplied in support of such application and I have not heard any submissions in relation thereto. However, I would say without having decided the matter, that in fact indemnity costs are sought for the hearing up until the 11 April 2012, I would find it interesting to hear the submissions. I recognise that the Mother’s health has been such that this trial has been in effect delayed, but I do not believe that such delay could in any way raise the difficult question of indemnity costs.

Further to my brief consideration of costs, I note in the application in a case filed by the Father on the 11 April 2012, he is seeking at paragraph 1:

1.An injunction to restrain the Respondent pursuant to s 121 of the Family Law Act from disseminating any documents and material in these proceedings to any third party.

In the submissions of the Father prepared by Linklater-Steele of Counsel, at paragraph 675 of his submissions, he sets out what he considers to be the relevant matters in relation to the support of this application.

It is needless of me to say that what he has said is more than adequately supported by the evidence before the Court, and the evidence which almost proudly the Mother initially put before the Court as to her concerns about the possibility of the Father’s involvement in some overseas rape, wherein she contacted Project USA and has sent photographs, as I understand, to the relevant authorities in the United States. Her publishing to Dr Q, cross-examination and other Court documents in which she legally does not have the right to publish to medical practitioners without one would have thought the consent either of the opposition of the other parties or in fact by leave of the Court.

I once again refer in particular to the statement of the Father wherein he says (see paragraph 83 of my reasons) that he does not trust her having pointed out that over a period of some three years he has been alleged to be a paedophile, he is alleged to have been a person who grooms his own son for sex, he is alleged to have been a pornographer, he is alleged to have been involved, as I have already touched upon, an overseas rape whether it was legitimate or not. These matters concern me in that it is quite clear that the Mother has, up until perhaps June 2012 after Professor F’s report, been of a view that she would do and say anything to crucify the Father and that her steps are such that she has quite clearly in my opinion, has disregard to the provisions of s 121.

I appreciate that in an email from the Mother’s legal representatives to the Father’s legal representatives dated 18 December 2012 which is attached to an affidavit of Ms Y filed 11 April 2012 which states:

“…In relation to your request for our client to sign an undertaking, we advise that our client is prepared to sign an undertaking that she will comply with Section 121 of the Family Law Act. We have prepared an undertaking and set it to our client for your signature [sic] tonight by email.”

Since the Mother is willing to give an undertaking, I will not at this stage grant an injunction restraining her in the form in which the Father seeks.

The Independent Children’s Lawyer is seeking in their submissions at paragraph 32 an order for the cost of it remaining in the matter and notwithstanding the fact the general order is that at the completion of the application, the Independent Children’s Lawyer is discharged.

I regret that as it is the general practice that the Independent Children’s Lawyer is discharged at the finalisation of the matter, in this case it is my responsibility for retaining the Independent Children’s Lawyer and therefore the Mother or the Father should be subject to the costs of that continuing role.

I must say that I have had a great deal of assistance from the Independent Children’s Lawyer in this extremely difficult case and it would have been impossible for the matter to have proceeded, evenly reasonably practically, without their assistance.

Of course, being legally aided, they have a statutory duty to seek costs from the parties or either of them.

It has been set out in the Independent Children’s Lawyer’s submissions at paragraph 9.4 that they very much doubt whether in fact the Independent Children’s Lawyer, who is a private practitioner, will be funded by the Legal Aid subsequent to the date of judgement.

In those circumstances I will order that should the Independent Children’s Lawyer’s further involvement not be funded by the Legal Aid, the parties share equally the costs of such further representation.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 30 August 2012.

Associate:

Date: 30 August 2012


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