Arata & Rex (No 5)
[2024] FedCFamC1F 732
•1 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arata & Rex (No 5) [2024] FedCFamC1F 732
File number(s): LEC 250 of 2021 Judgment of: HOGAN J Date of judgment: 1 November 2024 Catchwords: FAMILY LAW – PARENTING – Where the father sought sole parental responsibility and that the child move to live with him and spend, at least for three months, supervised time with the mother – Where the mother sought sole parental responsibility and that the child continue to live with her and spend four days with the father each alternating weekend – Where the Independent Children’s Lawyer sought orders which mostly reflected those sought by the father and included that time was only to occur during the day – Where the mother has a rigid and negative view of the father which has been expressed in front of the child – Where there is significant parental conflict – Where the mother contended there was an unacceptable risk that the father will alienate the child from her – Where the father poses no unacceptable risk – Where orders are made that the child live with the father and spend time with the mother.
FAMILY LAW – PROPERTY – Where the father sought orders which would see him receive property valued at 55 percent of the nett value of the property pool, with a further five percent adjustment for the future care of the child – Where the mother sought orders which would see her receive property valued at 67 percent of the nett value of the property pool – Where the parties’ contributions during the relationship were equal – Where the parties continued to live on the same property for four years following separation – Where the mother applied a not insignificant amount of her inheritance to the benefit of the family following separation – Where the parties’ contributions post separation were equal, save for the mother’s contribution of her inheritance to joint expenses – Where an adjustment is made for the father’s future care of the child – Where orders are made that see the parents share equally in the property.
Legislation: Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)
Family Law Amendment Act 2023 (Cth)
Income Tax Assessment Act 1936 (Cth)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clauson & Clauson (1995) FLC 92-595; [1995] FamCA 10
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Ferraro & Ferraro (1993) FLC 92-335; [1992] FamCA 64
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93‑143; [2003] FamCA 395
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
Lee Steere & Lee Steere (1985) FLC 91-626; [1985] FamCA 57
M v M (1988) 166 CLR 69; [1988] HCA 68
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Montano & Kinross (2014) FLC 93-623; [2014] FamCAFC 231
Morden & Coad [2019] FamCAFC 233
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Pastrikos & Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
U v U (2002) 211 CLR 238; [2002] HCA 36
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Waters & Jurek (1995) FLC 92-635; [1995] FamCA 101
Whitford and Whitford (1979) FLC 90-612
Division: First Instance Number of paragraphs: 313 Date of hearing: 8, 9, 10, 11 & 12 April 2024; 10 May 2024; 27 September 2024 Place: Brisbane Counsel for the Applicant: Mr Jordan on 8, 9, 10, 11 & 12 April 2024; 10 May 2024 Solicitor for the Applicant: Burgess Family Law
Ms Burgess on 27 September 2024Counsel for the Respondent: Mr Collins with Ms Musumeci on 8, 9, 10, 11 & 12 April 2024 and Mr Collins on 10 May 2024 Solicitor for the Respondent: Genuine Legal on 8, 9, 10, 11 & 12 April 2024; 10 May 2024 Respondent: Litigant in person on 27 September 2024 Counsel for the Independent Children's Lawyer: Ms Smith on 8, 9, 10, 11 & 12 April 2024; 10 May 2024 Solicitor for the Independent Children's Lawyer: Legal Aid NSW
Ms Burton on 27 September 2024ORDERS
LEC 250 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARATA
Applicant
AND: MS REX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
1 NOVEMBER 2024
IT IS ORDERED BY WAY OF FINAL PARENTING ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The child X, born 2014, (“the child”) live with the father.
3.The father have sole parental responsibility for the child in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth).
4.Other than in emergency circumstances, the father shall, prior to making a decision about any major long-term issue for the child:
(a)inform the mother in writing of the issue about which a decision needs to be made, the decision he would like to make in respect of such issue and the reasons for that proposed decision; and
(b)allow the mother fourteen (14) days after the provision by him of the information referred to above to respond to the same in writing; and
(c)consider the mother’s response, if any, when coming to his decision about any such issue; and
(d)inform the mother in writing of the final decision he has made with respect to that issue as soon as practicable thereafter.
5.Each parent shall be responsible for the daily care, welfare and development of the child when he is spending time with that parent.
6.The child shall spend time with the mother as agreed between the parents in writing and failing agreement, as follows:
(a)until 1 June 2025: once each alternate week for a period of up to four (4) hours, with such time to be supervised by either M Family Services or N Contact Service (with the mother to nominate which of these is to provide supervision) and to occur at times and on days agreed between the parents and the supervising service or, failing such agreement, on such days and at such times as nominated by the service, with the mother to bear the cost of the supervision and to be at liberty to take her husband, Mr O and/or the child’s sister to the supervised visit; and then thereafter
(b)until the start of the 2026 Easter school holidays: each alternate Sunday from 9.00 am to 2.00 pm; and thereafter
(c)each alternate weekend from after school on Friday, or otherwise 3.00 pm, to 5.00 pm on Saturday, with such time to continue throughout any gazetted school holiday periods other than, if the father gives the mother notice pursuant to order 9(a) of this order, in relation to the end of year school holidays in odd numbered years; and
(d)if the father gives the mother notice pursuant to order 9(a) of this order, then during the end of year school holidays in odd numbered years:
(i)the operation of order 6(c) shall be suspended for no more than four consecutive weeks of that school holiday period; and
(ii)the child shall have time with the mother, to make-up the time missed as a consequence of the suspension of order 6(c) of this order, on such weekends (from after school on Friday, or otherwise 3.00 pm, to 5.00 pm on Saturday) during the first term of the following school year as she nominates to the father in writing no less than thirty (30) days before school resumes for that Term.
7.The child shall spend time with the mother on the following special occasions:
(a)commencing 2025:
(i)Christmas Day:
A.in odd numbered years: from 9.00 am to 2.00 pm; and
B.in even numbered years: from 2.00 pm to 7.00 pm.
(b)commencing 2026:
(i)Mother’s Day: from 3.00 pm Saturday to 5.00 pm Sunday; and
(ii)the child’s birthday: if on a school day, from the conclusion of school to 6.00 pm, otherwise from 10.00 am to 2.00 pm; and
(iii)upon the mother notifying the father of the relevant dates, the child shall spend time with the mother during two religious celebrations per calendar year from 3.00 pm the day before the celebration to 3.00 pm on the day of the celebration.
8.For the purpose of Orders 6(b), (c), (d)(ii) and 7 above, unless otherwise agreed between the parents in writing, changeovers shall occur at the child’s school.
9.Commencing with the end of year school holidays in 2025: the father shall be at liberty to take the child out of the Commonwealth of Australia during any of those periods when the child lives with him, but no more frequently than each alternate year, on the following conditions:
(a)he shall provide the mother with not less than 56 days written notice of such intention; and
(b)he shall provide the mother, not less than 28 days immediately prior to departure, with:
(i)a copy of a return ticket for the child evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)a written itinerary for the trip, including but not limited to, departure and return times and dates, the place/s and country/ies the child will be travelling to and the dates on which the child will arrive and depart each destination; and
(iii)a mobile phone number/s and address/es at which the child and the father can be contacted during the duration of the holiday.
10.The child shall have telephone or video communication with the mother each Tuesday and Friday from 6.00 pm to 6.30 pm, with the father to initiate the communication and the mother to be available to receive such communication, or on such other occasions as may be agreed between the parents in writing.
11.All communication between the parents about the child shall occur via the parenting application, Our Family Wizard, or by email, unless the issue is urgent and then by telephone.
12.The mother shall permit the child to use any phone within his possession whilst he is in her care and allow the child to use the phone to contact the father as he requires.
13.The mother is restrained and an injunction issue restraining her from taking the child to a medical practitioner, psychologist, counsellor or other mental health practitioner except to a medical practitioner or hospital in the case of the child requiring urgent medical treatment.
14.The mother and father shall:
(a)keep the other parent informed at all times of their mobile phone numbers and email addresses and notify each other within forty-eight (48) hours of any changes to those details; and
(b)keep the other informed at all times of the names and addresses of any health practitioners, counsellors, psychologists, psychiatrists or other allied health professionals upon whom the child attends and shall provide such details within forty-eight (48) hours of the child’s first appointment with the same; and
(c)inform the other of any serious medical condition or significant health issue or illness suffered by the child as soon as reasonably practicable.
15.By this order, any treating medical practitioner or allied health professional is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the child as they are lawfully able to provide about the child.
16.By this order, any school, educational facility or extra-curricular activity provider at which the child attends is authorised to provide each parent with such information as they are lawfully able to provide about the child, including any school reports, photographs, certificates obtained by the child and any newsletters, notices or other correspondence, documents or information relating to the child.
17.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Family Report of Dr P dated 16 February 2024, along with a copy of the Order made today and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attends for the purpose of therapy and, if necessary, to any member of the New South Wales Police Service, the police service of another State or Territory and the Australian Federal Police.
18.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the child X (also known as Y) born 2014, shall be permitted to have a passport or an Australian travel document (as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
19.Within fourteen (14) days of a written request from the father, the mother do all such acts and sign all such documents as may be required to apply for or renew a passport (or Australian travel document) for the child or any other documents deemed necessary for the purpose of overseas travel.
20.The child’s passport shall be held by the father.
21.The mother, her servants and agents be and are restrained and an injunction issue, until further order, restraining her from removing or attempting to remove or causing or permitting the removal of the child, X (also known as Y) (a male) born 2014 from the Commonwealth of Australia.
22.The Marshal of the Federal Circuit and Family Court of Australia (Division 1) and the Commissioner and all federal agents of the Australian Federal Police and officers of the police forces and services of the various States and Territories are required and empowered to take all necessary steps to give effect to this order.
23.The Commissioner of the Australian Federal Police give effect to the preceding Order by placing the name of the said child on the Family Law Watchlist in force at all international departure points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until further order.
24.For the purpose of overseas travel by the child with the father, the Australian Federal Police shall be entitled to rely upon a copy of an email provided by the father which has been sent by him to the mother at ...@..., as evidence of the father’s compliance with the pre-requisites for the child’s overseas travel provided for at Order 9.
25.Pursuant to s 67U of the Family Law Act 1975 (Cth), a Recovery Order shall issue and shall remain in force until further order, authorising and directing the Marshal of the Federal Circuit and Family Court of Australia (Division 1), all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child X (also known as Y) (a male) born 2014 and to deliver said child to the father at such address as is agreed between the father and the person effecting such recovery; and
(b)to stop and search and vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
26.All Police Officers and agents referred to in this order be at liberty to proceed on an email copy of this order.
27.Upon the filing of an affidavit from the father outlining the failure of the mother to return the child to his care, a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is appointed, pursuant to s 106A of the Family Law Act 1975 (Cth), to issue the Recovery Order.
28.During the period the child is spending time with a parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)speak of the other parent respectfully in the presence, or hearing, of the child; and
(c)not denigrate or insult the other parent in the presence or hearing of the child and shall use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child; and
(d)not discuss adult issues with the child, including but not limited to these court proceedings; and
(e)refrain from involving the child in any parental conflict; and
(f)not physically discipline the child; and
(g)not permit the child to be in the presence of any person who is using illicit drugs and shall not personally use illicit drugs whilst the child is in their respective care.
29.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
IT IS FURTHER ORDERED BY WAY OF FINAL PROPERTY SETTLEMENT ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH) THAT:
30.Leave be granted nunc pro tunc pursuant to s 44(3) of the Family Law Act 1975 (Cth) to commence proceedings out of time.
31.Within thirty (30) days from the date of this order, the respondent shall:
(a)pay the applicant the sum of $1,043,248 by way of deposit into the Trust Account of Burgess Family Law; and
(b)discharge all arrears of Council rates owing in respect of the property at D Street, Town E in the State of New South Wales, being Certificate of Title Folio Identifier Lot … (“the Town E property”).
32.Contemporaneously with the respondent making the payment referred to above to the applicant, the applicant shall:
(a)do all things necessary to cause the withdrawal of the caveat registered on behalf of Q Pty Ltd over his interest in the Town E property; and then
(b)do all things necessary to transfer the whole of his right title and interest in and to the Town E property to the respondent.
33.Contemporaneously with the respondent making the payment referred to above to the applicant, the respondent shall do all acts and things necessary to cause the withdrawal of the caveat registered over the Town E property on behalf of R Pty Ltd so as to facilitate the applicant transferring his interest in the Town E property to her.
34.Contemporaneously with the transfer to the respondent of the Town E property pursuant to order 31 above or within thirty (30) days of these orders (whichever occurs first), the respondent shall:
(a)transfer to the applicant her share and the whole of her right title and interest to S Pty Ltd and upon that transfer, the applicant shall indemnify her in relation to all liabilities of S Pty Ltd, whether outstanding at the date of these orders or accruing in future; and
(b)shall assign to the applicant the whole of the debt outstanding to her by S Pty Ltd as stipulated in her loan account; and
(c)in respect of the T Company account that was in the name of the applicant (until taken over by the respondent in 2023) and all domain names held in that trust account as at 1 December 2023, the respondent shall update the account information with the name of the applicant and his email ...@... and delete herself as an account owner, administrator and contact of any kind in respect of the account and do all acts an deeds required to facilitate the transfer of the said account and domain names to the applicant.
35.In the event the respondent fails to comply with order 31 of this order, then the applicant and the respondent shall each forthwith do all acts and things, and sign all documents as may be necessary, so as to effect a sale of the Town E property (which, for this purpose shall, unless agreed in writing between the parents, include the “[other building]” located at the property) for the best price reasonably obtainable in the following manner and priority:
(a)within seven (7) days of the respondent advising that she cannot comply with the terms of order 31 or within thirty-seven (37) days of the date of this order, they shall list the Town E property for sale by private treaty with such real estate agent (“the agent”) as is selected by the respondent from a panel of three (3) real estate agents nominated in writing by the applicant and with such selection to occur within three (3) days of the applicant notifying the respondent of the said panel in writing: in the event the respondent fails to select an agent as provided for by this order, the applicant shall be at liberty to select the agent; and
(b)the initial and any subsequent sale price(s) at which the Town E property shall be listed or offered for sale, from time to time, shall be as agreed between the applicant and respondent in writing and, failing agreement, shall be as determined by Mr B, registered valuer; and
(c)the applicant and the respondent shall co-operate in every way with the agent, including, without limiting the generality of the following:
(i)making the key available to the agent; and
(ii)allowing inspections of the Town E property at all reasonable times as requested by the agent; and
(iii)doing or saying nothing to hinder or prevent a sale being completed; and
(iv)the respondent shall ensure the Town E property, including the grounds, are in a neat and clean condition at the time of inspections by the agent and any prospective purchasers; and
(v)signing all documents as may be requested by the agent in relation to the listing of the Town E property for sale; and
(vi)the respondent shall cause all persons currently residing as paying or non-paying tenants to vacate the Town E property permanently not less than fourteen (14) days prior to the date the Town E property is first opened for inspection by prospective purchasers; and
(d)the applicant and the respondent shall each execute a contract for sale in the form prepared by the conveyancer or solicitor having the conduct of the sale, with such contract to have a completion date of thirty (30) days unless agreed by the applicant and respondent in writing; and
(e)unless otherwise agreed by the applicant and respondent in writing, U Conveyancing, Town V in the State of New South Wales shall undertake the sale of the Town E property on behalf of both of them.
36.In the event the Town E property is not sold by private treaty within three (3) months from the date of the initial listing of that property for sale, or within such further period of time as the applicant and respondent may agree in writing, then:
(a)the Town E property shall be listed for sale by public auction with the agent appointed pursuant to this order or such other agent as the parties shall agree upon in writing; and
(b)the reserve price for the purpose of such auction shall be as agreed upon by the applicant and respondent in writing within seven (7) days after the date upon which the Town E property is first listed for auction in accordance with this order or, in the absence of agreement, at a reserve price determined by Mr B, valuer; and
(c)in the event that the bidding at the auction does not reach the reserve price, the applicant and respondent shall negotiate with the highest bidder or any other interested person and enter into a contract for sale of the Town E property at a price which is not more than 10% below the reserve price or at such other price as they may agree in writing; and
(d)in the event the Town E property is not sold at the auction provided for in subparagraph (a), it shall be resubmitted for further auction sale every three (3) months thereafter on the same terms and conditions as applied to the first auction and as provided for in these orders until such time as it is sold.
37.Upon the settlement of the sale of the Town E property, the applicant and respondent shall do all acts and things and sign all documents as may be necessary so as to cause the proceeds of that sale to be paid in the following manner and priority:
(a)in payment of all costs and expenses of sale, including legal costs and disbursements, agent’s commission and auction expenses; and then
(b)such amount to the applicant so as to see him receive half of the total nett value of the property of the parties (where this value comprises the nett sale proceeds of the Town E property plus $168,602 and the applicant already has property valued at $142,078) in order to enable him to discharge his debt to Q Pty Ltd; and then
(c)payment of the balance to the respondent to enable her to discharge her debt to R Pty Ltd and her debt to the applicant in the amount of $3,025 (being half the cost of the single expert witness).
38.Contemporaneously with completion of the sale of the Town E property, the applicant and the respondent shall each do all things necessary, including signing all documents necessary, to cause the withdrawal of any caveats registered on title to the Town E property on behalf of their respective litigation lenders.
Other property
39.Save as is otherwise provided for in this order, the applicant is solely entitled to all property, superannuation and financial resources in his name, possession or control or to which he is or may become entitled, including, but not limited to, the following:
(a)the business operated by each of and S Pty Ltd, W1 Pty Ltd and Z Inc; and
(b)the domain names of, or related to, the businesses; and
(c)the funds in any bank account in his name; and
(d)his interest in Superannuation Fund 1; and
(e)his furniture, furnishings and personal effects.
40.Save as is otherwise provided for in this order, the respondent is solely entitled to all property, superannuation and financial resources in her name, possession or control or to which she is or may become entitled, including, but not limited to:
(a)the funds in any bank account in her name; and
(b)any businesses operated in her name or operated by her in any way; and
(c)her interest in the Superannuation Fund 2; and
(d)her motor vehicle, furniture, furnishings and personal effects.
41.Save as is otherwise provided in this order, the respondent shall be solely responsible for all outgoings and liabilities of and incidental to the Town E property and shall indemnify the applicant and keep him indemnified in relation to all such liabilities.
42.Save as is otherwise provided for in these orders, each of the applicant and the respondent shall be solely liable for and shall indemnify the other against any liability in their name as at the date of these orders.
Execution of documents
43.The applicant and the respondent shall each, within seven (7) days of any request to do the same and otherwise as is required to give effect to the terms of this order, do all necessary acts and things, give all consents and sign all documents as may be necessary as to give effect to this order.
Costs and preparation of documents
44.Except as is otherwise provided for in this order, the applicant and the respondent shall each:
(a)be solely responsible for and shall each pay their own costs of and incidental to their receipt of property in accordance with this order; and
(b)be solely responsible for the preparation and cost of all documentation required in order to implement the transferring of all property to each of them respectively in accordance with this order.
Section 106A Order
45.Each of the applicant and the respondent shall, within seven (7) days of being requested to do so, do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provisions of this order.
46.In the event that either the applicant or the respondent refuses or neglects to sign or execute and return a document within seven (7) days of its presentation to them or a solicitor representing them (“default”), then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is, upon presentation of such document and an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal, appointed and empowered and directed to hereby sign or execute the same in the name of the defaulting party.
47.In the event of a default which requires steps to be taken pursuant to paragraph 46 of this order, the defaulting party shall be liable for the other party’s legal costs incurred of or incidental to rectifying the default pursuant to this order, in an amount as agreed between them or as assessed by the Court.
AND IT IS FURTHER ORDERED THAT:
48.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these orders.
49.In the event that any party seeks an order that another party pay the costs of and incidental to the Initiating Application filed on 22 April 2021 and Amended Initiating Application filed 6 June 2023:
(a)any such party shall, within twenty-eight (28) days of the date of this order, file and serve:
(i)any affidavit necessary to support such application; and
(ii)written submissions in support of such application for costs; and
(b)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve:
(i)any affidavit necessary for the determination of any such application for costs; and
(ii)any written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
50.All outstanding applications, other than any application in which an allegation of contempt is made, are otherwise dismissed and removed from the list of cases requiring finalisation.
51.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 Fact Sheet attached and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Arata & Rex has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders[1] which are in the best interests of 10-year-old X,[2] who was born in 2014, and those property settlement orders, if any, which are just, equitable and appropriate in all the circumstances with respect to the property of his parents.
[1] Family Law Act 1975 (Cth) s 64B; Family Law Amendment Act 2023 (Cth) s 12.
[2]Who is also known by both of his parents as “[Y]” but who shall be referred to in these Reasons as X as this is the name used in orders previously made in the proceedings.
The parents also have an older child, Mr F, who was born in 2005 and is nearly 19 years of age. Obviously, he is not the subject of any orders in these proceedings, although his functioning and care arrangements have been the subject of not insignificant evidence.
Some general comments about these Reasons and the Schedule incorporated into them
So that there is no misunderstanding about how the information recounted chronologically in the Schedule (summarised from aspects of the evidence before the court) which accompanies and forms part of these Reasons has been used in the determination of the parenting orders now in X’s best interests, I record that:
(a)the Schedule does not contain a summary of all of the evidence – whilst it outlines matters I consider to be particularly relevant to the determination of those parenting orders now in X’s best interests, the absence of any specific evidence from the chronological recitation of events should not be taken to indicate that the same has not also been the subject of consideration in the discharge of the obligation to make parenting orders which are now in his best interests and proper; and
(b)I accept that the information recounted therein was provided by whomever is said to have provided it; and
(c)where indicated in the Schedule, I accept that the information accurately records what happened and the opinions proffered by those who have proffered them; and
(d)because of my assessment of the mother’s veracity, perceptions and capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of her recitation of events to the recipients of that information: that is, whilst I accept that she said what she is recorded as having said, I do not necessarily accept that what was said (and therefore reported) was a truthful or an accurate representation of what had, in fact, happened – although it may, at least on some occasions, have accurately represented the mother’s perception of what she recounted as having happened; and
(e)I have deliberately taken the time to set out, in some detail, aspects of the evidence relating to Mr F (particularly that which relates to his mental health issues) because both parents appear to have regarded the other as primarily responsible for the difficulties which have befallen him and Dr P (a psychologist who authored the most recent Family Report) has opined that, if relatively drastic measures are not taken to protect X from exposure to the mother’s behaviours and influences, there is a significant risk that he may end up having to face the same, or not dissimilar, mental health issues; and
(f)unless otherwise indicated, I have accepted the account of events recorded in the various source documents referenced therein in preference to any contrary account provided by the parents.
A very brief overview, including of previous parenting arrangements and interim parenting orders
The father, who was born in 1981, is currently 43 years of age. The mother, who was born in 1979, is currently 45 years of age. They married in Country AA in 2002 and divorced there in late 2015. Despite this, I accept that they continued to live on the same rural property (accompanied, in time, by their respective partners) until about January/February 2021, when the father, his partner and Mr F moved to live elsewhere.
The father currently lives with his partner, Ms BB[3] (with whom he began a de facto relationship in about early 2020) and their three-year-old son, CC, who was born 2021.
[3] Who was born in 1987 and is currently 37 years of age.
The mother lives with her husband, Mr O[4] (whom she married in Country DD in late 2019) and their daughter EE, who was born 2022 and who is now two years.
[4] Who was born in 1977, is currently 47 years of age and who is also referred to as “[…]”.
Previous interim parenting orders
The various interim parenting orders made in this matter were made in the circumstances referred to in the Schedule.
On 9 June 2022, Senior Judicial Registrar Spink made interim parenting orders (the June 2022 order) in terms which included that:
(a)Mr F live with the father and spend time with the mother in accordance with his wishes; and
(b)X live with the mother and spend time with the father each alternate weekend:
(i)commencing 18 June 2022: from 9.00 am Saturday until 5.00 pm on Sunday; and then
(ii)commencing 2 September 2022: from the conclusion of school on Friday until 5.00 pm Sunday (in week 1) and from the conclusion of school on Thursday until the commencement of school on Friday (in week 2); and then
(iii)commencing 23 December 2022: from the conclusion of school on Friday until before school on Tuesday.
The June 2022 order also provided that both parents refrain from allowing X to view movies or television programs that were not suitable for his age and that both refrain from physically disciplining him. Both were to be respectful of the other’s views about religion and parenting whilst he was in their presence.
On 21 March 2023, Baumann J made interim parenting orders which relevantly included that X spend time with the father for nine consecutive nights during the school holidays at the end of Term 1, 2023 and for seven consecutive nights during the school holidays at the end of Term 2, 2023. His Honour also made specific orders about how the alternate weekend time between X and the father would recommence after the conclusion of each of these school holidays.
On 12 October 2023, Judicial Registrar Thiele ordered that X spend time with the father (in accordance with the June 2022 orders) from Friday after school to before school on Tuesday and for half of the school holidays. It was further ordered that a recovery order issue (in terms which would return X to the care of the father) and lie in the Registry until further order.
Previous listings
The matter was originally listed for final hearing commencing on 10 July 2023. However, on 13 June 2023, the father filed an Application in a Proceeding by which he sought that the trial be adjourned because he asserted, in essence, that, as a consequence of matters which had recently occurred, the parenting orders he sought on a final basis had changed significantly, and it was appropriate that an updated Family Report be prepared.
On 6 July 2023, the July 2023 trial dates were vacated; the matter was listed for trial, commencing on 19 February 2024.
On 17 February 2024, the mother applied to adjourn the trial because she asserted, in essence, that the combination of the late loss of her legal representation and the late provision of the updated Family Report and the proposed tender bundle rendered her unable to participate properly in the proceedings.
On 19 February 2024, the trial was adjourned to commence on 8 April 2024.
What happened after Judgment was reserved?
After the matter was reserved on 10 May 2024, the mother brought an urgent application for a Recovery Order.[5] I accept that she did so after the father retained X in his care in the circumstances adverted to in the Schedule.
[5] By way of an Application in a Proceeding filed 6 August 2024.
On 9 August 2024, I made orders dismissing the Application, with the result that X remained in the father’s care.
On 19 August 2024, the father filed an Application in a Proceeding seeking interim parenting orders for X to live with him and spend supervised time with the mother, for up to four hours each week, at a designated contact centre. In response, the mother sought orders that X live with her and spend supervised time with the father.
On 30 August 2024, I ordered that X live with the father and have telephone/video communication every three days with the mother.
On 26 August 2024, the mother filed an Application in a Proceeding by which she sought, amongst other things, a Recovery Order in relation to X and that she be required to provide the court with the results of Mr F’s drug tests. She also sought that the finalisation of the property aspect of these proceedings be stayed.
On 13 September 2024, the mother filed an Amended Application in a Proceeding (as she had been directed to do on 5 September 2024) by which she sought, amongst other things, that:
(a)she have leave to re-open the final proceedings to adduce further evidence; and
(b)she be permitted to use documents obtained in the proceedings for purposes other than these proceedings; and
(c)X be returned to her care.
On 20 September 2024, the father filed a Response, by which he sought that the mother’s Amended Application in a Proceeding be dismissed and that she be ordered to pay his costs of and incidental to the same on an indemnity basis.
On 27 September 2024, I made orders which permitted the parents to rely on the evidence contained within the affidavits each had been permitted to rely on in the interim applications heard after the final proceedings were reserved. I advised the mother that her application for leave to use documents obtained in the proceedings for purposes other than the proceedings would be considered in these Reasons. I informed the parties that the final orders to be made would enable them to be heard in relation to any applications for costs and I otherwise dismissed the mother’s application.
The consequence for X of the orders made after the final proceedings were reserved for Judgment is that he has not spent time with his mother or members of her household (other than via electronic means) since 2 August 2024.
The competing parenting proposals
The father
When interviewed by Ms FF (who authored the first Family Report) in May 2022, the father’s proposal was that the parents should have equal shared parental responsibility for the major long-term issues relating to the children and that X should live with each of them in a week‑about parenting regime, with changeovers to occur from school on Fridays.
Dr PP (who authored the second Family Report) reported that, when she interviewed him in late December 2023, the father’s view was that, if the mother did not have mental health issues and supported X’s ongoing relationship with him, they should parent their son in an equal-time shared parenting regime: that is, he thought that, if the mother was considered to be psychologically stable, it would be in X’s best interests to live in a week-about parenting regime.
The father’s proposal at the start of the trial was that he should be accorded sole parental responsibility for the major long-term issues relating to X; that X should live with him and, for three months, spend weekly supervised time with the mother – after which he should spend unsupervised time with her from 9.00 am to 6.30 pm on each of four Sundays and, thereafter, on each alternate weekend (from the conclusion of school on Friday until the commencement of school on Monday) and for half of the school holidays.[6]
[6]Minute of Final Parenting Orders proposed by the Applicant, sent to Chambers (and the mother and Independent Children’s Lawyer) on 7 April 2024.
However, the orders ultimately sought by the father in relation to the time that X should spend with the mother were as particularised in the Minute of Order attached to the written submissions filed on his behalf.[7] These included that, after supervision of the time ceased, X should spend no more than five consecutive hours in his mother’s care on:
(a)alternate Sundays, including during all of the school holidays other than the end of year school holidays, when time should occur on three Sundays nominated by him; and
(b)Christmas Day; and
(c)Mother’s Day; and
(d)the child’s birthday; and
(e)two occasions of religious celebrations each year, with the same to be nominated by the mother.
[7] Submissions on behalf of the Applicant sealed 8 May 2024.
The mother
When interviewed by Ms FF in May 2022, the mother proposed that she be accorded sole parental responsibility for the major long-term issues relating to the children and that she be permitted to relocate them to live with her in Country DD; she also proposed that, when the children were in Australia, they should spend time with the father from after school Friday until 4.00 pm Sunday on each alternate weekend. She advanced that, if the father also relocated to Country DD, the children should spend time with him subject to their needs; if, however, all continued to live in Australia, she thought the father’s time with X should remain limited to day times only to enable her to be the primary influence in the child’s life.
At the trial, the mother proposed[8] that she should be accorded sole parental responsibility for the major long-term issues relating to X and that he should live with her and continue to spend time with the father on each alternate weekend (from after school on Friday to before school on Tuesday) and between 9.00 am and 1.00 pm on celebratory days. She also proposed that, irrespective of any orders for him to spend time with the father, X should spend time with her for each of the 13 listed religious celebrations each year, from 3.00 pm on the day before the celebration until 3.00 pm the day following the celebration day. The mother also sought to be able to travel interstate, nationally and overseas with X without restriction during the time he is in her care; she proposed that the father only be permitted to travel overseas with X once the child is 13 years of age and subject to satisfaction of a number of conditions.
[8] Amended Response sealed 5 April 2024.
The Independent Children's Lawyer
The Independent Children's Lawyer proposed[9] that it was in X’s best interests for the father to be accorded sole parental responsibility for the major long-term issues relating to him and for him to live with the father immediately. The Independent Children's Lawyer also proposed that X’s time with the mother be supervised for the first three months after final orders are made, after which any unsupervised time between X and the mother (of whatever duration in terms of hours) occur only during the day and not include overnight time.
[9]Submissions of the Independent Children’s Lawyer sealed 22 April 2024.
APPLICABLE PRINCIPLES
The well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[10] and, subject to s 61DA, s 65DAB[11] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[12]
[10] Family Law Act 1975 (Cth) s 60B.
[11] Parenting plans.
[12] Family Law Act 1975 (Cth) s 65D.
In deciding whether to make a parenting order, I must regard X’s best interests as the paramount consideration.[13] The matters to be considered in determining those parenting orders which are in X’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[14] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in his best interests. Rather, I have considered all relevant considerations in arriving at my conclusion about those orders which are in X’s best interests.
[13] Family Law Act 1975 (Cth) ss 60CA and 65AA.
[14]See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Similarly, it is unnecessary to refer specifically to the evidence of each of the witnesses called in the proceedings; I have had regard to the same in arriving at those findings which must necessarily be made, in the context of the parenting orders proposed by each of the parents, in determining those parenting orders which are now in X’s best interests.
Whilst the mother’s evidence, when cross-examined, took issue with some aspects of the report prepared by Ms FF in May 2022, Ms FF was not required for cross-examination. To the extent that it is necessary to do so, I record that, where the evidence given by Ms FF and the mother differ, I prefer the evidence given by Ms FF.
The benefit to X of a meaningful relationship with both parents[15]
[15] Family Law Act 1975 (Cth) s 60CC(2)(a).
The Act does not define the term “meaningful relationship”, nor does it prescribe criteria on which the court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life. In McCall v Clark,[16] the Full Court concluded that the preferred interpretation of “benefit to a child of a meaningful relationship” is the prospective approach. That is, the court must consider and determine whether there is a benefit to X in having a meaningful relationship with each of his parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent.[17] If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect X from physical or psychological harm.[18]
[16] (2009) FLC 93-405.
[17]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ (‘Vigano’).
[18]Vigano at [128]-[129] per Bryant CJ, Strickland & Murphy JJ; Family Law Act 1975 (Cth) s 60CC(2A).
Neither parent advanced that X’s best interests will be met by ensuring that he does not have the opportunity to continue to develop and have a meaningful relationship with both of them. Both parents positively advanced that X’s best interests would be met by him having the opportunity to spend time with the parent with whom he does not live – albeit that such time should occur in the manner that each contended for.
Having regard to the expert evidence that is before this Court, I consider that, provided such relationships can develop in circumstances in which he is reasonably protected from harm, there is a benefit to X in having the opportunity to have meaningful relationships with both of his parents.
The imperative of protecting X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[19]; family violence[20]
[19] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
[20] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
Authority makes it clear that the resolution of allegations of abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is X’s best interests.[21] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting him from harm.[22]
[21] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[22] Family Law Act 1975 (Cth) s 60CC(2)(b).
In determining whether X will be at an unacceptable risk of harm if his time with a parent continues to be unsupervised, the court undertakes a predictive exercise that requires the determination of whether, based on the evidence before it, it considers there to be a risk to him in the future – the predictive exercise involves an assessment of the magnitude of the risk and the harm that would be caused to him if the risk was manifest, and the consideration of whether matters can be put in place to adequately mitigate that risk becoming manifest. It is unnecessary for a risk to be assessed as being “probable” before it is unacceptable; depending on the magnitude of the risk and the harm which X would suffer if it eventuates, the possibility of its occurrence may suffice for it to be regarded as “unacceptable”.
A conclusion that an unacceptable risk of harm exists may be based on matters such as plausible but unproven allegations of abuse made by a subject child (or another child) against the parent alleged to pose the unacceptable risk of harm. Whilst conjecture about the future is based on historical facts and circumstances, only the relevant historical facts need to be proven on the balance of probabilities.[23] An accumulation or coalescence of factors, not individually proven on the balance of probabilities, can still be sufficient to demonstrate the existence of an unacceptable risk of harm to children.[24]
[23] Isles & Nelissen (2022) FLC 94-092.
[24]Eastley & Eastley (2022) FLC 94-094 and the inferential reference at [31] to Johnson & Page (2007) FLC 93-344 at [68]–[71].
In assessing the evidence about whether either parent poses an unacceptable risk to X, I note that the state authority responsible for child welfare has not undertaken any formal investigation or determination of safety concerns about either parent.
Given that, to varying degrees, both parents have regarded the other as responsible for Mr F’s mental health and other issues and have asserted, again to varying degrees, that, because of the same, X will be at risk of suffering the same fate if he continues to live primarily with the other, it is, I think, of assistance to consider some aspects of the evidence relating to Mr F and his relationship with his parents when considering whether X will be at an unacceptable risk of harm in the unsupervised care of either parent.
As noted in the Schedule, Mr F left the mother’s primary care in April 2020 and moved to live with the father and Ms BB in the other residence on the Town E property. As also noted there, in around late January/early February 2021, the father, Ms BB and Mr F, moved to live away from the Town E property; until February 2023, Mr F lived primarily with the father and Ms BB, before moving to live primarily with the mother for a very short time before he travelled overseas to Country K and then Country DD. As set out in more detail in the Schedule, after he returned to Australia in mid-2023, he has lived mostly with the mother when not hospitalised for mental health issues or living, in essence, on the streets.
Will X be at an unacceptable risk of harm if his time with the father continues to be unsupervised?
A significant aspect of the mother’s case that it is in X’s best interests to live primarily with her is her contention that, by engaging in a deliberate and systemic course of conduct, the father alienated Mr F from her in the years preceding him leaving her primary care in April 2020 and, consequently, there is an unacceptable risk that X will be alienated from her in the same way if he lives primarily with the father.
The mother’s evidence about what she alleges are the consequences of the father’s alleged systemic alienation of Mr F included that, between late 2019 and late 2021, Mr F treated her abusively and did not recognise her birthday or Mother’s Day; during a nine month period (when they were still both living at the Town E property), he spent five to 10 minutes per month with her;[25] from March 2020, he stopped calling her “mum” and began to refer to her by her first name or derogatory terms, such as a “fucking lying bitch”;[26] after he left the Town E property with the father in early 2021, he did not return her calls or texts and, despite living only five minutes away, did not visit her.[27]
[25] Affidavit of the mother filed 8 April 2024, paragraph 185.
[26] Affidavit of the mother filed 8 April 2024, paragraph 172.
[27] Affidavit of the mother filed 8 April 2024, paragraph 185(h).
Despite this evidence and:
(a)her evidence that she has been the victim of physical, emotional and financial abuse perpetrated by the father and has been subjected to coercive control by him; and
(b)her reports to the authors of both Family Reports, and to others, that the father subjected her to family violence (perpetrated in the children’s presence), assaulted Mr F physically more than once and subjected him to a deliberate course of conduct over a number of years for the purpose of alienating him from her; and
(c)her consistent assertions that Mr F’s described behaviour toward her is the result of the father’s parenting of him and his exposure to the father’s domestically violent behaviour; and
(d)her evidence, when cross-examined at the trial, that she continued to believe there was a possibility that the father might try to kill X,
the mother continued to propose that final orders be made for X to spend four nights each fortnight in his father’s care.
The combination of:
(a)the conclusion that the mother is a person who is very focused on discharging her parenting duties; and
(b)the mother’s history of retaining X in her care at various times – as adverted to in the Schedule; and
(c)the mother’s previous application to relocate the children to live with her in Country DD – which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction; and
(d)the mother’s proposal that orders be made to permit her to remove X from Australia for the purposes of overseas travel,
has caused me significant doubt about the mother’s bona fides in proffering the proposal for final parenting orders that she has advanced.
Further, given that the mother’s case did not involve her abandoning the allegations she has previously made about the father’s alleged conduct, it is, I consider, appropriate that I assess the same and express findings about whether the evidence persuades that X would be at an unacceptable risk of harm if his time with his father continued to be unsupervised or he lived primarily in his care.
Such issue has also been the subject of consideration in the various expert reports prepared during this matter.
Ms FF’s May 2022 report
Ms FF noted that the mother claimed she had been a victim of coercive and controlling relationship dynamics, that the father had perpetrated physical, verbal and financial abuse against her and had exposed the children to family violence, and that he had deliberately and systemically acted to alienate Mr F from her, such that X was at risk of being similarly adversely influenced. She also noted that the mother asserted that the father had physically disciplined Mr F and that, because his parenting did not align with her religious views, the children were at risk in his care.
The mother told Ms FF that the co-parenting relationship had become “violent” when the financial split became contentious: she asserted the father had wanted an ongoing relationship with her and had punished her when she returned from Country DD, having married Mr O. She asserted that his controlling and abusive behaviours were not isolated but, rather, were a pattern of behaviour she only recently appreciated since attending counselling which focused on family violence. I accept she drew Ms FF’s attention to her childhood abuse. She alleged that, throughout the marriage, the father had pushed her, punched holes in walls, smashed things, and damaged property; she said that, in 2017 when X was a baby, the father had attempted to choke her after an altercation in the bathroom. Although they were already divorced, it was this event that led her to finally separate from him.
I accept the mother advanced to Ms FF that the father had encouraged and supported Mr F’s aggressive tendencies; she said Mr F had become increasingly conflictual by nature and had focused on electronic entertainment instead of following his music and religious passions and strengths – which had caused her considerable concern because she had invested a great deal of time offering him the opportunity to excel in his strengths.
I accept that, in speaking with Ms FF, the mother described herself as the victim of the father and Mr F’s dysregulation and the father’s conduct in encouraging Mr F to be violent and reject her, although she also acknowledged that a neighbour had twice called the police after she and Mr F had argued, and he had run to the neighbour’s home. She said she perceived Mr F’s acts of rebellion were the result of the father inviting him to collude against her and asserted that Mr F had been overly exposed to adult issues and deliberately alienated from her: having conducted considerable research into alienation, she had concluded that Mr F’s behaviour met the described criteria.
When interviewed, the father claimed that the allegations of domestic violence against him were without foundation: he asserted that, whilst the parental relationship was characterised by mutual conflicts, he primarily had been the victim of the mother’s volatility; he noted the AVO had issued without police speaking with him and said the mother’s claims – made only in the second affidavit she filed in these proceedings – were sweeping and inconsistent. The father also asserted that the mother had threatened to restrict his access to X and claimed she was violent unless he agreed to her financial settlement terms.[28] Ms FF reported that the father also disputed the mother’s claims that X was at risk in his care. She said he described age‑appropriate parenting practices which she considered demonstrated considerable reflective parenting capacity.
[28] Family Report of Ms FF dated 10 May 2022, paragraph 34.
Ms FF also noted that the evidence suggested that (I infer, despite the mother’s allegations) these parents had a relatively amicable co-parenting relationship from 2015 to approximately 2019/20 “when they both re-partnered and the matter of separating their financial commitments became conflictual”. I consider this assessment to be accurate. She also noted – again accurately, in my view – that, throughout this period, the parents appeared to have had significant trust in the other’s parenting: for example, the father left the children in the mother’s sole care for periods of a week at a time during a small number of business trips and the mother left three year old X in the father’s care when she travelled to Country DD; she left Mr F in his care for about six months when she travelled to Country DD with X.
I note that, having appropriately recorded that the mother’s allegations about family violence and parental alienation were a matter for evidence, Ms FF expressed her view that there was, at that stage, limited evidence to support a conclusion that the mother had been the victim of such dynamics. It seems to me – as I think it did to Ms FF, particularly given Mr F’s comments to her (about which more is said later in these Reasons) – that there is every likelihood that the parental relationship was mutually dysfunctional, particularly during its latter stages.
Ms FF assessed, in essence, that many of the concerns raised really constituted differences in parenting style and approach rather than amounting to a risk of harm; she commented that, insofar as X was concerned, the mother’s primary concerns were the father’s parenting practices in not adhering to her religious practices and exposing X to western culture, which she contended undermined his relationship with her and adversely impacted upon him, causing him distress.
Ms FF also outlined that, when interviewed, the father impressed as being clear and child focused; he did not denigrate the mother; he remained focused on increasing his time with X and described appropriate parenting practices and routines; he expressed concern for the children and the sibling relationships from a child-focused perspective; she thought his insights into X’s needs were reflective and child-focused; and he was able to describe methods of being attentive to, and soothing, X if he became distressed overnight. Ms FF concluded that there were no indicators that X would be at risk of suffering emotional or physical harm when in his father’s care.
Dr GG, a psychiatrist
Dr GG interviewed the father in person in October 2023 and by video in November 2023. I accept his evidence that, at assessment, there was no evidence the father had a clinically significant psychiatric disorder. I also accept his evidence, when cross-examined at the hearing, that he had not diagnosed the father as having a personality disorder; it was his opinion that the father did not have a history that was suggestive of there being an increased risk of parenting problems or child abuse.
Dr P’s February 2024 report and evidence
I accept the mother told Dr P that the father had engaged in a process of “alienation” which had resulted in Mr F being excluded from her life for multiple years after separation and only reconnecting with her in early 2023; she also said that she and the children were victims of the father’s abusive behaviours and they were traumatised by their real life experiences.[29] I accept that the father denied to Dr P that he had engaged in any behaviours referred to as “alienation” to form a wedge between the mother and Mr F; he said Mr F rejected the mother because of his own life experiences of her; he said he had not engaged in any undermining behaviours to fracture Mr F’s relationship with the mother.[30]
[29] Family Report dated 16 February 2024, paragraph 19.6.
[30] Family Report dated 16 February 2024, paragraph 19.7.
I accept that, when interviewed by Dr P in December 2023, the mother asserted that the father had been historically and continually abusive of both her and the children and presented as an unacceptable risk to X; she contended X struggled with his time with the father (which was then occurring in the very four-night block she proposed should continue on a final basis); she also contended, on the basis of her view that the father had deliberately undermined Mr F’s relationship with her, that there was a risk that, if X spent more time with his father, the father would also undermine their youngest child’s relationship with her.
I also accept that, in her discussion with Dr P, the mother asserted that the father had been violent, physically abusive, sexually abusive, financially abusive and had perpetrated coercive control over her during their relationship; she said the children had witnessed his abusive behaviour toward her and that he had been abusive to them – as well as being neglectful of Mr F. She asserted the father had mental health issues, lied and twisted things around, had a personality disorder and was not emotionally stable. She contended he had a history of alcohol abuse and had also used marijuana.
Dr P noted that the father admitted several historical physical altercations and past problematic behaviour between the parents; she considered that, in his discussion, he demonstrated insight and accountability; she thought the views he expressed were both genuine and balanced. Dr P noted the absence of historical involvement of police, medical professionals or counsellors to support the mother’s claims of allegedly abusive behaviour perpetrated by the father; she also thought the mother’s actions in leaving a relatively young X in the father’s care whilst she travelled overseas for a number of months was particularly pertinent to the consideration of the likelihood of the father acting in the manner alleged by the mother. As Dr P did, I consider leaving such a young child in the father’s care to be completely inconsistent with any suggestion that, at that time, the mother considered that, because of his alleged conduct, the father represented a risk to X.
I am not persuaded that, if the father had acted as the mother contended he had, she would have been so reckless, uncaring and deliberately dismissive of X’s need to be safely cared for as to leave him in the father’s care while she travelled to Country DD for her own purposes. I am simply unpersuaded that she would have deliberately put X at risk of suffering harm if she then genuinely thought that the father posed a risk to him.
I note that Dr P also opined that the mother’s confrontational communication with the father was inconsistent with her holding a genuine fear of him; she noted the police to whom the mother had reported feeling threatened by the father’s text messages did not interpret the messages to be threatening. Dr P also suggested that the mother’s claims about the father’s alleged conduct appeared to have escalated over time – for example, the wording she initially used to describe the “door incident” had been that the father had broken the door but, over time, this had changed to be a recounting that he had smashed the door and disfigured her face; Dr P opined that this could be the consequence of either narrative development by the mother or a confirmation bias.
When cross-examined about her assertion that the mother has an ongoing narrative of distrust of the father, Dr P said she had considered whether this might be the consequence of her lived experience of him; whilst she appeared to accept that the mother’s account could be her perception of events, she reiterated that the opinions she had expressed were based on the information provided to her and, I infer, her interpretation of the same. She reiterated that, based on the information provided to her, she could not see an objective basis for the mother’s assertion that the father was unsafe vis-à-vis X (that is, presented a risk to him) and, consequently, she considered this to be an unfounded belief.
Dr P noted that X reported having a good relationship with both of his parents: he was content to see his father, did not seek any change to the care regime which saw him live primarily with his mother and spend four nights each fortnight in his father’s care, did not report any issues in relation to his father’s care of him and did not make any allegations that his father had acted in a manner that was abusive toward him.
Dr P’s ultimate assessment, based on the material available to her (as considered in her report), was that the father did not pose a significant risk to X.
I also note that Dr P considered that Mr F’s reported view of the father as abusive and dangerous – as discussed in the Schedule – arose only after he had travelled overseas and spent time speaking with the mother’s friends and family, who spoke to him about the father being abusive; she said it was likely that such conversations influenced and confused Mr F and resulted in him making exaggerated and fabricated allegations against the father following his return to Australia. I certainly consider this to be a plausible explanation for Mr F’s allegations about the father’s conduct. Further, given the significant deterioration in Mr F’s mental health and functioning in the time preceding his return to Australia and thereafter – as detailed in the Schedule – I consider it impossible to place weight upon the allegations he has made, since returning to Australia in mid-2023, about his father’s alleged conduct.
Specific allegations and findings about the same
I accept that, during an argument between the parents in 2006, the father pushed a newly installed door, which fell onto the mother and hit her in the face, injuring her. I am not persuaded that the father smashed through the door with his fist; I accept that the door falling onto the mother was an accident.
I accept that the parents argued on one occasion when the father was bathing X; I accept that, when the mother took over the bathing, the father told her not to be rough with the child and threatened to call the police if she did not stop what she was doing; I accept that, when the father lifted X away from the mother, she slapped him, after which he told her to calm down.
Where the account given by Mr F to the mother and authorities about the incident between him and the father in late 2022 differs from the accounts provided by the father and Ms BB, I prefer the accounts provided by the father and his partner. I am not persuaded that the father deliberately assaulted Mr F; I accept that after Mr F pushed his father, his father (then on crutches and recovering from surgery) pushed him back with one hand to his chest.
I accept the father’s account of what occurred when, many years ago, he kicked Mr F on the bottom. I am not persuaded that the father intended to hurt Mr F or that the consequences of his conduct toward Mr F on that day were as the mother has continued to report them to have been.
When interviewed by Ms FF in mid-2022, the mother said that Ms BB had shown X photographs of herself in the nude; she also said Ms BB and the father had swum naked with X and that, whilst it was appropriate for him to see her in the nude (because she was his mother), it was highly confronting and inappropriate for him to see another woman in the nude. When he was interviewed by Ms FF, X told her that he was concerned his father had, on his telephone, photographs of a pregnant Ms BB, naked in the water – he said: “it is not appropriate for a small boy to see his stepmother naked”.[31] I am not persuaded that, in showing X photographs taken professionally of Ms BB whilst pregnant (which the father showed Ms FF when interviewed), the father or Ms BB acted in an inappropriate or abusive manner toward X or that their actions in this respect suggest that they are likely to act abusively toward him in the future.
[31] Family Report of Ms FF dated 10 May 2022, paragraph 69.
For the reasons expressed, including those in relation to the father’s parenting capacity generally, I am not persuaded that X would be at an unacceptable risk of harm if his time with his father continued in the manner proposed by the mother or if he lived primarily with him.
Will X be at an unacceptable risk of harm if his time with the mother continues to be unsupervised?
The issue of whether X would be at an unacceptable risk of harm if he continued to live primarily with his mother was the subject of discussion in the expert reports prepared in the matter.
Ms FF’s May 2022 report
I accept that, when interviewed by Ms FF, the father alleged the mother “lost it” with X and had physically harmed him – for example, during an incident in the bathroom where she shook him; he said that, contrary to the mother’s account that he had been violent to her on that occasion, he had been protecting X from the mother. He also asserted that:
(a)whilst the mother had never been formally diagnosed with any mental health conditions, he thought her responses were extreme and raised concerns in relation to a type of personality/mental health issue;[32] and
(b)the mother had falsely accused him of family violence in order to further her case; and
(c)particularly during their cohabitation, he had been subjected to verbal and, occasionally, physical assaults from the mother and he and the children had been subjected to her dysregulated behaviours and control and she had used physical discipline on both children; and
(d)the mother’s spiritual and religious beliefs had become so extreme that they impacted negatively on the children’s wellbeing and emotional development.
[32] Family Report of Ms FF dated 10 May 2022, paragraph 37.
Ms FF thought the father had described the relationship between Mr F and the mother with detail and considerable reflective insights – she said he had described a highly conflictual relationship between them, where the mother imposed her will on Mr F and chastised him if he did not comply: for example, she broke his musical instrument on two occasions because of conflict around his commitment to practice. The father also told Ms FF that Mr F had often become distressed, apologised to his mother and cried; he alleged that the mother would physically lash out at Mr F.
I accept that the father said he regretted applying pressure on Mr F to resolve issues with his mother – as is set out in the Schedule, Mr F told a counsellor in August 2020 that he had felt unsupported by his father because of his failure to protect him from his mother. The father also reported that, during counselling, Mr F had been overwhelmed by his mother’s failure to take any responsibility for her actions and that she had rewritten the narrative in a manner that cast all blame on him – for example, when they argued and he shared how he was feeling with his mother, she had dismissed this and told him that they were not his feelings but his father’s, which he had adopted.
Mr F’s May 2022 interview
I accept that when Ms FF interviewed Mr F (then 16 years of age) in May 2022, he impressed her as a mature, sensitive, and emotionally mature adolescent. She thought his emotional response at various times during the interview appeared to be congruent and genuine; she reported that he had impressed as an intelligent and articulate young man with greater maturity than his years.[33]
[33] Family Report of Ms FF dated 10 May 2022, paragraph 50.
I accept that Mr F told Ms FF that the purpose of her interview was to discuss the issues between his parents and how they impacted on him and X; she noted he said he was not concerned about expressing his views because he already spoke freely with his father and was no longer concerned if his mother was angry at him: he said (in essence) that, with counselling and the support of the adults in his father’s household, he had learned to emotionally protect himself from his mother. I accept Mr F told Ms FF that: “I used to be scared and intimidated by her but that is no longer the case.”
I also accept that, during the interview, Mr F cried and told Ms FF that he loved his parents and did not hate them – he said: “I am only telling you what happened to me. I have no reason to not tell you the truth. I am just really worried my brother will go through what I did”.[34]
[34] Family Report of Ms FF dated 10 May 2022, paragraph 51.
I accept that Mr F provided Ms FF with the overview of his parents’ relationship that she set out in her report: this included, in essence, that his parents had shared the parental responsibilities after they divorced, including after his father moved to live in his own other residence on the Town E property. He also said that, during this period, he had approached his father with his concerns or needs because he had experienced his mother as being “volatile”.[35]
[35] Family Report of Ms FF dated 10 May 2022, paragraph 52.
I accept Ms FF’s recounting that Mr F cried on a number of occasions when he described his relationship with his mother: he said he had retreated to his father’s other residence on a number of occasions after he was allegedly assaulted by her; he also said that a resident on the same property had twice insisted on telephoning the police when he sought her help after the mother’s alleged assaults.
I accept Mr F also told Ms FF that, throughout his childhood, his mother had regularly hit him on the face, head, or body for not giving her his full attention or not cleaning properly; he also alleged that she had yelled at him to stop crying when she became angry and the more he cried, the angrier she became – he said these were not isolated incidents but had happened on a daily basis and that she would escalate from zero to 10 within seconds; he also said that she had once broken his nose. Mr F also told Ms FF that the father frequently yelled at them both to “please stop”.[36]
[36] Family Report of Ms FF dated 10 May 2022, paragraph 53.
June 2023 KK Family Services notes
I accept, as set out in the service’s notes, that when Ms AE spoke with the Principal of X’s school, he advised that X experienced social issues at school (“he struggles to play with other children”) and said that the school had made a rule that he was not allowed to play with younger children in Years 1 or 2 because he would be controlling or “dominating with them”.
I accept that the Principal also advised Ms AE that: X had been included in a programme aimed at developing social skills; whilst he always had a full lunch box, he did not usually eat all of his lunch; the learning support team had advised that whilst X was preforming at stage level across all key learning areas, he often sought further clarification after the class had been instructed about something, as though he may have lost focus when the instructions were being given.Exhibit 1, p 155 Mid-2023 Police records
I accept, as set out in the police documents, that when an officer contacted Mr F to ensure that he wanted there to be a “no contact” condition on the AVO, Mr F confirmed that this was the case – he was adamant that he needed no contact with the father for his own safety and well-being.Exhibit 1, p 41 Mid-2023 Police records
I accept, as set out in the police documents, that the police attended on the father to interview him
about Mr F’s assertion that, during an argument in November 2022, he had punched him in the stomach.
I accept that the father denied all allegations and explained that he had been on crutches and had pushed back at Mr F because his son had been pushing him out of the bedroom; I also accept that Ms BB provided a statement to police and that her recounting of what had happened was similar to that provided by the father (although they also differed about whether Mr F had fallen to the ground and vomited a bit).Exhibit 1, p 41. June 2023 KK Family Services notes
I accept, as set out in the service’s notes, that when Ms AE saw X individually, he:
indicated feeling confused, but was unable to expand further on his experience of this feeling; and
was completely unable to respond to questions such as “tell me about the nicest thing someone has done for you” – although he was able to answer a request to tell her about a time when he was angry; and
struggled to identify or reflect on emotions other than anger and demonstrated difficulty engaging in conversations outside of his own topics of interest; and
spoke about being disappointed that Mr F never paid attention to him or played with him (which he indicated hurt his feelings); and
indicated that school was going well and he had no further worrying issues with other students.Exhibit 1 p, 154 June 2023 The father said the police provided him with a copy of a letter they had received from Mr F and advised him that they would be applying for an AVO against him on Mr F’s behalf. 6 June 2023 I accept the father filed an Amended Initiating Application by which he sought, amongst other things, that X live with him and that he be able to particularise his proposal for the child’s time with the mother after the provision of a Family Report. June 2023 Dr JJ’s notes
According to the notes of Mr F’s consultation, he told the practitioner, amongst other things, that:
he felt very panicky and worried about his father getting him: he said he had contacted his father’s partner and she had recorded him – he also said that “I did care for her somewhat”; and
he was not drawn to have a relationship with his father now; and
he had made a video statement to police and was pressing charges; and
the father denied the charges and there was an AVO hearing the following week; and
he was running a “business”; and
he was not using illicit drugs as there was no need for him to do so as he felt much better.
I accept, as set out in the notes, that after Dr JJ asked him about his earlier mention of a paedophile ring, Mr F told her it had all come up – the case was against a “influential and important person” and, in essence, that whilst he had initially felt unsettled, he was now going “perfectly fine”.
I accept that despite this, Dr JJ thought that Mr F had implied that his life may be at risk; she also wrote that he seemed “very unemotional/oddly disconnected” despite what he reported.Exhibit 1, pp 85-88. Approximately June 2023 Dr JJ’s notes
I accept that a “Certificate of Injury” (Victims Services, Department of Communities and Justice) form that Dr JJ completed for Mr F asserted, amongst other things, that:
Mr F’s stated injury occurred between early 2020 and early 2023 and involved domestic violence toward him by his father in the context of an acrimonious separation between his parents and an ongoing family law dispute; and
Mr F had reported a range of abusive experiences including neglect (making him sleep in a tent), inadequate nutrition, financial control and emotional abuse (undermining his relationship with his mother and supporting his alienation from her) and some physical abuse (pushing him in the ribs) whilst he was living with his father; and
Mr F was then living with his mother and had an AVO preventing his father from contacting him – he reported being happy and settled and there were no presenting symptoms.
I accept that Dr JJ expressed a provisional diagnosis as follows: “[Mr F] reports low self-esteem, drug use, confusion, anger towards his mother, which he now feels was engineered and manipulated by his father.”
I accept Dr JJ also noted that she had not seen Mr F before his reconciliation with his mother – she commented that some of his reported behaviour could be related to more general adolescent turmoil and adjustment, although she also said that the psychological trauma of dealing with his parents’ ongoing conflict was evident.Exhibit 1, p 97 June 2023 KK Family Services notes
According to the notes of the father’s session with Ms AE, he advised, amongst other things, that:
he had been served with an interim AVO, which prohibited him from communicating with Mr F unless Mr F wanted to communicate with him; and
he was concerned about the impact on his relationship with Mr F of Mr F continuing to live with the mother and about her potential impact on Mr F’s long-term life aspirations, opportunities and emotional stability; and
the mother had refused to allow X to have his regular fortnightly visit; and
he was fearful about the loss of his relationship with X; and
he was also worried the mother was dealing with mental health issues that impacted negatively on both children.Exhibit 1, p 116 June 2023 I accept that the father consented, on a “without admissions” basis to an AVO being made against him in Mr F’s favour on the first occasion the matter returned before the court.
According to Dr P’s summary, Mr F’s application contained the assertions that: he was fearful of the father; he feared for his safety due to the things he was exposed to as a child; the “alienation” the father had created between him and his mother caused him physical and emotional pain to the point where he had attempted to take his life on many occasions.June 2023 Dr JJ’s notes
According to the notes, when Dr JJ saw the mother and Mr F:
they advised that Mr F had gone to a local court for the ADVO and the father had not fought against this; and
Mr F complained about his tail bone and the mother said that, in 2014 (when Mr F was eight or nine years of age), the father had kicked him: when this was raised with the police “right now” and they spoke to the father, he denied everything and blamed Mr F for his misbehaviour; the police were not going to “go for” any charges at all, but it was relevant for the family court; and
the mother said she had been withholding X from the previous three visits with the father and the father was trying to “label” X as having ADHD or ASD; and
the mother spoke about the father spying on her – even before they separated (e.g. monitoring her phone); and
the mother spoke of Mr F’s experience in his father’s care, including him trying an illicit substance and said that she thought that the father was repeating with X the pattern he had shown with Mr F; and
the mother spoke about Mr F providing testimony after he was 18 years of age – at which point the doctor said that she would not recommend this as being in his best interests; and
the mother spoke about the father turning up at her place – to which the doctor responded that she thought that highly unlikely as it would result in him breaching the AVO; and
the mother told the doctor that the father was seeking “sole custody” of X and, when they discussed her possible breach of the orders, she said that the father had not filed for recovery; and
the mother advised that Mr F had been abused by the father on so many fronts – he was not given any money and was expected to get his own food.
I note that Dr JJ recorded that the mother denied previously making any positive comments about the time between X and his father; she also wrote that she (Dr JJ) was sure that the mother had done so.
I accept that, when the mother asked Dr JJ to write a comprehensive report, the doctor declined to do so because she regarded this was not her role. I accept she also expressed concerns about Mr F’s mental health.Exhibit 1, pp 89 - 91 June 2023 KK Family Services notes
According to the service’s notes, when Ms AE contacted the mother to speak with her about re-scheduling a counselling appointment for X, the mother indicated that:
she had taken Mr F to the general practitioner yesterday in relation to a historic tail bone injury and x-rays had been completed; and
Mr F had told her that he had been managing this injury since childhood; and
the father had applied for full-time care of X; and
because of her other commitments she was unable to say when X would be able to attend for his next counselling session; and
she intended to speak with a domestic violence counsellor the next day.Exhibit 1, p 131; 153; 171 June 2023 The mother filed a Response by which she proposed that the father spend supervised time with X at a Contact Centre. 4 July 2023 Dr JJ’s notes
According to the notes, of the mother’s consultation, the mother told the practitioner, amongst other things, that:
the father had been manipulating information from the school about X and the issue of ASD; and
she thought the father was very driven or obsessed with her and, when the doctor suggested that she (the mother) may be equally driven, she said she felt she could not let go now because it was about her reclaiming her space; and
X was not missing time with his father and was quite happy as he was; and
whilst X was quite happy to see his father and get his gifts, she felt this was not meeting his educational needs and was not about them being connected.
I accept that, when asked about her concerns about Mr F’s drug use, the mother was hopeful that he would see her as “equipped”: she said “I’m not powerless anymore” – a comment led Dr JJ to say that she had never seen her as powerless.
I also accept that the mother advised Dr JJ that:
Mr F had enrolled in university and was very smart; and
X was “very advanced”; and
she had asked for supervised visits between the father and X.; and
she felt that she did not have time to be a “normal mum”; and
she was looking into ASD and domestic violence.
I accept that, during their discussion about autism, the mother said she felt that X’s friendships were fine – when the doctor suggested that she ask the school about X’s social functioning, the mother reported they saw him as a “leader”.Exhibit 1, pp 92 and 93. Mid July 2023 The mother said that Mr F resumed using illicit drugs. Affidavit of the mother filed 21 August 2024, paragraph 47. August 2023 The father said that comments X made to him during their video communications suggested that Mr F was no longer living with him and the mother. August 2023 The father took a hair follicle test to test for illicit drug use. August 2023 The father proposed the mother do a hair follicle test for illicit drug use. 24 August 2023 Dr JJ’s notes
I accept that, in the correspondence she wrote about the mother to Victims Services, Dr JJ advised, amongst other things, that:
she first met the mother in July 2022 and had a further 14 appointments with her, always via telehealth; and
the mother had decided to end the engagement because she wanted to see someone closer to where she lived; and
the mother had reported that:
she was the victim of prolonged domestic violence and narcissistic abuse by the father; and
she and the father had been involved in very protracted and acrimonious legal dispute in relation to both parenting and financial matters; and
she had initially regarded the father as alienating Mr F from her, but he had subsequently returned to live with her; and
she had alleged that the father had been psychologically abusive toward Mr F; and
she regularly taught from her home – whilst she appeared to function very well on a day-to-day basis, the legal proceedings appeared to take up a lot of her time and energy; and
she was the victim of childhood sexual abuse from her mother’s partners, but she had not wanted to discuss this and had said that she had resolved issues related to this.Exhibit 1, pp 98 and 99 August 2023 KK Family Services notes
According to the service’s notes, when Ms AE contacted the mother about X and re-scheduling a counselling appointment for him, the mother advised that:
he was doing well since his older brother had returned; and
she had spoken with the school, which had told her that X had no concerns socially or otherwise and had shown “outstanding academic performance” – which she said was the same at home; and
she did not have concerns until the interim court hearing in September, at which the father was seeking orders for X to live with him; and
she would keep Ms AE in mind if X needed counselling.Exhibit 1, p 171 September 2023 The mother’s affidavit includes her evidence that Mr F had relapsed in substance abuse; she does not say Mr F is no longer living with her. September 2023 Mr F was admitted to hospital as an involuntary patient. September 2023 I accept that Mr F contacted the father and that he was then in the mental health unit at G Hospital. 11 September 2023 I accept that Mr F called the father from the G Hospital mental health unit and asked him to come; I accept that, despite the terms of the AVO, the father attended as requested and saw Mr F in the presence of a nurse; I accept Mr F was obviously unwell and upset and crying. September 2023 I accept that, when the father spoke to Mr F’s doctors, they advised that he had suffered a psychotic episode and hallucinations that might be drug induced. September 2023 I accept that the father’s solicitors wrote to the mother’s then solicitors in terms which included that:
Mr F had tried to call the father and left a message that he was in hospital; and
when the father spoke with him, Mr F was distressed and asked him to visit him as soon as possible; and
the father had spoken to Mr F’s doctor and, whilst he was aware that seeing Mr F would breach the AVO, he nevertheless attended on their son at the hospital; and
the father understood that Mr F had been diagnosed with psychosis and that the mother had been involved with his involuntary admission to hospital some days earlier; and
Mr F had told the father he had not been living with the mother for weeks/months – but had been staying at various places; and
the doctor told the father that Mr F had told the hospital that he had been using an illicit substance heavily before his admission; and
Mr F had expressed a wish to return to the father’s home to live.
I accept that the mother was asked to advise of a number of matters including: when Mr F had left her home; when she had become aware that he was seriously mentally unwell; the details of any doctors or mental health professionals to whom she had taken Mr F since May 2023.Exhibit 1, pp 52 and 53.
September 2023 The father said he asked the mother for Mr F’s address and information about his mental health and received no response to this request. 15 September 2023 I accept that, during a mention at court, the father sought an order authorising the treating professionals to provide the parents with information about Mr F. September 2023 I accept that Mr F was discharged from the Town G Hospital following his first admission for psychosis. September 2023 Mr F was discharged from hospital.
The father said that he appeared unwell and delusional when he intervened in his video call with X.September 2023 Mr F was admitted to hospital for drug induced psychosis – the mother reported a history of disrupted childhood and alleged parental alienation and increased substance use; Mr F was assessed as having no insight, grandiose delusions and as being at a high risk of misadventure.
The mother was said not to want the father to have access to information from the doctors on the ward and reported that Mr F had been declining in previous months – he had run away frequently, increased his substance use, been paranoid, acted oddly and had recently threatened to kill himself.September 2023 The father provided the mother’s solicitors with results of his hair follicle test, which are clear for the presence of illicit drugs. September 2023 The father said Mr F texted the paternal grandmother saying that he was sort of being held hostage, misquoted and drugged. October 2023 I accept the Independent Children’s Lawyer sought details about matters such as those who were providing treatment to Mr F. October 2023 The father said Mr F arrived at his home at about 8.00 pm; he sounded very unwell and delusional and said he did not want to return to the mother’s care because she was drugging and manipulating him for a court advantage.
I accept the father contacted the mother and she called police and the ambulance service.
I accept the father’s account that the ambulance officer did not consider Mr F unwell enough to be taken to hospital: as he could not remain at the father’s home because of the AVO, the ambulance officers proposed taking him to a friend’s house; I accept that, as he was concerned this person might be a drug user, the father contacted the mother, who advised that she could not do anything that night but could the following day.October 2023 The parents attend an interim hearing – the father sought an order for X to attend on a paediatrician and the mother opposed this. October 2023 I accept that Mr F was involuntarily admitted to Town G Hospital with psychosis, having been persuaded by the father to attend there for a review. Exhibit 1, p 198; 249 October 2023 Town G Mental Health Progress notes
According to the Mental Health Progress Notes, Mr F was taken to his mental health appointment by his father and partner.
Whilst he denied any issues with his mental health, he spoke briefly about “everyone” knowing where he was, said brain waves were used to track everyone’s location, that the team was somehow involved with “satanic practices” and that the practitioner was trying to “frame” him – after which he was admitted as an involuntary patient to hospital.
I accept that, during his discussion with the Psychiatric Registrar, Mr F spoke about being followed by a van (which he thought could be for “trafficking”); he said he wanted to return to live with friends but was unwilling to provide details about them; he spoke about turning 18 and about being able to live on his own without ongoing parental family court stress. He said he wanted to stop the AVO against his father (which prevented his father from having contact with him) and that he wanted to live with his father as he was happy there and was allowed to live as he liked; he also said that his parents did not talk to each other.
I accept that Mr F said his mother “isn’t good with family court” and “lies a lot”; he said she was emotionally over-attached to him and “wants money” from him; his account included that she had never had a job or worked and gained finances from social benefits, donations and child support in the amount of $700 per week (of which two-thirds was spent on tobacco).
I accept that Mr F said his father “doesn’t lie in family court”.
I accept that the Psychiatric Registrar noted, in essence, that Mr F expressed a number of delusions (which are set out in the documents), manifested disorganised behaviours and thought form, and showed blunted affect – the impression was that he spoke with logical thoughts at times, although failed to make sense, with apparent delusions at other times and that he needed ongoing management to prevent vulnerabilities and ensure compliance with his treatment.Exhibit 1, pp 249 – 252
October 2023 An interim parenting order was made to reinstate X’s time with the father in accordance with the 9 June 2022 orders, including for half of the school holidays.
Until the order was made, X had not spent any time with the father since the visit before 26 May 2023, although he had continued to communicate with him via audio-visual calls which happened on three occasions each week.October 2023 Town G Hospital Mental Health Progress notes
According to the notes, Mr F expressed multiple delusional themes during conversation – for example, UFO’s are real; you are all part of the human trafficking ring; they’re trying to kill me; he was driven, demanding, entitled, litigious, suspicious and paranoid and presented as very scared and fearful. He was assessed to be acutely psychotic and thought disordered.Exhibit 1, p 248 October 2023 Town G Mental Health Progress notes
According to the notes, when the mother was telephoned, she advised, amongst other things, that:
Mr F had been completely well in the first three days after he was discharged from hospital but after he started medication in September 2023, he admitted cutting it in half; and
it was only one week before he became psychotic again: she said he had said “You’re going to traffic me” and had taken something sharp from his jacket pocket, held it to his jugular vein and was screaming that he was going to kill himself – he was counting down from 10; and
Mr F left home in late 2023 and went to friends in Town AF – he was taking an illicit substance with a lady who she said had a preoccupation with paedophile rings and trafficking; and
since his admission to hospital, Mr F had contacted friends to ask them to bring him a vape and had sent her text messages saying: “fuck you”; “leave me alone you creepy bitch”; “get me out of hospital”; and
when she had lunch with him the week before, he was “talking nonsense of underground people, people who really live underground” and “about being a researcher for illuminati” and “about being shown a UFO above [Town AF]”; and
the father was applying to remove the AVO (which was going to be heard in October); and
she believed there to have been a clear breach of the order by the father when Mr F was most unwell; and
she believed that Mr F needed counselling for pathological bonding.Exhibit 1, p 244 October 2023 Mental Health Progress notes
According to the notes, when Mr F was reviewed by the Psychiatry Registrar, he:
said his father had taken him to a mental health appointment and, because he believed the review was over, he started to talk about UFOs and the doctors took it seriously and admitted him.; and
said the father’s AVO resulted from the father punching him in the ribs (which broke) and had been in place for eight months; and
said he did not think that his mother was worried about him; and
said he had a business (which he had owned for about three years) which earned more than $2,000/week and had five employees based overseas; and
denied the report of him holding a metal object to his throat and denied suicidality.
I accept Mr F also spoke about his first admission being due to an illicit drug (which he said he had stopped using), although he also described that admission as being: “that was about the cops were working with people in the street to hurt me.” He also denied being psychotic over the previous few weeks and said that what he was going through was due to family members.
I accept the Psychiatric Registrar noted it was now open to consider depot medication given Mr F’s second representation to hospital in a short period of time.Exhibit 1, pp 245-247 October 2023 Mental Health Progress notes
According to the notes, when reviewed by the Psychiatry Registrar, Mr F spoke at length about how unjust his admission was and asked repeatedly to be discharged and was delusional – for example, he strongly believed his medications would kill him; he believed that killing him would be a sacrifice to the illuminati who wanted him dead because he was an informant who had landed a paedophile in jail; he strongly believed that X would be killed and explained that his mother had told him so; he strongly believed that there were 100s of people relying on him and his business for their incomes and that him being locked up was ruining the lives of his staff and artists. He also discussed aliens, UFOs, illuminati and the corruption of NSW Health and psychiatrists. He spoke about hallucinating.
I accept that the impression recorded at that time was of a psychotic episode; it was then unclear if an enduring prodromal period of psychotic illness was emerging and the potential for a mental illness was noted.
Mr F was assessed as masking symptoms; he had no insight into his psychotic presentation and had documented delusions, hallucinations, paranoia, grossly disorganised behaviour and negative symptoms.Exhibit 1, pp 237; 238 October 2023 Mental Health Progress notes
According to the notes, when spoken to by the Psychiatric Registrar, the mother confirmed that Mr F had been using lots of illicit drugs – she said that having gone through his phone, there was proof of this. She also said that he had made threatening calls to her to ask her to collect him from the hospital: he had been over-demanding, which she said was abnormal for him.Exhibit 1, p 238 October 2023 Mental Health Progress notes
According to the notes, Mr F interacted reasonably well with his mother during her visit and she said he was less paranoid; however, staff noted that he had paranoid thoughts about his mother: namely, that she had told him that he cost her twice as much when he was at home compared to when he was in hospital and that she wanted to extend the AVO against the father by another five years so that she could be his sole parent.Exhibit 1, pp 234 and 235 October 2023 Mental Health Progress notes
According to the notes, Mr F was given medication to assist him to sleep in circumstances where he complained of intrusive thoughts about paedophiles.
I accept that earlier observations of Mr F on the unit that day included that, whilst pleasant in his interactions with staff, he remained thought disordered and paranoid. I also accept that, during the day, he said that he wanted to attend a court case the next day so that he could stop an AVO; he also said that “my mother has had me put in here so I cannot go to court tomorrow”.Exhibit 1, pp 229; 230; 231 October 2023 The police did not oppose the discharge of Mr F’s AVO against the father and it was discharged. October 2023 I accept that the AVO in Mr F’s favour against the father was varied to remove the “no contact” provision. October 2023 Mental Health Progress notes
According to the notes, Mr F said that he wanted to go back to living with his mother and, in essence, that it was great there; he also said he felt fine about his father and was not angry at him – he just genuinely did not know why he was in hospital.
I accept Mr F admitted to using an illicit substance one month earlier (“the smallest amount possible”) although he strongly denied ever using any other illicit substances – in particular, he denied ever using specific drugs or any other illicit substance. I accept he spoke about being chased by human traffickers across Town AF with a gun – he said they had chased him for several hours whilst he was on the phone to police, who made up excuses not to turn up.
I accept that, during discussions about the differential diagnoses, Mr F told the reviewing practitioner that “you guys are trying to label me with [a mental illness] before I’m 18; it’s pretty funny and pretty sad”.
I accept that Mr F’s mental state examination revealed that he had behaved in a restrained manner, was manipulative in nature, was guarded and lied during the review; there was underlying hostility in his statements; his affect was blunted; he displayed no insight and expressed perceptions delusions about his income and manifested a paranoia of child trafficking; I accept his insight was very poor, as was his judgement.
I accept that the impression at that time included that there was a high suspicion that Mr F was not truthful about his illicit substance use and was guarding his feelings in order to be released from the hospital.Exhibit 1, pp 225-228 October 2023 Mental Health Progress notes
According to the notes, Mr F’s urine sample tested positive for specific substances: he had recently admitted to recent hallucinogenic use (long term); he said he was looking forward to his father coming to visit him.Exhibit 1, p 224 October 2023 Mental Health Progress notes
According to the notes, the mother confirmed, when contacted, that she was available for a family meeting at 10.00 am but said she could not meet in the afternoon as she had appointments. She said Mr F had blocked her number and she had not spoken to him since Monday – this had happened before when he was unwell, but resolved when he was better.Exhibit 1, p 220 October 2023 Mental Health Progress notes
According to the notes, the father said, when contacted, that his visit with Mr F had gone well; he also said the AVO was at the onset of Mr F’s psychotic symptoms, and it was nice that it had been lifted. I accept that the father also noted, in essence, that the longer conversations with Mr F went, the stranger and more bizarre they became: he said that in long talks, Mr F said that he had been abducted by aliens.
I accept the father said he had first noticed symptoms after Mr F returned from Country K in early 2023; he also said Mr F had called him and had spoken seriously about conspiracy theories, which he said was very unusual. The father said Mr F had then returned to live with his mother and had suddenly taken an AVO out against him and had made strange accusations and expressed ideas that made no sense.Exhibit 1, pp 220 and 221 October 2023 Mental Health notes
The Mental Health Care Plan recorded working diagnoses in relation to Mr F as including first episode psychosis, enduring, with a precipitating factor of being drug-induced (cannabis) in September 2023; the secondary diagnosis was prodromal period of enduring psychotic illness, monitoring for a specific illness.
The Plan recorded, amongst other things, that there was a risk of decompensation in Mr F’s mental state, although he had been superficially polite, pleasant and co-operative with his care.Exhibit 1, p 183 and 184 October 2023 Mental Health notes
On a “Nomination of Designated Carer/s” form, Mr F indicated that his parents were his designated carers and asked that the father be called first.Exhibit 1, p 180 October 2023 Mental Health Progress notes
According to the notes, the father called and advised that Mr F had said that he did not want to go back to his mother’s care; he also said he would be happy to take care of him but was anxious about Mr F returning to using illicit substances after he was discharged.Exhibit 1, pp 210 -212 October 2023 Mental Health Progress notes
According to the notes, Mr F went on leave from the unit with the mother; on returning to the ward, the mother said he had been verbally abusive to her, and she left before speaking further to staff.
When asked what had happened, Mr F said the leave did not go well: his mother just wanted him to stay in hospital so she got more money and she had told him that he had ruined her life by lifting the AVO against his father; he also said his father just wanted to help him and to get him home.Exhibit 1, pp 209 and 210
October 2023 Mental Health Progress notes
According to the notes, the mother called the unit and said that she felt unsafe to have Mr F come home to live with her.Exhibit 1, p 201 October 2023 Mental Health notes
I accept that a request for a Community Treatment Order made to the Mental Health Tribunal by the mental health unit included the following information:
Mr F’s first mental health hospitalisation was in September 2023 (after he was brought in by ambulance after having been found wandering the streets in a highly disorganised manner) and had been characterised by psychotic symptoms of paranoid delusions that people were after him; and
he was discharged into the mother’s care with a working diagnosis of first episode psychosis, thought secondary to illicit substance abuse; and
days after he was discharged, the mother called the Town G Hospital mental health ward and expressed her concerns about his ongoing psychotic behaviour: although an ambulance ultimately attended, Mr F could not be convinced about the need for a mental illness assessment in hospital and he was therefore followed-up in the community (during which interactions he openly expressed a low desire for medication); and
Mr F’s family escalated their concerns that he had enduring symptoms of mental illness with suspected ongoing illicit drug use: they reported medication non-compliance, a recent physical assault of his mother, escalating behaviour of self‑harm (which included him holding a metal object to his neck) and continued avoidance of mental health contacts – it was reported that he had persistent thoughts of being targeted by police, ambulance services and mental health care workers; and
when the family brought Mr F in for a mental health assessment, his presentation included clear psychotic illness symptoms characterised by paranoid delusions of being chased by human traffickers in a van through Town AF, visual hallucinations of aliens and UFOs, grossly disorganised behaviours (like wandering the streets at night) and recent threats of self-harm with assault to others – when attempts were made to explore his topics of concern, Mr F demonstrated circumstantial and thought-blocking thought forms; and
whilst he was initially convinced that his medication was killing him, Mr F could be persuaded to take some medication – observations noted no adverse effects of the same and clear improvements and both parents agreed that their impressions were that he had improved with the use of a specific medication.Exhibit 1, pp 198 and 199 October 2023 Mental Health notes
According to the Mental Health Care Plan, Mr F’s mental state was improved, although his insight into his illness episodes remained limited (and this had been his second admission for psychotic symptoms); he was diagnosed with a disorder and drug induced psychosis. A 6-month community treatment order had been sought because, amongst other things, Mr F had a documented history of medication non-compliance and a refusal to accept appropriate treatment after being diagnosed with a mental illness.Exhibit 1, pp 181 and 182 October 2023 Mental Health Progress notes
According to the notes, a medical intern updated both of the parents about Mr F’s anticipated discharge from hospital and advised, amongst other things, that a Community Treatment Order was active until early 2024.Exhibit 1, p 186 and 187 October 2023 Mental Health Progress notes
According to the notes, Mr F was discharged into the father’s care with the plan that he stay with him at his home; the father was happy to accept his care and appeared understanding of the plan.
It seems he was prescribed antipsychotic medication and had a diagnosis of a mental illnessExhibit 1, p 185 October 2023 I accept that Mr F was discharged from Town G Hospital and collected by the father, who took him camping. October 2023 KK Family Services notes
According to the notes, when a worker conducted a phone review, Mr F advised, amongst other things, that:
he would be camping with his mother during the week and would be available for an appointment in mid October – so one was booked; and
he had a supply of medication and was taking it regularly; and
he had better energy and was more productive – he was working and was making money from this work; and
he was studying, via industry education and certification and was seeing his friends again; and
he had "good" sleep, a "ravaging hunger", that he was “eating too much" and had put on a few kilos; and
his GP was monitoring his weight and he agreed that the service would do the same.Exhibit 1, p 172 October 2023 Mental Health Progress notes
According to the notes, the service noted, should the mother call the ambulance or police, that:
Mr F had been seen holding a sharp metal object to his own throat in a threat of self- harm and this had resulted in a superficial mark only and no serious trauma requiring intervention; and
prior to the most recent hospitalisation, Mr F had assaulted his mother (in the context of her valid concern for his mental wellbeing) to the point where, without a behavioural contract, she was no longer able to have him in her home with her nine year old son.Exhibit 1, p 177 October 2023 Mental Health Progress notes
According to the notes, when a nurse spoke with Mr F, he reported feeling well after his discharge from hospital – whilst he was then with his father, he thought he might move back to live with his mother.Exhibit 1, p 176 October 2023 Mental Health Progress notes
According to the notes, the father called to report that, whilst Mr F’s time camping with him over the weekend appeared reasonable, he had returned from town the previous day in a quite paranoid state – he had spoken about the “illuminati” and “beaming signals to him” whilst he was in town; when he arrived home he went through drawers and cupboards looking for listening devices/bugs and expressed concern, after seeing older vans in town, that he would be snatched from the street.Exhibit1 p 175 November 2023 Mental Health Progress notes
According to the notes, the mother reported that Mr F was sleeping excessively and appeared to have a tremor in his limbs; she advised she would try to have a friend take him to the next appointment because she had a conflicting appointment for herself.Exhibit 1, p 174 November 2023 Mental Health Progress notes
According to the notes, when Dr J (a psychiatrist) saw Mr F with the father, Mr F remained unwell – he had no insight into his paranoid belief about human traffickers in Town AF, he repeatedly said his medication was killing him and he wanted to stop taking it; he also said he was then living with his mother.
I accept that Dr J recorded Mr F as having poor reactive mood, some delusional thoughts, poor judgement and no insight into his unresolved psychosis.Exhibit 1, p 174 November 2023 Mental Health Progress notes
According to the notes, the father spoke with treating physicians after Mr F’s appointment with Dr J earlier that day to discuss treatment options and engagement strategies.
November 2023 Mental Health Progress notes
According to the notes, when he was reviewed by a psychologist, Mr F immediately said: “I was chased in [Town AF] by human traffickers.” He also said he had called police and later attended at the police station – he appeared perplexed that the police had not acted on his reports but had instead contacted the ambulance service which resulted in him being taken to hospital, where antipsychotics were administered.
I accept Mr F was quite fixated on discontinuing his medications or at least reducing the dose of the same.
I accept the psychologist assessed Mr F as having poor insight and judgement: he wanted to cease medications and denied having a mental illness. It was assessed that there was no current immediate risk.Exhibit 1, p 173 November 2023 Mental Health Progress notes
According to the notes, when he saw Dr J for a brief session in the mother’s company, Mr F indicated he thought he was over-medicated: he reported a number of side effects and also said he was sleeping a lot. Whilst he sought a reduction in his medication, he was not as adamant as he had previously been about ceasing it altogether; whilst he continued to believe “his paranoid ideas” about human trafficking, he was no longer so distressed and felt he was perfectly safe.Exhibit 1, p 172 November 2023 Mental Health Progress notes
According to the notes, Dr J (who saw Mr F with his case manager) recorded, amongst other things, that Mr F:
continued to lack any insight into his condition and continued to believe his hospitalisations were a mistake and that he was (for reasons he could not articulate) targeted by people traffickers in the streets of Town AF; and
essentially dismissed the numerous indications from family and medical staff that he had been unwell for some weeks; and
appeared to have been under considerable pressure, including as a consequence of his parents’ marital settlement difficulties; and
said he had been extremely successful in putting together music playlists for Spotify (undercutting the market) and including artists like Taylor Swift and he felt this somehow may have threatened Spotify's market value, which had possibly led to him being targeted; and
was currently doing very little but was not as drowsy as previously: his mood was more reactive, and he was more cooperative.
I accept that Dr J believed Mr F had been non-compliant with his medication and noted that he wanted to get a better picture of his recent level of functioning from one of his parents.Exhibit 1, p 172 December 2023 The mother takes control over the "[T Company]" account. December 2023 Dr GG (a psychiatrist appointed as a single expert witness) provides his report. December 2023 Dr P conducts interviews of the parents, their partners and the children and observes X interacting with each family group in preparation for the updated Family Report. January 2024 Ms BB said that Mr F told her that the mother had kicked him out. January 2024 The mother signs a Sellers Agreement with a broker to sell all companies for $7,000,000 without the father’s knowledge. About January 2024 I accept that after spending two nights in the father’s care, Mr F was re-admitted to Town G Hospital by ambulance with psychosis. February 2024 Mr B values the Town E property at $2,200,000 Affidavit of Mr B filed 22 March 2024, pages 66 to 92 February 2024 Dr P’s Family Report is released. Several days prior to the commencement of the first scheduled final hearing The mother said Mr F absconded prior to the conclusion of his treatment. Affidavit of the mother filed 21 August 2024, paragraph 13. 19 February 2024 First scheduled day of final hearing – adjourned to 8 April 2024. Early April 2024 The mother said she believed Mr F when he told her: “I will kill you”; she contacted the police, who attended and arrested Mr F – an interim Apprehended Violence Order was obtained in the mother’s favour. Affidavit of the mother filed 8 April 2024, paragraphs 663-667. 9 May 2024 The father filed an Application in a Proceedings seeking that mother delete herself as an account owner/administrator and contact in respect of the T Company account, and that she be restrained from advertising, selling, transferring, assigning, encumbering or cancelling a number of domain names, as well as the Town E property. 10 May 2024 The parties provide their final submissions. 13 May 2024 The mother filed a Response to an Application in a Proceeding seeking that both parties be restrained from dealing with the domain names and the property of the parties. 15 May 2024 Orders are made to restrain both parents, until final judgment is delivered, from advertising, selling, transferring, assigning, encumbering or cancelling a number of domain names. The same relief was ordered in relation to other property of the parents. June 2024 Mr F is hospitalised – first in Town G Hospital and then he is admitted to the Town H Hospital for mental health issues. Affidavit of the mother filed 21 August 2024, paragraph 9. June 2024 Mr F absconded from care during a transfer to an Adult Mental Health Unit – the mother’s evidence included that he was located later that day and admitted to the unit. Affidavit of the mother filed 21 August 2024, paragraph 9. Shortly before Mr F’s recent hospitalisation The father said that, when he approached Mr F in the street, Mr F told him that he would “attack” him if he came any closer. Affidavit of the father filed 8 August 2024, page 11. Shortly before Mr F’s recent hospitalisation The father said Mr F was located in bushland – he was aggressive and violent to police. Affidavit of the father filed 8 August 2024, page 11. Mid-2024 The father said Mr F was admitted into the Town G Hospital mental health facility. Affidavit of the father filed 8 August 2024, paragraph 10. Mid- 2024 Mr F absconded from the hospital when allowed to go on leave from the unit – he is absent for two days. Affidavit of the mother filed 21 August 2024, paragraph 11. Mid-2024 Mr F is located in the bush, sleeping on the ground. Affidavit of the mother filed 21 August 2024, paragraph 17. Mid-2024 Mr F is readmitted into the Town G Hospital mental health facility. Affidavit of the father filed 8 August 2024, paragraph 10. Mid-2024 The father moved with Ms BB and CC to live in a property which he said is a similar distance to the matrimonial home as their previous address. Affidavit of the father filed 19 August 2024, paragraph 34. Mid-2024 I accept that, during text communication between them, Mr F told the father that:
he had been used for espionage in Country K and it started with their bloodline; and
“they” play with a “sinking pain” in his heart whenever he said anything to anyone about anything and it got to the point where he was convinced that he had just had a heart attack; and
the person accused of sexually abusing him was “commanding my mental health degradation shit from his prison by having papers brought in by his associates”; and
that person had “threatened to traffic me and when I escaped from the trafficking attempt which was coordinated by organised crime I went to the police who had their jobs held against them to send me straight to the mental ward and they injected me with rna shit that makes it so people get a inverse version of whatever I try to convey to them in any format”; and
“the telepathy encompasses the whole world”; and
he could not stand being around the mother – although he also said that he just wanted to go home to her place, but she was pushing for rehab which was meant to drag out his “easily disprovable supposed mental health conditions”.Affidavit of the father filed 19 August 2024, pages 29-31. July 2024 I accept that the mother sent the father, by text, a document which contained photos and movies showing Mr F acting in an aggressive and intimidating way toward her at her home (including repeatedly telling her to give him his “[drugs]”) and threatening self-harm. Affidavit of the father filed 8 August 2024, paragraph 16-17.
August 2024 I accept that when the father spoke with him, Mr F talked about everything being “scripted” and said that the father was being controlled by “them”; he also spoke about having repeatedly thought about suicide whilst in the mental health unit; during their discussion about him attending drug rehabilitation, he said he would be killed in rehab. Affidavit of the father filed 8 August 2024, paragraph 12. August 2024 I accept that the mother sent the father a text to advise him that Mr F was going to be released from the mental health unit the following day.
I also accept that, in the same message, she said: “Please, kindly bring his [sporting gear], it will be therapeutic for him to get back his skills.”Affidavit of the father filed 8 August 2024, annexure B, page 15. August 2024 I accept that, after he was released from the mental health unit, Mr F called the father – he spoke in an aggressive and intimidating tone, was very confrontational and “antagonised” and said that he (the father) was going to be arrested and would be going down and to jail; he also told the father that: “you are scripted”; “you sound scripted. They gave you a script. You are programmed.” Affidavit of the father filed 8 August 2024, paragraph 6.
August 2024 I accept that the father retained X in his care (and kept him home from school) after he learned that Mr F had returned to live at the Town E property with the mother. Affidavit of the father filed 8 August 2024, page 11-13. August 2024 I accept the father kept X home from school. Affidavit of the father filed 20 September 2024, paragraph 20. August 2024 I accept that, when the father told X he was going to remain with him for a few extra days until Mr F settled back in with the mother, X said that this was good and that it was bad that Mr F was “coming back home because he will do drugs again and he’s not nice when he does drugs”. Affidavit of the father filed 8 August 2024, paragraph 22. August 2024 The mother filed an Application in a Proceeding seeking a recovery order. August 2024 I accept the father kept X home from school. Affidavit of the father filed 20 September 2024, paragraph 20. August 2024 I accept the father kept X home from school. Affidavit of the father filed 20 September 2024, paragraph 20. August 2024 The father filed a Response to an Application in a Proceeding by which he sought that X’s time with the mother cease until Mr F was not residing at the property and there was confirmation from a treating psychiatrist that he was not exhibiting symptoms of psychosis; he proposed that until then, X live with him and, provided the mother was restrained from bringing X into contact with Mr F, or taking him to the property where Mr F resides, spend time with the mother from after school until 5.00 pm on three weekdays each week and for five hours on one day of the weekend. August 2024 I accept the father kept X home from school. Affidavit of the father filed 20 September 2024, paragraph 20. August 2024 The mother’s application for a Recovery Order is dismissed; interim parenting orders are made for X to live with the father and to communicate with the mother by telephone or video at 4.00 pm on 9, 13, 15, 18 and 22 August 2024, with the father to initiate the communication. August 2024 The mother said that Mr F was visited by his case manager and an accompanying nurse to check on how he was adjusting. Affidavit of the mother filed 21 August 2024, paragraph 25. August 2024 The mother and X communicate pursuant to the orders. Affidavit of the mother filed 21 August 2024, paragraph 84. August 2024 The mother and X communicate pursuant to the orders. Affidavit of the mother filed 21 August 2024, paragraph 84. August 2024 The father keeps X out of school for the day and takes him to his solicitor’s office Affidavit of the father filed 20 September 2024, paragraph 20. August 2024 The mother and X communicate pursuant to the orders. Affidavit of the mother filed 21 August 2024, paragraph 84. August 2024 The mother and X communicate pursuant to the orders. Affidavit of the mother filed 21 August 2024, paragraph 84. 19 August 2024 The father filed an Application in a Proceeding seeking orders that X live with him and spend supervised time with the mother at a designated contact centre each week, for up to four hours. August 2024 The mother said Mr F attended his routine monthly assessment with his treating psychiatrist Affidavit of the mother filed 21 August 2024, paragraph 26. 21 August 2024 The mother filed her Response to the Application in a Proceeding and sought that X live with her and spend supervised time with the father at a designated contact centre each week, for up to four hours. August 2024 The mother said Mr F attended on his treating team for his monthly depot administration and was monitored for two hours. Affidavit of the mother filed 21 August 2024, paragraph 28. August 2024 The mother said the father failed to initiate her contact with X in accordance with the orders until she texted/called him and asked to connect. Affidavit of the mother filed 13 September 2024, paragraph 18. August 2024 X’s attendance at school was listed as a partial absence after being 15 minutes late. Affidavit of the father filed 20 September 2024, paragraph 20. 23 August 2024 The father’s Application in a Proceeding was heard. 26 August 2024 The mother filed an Application in a Proceeding seeking: a recovery order; a protection order; that she provide drug tests results of Mr F; the property proceedings be stayed; and the Court consider any ongoing investigation when making final orders. 27 August 2024 The mother’s Application in a Proceeding was listed for a Directions hearing on 5 September 2024. August 2024 X was absent from school as he was sick and had a mild fever. Affidavit of the father filed 20 September 2024, paragraph 20. 29 August 2024 The mother’s evidence included she texted the father and ask that he pack their iPad into X’s school bag for her to pick up from school. The father said: “I prefer to wait till the day of Judgement” and refused to provide the device. Affidavit of the mother filed 2 September 2024, paragraphs 13-15. 29 August 2024 X’s attendance at school was listed as a partial absence after being 10 minutes late. Affidavit of the father filed 20 September 2024, paragraph 20. 29 August 2024 The mother said Mr F moved out from the Town E property. This was confirmed by Ms AG, a neighbour of the Town E property. Affidavit of the mother filed 2 September 2024, paragraph 2.
Affidavit of Ms AG filed 2 September 2024, paragraph 1.August 2024 The mother’s evidence included that she and EE visited X at school and he cried that he missed them. The mother said that X and EE had a long hug which was “not typical” for children, as well as staring at each other for minutes. Affidavit of the mother filed 2 September 2024, paragraph 12. September 2024 I accept that Mr F telephoned the father and said he wanted him to take him to the Town E property. When the father arrived to collect him, Mr F was dishevelled, smelt unwashed and was not wearing shoes – although his mental stability seemed reasonable. I accept the father dropped Mr F at the Town E property. Affidavit of the father filed 20 September 2024, paragraph 19. September 2024 The mother said the father failed to initiate her contact with X in accordance with the orders until she texted/called and asked to connect. Affidavit of the mother filed 13 September 2024, paragraph 18. September 2024 The mother was directed by order to file and serve an Amended Application in a Proceeding by 13 September 2024; the father and the Independent Children’s lawyer were ordered to file any response by 20 September. September 2024 The mother said the father failed to initiate her contact with X in accordance with the orders until she texted/called and asked to connect. Affidavit of the mother filed 13 September 2024, paragraph 18. September 2024 X was collected early from school after being reported sick by the school. Affidavit of the father filed 20 September 2024, paragraph 20. September 2024 I accept the father wrote to the mother and said that X was not feeling well and asked to call later. The mother says she contacted the father several times from 6.35 pm to connect with X and at 7.29 pm the father responded and said “He has picked up some sort of belly bug and spent the day in bed, resting. I offered him to call you a few times but he felt like he needed rest”. At 8.00 pm, the father then messaged the mother and said, “If he doesn’t want or can’t take it, I am not going to force him”. Affidavit of the mother filed 13 September 2024, paragraphs 19-22. September 2024 X was absent from school as he had an illness. Affidavit of the father filed 20 September 2024, paragraph 20. September 2024 X was absent from school as he had an illness. Affidavit of the father filed 20 September 2024, paragraph 20. September 2024 The mother said she spoke to X during school hours and asked him where he was – he said he was out with the father getting food. When she asked him whether he still had any symptoms of diarrhoea or vomiting, as he did earlier, he said “no”. Affidavit of the mother filed 13 September 2024, paragraph 31. 13 September 2024 The mother filed an Amended Application in a Proceeding seeking to: adduce further evidence; use documents obtained in these proceedings in other proceedings; access the books and records and accounts of the business. She also sought an order that X be returned to her care. 20 September 2024 The father filed a Response and sought that the mother’s Amended Application be dismissed. 27 September 2024 The parents were given leave to rely, in the final proceedings, on affidavits that had been filed since the matter was reserved; save for the mother’s application for leave to use documents obtained in the proceedings for other purposes, the Application in a Proceeding was dismissed.
0