Batas & Gaire (No 2)
[2024] FedCFamC1F 672
•18 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Batas & Gaire (No 2) [2024] FedCFamC1F 672
File number(s): PAC 4114 of 2019 Judgment of: KARI J Date of judgment: 18 October 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time – Family Violence – Where the father carried out a retributive attempted suicide at the mother’s place of work – Where the Court finds the father was the perpetrator of significant family violence throughout the relationship and post separation period – Where the father’s actions constitute family violence in the form of coercive and controlling behaviour– Where the Court is satisfied that the family violence that the mother has experienced has been significant and severe – Where the Court is satisfied that the father used the trial process itself to inflict further psychological harm on the mother – Where the father attempted to minimise his conduct constituting family violence throughout his evidence – Where the father has an inability to understand the impact of his behaviours – The mother is to have sole parental responsibility for the child and the child is to live with the mother
FAMILY LAW – CHILDREN – Unacceptable risk – Where the mother’s case is that the father presents an unacceptable risk to the child – Where the mother suffers from Post Traumatic Stress Disorder (“PTSD”) – Where the mother suffers a range of symptoms which have a debilitating effect on her – Where the court accepts that ongoing time spending between the father and the child will continue to be a PTSD trigger for the mother – Where the mother’s emotional and psychological functioning is significantly compromised –Where the mother’s functioning is impacted by the father having contact with the child – Where the mother’s functioning needs to be protected – Where the father has not taken any meaningful steps to address the significant risks that he presents – Where the father displayed an incapacity for reflection, insight and remorse – Where the risk of harm posed by the father is extreme – Where the protection of the child from harm centres around the mother’s security and safety – No time spending between the father and the child – Injunctions granted for the personal protection of the mother and the child
Legislation: Australian Passports Act 2005 (Cth) s 11(b)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 68B, 102NA, Pt VII
Family Law Amendment Act2023 (Cth)
Crimes Act 1900 (NSW) s 195(1)(A)
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32(3)(a)
Cases cited: Batas & Gaire [2023] FedCFamC1F 685
Carter & Wilson [2023] FedCFamC1A 9
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 1 First Instance Number of paragraphs: 144 Date of hearing: 18-22, 25 March 2024 Place: Heard in Parramatta, delivered in Adelaide Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Vaikom Law Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Rossi Simicic Lawyers Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers ORDERS
PAC 4114 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BATAS
Applicant
AND: MS GAIRE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
18 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders made in these proceedings be discharged.
2.The mother have sole parental responsibility for the child X born 2011 (“the child”).
3.The child live with the mother.
4.There be no time spending or communication between the father and the child.
5.Pursuant to s 68B of the Family Law Act 1975, and for the personal protection of the mother and/or the child, the father is restrained and an injunction is granted restraining the father from:
(a)Approaching or coming within 100 metres of:
(i)The mother MS GAIRE;
(ii)The child;
(iii)Any place where the mother MS GAIRE lives and/or works;
(iv)Any place where the child lives;
(v)Any school that the child attends.
(b)Contacting the mother MS GAIRE in any way unless that communication is through a lawyer.
6.The mother shall be at liberty to do all such acts and things and sign such documents as may be necessary to cause the child’s name to be changed to X GAIRE.
7.Pursuant to s 11(b) of the Australian Passports Act 2005, the mother shall be at liberty to obtain, and renew, an Australian Passport for the child without the father’s consent.
8.The mother shall be at liberty to remove the child from the Commonwealth of Australia from time to time and the consent of the father is not required for such removal.
9.The mother have leave and she be at liberty to provide a copy of these orders and the simultaneously published reasons to each:
(a)New South Wales Police;
(b)Any medical practitioner, psychologist, psychiatrist, counsellor or social worker the child attends upon.
10.The mother have leave and she be at liberty to provide a copy of these orders to the child’s school.
11.The mother have leave and she be at liberty to provide a copy of the Family Report prepared by Dr B dated 14 January 2022 to any medical practitioner, psychologist, psychiatrist, counsellor or social worker the child attends upon.
12.That within 3 days of the expiration of the Appeal period, and on the basis that no Appeal has been filed by either party, the legal representatives for the parties and the Independent Children’s Lawyer are to destroy any and all copies of, and delete same from any electronic device, the Family Report of Dr B in all forms.
13.That the Family Report of Dr B, in all forms, that has been filed in accordance with Order 5 of the Orders dated 26 May 2023, shall remain suppressed on the Court file and not accessed without further Order of the Court.
14.The father’s legal representatives be permitted to provide a copy of these orders and the simultaneously published reasons to a NAATI accredited interpreter and/or translator who is not related to him and with whom he does not have a personal relationship.
15.That the appointment of the Independent Children’s Lawyer be discharged (subject to any appeal), PROVIDED HOWEVER that the ICL is to meet with the child and explain the final orders to her.
16.That the proceedings be dismissed as finalised.
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 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 Batas & Gaire has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTRODUCTION
These are parenting proceedings relating to the parties’ daughter X who at the time of trial was 12 years of age (“X”).
At the time of trial X was living with the mother and spending two hours of supervised time spending with the father each alternate Sunday. This is an arrangement that has been in place since 4 May 2020 when orders were made after a contested hearing in these proceedings.
While the court does not have the benefit of published reasons, it is apparent that these parenting orders were made as a result of a serious incident of family violence committed by the father in early 2019, which has been described by the single expert as a “retributive attempted suicide” by the father. While much more will be said about this incident and the topic of family violence throughout these reasons, in brief, the retributive attempted suicide took place at the mother’s place of work and included the father smearing messages in his own blood on the walls of the premises.
It is the mother’s case that the father presents an unacceptable risk of harm towards X. She asserts that the father was the perpetrator of significant and systematic family violence throughout their relationship and following its breakdown culminating in the retributive attempted suicide in early 2019. In addition, the mother asserts that there has been a significant and enduring impact upon her psychological functioning as a result of the family violence perpetrated by the father, which is perpetually triggered including by occasions of time spending between the father and X. It is for these reasons that the mother considers that there should be no ongoing relationship between the father and X. She promotes orders that would see X living with her, and that she have sole parental responsibility. She also seeks a declaratory order that there be no time spending between X and the father, together with injunctive relief to prevent any contact between the father, and the mother and X.
X’s interests were promoted by an Independent Children’s Lawyer (“ICL”). At the commencement of the trial, the ICL expressed a preliminary view that there should continue to be time spending between X and the father. In promoting this position, the ICL adopted the recommendations made by the single expert appointed in the proceedings, who had recommended that any time spending be supervised, and that it be limited to a period of up to two hours on four occasions each year. The ICL additionally promoted communication between the father and X, again on a supervised basis on X’s birthday and Father’s Day each year. However, during the course of the trial, and after hearing the evidence of the father (who was the first witness to give evidence during the trial), the ICL advised the Court that her position had changed. Thereafter, the ICL promoted and supported the orders sought by the mother.
The father’s case is a little less easy to succinctly articulate. This is because the father’s position changed a number of times.
(a)Throughout the trial the father contended that he did not pose any risk of harm.
(b)At the commencement of the trial the father promoted orders providing for the parties to share parental responsibility for X, that X remain living with the mother, and that X’s time spending with the father move to an unsupervised time spending regime, including time during the day on two occasions each week, together with one half of all school holidays and regular communication.
(c)These orders proposed by the father at the commencement of the trial, however, were not the same orders that the father had sought in the long lead up to the trial (the proceedings having been carefully case managed by a judge). Rather, up until approximately two months prior to the trial (when he filed his “Further Further Amended Initiating Application”), the father had sought a week about shared care arrangement with respect to X together with orders for equal shared parental responsibility.
(d)Despite the change to the father’s position in the lead up to the trial, the father’s position changed again at the commencement of his cross examination by the mother’s senior counsel. At that point the father indicated that he sought orders for school term time spending with X each alternate weekend from Friday until Sunday and presumably time for half of the school holidays as he had formally sought in his application. The father also continued to promote an equal shared parental responsibility order.
(e)By the time of closing submissions, the father’s counsel submitted that the father’s position had changed yet again. This late change was unceremoniously described by his counsel as the father “clinging to the wreckage”; a turn of phrase which might have been appropriate had real lives and real people not have been involved. Thereafter the orders promoted by the father were in line with those promoted by the expert family report writer, being four periods of supervised time spending each year, each of a duration of no more than two hours. The father otherwise agreed to the orders promoted by the mother, in particular that she have sole parental responsibility and that there be a range of injunctions and other arrangements for passports, travel and the like.
From the outset, I record that the trial itself may well have been avoided had the father gained some insight (particularly from the expert evidence) and properly considered his conduct and its significant deleterious effect on the mother. Had he done so the father may well have been capable of prioritising X’s wellbeing and interests ahead of his own.
Importantly, and having now heard the evidence in the trial, I am satisfied that the father used the trial process itself to inflict further psychological harm on the mother. I have made findings throughout these reasons about the serious family violence perpetrated by the father and endured by the mother, quite separate from the retributive attempted suicide. Those findings include that from the earliest days of the relationship the mother lived in constant fear that the father would self-harm if the relationship did not endure. That the mother had to further endure the father’s oral evidence during the final hearing, which included flippant denials or attempts to minimize and explain away his very serious conduct, was particularly troubling. Moreover, where the retributive attempted suicide and the circumstances surrounding it were not facts in issue in the proceedings, it is difficult to reconcile the father’s complete inability to understand the serious nature of that incident, and its impact upon the mother. This was all the more incomprehensible where it was also an undisputed fact that the incident resulted in significant psychological sequela for the mother, including a diagnosis of Post Traumatic Stress Disorder.
For the reasons that follow, orders shall be made in accordance with those promoted by the mother and ultimately supported by the ICL. Of significance, X shall henceforth live with her mother and there shall be no time spending between the father and X.
BACKGROUND
The uncontroversial background of the parties’ relationship is as follows:
(a)The parties were both born in Country C and lived there until their migration to Australia together in 2006.
(b)The father was born in 1970 and at the time of trial he was 54 years of age. The father is a currently employed in manufacturing and additionally he casually works in transport.
(c)The mother was born in 1973 and at the time of trial she was 50 years of age. The mother is a medical professional.
(d)The parties were in a relationship for a period of approximately 14 years. They married in Country C in 2003 and they separated in Australia in May 2017.
(e)Following the separation of the parties, they continued to live together under the same roof until approximately mid-2018, when the parties vacated the rental property that they were residing in.
(f)At the time of the parties’ physical separation, the father moved to Melbourne to take up residence with his brother, and the mother relocated to a property that she owned at Suburb R.
(g)The father returned to live in City S in approximately late 2018, with the mother meeting the costs of the father’s housing until mid-2019.
(h)The parties were divorced in late 2018, having made a joint application.
There are two children of the relationship:
(a)A now adult child Mr N born 2004 (“Mr N”), who at the time of trial was 19 years of age; and
(b)The subject child of the proceedings X born 2011, who at the time of trial was aged 12 years.
It is the mother’s case that:
(a)She remained living under the same roof as the father following their separation in May 2017, as she was “fearful that the Father would commit suicide if she was to vacate the property and physically separate” from him.
(b)Her worst fears about the father’s long-made threats of self-harm came to fruition in early 2019, when he attempted suicide at her place of work.
(c)The father’s plan of suiciding however was interrupted by action taken by the mother, which unquestionably, as ultimately acknowledged by the father in his oral evidence, saved his life.
(d)Throughout the balance of these reasons, this incident will be referred to as “the retributive attempted suicide”.
Turning to consider the retributive attempted suicide, I am satisfied from the evidence that:
(a)The father gained entry into the premises of the mother’s place of work in the late evening on the previous day or early hours of the morning on a day in early 2019.
(b)Prior to attending the premises, the father had consumed 15 tablets of Nurofen 200mg and seven tablets of Phenergan (Exhibits “ICL2” and “M6”).
(c)The father gained entry using a “previously duplicated key” (Exhibit “ICL2”) that he had taken from the mother without her knowledge or permission, likely as early as sometime in late 2017 when she noticed that a key was missing.
(d)Whilst inside the premises the father proceeded to inflict cuts to himself (visible in a photograph), which caused significant bleeding and left extensive blood splatters on various walls and drips of blood on the floor throughout the premises, presumably as he moved about.
(e)As the father moved about inside the premises, he dripped and smeared blood on almost every surface in every room throughout the premises, including but not limited to the walls, doors, floors, desks, medical equipment, examination beds, cupboards, bathroom, chairs, sinks, kitchen surfaces and equipment (including the microwave and fridge), computers and keyboards, medications and medical supplies, paper records, charts, office and administrative equipment and records. Having had regard to the graphic contemporaneous photographs, I accept the description of the damage in the police records (Exhibit “M5”) as being sighted in “every room… [and] caused by the [father’s] blood”.
(f)The father wrote messages in his own blood on various walls and doors throughout the clinic.
(g)The father left handwritten messages on paper and placed them on various desks in the workplace and on an artwork of handprints bearing the children’s names, all containing the words “sorry” to each X and Mr N, together with a note on a computer keyboard with the words “good luck [Ms Gaire]” (Exhibit “M1”).
(h)The father thereafter lay on an examination bed in the mother’s consulting room (Exhibits “ICL2” and “M6”) and fell asleep; presumably to bleed out and be found dead the next morning.
(i)The receptionist of the clinic arrived at the practice for work the next morning at 8.00 am and immediately had her suspicion aroused as she saw the father’s car parked in the staff carpark at the rear of the clinic and noticed that the “steel bar door was unlocked and slightly a jarred [sic]” (Exhibit “M5”). The receptionist thereafter noticed that there was writing on the walls inside the clinic which appeared to be in blood.
(j)The mother arrived at the premises shortly thereafter and was the first person to discover the father, asleep on an examination bed with a “major laceration”. There was dried blood around this wound and a “pool of congealed blood on the floor” (Exhibit “M5”).
(k)The mother woke the father and thereafter administered emergency care to him prior to ambulance and police personnel arriving. The father accepts, and I find, that this emergency care provided by the mother likely saved his life.
(l)The father was thereafter taken by ambulance to hospital for assessment and treatment.
I am also satisfied that after being taken to the hospital, the father was consulted by a range of medical practitioners, whereupon:
(a)The father was assessed and detained under the Mental Health Act 2007 (NSW) (Exhibit “ICL1”).
(b)The father was diagnosed as having self-inflicted a transverse wrist laceration to each of his wrists of approximately 4 centimetres, which was “deep enough to damage tendons” (Exhibits “M6” and “M7”).
(c)After initial treatment at the hospital the wound required surgery, and the father was transferred to another hospital for that surgery to occur (Exhibit “ICL2”).
(d)The father was released from hospital later that month (Exhibit “ICL2”).
It is an agreed fact that following the retributive attempted suicide, an Apprehended Domestic Violence Order (“ADVO”) was made, and in that regard:
(a)The first order was made immediately after the retributive attempted suicide, with the mother named as the protected person.
(b)In early 2019, the interim ADVO was varied to include the children as protected persons.
(c)In late 2019, a Final ADVO was made for a period of 12 months naming each the mother and the children as protected persons (Exhibit “s102NA-1”).
(d)The Final ADVO expired in late 2020.
It is also an agreed fact that the father was charged with a domestic violence related property offence pursuant to the Crimes Act 1900 (NSW), and that in relation to that charge (“the criminal charge”):
(a)In late 2019, the criminal charge was dismissed pursuant to s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the dismissal order”), on the condition that the father (Exhibit “M10”):
comply with treatment as set out on page 7 of [Dr J] report dated 23/7/19:
1.He attends appointments with his treating doctor at a frequency directed, probably second-monthly in the first instance, pursuant to mental health care plan.
2.He is referred to a psychologist/counsellor, probably through [T Organisation], with a view to challenging negative thoughts and overcoming symptoms of stress, anxiety and depression through ongoing therapy sessions, probably weekly or fortnightly in the first instance.
3.He accepts medication, as clinically indicated […].
4.He engages in other appropriate therapy as directed by his GP and makes efforts to return to his previous work […] and/or other appropriate work.
Accept treatment and prescribed medication by [Ms P] and comply with any recommended treatment.
(b)The dismissal order provides the following in relation to compliance by the father:
If the accused person fails to comply with the conditions of this order the accused may be called to appear before the court and the charge dealt with as if the accused had not been discharged.
In the aftermath of the retributive attempted suicide, the father acknowledged in his oral evidence, and I accept that:
(a)The mother facilitated time spending between the children and the father.
(b)The mother also provided meaningful financial support to the father, including the payment of his legal fees in relation to the ADVO and the criminal charge, rental expenses and the provision of a motor vehicle.
THE LITIGATION
Commencement of the Proceedings
These proceedings were commenced by the father on 23 August 2019 when he filed an Application for Final Orders seeking orders for the adjustment of property.
The mother filed a Response to this application on 11 November 2019; again only dealing with the adjustment of property.
The parenting aspect of the litigation was joined by the father on 1 March 2020 when he filed an Amended Application for Final Orders.
The Financial Proceedings
It is not necessary to go into detail about the financial proceedings between the parties, other than to record that an order was made on 19 February 2021 at the joint request and with the consent of the parties resolving all aspects of the parties’ financial enmeshment. Of significance that order provided for:
(a)The mother to pay to the father the settlement sum of $500,261;
(b)The sale of the mother’s property at Suburb U with the proceeds to be used to pay the settlement sum to the father and the balance of the proceeds to be paid to the mother;
(c)A superannuation splitting order in the sum of $30,000 from the mother’s superannuation entitlements to the father’s; and
(d)The parties to otherwise retain their separate interests and entitlements to their separately held property and financial resources, including the mother to retain the residential property in which she and the children reside at Suburb R.
The Parenting Proceedings
As earlier identified, on 1 March 2020 the father filed an Amended Application for Final Orders enlivening the Court’s jurisdiction with respect to the parenting arrangements for the children. By this application the father promoted orders that would see the parents having equal shared parental responsibility for Mr N and X, for the children to live in a week-about shared care arrangement between their parents, together with a range of orders relating to the arrangements for the children during school holidays, special occasions, and international travel.
On 7 April 2020 the proceedings (financial and property) came before a judge of the Federal Circuit Court of Australia (as it then was) for the first time following the inclusion of parenting proceedings. Orders were made listing the matter to a contested interlocutory hearing relating to the parenting arrangements for the children.
On 24 April 2020 the mother filed an Amended Response to Final Orders. By that document, of significance, the mother sought interlocutory orders that would provide for her to have sole parental responsibility for the children, for the children to live with her and for the father to spend supervised time with X for a period of two hours each alternate Sunday and to spend time with Mr N in accordance with his wishes.
On 4 May 2020 a contested interlocutory hearing took place before a Judge of the Federal Circuit Court. A range of parenting orders were made, and it is these orders which have remained in place since that time. Of significance the orders provided for:
(a)The children to live with the mother.
(b)Mr N to spend time and communicate with the father “as he may desire from time to time”.
(c)X to spend time with the father:
(i)Supervised by a professional supervision agency at all times.
(ii)For a period of two hours each alternate Sunday at times as agreed and in the absence of agreement from 11.30 am to 1.30 pm.
(iii)For a period of two hours on a number of prescribed special occasions and cultural celebrations including X’s birthday, Father’s Day and religious festivals, and at other times as agreed between the parties.
(d)Telephone, FaceTime or similar electronic communication between X each Tuesday, Thursday and Saturday between 6.00 pm and 6.30 pm.
(e)The appointment of an ICL.
(f)The parties to attend with a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference, with the Family Consultant to provide a memorandum regarding the same.
(g)A transfer of the proceedings to the City S Registry.
On 22 February 2021 orders were made, with the consent of the parties, appointing a single expert, Dr B to conduct an assessment and prepare a Family Report. That report was ultimately before the Court during the trial and is dated 14 January 2022 (“the Family Report”).
Contemporaneous with the release of the Family Report on 30 March 2022, extensive injunctive orders were made for the personal protection of the mother and the children, those orders were as follows (“the injunctions”):
1.Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the mother and/or the children, that the father be restrained by injunction from:
(a)Approaching or coming within 100 metres of the following SAVE AND EXCEPT FOR to facilitate professionally supervised time or changeover in the presence of a contact worker in accordance with the Orders made on 4 May 2020:
(i) Any place where [Ms Gaire] lives;
(ii) Any place where [Mr M] lives;
(iii) Any place where [Ms Gaire] works;
(iv) Any place where [Mr M] works;
(v) [X’s] school or extracurricular activities;
(vi) [Ms Gaire];
(vii) [Mr M]
(viii) [X].
(b) Assaulting or threatening [Ms Gaire], [Mr N], [X] or [Mr M];
(c)Stalking, harassing or intimidating [Ms Gaire], [Mr N], [X] or [Mr M];
(d)Intentionally or recklessly destroying or damaging any property that belongs to or is in possession of [Ms Gaire], [Mr N], [X] or [Mr M];
(e) Contacting [Ms Gaire] in any way unless that contact is:
(i) Through a lawyer;
(ii)To attend accredited or court-approved counselling, mediation and/or conciliation;
(iii)As agreed in writing between the parent(s) about contact with children;
(iv) In accordance with the Orders made 4 May 2020.
(f) Contacting [Mr M] in any way.
On 27 April 2022 the proceedings were transferred to the Federal Circuit and Family Court of Australia, Division 1 (“Division 1”). The proceedings were docketed to me and have been judge managed from approximately November 2022.
As part of the general case management of the proceedings and with a view to managing the proceedings towards the trial, a number of procedural hearings have taken place. I do not propose to detail the numerous carefully crafted orders that were made. However, where necessary I shall refer to any relevant orders of this nature throughout the reasons.
Prior to the transfer of the proceedings to Division 1, and since the preparation of the Family Report, careful management has buttressed the release of the Family Report, and in that regard:
(a)In his Family Report dated 14 January 2022, Dr B raised significant concerns for the mother’s safety and wellbeing and recommended, as a protective measure, that identified passages of the report be redacted from any published version released to the father (at [805]).
(b)On 23 February 2022 a judge of the Federal Circuit and Family Court of Australia, Division 2 (“Division 2”), made orders in chambers releasing a copy of the Family Report to the ICL only. The copy released to the ICL had certain passages redacted; presumably (although it is not clear on the face of the order) those identified by Dr B.
(c)The following day at a hearing in the proceedings (24 February 2022), a judge of Division 2, made orders releasing an unredacted copy of Dr B’s report to the ICL only. In addition, a copy of the report in redacted form was released to the parties’ legal representatives.
(d)On 30 March 2022 and at the same time as making the injunctions, an order was made releasing a redacted copy of the Family Report to the parties, with leave given to the father to provide a copy of the report to a qualified interpreter. In addition, an order was made releasing the unredacted Family Report to the parties’ legal representatives and counsel “on condition” that they “file an undertaking that they will not show or provide to their client a copy of the unredacted report and that they will not inform the father of the matters described at paragraph 805 of the Report”.
With respect to the management of the release of the Family Report following the transfer of the proceedings to Division 1, on 28 July 2023:
(a)An order was made by consent for an unredacted copy of the Family Report to be released to the parties for “viewing only” in the presence of their legal representatives.
(b)Leave was given to the father to provide an unredacted copy of the Family Report to a NAATI accredited Country C interpreter for the purposes of translating a copy of the report in the presence of the father.
(c)Liberty was given to the father’s solicitors to provide his treating practitioners the unredacted portions of the Family Report proximate to trial with liberty given to the father to obtain and file an updated report from each of his treating practitioners thereafter. I delivered ex tempore reasons in relation to this topic following a contested hearing (Batas & Gaire [2023] FedCFamC1F 685).
On 16 June 2023 orders were made listing the matter for trial, together with procedural trial directions. The trial date allocated to the matter was 18 March 2024 with a time estimate of nine days.
I pause to record that the father has required the assistance of an interpreter. There is no criticism of his need for the same. Unfortunately however, locating and securing a qualified Country C interpreter has not been an easy feat, and as a result various hearings that have taken place before me have been abandoned or significantly delayed.
For reasons which are not clear, and despite the orders made 28 July 2023, the Family Report, and in particular the unredacted version, had not been interpreted/translated for the father at the commencement of the trial. Sitting time was lost on the first day of the trial to facilitate this occurring.
On 10 January 2024, two matters of significance occurred from the father’s perspective:
(a)Firstly, he filed his Further Further Amended Application for Final Orders, as earlier identified in which he amended his position from seeking a week about shared care time spending arrangement to seeking term time spending on three days each week together with half school holidays.
(b)Secondly, his solicitors filed a Notice of Withdrawal as Lawyer, leaving the father unrepresented.
On about 19 January 2024 the ICL made contact with my chambers requesting the matter be called on and consideration given to the application of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to the final hearing. As a result the proceedings were recalled on 7 February 2024 and an order was made identifying that the mandatory ban on cross examination provided for in s 102NA(1)(c)(iii) of the Act applied as a result of the injunctions made in these proceedings on 30 March 2022.
THE LEGAL FRAMEWORK
Parenting Proceedings
The final hearing in these proceedings commenced on 18 March 2024. As a result, and despite recent amendments to the Family Law Act 1975 (Cth) (“the Act”) in the Family Law Amendment Act2023 (Cth), those amendments do not apply to these proceedings. Accordingly, any reference throughout these reasons to the Act, is a reference to the Act prior the amendments.
Part VII of the Act is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the Court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
In making any parenting order the Court must have regard to the aims of the legislation set out in s 60B(1), which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(Emphasis added)
The principles underpinning the aims of the legislation are contained in s 60B(2) which provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(Emphasis added)
In determining what is in a child’s best interest, the Court is to have regard to a long list of considerations set out in s 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the Court is to give greater weight are:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(Note omitted) (Emphasis added)
The additional considerations are:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The legislative pathway to be adopted in a parenting case has been identified by the Full Court in Goode & Goode (2006) FLC 93-286.
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted (s 61DA(2)) if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(Emphasis added)
If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents, provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption of equal shared parental responsibility is rebutted, then the Court is required to make orders that are in the child’s best interests with reference to those factors set out in s 60CC.
Family Violence
As identified from the outset, the existence of family violence is of significant prominence in these proceedings.
The term “family violence” is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Family violence constituted by coercive and controlling behaviour has been the subject of consideration and discussion by McClelland DCJ and Campton J in Carter & Wilson [2023] FedCFamC1A 9 in the following terms, citing with approval the decision of Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473:
12.There have been a number of authorities, both in Australia and in comparable jurisdictions, in which the words “coercive” and “control” have been considered both separately and in combination. For example, in Illgen & Yike [2018] FamCA 17, after examining the ordinary and natural meaning of the words separately, Gill J noted that while, in s 4AB, behaviour that ‘coerces or controls’ is expressed disjunctively, the two concepts are closely related, stating at [125]:
Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
13.To similar effect, in Ramzi & Moussa [2022] FedCFamC2F 1473, after referring to the decision of Gill J, Judge Beckhouse stated at [45] that, in the context of conduct that was not inherently violent or threatening, “[g]enerally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member” (emphasis added).
14.There is much to commend in her Honour’s succinct analysis and, in that respect, we observe that a similar approach has been taken in applying the ordinary and natural meaning of the words in comparable jurisdictions (see for example the Canadian cases of Newfoundland and Labrador (Manager of Child, Youth & Family Services) v. A.C. 2012 NLTD(F) 7; R. v. Parsons, [2020] N.J. No. 232 and the English case of F, M v A & B (Acting through their Children’s Guardian, Ruth Alexander) [2022] EWFC 124 at [10], referring to F v M [2021] EWFC 4).
15.In the absence of either the primary judge or ourselves having the benefit of argument concerning the potential relevance and applicability of those authorities to this appeal, we do not intend to give a comprehensive definition of what constitutes behaviour by a person that is other than violent or threatening, but that “coerces or controls”. What is clear is that the determination of what constitutes behaviour “that coerces or controls” must be considered in the context in which the conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]).
(Footnotes omitted)
The assessment of risk and unacceptable risk
The mother’s position throughout the parenting proceedings has been that the father presents an “unacceptable risk of harm”. It is for this reason she contends that she should have sole parental responsibility, that X should live with her, and that there be declaratory orders demarking no time spending between X and the father.
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”):
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events…
The question of “unacceptable risk” was comprehensively considered by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”). There the Full Court said:
83.Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
(Emphasis in original)
It is therefore clear that there are two stages involved in assessing risk and understanding whether any assessed risk is unacceptable:
(a)Firstly, the fact-finding exercise, which may include findings about any allegations that have been made, together with any admissions made; and
(b)Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings.
So far as the fact-finding aspect is concerned, as the High Court identified in M v M (1988) 166 CLR 69 (at 76-78):
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.
…
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw…
…
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
Standard of Proof
The burden of proof in civil proceedings such as these, is that found in s 140 of the Evidence Act 1995 (Cth); namely “the balance of probabilities”. That section provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
I have assessed the evidence in these proceedings and made findings throughout these reasons by applying this standard of proof.
THE EVIDENCE
Documents relied upon
Each of the parents filed a trial affidavit in the proceedings and they each gave oral evidence during the trial.
The father relied on the following documents:
(a)His Further Further Amended Initiating Application filed 10 January 2024;
(b)His Trial Affidavit filed 17 July 2023;
(c)The Case Outline filed on his behalf on 18 March 2024.
The mother relied on the following documents:
(a)Her Amended Response to an Initiating Application filed 14 July 2023;
(b)Her Trial Affidavits filed 17 July 2023 and 9 August 2023;
(c)The affidavit of her Clinical Psychologist, Dr E filed 1 October 2021;
(d)Her Notice to Admit dated 30 June 2023
I record that in the lead up to the trial and occupying some significant court time and case management, the father had indicated to the Court that he intended to call various professional witnesses identified as the father’s treating practitioners. Whilst reports had been obtained by the father from these professionals, ultimately those professionals were either not prepared to give oral evidence at the trial and their evidence was not received, and/or they were not relied upon by the father. The witnesses that fell into this category were:
(a)Dr J;
(b)Dr V; and
(c)Dr L.
In addition, the father sought to rely upon the evidence of certain lay witnesses.
(a)Ms W, a friend of the father who is a medical professional, who swore an affidavit on 17 July 2023;
(b)Mr Y, who swore an affidavit on 14 July 2023; and
(c)Ms Z, who swore an affidavit on 21 July 2023.
None of these lay witnesses were required for cross-examination by the mother’s senior counsel. Having had regard to each of their affidavits, I am satisfied that little relevance and weight attaches to their evidence because:
(a)They have been proffered as witnesses who depose to the father’s good character; and
(b)They have little knowledge of the mother’s detailed allegations of family violence (albeit that they may be aware of something about the retributive suicide attempt, if and as explained to them by the father).
A number of exhibits were received into evidence during the trial and are referred to throughout these reasons.
In particular I have had regard to a number of records received into evidence from the police, hospitals and the criminal proceedings (Exhibits “ICL1”, “ICL2”, “M5”, “M6”, “M7”, “M9”, “M10”). Those records have been of assistance in making findings in relation to the retributive attempted suicide. I accept the veracity of the facts contained within those records, given there was no challenge to the same, particularly by the father.
I also accept the facts contained in those records in preference to any contrary evidence given by the father in circumstances where I am satisfied that the evidence of the father in relation to the retributive attempted suicide was of no assistance because he either could not remember, was avoidant, evasive, or a combination of all three.
The Family Report
As earlier identified, Dr B prepared a written Family Report dated 14 January 2022. The unredacted Family Report was before the Court for the trial.
Dr B’s expertise was not challenged.
The Family Report is detailed and considered, particularly as to matters pertaining to family violence, their sequalae and the need to protect X from harm in the future, which in large part centres around the mother’s security and safety. During his oral evidence, Dr B’s opinions and recommendations were equally considered, detailed and carefully put.
Dr B’s observations, opinions and recommendations were undisturbed by cross examination, and they are unreservedly accepted. Throughout these reasons I have specifically referred to various portions of the Family Report. I have, however, had regard to the entirety of the Family Report and the oral evidence of Dr B given during the final hearing.
Where findings have been made in relation to incidences of family violence throughout these reasons, regard has been had to the expert opinion of Dr B in contextualising those incidences as episodes of family violence and/or coercive and controlling behaviour within a pattern of family violence perpetrated by the father towards the mother throughout the relationship.
When considering the s 60CC factors, in his written report Dr B commented:
548.In my view, this is a circumstance where there has been a pattern of family violence perpetrated by the father against the mother, commencing in severe form when the mother initiated parental separation in 2017, escalating when she left shared residence in [mid] 2018, and reaching its peak with a paternal demonstrative, intrusive, vengeful and fear-inducing suicide attempt at the mother’s place of work [in early] 2019, then continuing in attenuated form since that time.
549.The father’s overt expression of severe family violence during 2017 to 2019 occurred in a broader context of paternal personality dysfunction and pattern of pragmatic, self-referential, entitled, unempathic and disrespectful behaviour towards the mother and likely towards other persons over time.
550.The father’s behaviour had the stated intention of creating lasting negative impact and fear in the mother, and it has achieved its objective in terms of significant symptoms of anxiety and PTSD in the mother.
551.The children have had a positive relationship with both parents, including a valuing of the father providing the majority of their day to day care from 2009 when [Mr N] was aged 5 and [X] not yet born, to parental separation in […] 2018, when [Mr N] was aged 14 and [X] 6 […].
552.But, in my view, in the long term and currently, whilst the father has demonstrated capacity to meet the children’s basic needs for day to day care, there are significant deficits in paternal parenting capacity, and he does not have capacity to reliably meet [X’s] emotional, relational and developmental needs, or her special needs arising from her anxiety disorder and experience of adversities and changes in life.
553.If [X] transitions to more substantial and to unsupervised time in paternal care, there is risk that she will be exposed to family violence in future paternal partner relationship or directed towards herself, and risk that she will experience emotional abuse through the father exposing her to his self‑elevating, mother-diminishing narrative.
554.The mother has shown over time and currently shows strong personality functioning and strong parenting capacity, including demonstrated capacity to meet the children’s basic needs, and [X’s] emotional, relational and developmental needs, and her special needs arising from her anxiety disorder and experience of adversities and changes in life.
555.The mother currently demonstrates adequate and in fact quite strong capacity to meet [X’s] needs, despite her experience of significant symptoms of PTSD and anxiety, arising from her experience of paternal family violence, in particular the event of [early] 2019.
556.But, my impression is that the mother’s own PTSD and anxiety symptoms are likely exacerbating [X’s] anxiety and disrupting the mother’s effectiveness in addressing that anxiety. Also, it would be unwise and in fact precarious for [X], who does not have another adequate parent available, to presume upon the mother’s continuing capacity to function well as a parent despite her PTSD symptoms, over the next 8 years until [X] reaches age 18.
557.The priority needs to be to provide parenting arrangements that are most likely to promote the mother’s recovery from PTSD and least likely to exacerbate the same.
558.In this regard, in some cases where there has been a discrete traumatic event which does not represent ongoing increased risk (such as a car or workplace accident), the best treatment for PTSD can be exposure, i.e. leaning back into the heat of facing the fear by (referencing the above examples) driving again or getting back to work.
559.But, in this instance where the traumatic event does represent a small but significant ongoing increased risk of demonstrative/ vengeful paternal suicide or of the father enacting uxoricide or filicide, and where the traumatic event was carried out in a very personalised and deliberately fear-inducing way by the father, I do not feel that re-exposure to regular contact with the father for example through a coparenting arrangement is a reasonable or realistic treatment goal for the mother.
560.The mother’s recovery from PTSD will be most assisted and her parenting capacity most enhanced and protected if she has no contact with the father, if enduring protective orders are made in that regard, and for there to be no requirement to collaborate or make shared decisions with the father, and for [X’s] visits with the father to be brief, predictably spaced, and far enough apart to give the mother space between the build up and afterwards of such visits, and no requirement for the mother to send her daughter to the father without professional supervision.
561.[X] will benefit most from an ongoing meaningful relationship with the mother.
562.If [X] was to experience a total separation from the mother this would cause her marked distress and disruption of sense of self and relational security, which would have enduring negative impact upon her wellbeing, mental health and personal and relational functioning. The father would not have capacity to assist her to effectively adapt to the same.
563.If [X] was to experience a total separation from the father, she would experience grief and sadness, as she values this relationship. There could be negative impacts upon her development of self-identity during her adolescent years. She would miss out on the benefits to be gained from connection with the father, including continuity of their playful and active shared activity that has to date been continuous from when [X] was a young child, and from connections with paternal extended family.
564.In the context of maternal care, [X] would adapt adequately to such a total separation.
565.In my view, such a total separation would be preferable to a circumstance where ongoing time with the father threatened maternal security, wellbeing and mental health.
566.But, I have recommended that [X] continue to spend regular but infrequent, brief, supervised time with the father during the remaining years of her upbringing, involving broader paternal family as the father may wish to do, with an option for [X] to extend this time a little from age 16 if she chooses to do so.
567.In my view, such an arrangement would provide to [X] the benefit of a continued thread of connection with the father and paternal extended family and possibly new partner and possibly younger paternal siblings, whilst protecting the mother’s security, wellbeing and mental health.
568.In my view, the father may well have something to offer [X] during her adult life if she chooses to maintain engagement with him at that time, in terms of what may be his character strengths in areas of non-intimate engagement with aspects of life such as his engagement with and enjoyment of fitness and positive outdoor activities, his engagement with [Country C] culture and cultural events, and in terms of connection with paternal extended family, which may then include further paternal half-siblings. But, in my view, even at that time, such engagement would be a precarious and complex process requiring an independent sense of self and strong personal boundaries, which [X] would be most equipped to handle if she has had a secure and undisrupted upbringing, guided by a maximally secure and well mother. Maintaining an attenuated line of connection and maintaining the recommended therapy process would best prepare [X] for such decisions and processes, in her young adulthood and over subsequent years.
Significantly, Dr B set out in his report in relation to the father:
267.The father’s insight into his own circumstance and into others’ experience of him was disrupted by his use of the immature psychological defence mechanisms (ways of resolving anxiety, discomfort or uncertainty) of denial, externalising of responsibility, projection (perceiving in others negative emotions or attributes actually present in oneself). The father in my view showed poor judgement regarding his own and the mother’s circumstances and needs. He demonstrated an external locus of control and lack of personal responsibility.
268.The father at interview showed poor reflective functioning, that is an ability to pause, and to think about his own thoughts, feelings, motivations and behaviours, and (in particular) the thoughts, feelings, motivations and behaviours of others. He showed poor capacity for empathic attunement, that is an ability to connect with and respond to the emotional state of another.
…
280.… The father speaks of respect in terms of status and power, rather than mutual respect arising from shared lived experience of the other.
…
351.I asked what the father had learnt, during his therapy. During sessions, the therapist had advised the father about positive things to do, for example to go for his [working qualification]. The father made good use of this therapy, to aid his own recovery of independent functioning. He did not appear to utilise the opportunity provided by therapy to reflect upon his own past patterns of relational behaviour, and their impact upon self and other.
(Bold emphasis added)
In the Family Report Dr B also discussed the risk of the father committing uxoricide, filicide or a further vengeful suicide attempt. Dr B ultimately concluded that “the risk of the father committing uxoricide is low, but is significantly greater than the community risk. The risk of filicide is lower” (at [616]).
Dr B further opined:
617. The risk of uxoricide or filicide would not be reduced by the children spending regular time with the father, and in fact the risk is increased by greater opportunity, and by greater likelihood of parental interaction leading to circumstances where the father is activated into emotions such as resentment, jealousy or shame. In most cases of negative outcomes such as vengeful/demonstrative suicide, uxoricide, abduction or filicide, the offending parent was at the time spending regular scheduled time with the children.
618.I do not feel in this case that the risk of uxoricide or filicide is high, and I do not feel that this is a central issue in this case…
…
619. I feel that the risk of uxoricide (and to some extent filicide, or child witnessing the outcome of uxoricide or paternal suicide) was significant during the period from parental separation in [mid] 2018 until mid-2019, but has now significantly reduced in the context of the father “moving on” to new financial independence, social circle, and plan to enlist family support in order to remarry. Any future new paternal experience of loss or shame, for example a new wife ending her relationship with the father or the father facing business or financial failure, could lead to a future recurrent period of risk.
During the trial, and at the request of the Court, arrangements were made for Dr B to meet with X. This was done as a result of the passage of time between X’s appointment with Dr B for the Family Report in October 2021 and the trial almost two and a half years later.
During his oral evidence Dr B was able to provide the Court with a contemporaneous update as to X’s presentation, and views as follows:
(a)X wished to attend the appointment with Dr B in the presence of the ICL whom she was familiar with, however the ICL took a “step back” during the appointment to allow X to independently engage, but her presence was regarded by Dr B as a reassuring one for X.
(b)During the appointment, X used a hand sign when she did not want to answer certain question posed of her, and she invoked this sign throughout her appointment with Dr B.
(c)X’s expressed views to Dr B had shifted from her original interview where she identified that she wanted the “adults to decide” her arrangements to now expressing that she still was “glad” that the adults decide as she does not want to upset her parents. X acknowledged that if she wanted time with the father the mother would be “anxious”, and if she did not have time with the father, the father would be “sad”.
(d)X identified that she had discussed with the ICL the recommendations made by Dr B in his written report (for six supervised visits with the father each year), with X expressing that she does not want to have telephone communication with the father (other than on special occasions), she wanted a reduction in her time spending with the father to the recommended six visits each year, together with a reduction in the length of the visit from four to two hours.
(e)When Dr B raised the prospect of no time spending with the father, X originally did not want to answer that question, but when pressed further and asked if she got to choose, X’s response was that no time would be alright. Dr B’s sense was that X did not equivocally say that she did not want to spend time with the father, as he considered that X did not want to upset the father, but that equally if there was no time spending “that wouldn’t be the end of the world for her”.
(f)Dr B spoke with X about “parental decision making”, with X’s response indicating that it “made sense for mum to make those decisions”.
(g)Dr B discussed X’s surname with her, with X expressing the view that she wanted to share the mother’s surname “Gaire”. Dr B’s view was that this was not motivated by X not wanting her father’s surname, but more a practical reality and the emotional connection that she feels with the mother. When questioned by Dr B, X was clear that she did not want the father’s surname as her middle name to retain part of her history or self.
(h)Dr B considered that from his interactions with X, he was satisfied that X had been “shielded” from the details of the retributive attempted suicide and that she “didn’t really even have a robust awareness of Mum’s anxiety about Dad, which was pretty remarkable considering how anxious Mum is”.
(i)Dr B recommended therapy for X (including cognitive behavioural therapy), particularly as she is an anxious child, but is now older and “more able to grasp complex concepts”.
(j)Dr B additionally recommended therapy as a way of introducing X:
… in a developmentally appropriate way to the fact that the father, in the context of impending separation and separation, ended up behaving in ways towards the mother that were threatening and frightening. And it would be best to do that in a way that is respectful to both parents, including the father, that talks more in terms of him sort of having ended up behaving that way, than sort of fundamentally writing him off as a person. But I think that a skilled therapist could – I don’t think it has to be spelled out exactly what’s said, I think a skilled therapist could take the data and work with her. The principle would be to do so in a that’s responsive to the child’s needs and requests, so not to get ahead of the curve. If [X] is not really wanting much, not to get ahead of the curve, but to be responsive to [X]. So if she comes along anytime between now and when she’s 18 with questions, for that therapist to be able to answer the questions in a developmentally appropriate way and in a way that’s respectful to both parents, but allows for just appropriate explanation of what was aberrant about the father’s behaviour and some of the impacts on the mother.[1]
(k)Dr B considered it appropriate for any therapist engaged for X to have at least met the father on one occasion, so that the therapist could engage better with X as X would at least know that her therapist had met the father.
[1] Transcript 22 March 2024, p.6 lines 20-34.
Ultimately Dr B made recommendations in the Family Report which included:
(a)That if the court finds there is a risk to X in the father’s care, in particular risk of emotionally abusive behaviour in a way that undermines the child/mother relationship, then the father’s time with X be limited or sufficiently constrained.
(b)The mother to have sole parental responsibility.
(c)The father to be informed of educational and medical matters relating to X.
(d)X to live with the mother.
(e)Injunctions to be put in place until X turns 18 to prohibit the father approaching the mother, her home, her place of work, the children’s schools, the children’s workplaces and the children’s places of extracurricular activities.
(f)X to spend professionally supervised time with the father which is regular enough for X to maintain a knowledge of the father, but infrequent enough to minimise the disruption of time spending upon the mother and the potential negative developmental effects on X; i.e. on a weekend day on six occasions each year.
(g)No ongoing video or telephone communication outside of the time spending with X.
(h)X to commence therapy with a skilled therapist.
During his oral evidence at the final hearing, Dr B confirmed these recommendations. Dr B was however asked to consider the prospect of there being no time spending between X and the father. Dr B gave considered evidence in this regard, ultimately recommending:
(a)That he did not support any form of unsupervised time spending between X and the father.
(b)Even if the father was able to address the various risks that had been identified, the impact upon the mother of unsupervised time spending between X and the father was too great.
(c)Time spending between X and the father has the potential to send mixed messages to X, particularly in the supervised setting as X is unlikely to experience any difficulties with the father, but she will have the contrast of experiencing the mother’s significant anxiety around time spending, which may undermine X’s relationship with the mother.
(d)Ongoing time spending between X and the father will continue to be a significant PTSD “trigger” for the mother and be significantly “challenging” for her and
if the court is really wary about whether Mum can manage that, and wary about whether that’s going to be too triggering, and wary about that being a dose that just going to keep Mum disrupted, it would be better to err on the side of no time.[2]
(e)There did not appear to be any capacity for the father to address the risks he presents, and that the father’s “personality dysfunction” in and of itself prevents the father “addressing the dysfunction”.
[2] Transcript 22 March 2024, p.37 lines 24-27.
In his oral evidence, Dr B ultimately recommended that if the Court was of the view that the mother’s functioning was still diminished and would be diminished on an ongoing basis by time spending between X and the father, then, the mother’s functioning needed to be protected and there should be no time spending between X and the father. This is an opinion that I unreservedly accept.
As set out when discussing Dr E’s evidence later in these reasons, I am satisfied that the mother’s level of functioning has not improved since the retributive attempted suicide, and that it is unlikely to do so in the foreseeable future, particularly if there is ongoing time spending between X and the father.
The evidence of the father
As earlier identified, the father was the first witness to give evidence during the final hearing. He did so with the assistance of an interpreter. The father was softly spoken.
The mother made an attempt to sit in the court room during the father’s oral evidence, however, as his evidence became more confronting for her, her emotional and psychological state deteriorated and ultimately, at various times throughout the evidence, arrangements were made for the mother to sit in a different room.
The father’s oral evidence was at times difficult to reconcile. I am satisfied this is because he was guileless and devoid of the capacity for reflection, insight and remorse for his own conduct and its impact; other than perhaps as to the impact upon himself, his current circumstances and his relationship with X. I note that these are views Dr B came to in his report (at [267]-[268]).
A particularly graphic example of the father’s incapacity for reflection, insight, and remorse came when the father was questioned in various ways by the mother’s senior counsel as to whether he understood the mother was “fearful” of him particularly since the retributive attempted suicide. The father variously responded “I don’t know”, “how would I know”, culminating in an answer in which he suggested that because he had not spoken to the mother directly, he could not be sure, despite what he had been told by his lawyers and what he variously understood from the Family Report, the report of Dr E and the mother’s affidavit.
I am satisfied that throughout his evidence the father attempted to minimise his conduct constituting family violence. This included the father asserting that he did not remember certain matters. What is not clear however is the extent to which the father’s minimisation of his behaviours was as a result of an overt attempt to do so, or because he genuinely had an inability to understand the impact of his behaviour on others. On balance, however, I am satisfied that it was as a result of a combination of the two.
An example of the father’s minimisation and inability to understand the impact of his behaviours, was the father’s evidence about suicide notes he gave oral evidence he was writing throughout 2017 and 2018. The father flippantly gave evidence that he had left these notes in the mother’s handbag, everyday bag and in her car in the hope that she would find the note when she was going out. When probed by the mother’s senior counsel about how the finding of these notes might impact the mother, the father was entirely incapable of seeing these matters through any lens other than his own, stating variously that he did not know if the mother would find the notes, rather than answering the questions that were being asked. The father additionally did not appear to have any ability to consider that the children, and not the mother might have found the notes, and/or that they might have been with the mother when she found the notes and how this might have impacted them. Despite the father’s evidence, I am satisfied that the father wrote these notes and placed them in locations that he knew they would be found and seen by the mother and strategically so to cause her maximum distress. I am also satisfied that the father had a complete disregard to any impact the finding of these notes might have had on the children. I am further satisfied that the writing and leaving of these notes, was an incident of coercive controlling family violence as they were an attempt by the father to coerce the mother into staying in and/or resuming the relationship with him.
In all, the father impressed as a person incapable of taking responsibility for his actions and the impact his actions have had upon the mother.
Importantly the father provided little evidence of substance to the Court as to the work that he has done in the post separation period, and importantly since the release of Dr B’s report to address the significant risks presented by the family violence he has perpetrated.
The evidence of the mother
The mother’s oral evidence was emotionally fraught and to use the words of her senior counsel was “raw”. She presented as someone who is still deeply affected by the events that have occurred in the relationship; consistent with her diagnosis of PTSD and anxiety, and the evidence of her presentation to each Dr B and her Psychologist, Dr E.
Despite this, I am satisfied that the mother presented as an accurate historian and that she gave her oral evidence in an open and forthcoming fashion.
As a result, the mother’s credit is not in issue, and her evidence is preferred wherever it conflicts with the father’s.
I accept the mother’s evidence (together with that of her treating Psychologist, Dr E, as discussed later in these reasons), that the accumulation of the family violence perpetrated by the father against the mother (as discussed throughout these reasons), culminating in the retributive attempted suicide, has had a long lasting and significantly deleterious effect on the mother.
I accept that the mother has been diagnosed with PTSD and anxiety, and that as a result the mother suffers a range of symptoms which at times have a debilitating effect on her. Those symptoms are varied and may be triggered by simply seeing a blade or the type of vehicle the father used, these proceedings, Father’s Day, seeing the name “Batas” written on paper, hearing the father’s name, and of significance, occasions of communication or time spending between X and the father. The symptoms experienced by the mother include but are not limited to:
(a)Disturbed and poor sleep;
(b)Nightmares;
(c)Flashbacks;
(d)Chest pain;
(e)Heart palpitations;
(f)Jaw clenching;
(g)Intrusive and racing thoughts;
(h)Restlessness;
(i)Hot flushes;
(j)Migraines;
(k)Agitation;
(l)Tearfulness;
(m)Difficulty focussing; and
(n)Hyper vigilant behaviour.
The evidence of Dr E
Dr E is the mother’s treating Psychologist. She gave evidence in the proceedings by affidavit filed 1 October 2021, which attached a report prepared on 29 September 2021. Additionally, the Court received into evidence Dr E’s notes from her sessions with the mother between 5 June 2023 and 5 March 2024 (Exhibit “M8”).
Dr E has been treating the mother for a significant period of time, commencing in about June 2020 and continuing to the time of trial; a period of almost four years duration.
Dr E was not required for cross examination, and accordingly there was no challenge to her opinions and the matters contained in her notes. As such, I accept the evidence of Dr E in its entirety.
Importantly, in her written report Dr E reported that the mother reported to her at that stage:
(a)Feeling anxious, unmotivated and that she had lost interests in enjoyable activities;
(b)Reminders of the father increased her anxiety;
(c)Avoiding external situations that would increase her feelings of distress and anxiety, including isolating herself from social and cultural connections;
(d)Fear that when she enters her home, someone will come up behind her and kill her;
(e)Hypervigilant behaviour including checking the rooms in the house, behind doors and inside cupboards and wardrobes;
(f)Being easily startled at home, particularly in the evening when she hears noises; and
(g)Continuously worrying about the children when they are spending time with the father.
In her written report, Dr E diagnosed the mother with Post Traumatic Stress Disorder (“PTSD”) and a Major Depressive Disorder, the latter being in full remission. This was a diagnosis with which Dr B also agreed.
The notes of Dr E received into evidence variously record:
(a)The mother continuing to feel unsafe when home alone (appointment in January 2024);
(b)The mother continuing to experience anxiety particularly when taking X to supervised visits with the father (appointment in January 2024);
(c)The mother presenting in a “teary” fashion during appointments (appointments in January 2024 and February 2024);
(d)The mother’s anxiety being triggered by listening to the father’s voice, such that she experiences heart palpitations and increased fear (appointment in January 2024);
(e)The mother blaming herself for not seeing the father’s “red flags” (appointment in January 2024);
(f)The mother keeping her mobile phone on her pillow when sleeping so that she can easily access her phone if the father breaks into her home (appointment in January 2024);
(g)The mother suffering poor sleep (appointment in February 2024);
(h)The mother experiencing decreased motivation, severe anxiety, heart palpitations, shortness of breath and chest pain (appointments in February 2024);
(i)The mother finding it hard to get out of bed (appointment in February 2024);
(j)The mother completed diagnostic testing resulting in a diagnosis of severe depression in February 2024 and in that regard the mother presented with symptoms of “significant psychological distress” including but not limited to:
(i)Depression;
(ii)Intrusive and unwanted thoughts and experiences, including nightmares, flashbacks of upsetting memories;
(iii)Defensive avoidance to suppress painful thoughts and memories;
(iv)Insecure attachment with the avoidance of close relationships; and
(v)Less self-confidence.
I am satisfied from all of the evidence that the mother continues to suffer from PTSD, anxiety and depression, which presents with symptoms that are intrusive and significantly debilitate and impact the mother’s functioning.
I am satisfied that the mother’s symptoms have not improved in the post separation period, despite the significant assistance she has obtained from Dr E.
I accept that the mother’s symptoms are amplified when she has to encounter the father in any way, shape or form, but particularly associated with time spending or communication between the children and the father.
I also accept that the mother is unable to cope with any form of communication or time spending between the father and X.
PARENTAL RESPONSIBILITY
The legislative pathway requires the Court to determine the question of parental responsibility as a precursor to determining those orders that are in X’s best interests.
The mother has asked the Court to make an order that provides her with sole parental responsibility for X.
On any view, the retributive attempted suicide is a significant incidence of family violence. In isolation it is sufficient to rebut the presumption that the parties have equal shared parental responsibility. When combined with the additional findings as to the existence of family violence throughout these reasons, the presumption of equal shared parental is resoundingly rebutted, and I find that the presumption is so rebutted.
For the sake of clarity, I am satisfied that the retributive attempted suicide was an act of family violence when regard is had to the following findings that I make:
(a)The father “planned to kill himself” on a special occasion so that the mother “cannot forget the pain” (Exhibit “M6”), and “to teach” the mother a “lesson” as she had “rejected him by divorce and infidelity” (Exhibit “ICL1”).
(b)The retributive attempted suicide was precipitated by a number of factors including:
(i)the father’s financial demands of the mother (Exhibits “M6”, “ICL2”);
(ii)the father ascertaining from X that the mother was in a relationship with Mr M (an admission made in the father’s oral evidence and confirmed in Exhibit “M6”);
(iii)the father being “shocked beyond disbelief” upon learning this information and being overcome by an “overwhelming sense of grief” (an admission made in the father’s affidavit filed 1 March 2020 at paragraph 33);
(iv)the father feeling “betrayed” by the mother re-partnering, and his perception that the mother was “ignoring him, felt betrayed, [he] planned to live a good life with his wife in the past but now he is not getting anything” (Exhibits “M6”, “ICL2”).
In light of these findings, I am satisfied that the retributive attempted suicide constituted family violence with reference to the definition contained in s 4AB of the Act, as it was violent and threatening behaviour (including causing extensive intentional damage to the mother’s place of work), which was calculated on the father’s part to make the mother fearful of him, and leave her with long lasting emotional and psychological damage.
Moreover, I am satisfied that the retributive attempted suicide left the mother with the very long lasting emotional and psychological damage that the father had intended.
As a result of my finding that the presumption of shared parental responsibility has been rebutted, the legislative pathway requires me to have regard to those considerations in s 60CC of the Act and make orders that are in X’s best interests.
Before doing so however, more must be said and findings made about the family violence perpetrated by the father towards the mother.
FURTHER FINDINGS AS TO FAMILY VIOLENCE
I am satisfied from the evidence that the retributive attempted suicide was not an impulsive and isolated incident. Rather, I am satisfied from the evidence that from the earliest days of the relationship the mother was subjected to coercive and controlling family violence all aimed at threatening and intimidating the mother to be in a relationship with the father and to continue that relationship with him.
When regard is had to the father’s oral evidence, the report of Dr B and the evidence of the mother, I am satisfied that the following incidences of family violence occurred:
(a)Early in the parties’ relationship (1996-1997) and when the father was pursuing the mother, he told the mother on more than one occasion that he would “take cyanide” if the mother did not marry him.
(b)During the relationship the father was entirely financially dependent on the mother, with little motivation or success in contributing to the finances of the family; thus placing financial pressure on the mother.
(c)From approximately April 2017 until the retributive attempted suicide, the father made numerous and repeated threats to the mother that he would kill himself if the relationship ended. Those threats were made verbally and in writing. The threats included threats that he would take his life at the mother’s place of work to ruin the mother’s career and that he would take his life and “haunt” the mother as a ghost. The written threats were left in notes found by the mother in various locations including her car, suitcases and handbags.
(d)In or about early 2018 the father cut himself in the mother’s home in the presence of the mother. The child X was present in the immediate aftermath of this incident, and witnessed the father’s injury, the mother’s distress (screaming and crying) and the mother attending to the father’s injury (wrapping his injury several times after the father removed the cloth bandage the mother had applied).
(e)After the retributive attempted suicide, the father made false claims to the maternal grandparents in an attempt to bring shame to the mother, and as another form of coercion, control and/or threat. Those claims included:
(i)From approximately March 2019 the father made contact with the maternal grandparents in Country C in which he blamed the mother for the parties’ separation.
(ii)Between mid-2019 and late 2019 the father travelled to Country C and visited the maternal grandparents. During those visits the father told the maternal grandparents that the mother was living in an area with “drug dealers”, and that he had broken into the mother’s workplace as she was “having an affair” with another man.
(f)In or about 2018 the father got a tattoo relating to the mother and the children, and thereafter showed the mother pictures of this tattoo.
In light of these additional findings and those relating to the retributive attempted suicide, I am satisfied that the family violence that the mother has experienced has been significant and severe.
I am also satisfied that the father’s behaviour towards the mother had the very impact that the father intended, namely that she felt threatened, intimidated and scared, and that she continued in an unsafe relationship as a result of the same. Moreover, in the post separation period the mother continued to provide financial and emotional support to the father out of fear from the father’s threats of self-harm and suicide.
In light of all of the matters discussed throughout these reasons, I am satisfied that cumulatively, the family violence perpetrated by the father towards the mother has had a significant and lasting impact upon the mother, including but not limited to her sense of security and safety, and that of the children.
BEST INTEREST CONSIDERATIONS
Throughout these reasons I have discussed a range of matters encompassed by the s 60CC considerations. I do not propose to repeat those matters. Rather, I set out hereunder additional matters to which I have had regard:
The Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In light of the findings that I have made about the extensive existence of family violence perpetrated by the father towards the mother, the primary considerations contained in s 60CC are of overriding concern. To that end, it is difficult to conceive of a more glaring and obvious example of “the need to protect a child from the physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence”.
In light of all of the matters discussed throughout these reasons, I am satisfied that the risk of harm posed by the father is extreme. He has shown capacity for significant self-harm, threatened over an extended period of time; including at least one attempt in early 2018 in which X was present in the immediate aftermath.
I specifically accept Dr B’s opinion that:
572.My impression is that this pattern of family violence was at the severe end of the spectrum, in terms of the persistence and intensity of the father’s coercive attempts to maintain the parental relationship even after the mother had clearly signalled her intention to depart the same and even as and after she did depart the home, and the father’s willingness to deliberately cultivate and amplify guilt, suffering, fear and (once the mother had left the home and informed persons outside the parental relationship of the same) private and public shame, in the mother, in order initially to coerce the mother to stay, then (once she had left) in order to ensure that he had a lasting and significant presence in her mind and impact upon her.
573.The father’s threatening behaviour at times extended to menacing behaviour and the deliberate and persistent cultivation of fear in the mother, particularly around repeated paternal threats to end his own life. These threats extended to enactments such as the occasion in early 2018 when the father actually did cut [himself], then (the mother claims, and I think it likely that this did occur) unbandaged the bandaged [injury] on two occasions and involved the child [X] in this enactment, and other occasions when he stormed out of the home expressing intent to die on the road.
574.The father made threats to haunt the mother after death (contained in his suicide notes… [and] threats to ruin her reputation by killing himself at her work.
575.The father sought to increase the reach and impact of his coercive and threatening behaviour by writing multiple suicide notes … and hiding these in places such as in the mother’s handbags or under the mat in her car, so that she found them gradually over the period from August 2018 to early 2020. Two of these are re-written copies of the other two, with slight variations, suggesting that (rather than the father merely experiencing repeated moments where he felt the need to express his distressed feelings) the father was deliberately “making multiple copies” (my words) so as to amplify reach and impact. The father at interview described having written only the four of such notes as presented by the mother, but I think it likely that the mother’s narrative is more accurate, that these are only examples of the many such notes that she found in various places over time.
576.In the context of the paternal behaviour above, in my view the father having [a tattoo relating to the mother and children] after the mother had clearly stated her intention to depart the relationship, then showing the mother [this tattoo] and texting to her a picture of the same on the day of her departure from the home and in the context of his own repeated threats of suicide, was a coercive and menacing paternal act. This act […] reinforced the father’s statements in the suicide notes written around that time, “this is my one-sided continuous love”, and “I don’t want you to love me. But my right is to love you. I keep loving you”.
577.Post-separation, the father has actively sought to undermine (the mother uses the word “destroy”) the mother’s standing and reputation in her own and his own extended families and in the broader community, at the expense of the protection or elevation of his own reputation and standing. The father has painted the mother as a woman who left the marriage because of an affair and immediately upon her gaining the [professional] qualifications that he had sacrificed himself for, which in my view is not an accurate portrayal of circumstances or of the mother’s motivations. The father confirmed with me that he had been to see the maternal grandparents in person with this narrative, and had contacted the mother’s best friend also. The mother describes the father having actively promulgated this narrative amongst the parents’ contacts within the [Country C] community in Sydney such that she now felt unable to engage in community events. My own telephone interview with psychologists [Ms P] and [Mr Q] and the report of forensic psychiatrist [Dr J] confirm that he has expressed this narrative in professional settings.
578.The particularly intrusive, menacing, and impactful enactment of the father’s coercive behaviour was the father’s act of self-harm and damage to property at the mother’s workplace in [early] 2019, including his spreading his own blood throughout every room of the workplace, and writing on the walls with blood [photographs at Annex D to the mother’s affidavit of November 2019].
579.The extent of impact and damage was such that police were prompted to charge the father with [domestic violence related property offences], even though the mother's partner’s narrative to me was that the mother was minimising the significance of the father’s actions, on the day. The facts underlying this charge were not subsequently challenged or dismissed, rather the charge was dealt with under Section 32 of the NSW Mental Health (forensic provisions) act.
580.The father’s actions were planned, and the setting and date of the act chosen so as to maximise the negative impact upon the mother. The father does not dispute that in order to enact this process, he utilised a key that he had obtained at an earlier time. The mother recalls losing a key a year or two prior to the event. The father told staff during his hospital admission immediately following the event that the acute prompt to take this action was information obtained from his daughter and subsequent discussions with the mother […] before the act. He told staff during this admission that he had decided to kill himself on [a special occasion], so that his wife cannot forget the pain. Again, the father is expressing his intention to have enduring and insurmountable negative impact upon the mother.
581. The father’s actions [in early] 2019 were an enactment of the paternal attitudes and intentions expressed in the suicide notes addressed to the mother and written around August 2018. He wrote in one of those notes, “When my death takes place, you will have a lot of fear”.
582.The father’s actions on that day were vengeful and aggressive. The father told me at interview that he was burning with jealousy, on that day.
…
605.In my view, there is significant risk of [X] being exposed to family violence within a future paternal partner/ marriage relationship over the almost 10 years until she reaches the age of 18.
606.There would be a particular risk of [X] being exposed to overt acts of family violence if a future paternal partner sought to end/ depart relationship with the father. This would create risk of acute distress, fear and traumatic experience in [X].
607.If a future partner remains within the relationship, there is risk of [X] being exposed to what I have termed the pragmatic, self-referential, unempathic and disrespectful paternal approach to partner relationship, and to the attitudes and behaviours typical of family violence perpetrators, listed above. This would create risk of cumulative relational and developmental harm to [X] during the key developmental phases of late childhood and adolescence, in terms of aberrant modelling to [X] of patterns of relating, in particular patterns of relating within a partner relationship.
608.In my view, the risk of exposure to family violence within a future maternal partner relationship is low.
…
Risk of emotional or physical abuse or of neglect in the father’s care.
610.This risk is significant, in terms of the risks linked to exposure to family violence in a future paternal partner/ marriage relationship.
611.There are risks of neglect and of emotional abuse linked to the father’s deficits in parenting capacity, as discussed below under the heading of the children’s relationship with the father.
When regard is had to all of the evidence, I am not satisfied that the father has taken any meaningful steps to address the significant risks that he presents; indeed, I am satisfied that he is either unwilling to do so, or ignorant of the need to do so. Accordingly, I am satisfied that the risk of psychological harm to X and the mother remains significant and ever present.
I additionally consider that the impact upon the mother of any ongoing time spending or communication between X and the father is such that the mother’s emotional and psychological functioning is significantly compromised, and that it is to the point where the mother’s primary care of X is unacceptably undermined and compromised.
In light of these findings, I am satisfied that the father presents an unacceptable risk of harm to the mother and X and particularly if there was to be any form of time spending between the father and X.
The Additional Considerations
Whilst I am satisfied that the father presents an unacceptable risk of harm to the mother and the child, I have nonetheless considered, as required, the additional considerations in coming to a conclusion about the appropriate parenting orders to be made.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views – s 60CC(3)(a)
I have earlier outlined the views X expressed to Dr B.
The evidence of Dr B suggests and I am satisfied that X is ambivalent about her relationship with the father, and that she would not be deleteriously impacted if there was to be no time spending.
The nature of the relationship of the child with each of the child’s parents other persons (including any grandparent or other relative of the child) – s 60CC(3)(b)
I am satisfied that X has a close and loving relationship with the mother. The mother is her primary carer and she has undertaken those parenting duties exceptionally, despite the very difficult circumstances that have prevailed in the lead up to and following the parties separation.
I am satisfied that to date, X is not aware of the details of the retributive attempted suicide. This however is something that will need to be addressed sensitively and appropriately with the assistance of professionals in the future. I am satisfied that the mother is equipped to do so in a child focused and appropriate fashion as X matures.
So far as X’s relationship with the father is concerned, I am conscious that the relationship has been positively maintained over the post separation period, and in the context of these proceedings in a supervised time spending setting. I am satisfied that the relationship appears to be one built on X’s respect and deference to the father. There remains however a language barrier in the relationship between X and the father as X is not fluent in Country C language and the father is not fluent in English.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child – s 60CC(3)(ca)
The father does not and has not paid child support for X.
The mother has otherwise met all of X’s needs, both financially and otherwise.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs – s 60CC(3)(f)
I am satisfied that the mother has the capacity to meet X’s emotional and intellectual needs in every way.
I otherwise accept Dr B’s views (at [717]-[718]) that while the father has the capacity to meet X’s basic day to day and emotional needs, the father otherwise
lacks capacity to meet [X’s] more complex and relational needs, for example for reflective and empathetic listening, discussion of peer or family relational troubles, or issues of identity, sense of self or emotional difficulties, and also for assisting [X] to reflect upon and come to understand in her own way her personal narrative, including the parental relationship, separation, and her subsequent experience of each parent.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant – s 60CC(3)(g)
I am satisfied that X’s cultural needs are capable of being met by either parent, given their shared Country C heritage.
CONCLUSION
In light of all of the matters discussed throughout these reasons, I consider it in X’s best interests that orders be made maintaining her in the sole care of the mother and that the mother have sole parental responsibility (including the ability to obtain a passport for X).
As I have earlier identified, I am satisfied that any form of time spending and/or communication between X and the father presents an unacceptable risk of harm to X and the mother.
I have otherwise come to the decision that it is appropriate that there be no time spending or communication between X and the father moving forward.
I accept that it is appropriate for there to be injunctions in place regarding the mother and X, particularly if those injunctions will assist the mother’s sense of security and safety.
I am satisfied that it is also appropriate for X’s surname to be changed. Firstly, because this is something that X herself wants, but secondly so as to minimise the triggering impact upon the mother of having to use the father’s surname when referring to X.
I am also satisfied that in obtaining therapeutic support for herself and X, that the mother be at liberty to provide a copy of Dr B’s unredacted report, together with a copy of these reasons to any proposed medical practitioner and or therapist.
In light of the concerns expressed by Dr B, I consider it appropriate that there be ongoing restrictions in relation to the father retaining a copy of Dr B’s report. I also consider it appropriate, as requested by the mother, for the legal representatives to destroy any copies that they have of Dr B’s report and that thereafter the copies of the report on the court file be supressed.
For all of these reasons I make those orders that appear at the commencement of these reasons.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 18 October 2024
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