Bennett & Harper
[2024] FedCFamC2F 1479
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bennett & Harper [2024] FedCFamC2F 1479
File number(s): PAC 4567 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D. Cases cited: Banks & Banks (2015) FLC 93-637
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 182 Date of hearing: 16-19 September 2024 Place: Parramatta Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: Matthews Folbigg Pty Ltd Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Godden Lawyers Counsel for the Independent Children's Lawyer: Ms Druitt of counsel with Ms Rebehy of counsel (16 September); Ms Rebehy of counsel (17, 18, 19 September) Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 4567 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BENNETT
Applicant
AND: MS HARPER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The father shall have sole decision making responsibility for major long-term issues for the children X born in 2019 and Y born in 2020 (“the children”) provided that:
(a)The father shall advise the mother in a timely manner (in writing and within seven days if non-urgent and within 24 hours if urgent) of any issue in relation to the long term care, welfare and development of either of the children and the decision he proposes to make;
(b)The mother shall, (in writing and within seven days if non-urgent and within 24 hours if urgent), provide her views on the decision the father proposes to make and the father shall take into account and consider any views expressed by the mother;
(c)The father shall advise the mother in a timely manner of his decision.
2.The children shall live with the father as follows:
(a)For a period of four weeks from the date of these orders from 9.00 am on each alternate Thursday until 9.00 am the following Monday.
(b)Thereafter and for a further period of four weeks from 9.00 am on each alternate Thursday until 9.00 am the following Wednesday.
(c)Thereafter, each alternate week from the conclusion of school/childcare on Wednesday (or 3pm on a non-school day) to Friday the following week at 9.00 am (or before school) being nine nights per fortnight.
3.The children shall live with the mother when not otherwise living with the father.
4.Notwithstanding any other order the children shall:
(a)Live with the mother:
(i)From 5.00 pm on the day before Mother’s Day until 5.00 pm on Mother’s Day;
(ii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2025 and each alternate year thereafter;
(iii)From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2024 and each alternate year thereafter;
(iv)From the time that Y commences school for one half of the holidays being the first half in years ending with an odd number and the second half in years ending with an even number;
(v)From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the mother on that day;
(vi)From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2026 and each alternate year thereafter.
(b)Live with the father:
(i)From 5.00 pm on the day before Father’s Day until 5pm on Father’s Day;
(ii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2024 and each alternate year thereafter;
(iii)From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2025 and each alternate year thereafter;
(iv)From the time that Y commences school for one half of the school holidays being the first half in years ending in an even number and the second half in years ending in an odd number;
(v)From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the father on that day;
(vi)From 9.00 am on Good Friday until 9.00 am on Easter Saturday;
(vii)From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2025 and each alternate year thereafter.
5.Telephone or Facetime communication between the child/ren and the parent they are not spending time with shall be facilitated by the caring parent with the non-caring parent at such reasonable times as the child/ren may request.
6.For the purposes of changeover:
(a)Changeover shall take place at school/childcare whenever that is appropriate;
(b)Otherwise, the changeover shall take place at an agreed location and failing agreement at Suburb B McDonalds.
7.Each party is restrained from:
(a)Denigrating the other party or any member of the other party’s family in the presence or hearing of the children;
(b)Discussing these proceedings or any family law matters in the presence or hearing of the children;
(c)Approaching the other party except as provided in these orders.
8.Both parties are entitled to receive any information ordinarily provided to parents from the children’s school/day care or other extra-curricular activities.
9.Both parties will notify the other party in the event that the children, or either of them, receive treatment from a medical specialist and will provide each other with a copy of any relevant report.
10.The parties do all acts and things necessary to make an application to the NSW Registry of Births, Deaths and Marriages to change the name of the children to X Harper-Bennett and Y Harper-Bennett.
11.Both parents are at liberty to attend at any school event to which parents are invited.
12.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the father be authorised to solely apply for passports for the children X Harper (also to be known as X Harper-Bennett pursuant to Order 10 herein) born in 2019 and Y Bennett (also to be known as Y Harper-Bennett pursuant to Order 10 herein) born in 2020.
13.Both parents are permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel during their time with the children pursuant to these orders, or such other times as agreed, provided the following conditions are satisfied:
(a)That the travelling parent provide to the non-travelling parent with no less than 42 days written notice of the proposed travel, including:
(i)Dates of departure from and return to Australia, of the proposed travel, and;
(ii)Purpose and destination of the travel.
(b)That the travelling parent provide to the non-travelling parent, no less than 28 days prior to the proposed travel:
(i)Copy of return airline tickets;
(ii)Copy of itinerary, and;
(iii)A copy of the children’s travel insurance policies and certificates, which include as a minimum, hospital and emergency medical cover.
14.Within 24 hours from the date of these Orders, and failing agreement, the mother and father will download if not already done, the mobile phone application ‘AppClose’, and the mother and father will commence communicating via the mobile phone application from the date of these Orders.
15.Failing agreement, the mother and father shall communicate via the mobile phone application ‘AppClose’ relating to anything arising in relation to the children unless otherwise provided for in these Orders.
16.The children attend at a school nominated by the father but such school shall not be further geographically away from the mother’s home than the distance between Suburb C and Suburb D.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the children X born in 2019, currently aged 5, and Y born in 2020, currently aged 4 (the “children”).
The parties commenced cohabitation in August 2018. They finally separated on 9 May 2021. The children were in the father’s care for a brief period immediately following separation. Subsequently until March 2022 the children lived with the mother and spent day time with the father. From 17 March 2022, the children effectively spent no time with the father. On 15 December 2022, interim orders were made by consent for the father to spend supervised time with the children and time pursuant to those orders commenced on 17 February 2023. Supervised time continued until further interim consent orders were made on 2 November 2023 providing for the father to spend graduating time with the children culminating in one overnight per fortnight and day time in the off week. Those arrangements continued until the final hearing.
PROPOSALS
The parties each handed up a proposed minute of order on the final day of the hearing.
The father and the ICL sought orders that the father have sole parental responsibility for the children, subject to consultation with the mother, and that after an eight-week period of gradual transition the children live with the father nine nights per fortnight and with the mother five nights per fortnight.
The mother sought orders that the parents have joint parental responsibility and that, after a lengthy period of gradual transition, the children live with the mother nine nights per fortnight and with the father five nights per fortnight.
MATERIAL RELIED UPON
The father relied upon:
(a)Further (Amended) Application filed 2 August 2024;
(b)His affidavit filed 11 September 2024;
(c)His affidavit filed 2 August 2024;
(d)Affidavit of Ms E, the father’s wife, filed 2 August 2024;
(e)Affidavit of Ms F, the paternal grandmother, filed 2 August 2024;
(f)Single Expert Report of Ms G dated 25 August 2023;
(g)Child Impact Report of Ms H dated 13 December 2022;
(h)Case Outline filed 11 September 2024.
The mother relied upon:
(a)(Amended) Response to Initiating Application filed 12 April 2024;
(b)Her affidavit filed 7 August 2024;
(c)Affidavit of Ms J filed 1 December 2022;
(d)Notice of child abuse, family violence or risk filed 23 September 2022;
(e)Single Expert Report of Ms G dated 25 August 2023;
(f)Case Outline filed 9 September 2024.
The ICL relied upon:
(a)Single Expert Report of Ms G dated 25 August 2023;
(b)Case outline filed 13 September 2024.
The following documents became exhibits:
·Exhibit A: Letter of K Service dated 31 July 2024 (page 309 of the mother’s tender bundle) with a report from Dr L and notes dated 22 November 2021 to 24 October 2022;
·Exhibit B: Text messages (pages 305 to 307 of mother’s tender bundle);
·Exhibit C: Suburb M School application for enrolment;
·Exhibit D: One page letter written by the father (page 220 of mother’s tender bundle);
·Exhibit E: Photos of bruises on the mother (pages 222 to 227, 230 to 236 of mother’s tender bundle);
·Exhibit F: Letter dated 8 August 2024 from N Service; text message from Mr O; pages 218 to 219 mother’s tender bundle (additional text messages);
·Exhibit G: ADVO dated early 2022;
·Exhibit I: Response to Initiating Application filed 23 September 2022;
·Exhibit J: DCJ material (pages 136 to 184 of father’s tender bundle);
·Exhibit K: NSW Police ERISP (pages 1 to 30 of father’s tender bundle);
·Exhibit L: Material from P Centre (pages 31 to 110 of father’s tender bundle);
·Exhibit M: Hand drawn map of distance between Suburb D and Suburb Q;
·Exhibit N: 2 x referrals dated 29 April 2024 and a letter dated 24 July 2024 from Dr R;
·Exhibit O: Mother’s revised minute of order;
·Exhibit P: Letter to Ms G dated 5 July 2023; Family Report of Ms G;
·Exhibit Q: Acceptance agreement for S School;
·Exhibit R: Pages 14 to 16, 23, 42, 43, 238 to 259, 299 of mother’s tender bundle;
·Exhibit S: Child Impact Report dated 13 December 2022
·Exhibit T: Contact centre records (pages 59 to 123 mother’s tender bundle);
·Exhibit U: Pages 94 to 97, 104 of father’s tender bundle;
·Exhibit V: AppClose record of text messages (pages 317 to 331 mother’s tender bundle);
·Exhibit X: ICL proposed minute of order;
·Exhibit Y: Father’s proposed minute of order;
·Exhibit Z: Audio recording dated early 2022 and video recording of incident in mid-2021.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The presentation of the parties during their respective oral evidence was unremarkable. Both parties were relatively calm and usually sought to give responsive answers to questions posed to them.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
Counsel for the mother cross-examined the father.
The father’s attention was drawn to paragraph 129 of his trial affidavit wherein he had stated, inter alia:
My original application was for equal time. I have changed my application. My original concern about (the mother’s) mental health and erratic behaviour had not resolved. I am concerned that without a majority of Court ordered time (the mother) will work to minimise the boys time with me.
The father was asked to give an example of his above concerns relating to the mother’s mental health being enlivened after separation. He referred to some of the things of the children had been telling him.
The father stated that he is worried that the mother is passing her anxiety and her hatred of him on to the children.
The father was asked what would resolve his concern relating to the mother’s mental health to which he responded, “an appropriate diagnosis.”
The father acknowledged that in his current Further (Amended) Initiating Application he was proposing that the children spend time with the mother up to five nights each fortnight together with holiday time. He was asked how his concerns relating to the mother’s mental health would be addressed through his proposed orders for the children to spend time with her, to which he responded, “by appropriate diagnosis and treatment”.
The father was cross-examined relating to his reference to the mother alienating the children from him. He was asked how such alienation was occurring. The father stated that a lot of the mother’s case was based on the mother trying to keep the children away from him. The father’s attention was drawn to previous court orders expanding his time with the children. The father responded that those orders providing for time was still very limited. A short time later he agreed that the mother’s proposed final parenting orders provided for an increase in the children’s time with him and which did not suggest alienation.
The father was pressed to explain how the mother’s mental health was resulting in alienation of the children from him. He responded by stating that he did not believe the mother was putting the children first in her decision-making as to what time they spent with the father. He clarified that his understanding of alienation was the mother keeping the children away from him or limiting his time with them. A short time later he stated that alienation was a number of things and not just a matter of how much time the children spend with him, including the mother speaking to the children and poisoning them against him; he agreed that these matters were not stated in his affidavit.
The father did not agree that the mother supports the children’s relationship with him. He agreed that he had received a Father’s Day gift from the children.
The father was then asked to indicate whether there was any other matter of concern that he had regarding the mother’s mental health, to which he referred to the mother’s anxiety.
The father disagreed that the mother’s anxiety arises from her fear of him.
The father was asked whether there was anything else regarding the mother’s anxiety which affected the best interests of the children. The father referred to the contents of some of the mother’s letters, wherein she referred to incidents happening at the father’s house. He also referred to the mother taking X to the doctor having understood that he fell down some stairs, that she raised certain matters with DCJ, that she raised with the father that the child Y had medical conditions, and that she raised the issue of the children having operations for these conditions.
The father was asked whether there was any other example he could relate that supported his concern regarding the mother’s anxiety impacting upon her care of the children, to which the father replied that other than his past experience during the parties’ relationship, he could not.
The father was asked whether the mother’s anxiety could be related to the conduct of these proceedings, to which the father answered in the affirmative. He stated that he accepts that he suffers from anxiety and has had and still receives treatment. The father stated that he sees Dr O, psychologist for treatment. He does not take medication presently (for his mental health).
The father agreed that if his proposed final parenting orders were made that the implementation of such orders would represent a traumatic change for the children. The father was then asked how he would address such trauma, to which the father responded that their time with him would increase on a graduated basis.
The father was asked whether the children would miss the mother if spending nine nights each fortnight with the father, to which the father answered in the affirmative. He stated that if the children told him that they were missing the mother that he would be present with and talk to them. He said he could seek professional help for the children.
The father acknowledged that telephone time between the children and the mother was not mentioned in his proposed final parenting orders but stated that such time could be facilitated, including a possible video call with the mother.
As to sole parental responsibility that the father was seeking, the father stated that he was a safer option for the making of decisions. He stated he was better able to put the children’s interests first compared to the mother. He gave an example of the mother withholding the children from him in March 2022 as being an example of the mother not putting the children’s best interests first.
It was put to the father that the mother had increased his time with the children, to which the father responded, “minimally”. It was put to him that the mother was proposing to increase his time with the children to which the father responded, “gradually”.
The father stated that the mother’s proposed school for the children, S School in Suburb Q, is too far for him to travel to.
The father stated that he is aware the mother has concerns regarding the child X’s speech disorder. The father stated his belief was that the child does not have a speech disorder because he does not show disordered behaviours around him. He agreed the mother had provided him with speech therapy related documents for X. He stated that this child was seeing a speech therapist arranged by the mother. He had not liaised with the mother regarding this therapy. In this context, he agreed the mother had taken positive steps for X.
The father was asked how the children will be safer living with him, to which the father responded that he would be able to facilitate a relationship between the children and the mother (the other parent).
The father agreed that much of his concern relating to the mother had arisen from the parties’ previous dysfunctional relationship, which was toxic. In this context, the father denied that he gave (to the mother) as good as he got (from the mother).
The father stated that he had recently commenced an anger management course online. He decided that it would benefit him to do the course after having completed a Parenting After Separation course online.
The father agreed, having been shown his application for enrolment at Suburb M School on behalf of the eldest child that he had not included the mother’s details under the headings “correspondence to be sent to” and “emergency contacts”. He stated that he had not done so because he was not aware of the mother’s contact details. In this context, he stated he was aware of the parenting app the parties used but was not aware of the mother’s phone number.
It was put to the father that he had no concerns regarding the mother physically hurting the children. The father stated that he worried how the mother might act towards the children if she was to lose control.
The father was shown a number of photographs showing bruising to the mother’s body. He was asked whether he had caused the bruising. The father stated that he had grabbed the mother at times and it was possible that this bruising could have been caused (by that behaviour).
The ICL’s counsel cross-examined the father.
The father agreed that the children had been exposed to family violence between the parties.
The father agreed that he had returned the children to the mother’s care after an incident in mid-2021 involving a knife, albeit that he had spoken with the maternal grandmother informing her that he would only allow the children to live with the mother if she was living with the maternal grandmother. He agreed he had not commenced proceedings until 19 August 2022.
The father related an incident on a piece of playground equipment at a park involving the youngest child in mid-2024. This child had moved forward and injured himself on a pole. He didn’t communicate the incident to the mother because he believed the incident was minor.
The father admitted to swearing at the mother when the parties were “fighting”. The children were not present.
The father agreed that he fears that if the children live with the mother they will not be able to develop a meaningful relationship with him, and if this occurs the children will experience psychological harm. He stated that he is also concerned (should the children continue to live with the mother) that the children will be exposed to the mother’s psychological instability. He stated that the mother has difficulty controlling herself and if the children get too much the mother will react adversely towards them including with smacking. He further stated that the mother says things to the children relating to matters occurring in his home which are not true.
The father was asked if the children ultimately spent five nights each fortnight with the mother what would stop the mother making unfounded allegations, to which the father stated he did not know. He stated that if the children were living with him he could have more influence over the children. He stated that if the children were living with him it would limit the psychological issues that might arise if the children were living with the mother.
Evidence of the father’s wife, Ms E
Ms E presented in an unremarkable and down to earth fashion.
The witness stated she worked as a professional, presently three days a week.
The witness stated she had concerns in relation to the state of the mother’s mental health. She stated she was cautious about giving information where she was not sure how the mother would react.
She stated in relation to changeovers (she usually accompanies the father) that she was a buffer, or in the middle, between the parents. She stated that she has not been scared at changeovers. She stated that she participates in messages with the mother and no threatening messages have been directed to her.
She stated she had seen a video of the mother with a knife which concerns her.
She stated that the children were well nourished and well behaved when they come into the father’s care.
She stated that the children would miss the mother a bit. They would need to get into a proper routine at their home.
She stated that she and the father have never yelled at each other.
The witness stated there were certain things the mother had made up.
The witness stated she would expect the children to miss the mother (if the children were to live with the father). She stated the children love the mother as they should.
The witness stated that if one assumes the mother’s mental health was satisfactory, that she still had concerns as to the mother’s lying, controlling and abusive behaviour. The witness stated that if one assumed that she was mistaken in these concerns, then the children should live with the parties in a fifty-fifty arrangement.
The paternal grandmother’s evidence
The paternal grandmother swore an affidavit. She was not cross-examined. The Court does not propose to set out the entirety of her evidence.
The paternal grandmother deposed that the father confided in her during the relationship about experiencing family violence at the hands of the mother, and about the mother’s mental health problems.
She deposed that on one occasion in about 2019 she went to the parties’ home and observed that the father’s clothes were strewn around and some pictures were broken and some photos ripped up. The father had scratches on his face and neck.
The paternal grandmother deposed that on one occasion in about 2020 the father told her that he was worried that the mother might kill him.
The paternal grandmother deposed that in late 2020 she attended upon the parties’ home with her husband. The mother shouted at them to “fuck off”. The mother told them that she had thrown an object and it had bounced off a bed and broken a window.
The paternal grandmother deposed that she often assisted with the care of the children. She did not see them from March 2022 until she accompanied the father to supervised visits in 2023. She now sees them regularly.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that the bruises to her body depicted in the photographs within Exhibit E were caused by the father.
The mother stated there was a lack of trust between the parties.
The mother was questioned in relation to an incident in mid-2021 involving the mother brandishing a knife at the father (“the knife incident”). She disagreed that she was in control of herself as to what happened that day. She agreed that she had lost her ability to regulate her conduct and emotions on that day.
The mother stated that prior to the knife incident the parties had been sleeping separately for some time.
The mother acknowledged another incident which occurred about two nights before the above incident when, whilst the father was at work, the mother stabbed an object that the father had been using with a pair of scissors. The mother stated she could not recall what had happened that led her to stab the object.
The mother stated that when she was interviewed by the police in relation to the knife incident she told them the truth.
The mother agreed that the knife incident would have been frightening and terrifying for the father.
The mother acknowledged that the last clinical notes of her counsellor Ms L were in November 2022. She stated that since November 2022 she had seen her counsellor taking notes during consultations. She agreed she receives counselling as a victim of domestic violence. The mother stated that she has received counselling about her own struggles with mental health over the years.
It was put to the mother that the children would have experienced psychological discomfort after the mother ceased their time with the father. The mother stated that looking back she had concerns when the children were returned to her mother’s place. She stated that, again looking back, this parenting issue was new to her, and stated that, for example, she did not know that supervised visits were an option. She then stated she was getting advice.
The mother also referred, in this context of her reasons for ceasing time between the children and the father, to conversations with her parents wherein she was informed that the father would not return the children to the mother if she did not return the children to him. (The Court interpolates at this point and refers to Exhibit N, being a letter from the mother’s former solicitor to the father’s solicitors dated 17 March 2022). The mother stated that this information was a “big bulk” of why she ceased time.
The mother was asked whether she was comfortable with the children ultimately spending five nights each fortnight with the father (on her proposal), to which the mother responded, “not entirely”.
The mother was asked whether she shared the father’s concerns that, from a disciplinary perspective, the children will be more challenging as they get older, to which she answered in the affirmative.
The mother stated that she was cautious regarding her final proposed parenting orders. She stated that she has had concerns regarding the risk to the children (in the father’s care) from the start. She stated that she has raised her concerns in her affidavit.
The mother stated that her recent communications with DCJ were to seek advice and that she was not seeking to lodge a complaint against the father. She stated that DCJ asked follow-up questions about other concerns she had.
The mother was asked whether the children were possibly neglected in the father’s care, to which she responded, “to a degree”. She was asked whether the children were possibly abused and manipulated, to which she answered in the affirmative.
The mother’s attention was drawn to that part of the Family Report wherein the Family Report writer had stated that the mother could not identify why the father was important in the children’s lives or what he as an individual could offer the children. In response, the mother stated, inter alia, that at that time she was reliving her past with the father. She stated that she was reliving the worst of the relationship and the father’s aggressive nature towards her and his lack of patience with the children. She stated that the interview was in the thick of these court proceedings.
The mother was asked why the father was important to the children. She responded by stating that the father was the children’s father. She stated that it was important for the children to have a father and a mother being positive role models (she stated a short time later that provided it was safe to do so). She stated that the father could play a really important role in building confidence with the children. She stated that there were different things that a mother and father could bring.
The mother stated that she recently became pregnant and had chosen to be a solo mother by choice.
It was put to the mother that she presented to the Family Report writer as not regarding the father as a significant person and not playing a role in the children’s lives, to which she answered, “yes, to an extent”.
It was put to the mother that she had varied her various proposed final parenting orders, from initially no time with the father, to now being ultimately (in 2032) five nights each fortnight. In response the mother stated, inter alia, that she feels she has come a long way. She stated it has been a gradual process with supervised visits and the time that the children now spend with the father. She stated that that was not to say that she did not have concerns. She stated that she does know that the father plays an important part in the children’s lives and that he needs a greater involvement in their lives.
When questioned again about having gone to DCJ raising historical allegations against the father, the mother stated, inter alia, that she had sought advice from DCJ regarding the constant changing of the children’s clothes at changeover.
The mother was questioned about her telephone call to DCJ on in mid-2024. The mother stated that she had contacted DCJ to better manage communication with the father when the children express discomfort when he changes their clothes. The mother denied that she had made the call to DCJ to discuss with them a range of other issues relating to the father. She stated that DCJ had raised these other issues with her.
The mother was questioned as to her proposal that the children ultimately spend five nights each fortnight with the father by 2032. The mother stated there was a combination of reasons for this lengthy graduated time including safety, and the father controlling his anger and emotions with the children.
It was put to the mother that she had a long history of anxiety, to which the mother replied, “nothing of significance”. The mother stated that the “huge majority” of her mental health issues stem from mistreatment by the father. She confirmed that she sees herself as a victim of family violence. She stated she does not see herself as a perpetrator of family violence.
The mother’s attention was drawn to the video of the knife incident. The mother stated that she didn’t want to watch the video as she was ashamed of her conduct that day. She stated that she was not a perpetrator. A short time later she stated that, in relation to the knife incident, she felt overpowered by the father picking up an object and a knife. She stated that she felt that he had picked up a knife as she had seen a handle and that she knew something else was behind the object (that the father was holding).
The mother acknowledged having said some horrible things to the father. She stated that she knows that she has sent text messages to the father that were quite threatening.
The mother stated that the parties’ relationship was very conflictual and toxic.
The mother was questioned about the knife incident again. She stated that at one point the children were placed in the car. A verbal dispute arose between the parties in relation to the father going to lunch at the home of the maternal grandmother. The mother stated that she was upset on returning to the house. She agreed her mental state was heightened, although she stated she does not recall whether she knew she was in such a heightened state on returning to the house. It was put to the mother that she became annoyed because the father would not make eye contact with her, to which the mother replied that she did not recall and stated that she has worked hard to move past (the knife incident). The mother agreed that she did have an option to get out of the situation when the father told her to “fuck off”. The mother stated that she did feel threatened (during the knife incident) and stated that it was a “fight or flight moment”. She stated that a lot of the knife incident was now a blur. She agreed that she had said to the father during the knife incident, “you don’t want the psycho to come out”. The mother was asked to acknowledge that there was a “psycho” in her which comes out, to which the mother replied that “psycho” was a comment the father use to say to her.
The mother stated that she had counselling with Ms U in 2019. The mother stated that she spoke with Ms U about some of the troubles in her relationship with the father and how she didn’t want to react badly with him. She stated that she thought she had seen Ms U more than just four occasions.
The mother did not dispute that all the counselling that she had obtained was for the purpose of obtaining treatment as a victim.
The mother denied that she was prone to anger and commit out-of-control family violence.
It was put to the mother that she had been getting mental health treatment for the wrong thing, to which the mother replied that she has been speaking to her counsellor Ms L about everything.
The mother stated that if the children were to live with the father, a more gradual transition to the children living with him would definitely help with her own stress and anxiety. The mother stated that she had spoken to her counsellor about (the prospect of the children possibly living with the father) and she was told by her counsellor of some strategies to assist in this regard. Later, she stated that if more intense therapy was needed, in that context, she would do it.
The mother stated that she has a support network which includes friends through daycare, her counsellor, and a single mother’s group.
The mother stated that her mental health, and her ability to emotionally regulate, were no longer an issue for her.
The mother agreed that she had not engaged with a clinician with expertise in family law proceedings to address, inter alia, her anxiety and her emotional and behavioural self-regulation skills, as recommended by the Family Report writer at about line 1780 of the Family Report. The mother stated that her former family law solicitor had told her that she could continue treatment through Ms L.
The mother stated that she accepts that some of her behaviours (towards the father) were horrible and she was ashamed of them including text messages, the arguments, and particularly the knife incident.
The maternal grandmother’s evidence
The maternal grandmother had sworn an affidavit. She was cross-examined. The Court does not propose to set out the entirety of her evidence. Her presentation was unremarkable.
The affidavit of the maternal grandmother filed 1 December 2022 states, inter alia, that she has always observed the mother to be a competent and caring mother and that she holds no fears for the children in her care. She stated the children have not spent time with the father since March 2022.
In cross examination, the maternal grandmother stated, inter alia, that she lives close to the mother. When questioned about the knife incident, the maternal grandmother stated that the mother had told her that the father was the aggressor. She stated she had not seen the video of this incident. She stated that the mother had told her that the father, during this incident, had raised an object and a knife up to the mother. She stated the mother had not told her that about 48 hours before this incident the mother had damaged an object.
As to the recording of a changeover in March 2022, the maternal grandmother stated her belief that the father was capable of manipulating the recording. She stated her belief that the father was a liar.
The maternal grandmother stated that she did not know that the mother’s position in the parenting proceedings for a significant period was that the children should spend no time with the father. She stated that the father deserved to see the children.
The maternal grandmother stated that the mother never told her that she, the mother, did anything wrong to the father during the relationship.
The maternal grandmother was asked whether she thinks the children were safe with the father, to which she responded that she thinks the father needs supervision.
Family Report
The author of the Family Report dated 25 August 2023 was Single Expert Ms G, forensic and clinical psychologist. She interviewed the family over two dates: in July 2023 and August 2023.
The Court observes that as at the date of the Single Expert’s report, the father was proposing an equal time arrangement, and the mother was proposing that the children spend no time with the father.
The Court does not propose to set out the entirety of the Family Report.
The Single Expert stated at line 390:
[Mr Bennett] raised concern about the impact of the children being exposed to [Ms Harper]’s psychological instability, particularly as they grow older and start to test boundaries more. He further noted that the children will grow up without a meaningful relationship with his extended family. [Mr Bennett] said that he does not hold concerns regarding the children’s safety with their mother. He said that while she was aggressive to him, he believes that the children are her focus, and she would not harm them. However, he said that he is concerned about the potential for psychological harm as the children grow older and “develop their own mind and she loses control over them”. He is concerned that [Ms Harper] may manipulate information the children receive and negatively affect the way they view the world. He noted that he has not been able to tuck his children into bed since [mid] 2021, and the children were withheld from him for 11 months. He believes this demonstrates a level of “extreme control” by [Ms Harper], with support of her family.
As to the mother’s presentation at interview with the Single Expert, the Single Expert stated at line 435:
[Ms Harper] engaged easily in the assessment and maintained appropriate eye contact throughout. She was verbose at points, but her responses were on topic. Her speech was stilted at times, suggestive of anxiety or discomfort. She fidgeted with a tissue throughout the interview and overall, her presentation was indicative of a high level of anxiety. She acknowledged feeling “nervous” in the assessment. [Ms Harper] demonstrated mild emotional lability throughout the interview, but this was appropriate to the topics of conversation, and she contained herself well. Overall, [Ms Harper] did not demonstrate overt signs of psychopathology that could impact her capacity to participate in the assessment. [Ms Harper]’s presentation at the observations was consistent with her presentation at the interview. When we spoke by phone, [Ms Harper] seemed highly anxious. She had prepared a detailed, lengthy list of issues she wanted to raise with me, many of which we had already covered in the interview. She said she was concerned she had not impressed clearly enough upon me the strength of her concerns about [Mr Bennett], as they relate to his alleged domestic abuse of her and his limited parenting capacity.
Regarding the mother’s position in relation to the current Court proceedings, the Single Expert stated at line 452:
[Ms Harper] said she is not comfortable with any time arrangements due to the risk that she perceives [Mr Bennett] poses to the children. She acknowledged that this is “a big stance” but said she cannot see any way of supporting unsupervised time. She understands that supervised time is not a long-term option, which is why she is proposing no time. [Ms Harper] said she could not identify any steps that [Mr Bennett] could take to demonstrate that the children would be safe in his care. … While [Ms Harper] suggested that she had considered all possibilities, my impression is that she is fixed in her thinking about [Mr Bennett].
As to the mother’s presentation to the Single Expert, the Single Expert stated at line 582:
[Ms Harper] understood she had been diagnosed with “stress and anxiety” by her GP and [Dr T]. However, she said she is coping better since leaving the relationship and did not endorse symptoms of current mood or anxiety disorders. [Ms Harper] denied excessive worry and did not agree with my suggestion (formed during the parenting assessment) that she sets unrealistic expectations of herself. She acknowledged feeling nervous in the assessment, but minimised this, stating she was feeling quite good, although her physical presentation was one of high anxiety.
As to the mother’s report to the Single Expert of her behaviour prior to the parties’ relationship, the Single Expert stated at line 628:
[Ms Harper] denied a history of engaging in violent or dysregulated behaviour. She suggested that her aggression towards [Mr Bennett] as documented was situational. She said she never planned to threaten him or hurt him. She said that with the knife, she “had genuine fears of what he was going to do” and wanted to protect herself. She said she wanted to portray herself as strong and not intimidated. I queried her describing herself as a “psycho” in the footage and she said both parties called each other names in the relationship. She said they had both previously called each other “psycho” and she knows that her conduct on that day was “bad”. I further cited the period of time over which [Ms Harper] sent aggressive text messages to [Mr Bennett]. I note that the apparent lengthy periods are suggestive not of someone sending messages ‘in the heat of the moment’, but of deliberate/planned aggression, or indicative of poor interpersonal functioning. [Ms Harper] said that while the messages occurred over a lengthy period of time, the parties often had phone calls or face to face conversations in between the messages in which they shouted at each other, then she would return to sending text messages. As such, she appeared to be suggesting that she remained emotionally heightened and did not have an opportunity to self-regulate. The [P Centre] notes from 2014 indicate that [Ms Harper] described herself as getting angry quickly and “overexaggerating” in response. This suggests that anger and dysregulation may have posed challenges for [Ms Harper] over a longer period than just the relationship with [Mr Bennett].
As to the mother’s psychological treatment, the Single Expert stated at line 649:
[Ms Harper] saw a provisional psychologist at [P Centre] prior to being offered counselling with her current clinician who was working at [V Centre] at the time. She said that she finds therapy useful. The [P Centre] notes indicate that [Ms Harper] primarily used the sessions to cope with ongoing stress associated with the criminal and family law proceedings. She appears to have engaged well in sessions and utilised the strategies provided. She attended ten sessions from [mid] 2021. The last few session notes provided were illegible. A letter from [Ms L], Therapist, dated 23/09/2022 confirms that she began seeing [Ms Harper] in [mid] 2021 at [V Centre]. [Ms L] reported that [Ms Harper] was suffering a range of posttraumatic stress symptoms, and linked these to ‘Battered Woman Syndrome’. She reported that [Ms Harper] engaged well in treatment and demonstrated an improvement in functioning.
The Child Impact Report recommended that [Ms Harper] engage in counselling to cope with anxiety about the children spending time with [Mr Bennett]. [Ms Harper] said she has not engaged in treatment to address this, but will do so if it eventuates that the children are to have unsupervised time with their father.
As to the Single Expert’s contact with the mother’s treating clinician, the Single Expert stated at line 668:
[Ms L] confirmed that [Ms Harper] began seeing her at [V Centre] and now sees her as a private client. They have had fortnightly sessions, by telehealth, for approximately two years. While the focus of sessions changes depending on [Ms Harper]’s life and circumstances, the underlying foundation of the sessions is that [Ms Harper] is a survivor of domestic abuse perpetrated by [Mr Bennett]. [Ms L] accepts that [Mr Bennett] has perpetrated all acts described by [Ms Harper], and that [Ms Harper]’s aggressive behaviour towards [Mr Bennett] on the day of the knife incident was self-defence and a trauma response. She queried whether [Mr Bennett] had in fact provoked the incident so that he could film [Ms Harper] as part of his “gaslighting” of her. [Ms L] was not aware of [Ms Harper]’s text messages to [Mr Bennett] sent at other points, and when I provided a limited description of these, she suggested that this sounded “completely out of character”.
[Ms L] has had access to clinical information regarding [Ms Harper], including the reports by [Dr T], but no legal documentation. She queried [Dr T]’s diagnoses, noting that she has not seen any clinical indication that [Ms Harper] suffers from [a mental health disorder]. She noted that BWS is not in current common use within the field of domestic abuse, although her understanding is that [Dr T] was referring to elements of PTSD, or “reactive violence, when someone is completely deprived of options, there is no other option but to defend yourself”. [Ms L] clarified that she is a psychotherapist, not a psychologist, so cannot make diagnoses, but her impression is that [Ms Harper] presents with features of posttraumatic stress.
[Ms L] said that she believes [Ms Harper]’s position in relation to no time is appropriate. While she is willing to support [Ms Harper] to manage her anxiety related to the children spending time with their father, and challenge her as appropriate, she does not believe it is appropriate to challenge her rational fears. [Ms L] said that she has concerns based on [Ms Harper]’s report about [Mr Bennett]’s parenting capacity, citing the issues of [Mr Bennett] giving the children hot food, providing inadequate supervision, and demonstrating poor male role modelling through his perpetration of violence. Her position thus is that [Ms Harper]’s fears are founded and while she suggested [Ms Harper] has provided evidence to support those fears, it appears that the evidence she was referring to was in fact [Ms Harper]’s own description of incidents that had allegedly occurred. [Ms L] noted that she had supported [Ms Harper] to manage her anxiety about the children commencing supervised time with their father and she is willing to support her if there is a transition to unsupervised time. However, ultimately, [Ms L] reported little confidence that [Mr Bennett] has capacity to change his reported abusive behaviours because she understands from [Ms Harper] that he has no insight into his problems.
Under the heading “Diagnosis”, the Single Expert stated, inter alia:
The issue of comprehensive diagnosis of [Ms Harper]’s psychological functioning is complex. BWS is not a psychological condition detailed in the Diagnostic and Statistical Manual – 5 – Text Revision, and is not in common use among psychologists or other clinicians experienced in the field of domestic abuse. As such, I will not consider it further, but rather focus on [a mental health condition] and PTSD. There is no information available to me that suggests a diagnosis of [a mental health condition] is appropriate. [Ms Harper] does not appear to have differing personality states, rather, her difficulty describing her offending to [Dr T] was likely a function of her own shame/embarrassment at having been charged, or a desire to portray herself in a particular light for gain in the criminal proceedings. She has provided detailed accounts of the incident, and all other incidents in which [Mr Bennett] has alleged she behaved aggressively, to me, the Court Child Expert, [Ms L], and in her Affidavits. She does not report a history of blacking out in other situations. The diagnosis of PTSD is dependent upon [Ms Harper] having experienced trauma, which she alleges is [Mr Bennett]’s domestic abuse of her. If [Ms Harper] did not experience such trauma, then she cannot have PTSD and her symptoms are better explained as anxiety, and/or due to impaired interpersonal functioning.
The Single Expert stated under the heading “Psychometric assessment” at line 728:
Impression management: [Ms Harper] completed the Paulhus Deception Scales: Balanced Inventory of Desirable Responding (PDS). The PDS is a 40-item questionnaire that measures an individual’s tendency to give socially desirable responses on self-report instruments. The PDS contains two subscales: Self-Deceptive Enhancement (SDE; the tendency to give honest but inflated self-descriptions) and Impression Management (IM; the tendency to give inflated self-descriptions to an audience). [Ms Harper]’s results indicate that she engaged in a high level of both impression management and self-deception. Her results suggest that she is likely to lack insight into her difficulties as well as wanting to portray herself well to others. Her IM score was higher, suggesting that the situational demands had more of an impact on her responses than her lack of insight. However, [Ms Harper]’s results on other psychometric measures are likely to be invalid.
Psychological and personality functioning: Ms Harper completed the Personality Assessment Inventory (PAI). The PAI is a self-administered, objective measure of both personality and psychopathological variables. It is a 344-item comprehensive test that has been theoretically developed to assess a range of personality and psychological variables. The PAI is a robust measure that has been shown to demonstrate adequate reliability and validity measures and is appropriate for use in such forensic and clinical assessments. The PAI contains a number of validity scales that reveal response tendencies that are inconsistent, exaggerated or otherwise invalid. Review of [Ms Harper]’s validity scales indicated that while she attended to items appropriately and responded consistently, she portrayed herself in an overly positive light. This is consistent with the PDS results and her PAI results were invalid for interpretation.
Under the heading “Trauma symptomatology”, the Single Expert stated at line 753, inter alia:
Trauma symptomatology: [Ms Harper] completed the Trauma Symptom Inventory – 2 (TSI-2), which is a 136-item self-report scale that assesses acute and chronic symptomatology resulting from trauma. It can be administered to individuals over the age of 18 years and requires a reading level of fifth-grade or above. While the TSI-2 asks people to respond for the previous six months, it does not link endorsed symptoms to a single stressor or specific point in time. The TSI-2 demonstrates high test-retest reliability and internal consistency, and has demonstrated validity across a range of samples. The TSI-2 consists of two validity scales, 12 clinical scales and 12 subscales. It further reports on four factors, which are derived from the combination of scores some individuals demonstrate and allow for consideration of broader symptom domains, and can serve as summary measures of complex posttraumatic disturbance.
The two validity scales assess whether a respondent has either denied symptoms that others commonly endorse, or over-endorsed trauma-related symptoms that even those with significant posttraumatic symptomatology rarely endorse. Review of her response protocol indicates that [Ms Harper] responded to all but six items on the TSI-2 with “never”, including those items that most people endorse (e.g. “making a mistake”). As such, either [Ms Harper] did not attend to the items appropriately or she deliberately minimised any difficulties she experiences. Either way, her results are invalid for interpretation, and this is consistent with her results on both the PDS and the PAI. Overall, it appears that [Ms Harper] was focused on portraying a positive image of herself at the current assessment.
Under the heading “Parenting assessment”, the Single Expert stated inter alia at line 867:
[Ms Harper] could not identify why [Mr Bennett] is important in the children’s lives, or what he as an individual offers the children. She believes they enjoy their time with him, but suggested that they are sociable children who enjoy spending time with lots of people. She said that all children want their parents, as they “don’t know any better”. [Ms Harper] did not think that [Mr Bennett]’s extended family have a meaningful relationship with [X] and [Y]. I noted that his mother appears to have been an important person to them. When I asked if there is scope for [Mr Bennett]’s mother to have a relationship with the children, separate to [Mr Bennett]’s relationship with them, [Ms Harper] acknowledged she had not considered this. She said that this is an option if the children were able to form a close relationship with [Mr Bennett]’s mother through supervised time initially. When we spoke by phone, [Ms Harper] said that she had considered this prospect further and decided it was not a good idea as [Mr Bennett] may attend the time and there would be “no protection in place”…
[Ms Harper] appeared to minimise [Mr Bennett]’s role in the children’s lives at the point of the Child Impact Report, when she was surprised when the Evaluator raised the possibility that the children missed their father. Overall, [Ms Harper] appears to not view [Mr Bennett] as a significant person to the children and throughout the assessment she made comments that disregarded his role as the children’s father. She did not appear to have considered the children’s potential experience of this, both currently and in the future.
As to the father’s position in relation to the current court proceedings, the Single Expert stated at line 922:
[Mr Bennett] confirmed that he was initially seeking a shared care arrangement for the children. However, he suggested that this may be an unrealistic expectation given [Ms Harper]’s position in relation to him. He raised concern about the potential impact on [Ms Harper] if she was required to co-parent with him in a shared care arrangement. [Mr Bennett] said he is not so concerned about [Ms Harper]’s mental health that he is seeking that the children do not reside with her at all. [Mr Bennett] said he would like [Ms Harper] to receive appropriate diagnosis and treatment so that both parties can focus on the children’s best interests.
As to the Single Expert’s psychological assessment of the father, she stated, inter alia, at line 1017:
He acknowledged constant worry about his children, but said that he knows they are being well cared for by their mother. He said that he sometimes worries about the psychological impact for the children of their mother’s psychological functioning, but he actively chooses not to let that consume him, and he is reassured by seeing them every week and “they seem normal, happy, healthy”.
…
Overall, [Mr Bennett]’s self-report and the psychometric assessment do not suggest that [Mr Bennett] is experiencing clinically meaningful psychopathology. He presents with good insight into his psychological functioning, and has used psychological treatment proactively in the past.
Under the heading “Parenting assessment” for the father, the Single Expert stated, inter alia:
[Mr Bennett] said that not having regular time with his children and worrying about them are his primary parenting stressors…
In relation to parenting weaknesses, I challenged [Mr Bennett] about his past verbal and physical aggression towards [Ms Harper], and whether this impacted his parenting. [Mr Bennett] denied that this was the case. He said that by this typically occurred after he had experienced “a period of hours or days of abuse from her, unrelenting”. He said he often tried to walk away but [Ms Harper] would not allow him to, which resulted in him lashing out verbally. He reiterated that his physical conduct towards her was never aggressive, rather that he attempted to contain her to protect himself, the children, or to protect her from herself.
…
[Mr Bennett] believes it is important for the children to have “two loving parents” and he noted that [Ms Harper] is a good mother because “she loves them, and they love her”. He said that his observations of her parenting are that she is a committed mother and his memories of her as a mother are positive. He said that he believes the children are “her everything”. As aforementioned, [Mr Bennett] said he has never wanted to disrupt the children’s relationship with their mother.
The Single Expert conducted observations of the children with each of the parents. She stated that there were no obvious issues of concern in either of the observations. She stated that the children’s presentation was consistent with both their mother and father. She stated that while the children were initially reserved with their father, they settled in quickly and once they had become comfortable with him, they did not engage with him differently than with their mother. Both parents demonstrated positive parenting skills.
The Single Expert interviewed the father’s new wife, Ms E. The Single Expert stated that Ms E impressed as a friendly, warm, insightful and reflective woman.
Under the heading “Formulation”, the Single Expert stated, inter alia, at line 1503:
[Mr Bennett] has provided a consistent account of his relationship with [Ms Harper] to me and [Mr O], and it is apparent that he was unhappy in the relationship in 2020 when engaged in previous counselling. The allegations of him as an abusive person do not seem to fit with his psychological profile, nor does his current wife report any tendencies towards abuse or control. I note that she has a level of expertise in this area that is beyond most people in the general public. While [Ms Harper] suggests that the couple may be in a ‘honeymoon’ period, she reported that her own alleged experiences of abuse by [Mr Bennett] commenced early in their relationship. There is no evidence of [Mr Bennett] engaging in dysregulated behaviour in other settings including his workplace, in the supervised contacts (acknowledging that these are brief periods), or in his current relationship.
I do not doubt that [Mr Bennett] has behaved poorly towards [Ms Harper] including calling her names and likely being dysregulated in arguments with her, including in front of the children. He has physically harmed her in the past, possibly using a level of force beyond what was required to restrain her as he reported. However, he places this within the context of the relationship.
[Ms Harper] further alleges that [Mr Bennett] was a disengaged parent who provided a level of supervision that was inadequate to the point of negligent. No concerns have been identified about his parenting capacity in the supervised visits, nor has [Ms E] observed any issues of concern in relation to his parenting of her children.
[Mr Bennett] raises concern regarding [Ms Harper]’s mental health. In relation to the issue of diagnosis, it is my view that [a mental health condition] does not apply and as aforementioned, the diagnosis of PTSD depends on the issue of whether or not she experienced trauma by [Mr Bennett]’s actions. If [Mr Bennett] did in fact perpetrate domestic abuse, then it seems that the PTSD diagnosis is appropriate, although her symptoms appear significantly reduced at present, based on her own report and her counsellor’s report. It may also be possible to diagnose PTSD if the abuse in the relationship is characterised as bi-directional and a function of significant dysregulation by both parties, but still resulted in [Ms Harper] experiencing significant fear. However, if [Mr Bennett] did not perpetrate abuse, then PTSD cannot be diagnosed. Regardless of PTSD, [Ms Harper] presents with a high level of anxiety. She engaged in significant impression management during the current assessment and it is my impression that she portrays information about herself in a way that suits the setting, as evidenced by GP notes, the assessment with [Dr T] for criminal proceedings, and her contact with her counsellor where she does not appear to have been open about her own dysregulation. If PTSD is able to be excluded, then [Ms Harper]’s anxiety becomes the primary focus, along with a query about her capacity to manage interpersonal relationships which may be founded upon a poor or fractured sense of self, resulting in significant emotional and behavioural dysregulation. However, [Ms Harper]’s impression management makes comprehensive formulation in relation to her functioning difficult and I recommend that any future interventions with her focus initially on behavioural issues primarily, including how her conduct and her views of [Mr Bennett] impact [X] and [Y].
The Single Expert stated that there were two hypotheses available in relation to the dynamics in the parties’ relationship. She further stated at line 1550:
The first is that [Mr Bennett] was abusive to [Ms Harper], and he is a highly skilled manipulator who has been able to hide his true colours and portray himself as a reasonable person to [Mr O], myself, and his wife and stepchildren. In this scenario, [Mr Bennett] has convinced his wife to marry him, potentially for the sole purpose of gain in the current proceedings. If this hypothesis is accepted, [Ms Harper]’s dysregulation and aggression is in fact reactive violence perpetrated by a victim of serious domestic abuse.
The second hypothesis is that [Ms Harper] experiences psychological instability that resulted in aggressive behaviour by her and subsequent physical restraining by [Mr Bennett]. In this scenario, it would seem that [Ms Harper] perceives threats where none are present, likely due to her own anxiety and interpersonal difficulties. Alternatively, [Ms Harper] is motivated to portray [Mr Bennett] as entirely bad to interrupt his relationship with the children. If this is true, then this motivation likely stems from her identity being closely tied to her role as a mother. This scenario still allows for acknowledgement of [Mr Bennett]’s poor response to [Ms Harper], and the inappropriateness and harmfulness of his conduct towards her.
The bulk of information available to me suggests that the second hypothesis is more likely accurate. [Mr Bennett] has acknowledged his conduct, although I accept he may have minimised his role in his account. It is clear that the relationship was highly toxic and damaging to both parties, and the children. I note that similar discord is not present in [Mr Bennett]’s current relationship. The historical counselling notes suggest that [Ms Harper] has experienced difficulties with anger and dysregulation for some time. I further note that [Mr Bennett]’s account was more often consistent with the documentation provided than [Ms Harper]’s account. [Mr Bennett] presented with a higher level of insight into his psychological functioning and appeared more open and honest in his account. While a lack of insight into her experiences could be seen as an impact of [Ms Harper]’s experience of domestic abuse, the inconsistencies in her account across settings raises concern for me that this is not the case.
Under the heading “Terms of Reference”, the Single Expert stated, inter alia:
[Ms Harper] entirely disregards [Mr Bennett]’s role as a father and is not willing to support the children’s relationship with him. She is not willing to consider the potential for him to make changes, or to consider steps that could be taken to develop the children’s relationship with him in way that she perceives is safe. Her rigidity in this regard means that she will have difficulty supporting the relationship between the children and their father. This will be an ongoing challenge if the children have unsupervised time with their father, as there is a high likelihood that [Ms Harper] will interpret benign situations negatively and may result in ongoing, unfounded, allegations against [Mr Bennett].
…
I am concerned about [Ms Harper]’s capacity to meet the children’s psychological needs as they relate to their need for a relationship with their father. While the children are young, she can manage this fairly easily through avoidance, but as the children grow older, they will likely begin to ask questions about their family situation and I am not confident that [Ms Harper] can address these issues in a way that will not denigrate [Mr Bennett], thus creating psychological conflict for the children. Further, her disregard for [Mr Bennett]’s role as a father may have negative psychological impacts for the children as they grow older. If the children have the opportunity to build a meaningful relationship with their father, and have a positive experience of this, then their mother’s negative view may ultimately result in a rupture between the children and their mother (and her family).
…
My opinion regarding the family violence allegations and mental health concerns have been detailed in my formulation above…
If the second hypothesis is accepted, then the children are at risk of negative psychological impacts from their mother’s anxiety that leads to her being inflexible and rigid. This means that she is likely to respond poorly if the children test boundaries, and she will not model psychological flexibility that is essential for psychological wellbeing. In other words, she will not support the children to consider shades of grey in the world, but rather view the world, and people, through a black and white/all or nothing lens. This type of thinking can lead to anxiety or depression when taken to the extreme, and may contribute to interpersonal difficulties or problems with self-esteem even at the mild end. Further, if [Ms Harper] struggles with dysregulation, the children may be at risk of physical harm if she becomes overwhelmed. Again, this risk increases as the children grow older and begin to test boundaries and challenge her more directly.
…
I hold no concerns regarding [Mr Bennett]’s mental health. Even in the event that he perpetrated domestic abuse against [Ms Harper], this was not likely due to poor mental health.
I have discussed [Ms Harper]’s psychological functioning in detail above. [Ms Harper] presents with limited insight into her psychological functioning, framing her difficulties as a function of the abuse she experienced by [Mr Bennett]. She does not have insight into the extent of her own anxiety. While [Ms Harper] presents as willing to engage in treatment to support her to cope with the impacts of any abuse she suffered, and the stress of the current legal proceedings, she is likely to have difficulty adapting to treatment aimed at managing her anxiety and developing her self-regulation skills so that she can support the relationship between the children and their father. I will make recommendations regarding treatment below.
Under the heading Recommendations, the Single Expert stated at line 1756:
If the Honourable Court determines that [Mr Bennett] did not perpetrate abuse:
a. The children should reside with their mother;
b.The children’s time with their father should be increased so that by the time [X] is five at the latest (2024), they are spending five nights a fortnight with their father (for example, from Thursday after 1760 school/3pm to Tuesday before school/9am).
…
[Ms Harper] should engage with a clinician with expertise in family law proceedings to (a) address her anxiety, particularly as it relates to the children’s relationship with their father; (b) develop her emotional and behavioural self-regulation skills; and (c) assist her to cope with the loss of her mothering time and the impacts of his on her self-worth. Appropriate clinicians include [Ms W] at [Z Centre] in [Suburb AA], clinicians at the [BB Centre] in [Suburb CC], or clinicians at [DD Centre] or [EE Centre];
…
I note my concerns regarding [Ms Harper]’s ability to support the children’s relationship with their father. If she cannot adapt to the arrangement outlined above, as evidenced either by her failing to follow agreements, failing to proactive co-parent with [Mr Bennett], or disrupting the children’s relationship with him in an ongoing way, consideration may need to be given to a reversal such that the children reside primarily with their father and spend time with their mother.
The Single Expert gave oral evidence. The Court does not propose to set out the entirety of that evidence.
Counsel for the father questioned the Single Expert.
Counsel for the father posed a number of questions to the Single Expert on the assumption that the mother had perpetrated family violence against the father, and at one point the Single Expert gave this evidence:
COUNSEL:If this family violence has occurred, if it’s unacknowledged by the mother, if it’s untreated, and if the mother has primary care of these two boys, what are the risks that that outcome represents for them?
WITNESS:There are two risks, as I see them. So one is that the children are impacted by ongoing discord or aggression in the co-parenting relationship. Children continue to be exposed to that in the context of changeovers, or some sort of shared care arrangement. The other risk is the risk to the children themselves. The kids are currently quite young, but as they grow older, begin to assert themselves a little bit more, begin to push boundaries, there is a risk that they may also experience dysregulation in some level.
COUNSEL:And can I add to that? The mother maintains throughout these proceedings in her account to you that she has not reformed a relationship, and she – would you agree that if she did re-enter a relationship, particularly a live-in relationship, that risks would flow from that as well, in the event that that relationship stimulated some of the difficulties the mother has had in the past?
WITNESS:Yes, that’s right.
The Single Expert stated that the mother’s anxiety was a significant consideration in her assessment of the mother.
The Single Expert was questioned as to possible reasons for the mother presently proposing that the children spend five nights each fortnight with the father compared to her previous proposals which included no time, and this evidence was given:
COUNSEL:Can you advance for us any other way that she could complete a journey from no time, offers nothing – indeed, it’s extended to extended family as well, to five nights a fortnight – how that journey could be undertaken and be genuine, without professional therapeutic support, given the assessment you made of her?
WITNESS:It is possible that such a journey could occur through reading documents, through having in-depth conversations with family, with significant friends, with solicitors who put forward other information and being able to come to see that differently. The mother certainly told me that she’s a person who reads a lot and does a lot of online research and, you know, and seeks out information, so it’s possible that that could occur. It is more likely to occur with professional support.
COUNSEL:And if that view you gave, that maybe through reading and some legal advice and whatever, she got to that point, you would have expected that, wouldn’t you, to be accompanied by some acknowledgement of her role in the family violence, for example, and not see it in completely black and white terms?
WITNESS:Yes.
COUNSEL: Thank you?
WITNESS: And can I add to that?
COUNSEL:Yes, please. Yes?
WITNESS:I would also expect to see behavioural changes outside of that, in terms of, you know, the reports to DCJ and reports to other agencies. I would expect to see a reduction in that, if there was a genuine shift in somebody’s perspective.
COUNSEL: Yes. I mean, this DCJ is of – material is of significance, isn’t it?
WITNESS: Yes.
COUNSEL: --- given its proximity to these proceedings?
WITNESS: Yes.
COUNSEL:---and I want to suggest, its inconsistency with the position she’s putting to the court, as supportive of the relationship?
WITNESS:Yes.
Counsel for the father questioned the Single Expert in relation to the issue of safety for the children and this evidence was given:
COUNSEL:The court will want to make a decision where the boys will be safe. Can I suggest that from their psychological development and from the perspective of them having a healthy relationship with both parents, looking into a crystal ball as best you can today, knowing everything you do, that the father is the one that offers that safety over and above the mother?
WITNESS:Yes, I think so.
COUNSEL:And if one were to jump forward to three, four or five years’ time – let’s say, three years from now, if you want – the court wanted to be confident that the boys have a healthy relationship with their mother and a healthy relationship with their father and are achieving their potential and are unrestrained by exposure to psychological struggles, then the place they’re better off primarily living is with their father?
WITNESS:I think that that’s correct. I think that the father has got a better ability to support the relationship with the mother if the children are in his care primarily, than the mother has to support their relationship with him.
Counsel for the father questioned the Single Expert, on the assumption that the children were to live primarily with the father, as to the nature of a transition into his care and this evidence was given:
COUNSEL:And what I’m asking you, I guess, is do you have a view, whether he’s going to five nights or to nine nights, whether that should be done in perhaps, you know, a biting of the bullet, as it were, from the mother’s perspective, or whether this slow and steady transition should occur?
WITNESS:I think that having that occur relatively quickly would be in the children’s best interests. I note that there are some natural points coming up in the next few months in terms of significant changes in the children’s lives anyway. I understand that there’s a baby to be born by the end of the year, which is a significant change for the children in either scenario, but also that there is a change in terms of schooling that’s due to occur. So, again, there are – I think there are some natural, sort of, transition points there. My view would be that any change should be solidified by the time [X] starts school. I think that it would be good to have things very well, if not completely, progressed by the time the new baby comes along, to avoid further changes occurring after that point, but I’m not entirely sure – sorry, I can’t remember exactly when the baby is due.
WITNESS:[…]?
COUNSEL:[…]. So yes, for a – for a change to be well advanced, by that point.
The Single Expert gave this evidence relating to her position as to final parenting arrangements:
WITNESS:My position is that the children should have a relationship with both of their parents, and that – that they should be spending meaningful, significant time with each of them. I made recommendations that that would be five nights with the father and primarily residing with the mother. I am now concerned, on the basis of the lack of co-parenting relationship, the mother’s negative view around the father, that that should in fact be reversed.
The Single Expert gave this evidence in relation to the mother possibly magnifying information provided to her by the children from the father’s household:
COUNSEL:What is the concern that you were worried about in terms of the impact on the children?
WITNESS:I’m concerned, as I said before, about the impact for the children if their experience doesn’t match with the way that their mother is framing things.
COUNSEL:Yes?
WITNESS:And what that means for their capacity to reality test, not just in relation to their relationship with their parents, but how that extends out to other relationships, other scenarios, at school, as they grow up, as they get older, their understanding of healthy relationships, but also their understanding about emotional regulation and the ability to understand emotions, to manage those and to respond in a healthy way.
The Single Expert gave this evidence in relation to the worst risk the children might face if remaining in the mother’s primary care:
COUNSEL:Using a crystal ball, if the children were to remain primarily in the mother’s care, what is potentially the worst risk for these children?
WITNESS:The worst risk hypothetically would be, as I was saying before, an extreme level of dysregulation in which the children experience significant emotional, possibly physical harm. I think the risks that are more plausible, however, are the significant disruption in terms of their relationship with their father and extended paternal family. I also think there’s a risk of disruption to their relationship with their mother in the event that what they’re experiencing doesn’t fit with what their mother is telling them. And I think that there are risks in terms of their capacity, as I said before, to reality test, self-regulate themselves and to develop a healthy understanding around relationships and boundaries.
COUNSEL:Doesn’t give a positive or hopeful prognosis for the boys in terms of their emotional, psychological development, does it?
WITNESS:No, it doesn’t.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The Court will address the above considerations together.
Family violence and conflict
The mother makes allegations against the father of family violence during their relationship. The father significantly denies these allegations and asserts that the mother, in the context of arguments between the parties, instigated physical violence against him during their relationship and he consequently sought to restrain her or otherwise defend himself. The parties otherwise make allegations against each other of significant adverse behaviour by one party towards the other during their relationship. On the balance of probabilities, the Court makes the following findings in relation to these allegations:
(a)During the parties’ highly conflictual and toxic relationship, they were involved in significant verbal arguments between themselves, and which often led to both parties verbally abusing each other with swearing and yelling at each other. During these arguments, as alleged by the father, on occasion the mother resorted to physical violence against the father which led to him seeking to physically restrain the mother or otherwise defend himself. On occasion, the father’s restraint of the mother was excessive (with the Court finding that the father had not sought at any time to choke the mother). This physical restraint by the father of the mother had often led to the mother experiencing bruising, such as is depicted in the photos in Exhibit E.
(b)During the parties’ relationship, the mother, often after arguments between the parties, sent angry and hostile messages to the father in which she told the father that she wished him harm or death in his job at the hands of others.
(c)During the parties’ relationship, the mother, on occasion during arguments between the parties, threw items at the father or in his direction, such items including a watch. On one occasion she kicked a door causing it damage.
(d)About 48 hours prior to the incident in mid-2021, the mother, with a pair of scissors, when the father was at work, stabbed an object in several places that the father had been using. The father, when observing the object later, probably felt scared by the mother’s behaviour.
(e)In mid-2021, during a heated verbal argument between the parties, the mother, whilst emotionally dysregulated and extremely angry, brandished a knife towards the father over a period of about several minutes, and which caused the father significant fear (see the video recording of this incident in Exhibit Z). The Court does not accept that the mother brandished the knife because she was fearful of the father during this incident. The mother was charged with assault, and the Local Court later dismissed the charges under the Mental Health Act 2007 (NSW).
In relation to the above findings, the Court has taken into account, in particular, these matters:
(a)The mother, prior to and during the parties’ relationship, experienced problems with mood regulation and anger, as well as significant anxiety.
For example, in about mid-2014 she informed mental health practitioners that her mood was “crazy up and down”, her anger could come on fast, and that she could become angry and over-exaggerate. She informed them that she experienced significant anxiety, found herself getting upset easily, tended to over-react to situations, and found it hard to calm down after something upset her. She stated that she had been more unhappy in the last 10 months and for the last two months had been an emotional wreck. She had only one consultation at that time.
A mental health care plan for the mother in about early 2015 referred to one of her goals as being to control her temper. The mother informed mental health practitioners in about early 2015 that in anticipation of returning to work she was irritable, stressed and anxious. She reported her anger and irritability were elevated. She had only two consultations.
In mid-2016 the mother attended upon her GP who reported that the mother’s reason for contact with the GP was, inter alia, preparation of a mental health care plan and PTSD (post-traumatic stress disorder). The GP stated the mother looked stressed. The mother was referred to a psychologist for treatment, with a referral stating that the mother wanted some sessions to help her deal with stressors in her job.
As at December 2016 the mother was continuing to see a psychologist. At that time the GP’s mental health review plan stated, inter alia, that the mother’s problem was PTSD and that the goal was “having more strategies to deal with difficult situations and emotions”.
In May 2019 the mother’s GP referred her to Ms U, psychologist, for review of postnatal depression. A provisional diagnosis of postnatal depression/anxiety was made. The GP referred to the mother’s depression previously. Ms U, in about June 2019, had the mother complete a DASS 21 self-report, in which the mother stated, inter alia, that she tended to overreact to situations almost always, and reported suffering from severe stress. The mother presented as being inter alia, quite anxious, and the mother sought therapy for her anxiety. The mother informed the psychologist of good and not so good things about the father, with the latter not including aggression towards her. In September 2019 the mother informed the psychologist of expressing anger at the father’s “boozie behaviour”, and anger management tools and strategies were advised. In January 2020 the mother was receiving treatment for anger management.
(b)In about November 2019 the mother wrote a letter to the father after he had left the family home for a night to stay at a nearby apartment (as he had felt frightened and concerned about the mother’s behaviour towards him). In that letter the mother states, inter alia:
I am truly sorry for any hurt I have put you through. I am ashamed of our fights. I am appalled by some of my actions toward you and hate how I have picked up awful behaviours from the past and it’s as though I am on self defence/anger mode and always thinking you are going to hurt me… I can’t apologise enough and I do despise myself for things I have said and done… I went to bed feeling okay despite my breakdown.. I will miss you and live with regrets. It’s my own fault for not sorting myself out earlier and I accept that responsibility and your decision… I found a counsellor who is hopefully great. I mentioned I was physical and it’s something atrocious I have learnt from the past. And it is not normal, healthy and is so wrong and how my anger has not passed. I said it is the main thing I need to deal with my anger and then triggers. I have my method I am teaching myself but it takes time. Please don’t think of me as a bad person. I’m really not. I’m just broken.
On the balance of probabilities, the Court finds that the mother’s reference to having “picked up awful behaviours from the past” and “I was physical and it’s something atrocious I have learnt from the past” was likely a reference by the mother to behaviours experienced by her prior to the parties’ relationship.
(c)Text messages passing between the parties during the relationship, in particular during or after disputation; for example, Annexures G and H to the father’s affidavit filed 2 August 2024. The Court observes that the father maintained that he had sought to restrain the mother in the messages in Annexure G. The mother’s denigration of the father in these messages was significant. The Court observes that in Annexure H, the mother told the father on 7 May 2021, inter alia, “I try to be calm but you push me. [Always] do the same. Ignore 15 calls.”
(d)The above video recording relating to the mother brandishing a knife at the father in mid-2021.
(e)The content of the ERISP of the mother taken by the police in mid-2021, in relation to the above knife incident, including admissions made by her in that interview.
(f)The unreliability of the mother’s evidence and parenting proposals. For example, the contents of the above letter written by the mother to the father in about November 2019, in particular the admissions of the mother contained therein, and certain admissions made in the above ERISP, when contrasted to her stance taken with her psychotherapist, the Single Expert, and the Court, in respect to responsibility for the family violence in the parties’ relationship.
Another example relates to the mother’s final proposed parenting orders providing ultimately for the children to spend five nights each fortnight with the father. In the view of the Court, the mother has not persuasively explained in her evidence why she has changed her position so significantly in terms of the time that the children should spend with the father. Historically, post-separation and for a significant period, the mother failed to facilitate the children’s time with the father, which was consistent with her statements to the Single Expert in July and August 2023 in which she minimised the importance of the father in the children’s lives, and which was consistent with the information she provided to DCJ in 2024 relating to alleged adverse behaviour by the father towards the children. It was only in April 2024, through the mother’s Amended Response to Initiating Application filed 12 April 2024, that the mother first proposed that the children spend time with the father one night each fortnight together with Thursday in the off week plus time on special occasions, having previously maintained that the should children spend no time with the father (see her Response to Initiating Application filed 23 September 2022 and confirmed in her statements to the Single Expert in July and August 2023). There is force to the contention of the father that the mother, historically, has displayed an ability to provide different narratives relating to a particular topic when it suits her position, which contention the Single Expert had herself referred to in her evidence. The Single Expert had also discussed the unreliability of certain psychometric testing of the mother.
Mental health of the parties
The Court finds that the father’s mental health is presently quite satisfactory. He had experienced stress and anxiety at times during the parties’ relationship and thereafter and he obtained, and continues to obtain, adequate psychological treatment.
On the balance of probabilities, the Court is not satisfied that the mother carried out self-harm in the past.
As discussed above, the mother, prior to and during the parties’ relationship, experienced problems with mood regulation and anger, as well as significant anxiety. During the relationship, these problems were likely a contributory cause in respect of the mother’s adverse behaviour towards the father, including physical violence against him. This adverse behaviour of the mother was not directed towards the children.
As discussed above, the mother, on occasion, sought psychological treatment for the above problems both prior to and during the parties’ relationship, including with Ms FF, and Ms U. In about June 2021 the mother sought psychological support for domestic violence from Ms L, psychotherapist, which has been ongoing on a regular basis.
There is no affidavit from the psychotherapist; she was not called as a witness by the mother’s side. The support letter from this psychotherapist dated 31 July 2024 is brief (as are her clinical notes from 22 November 2021 to 24 October 2022, there being no clinical notes thereafter in evidence) and confirms she was acting in her capacity as trauma psychotherapist. The letter states, inter alia that:
Trauma-informed interventions focus on supporting [the mother] with coping with stress and anxiety in relation to the uncertainty surrounding lengthy drawn out legal stressors. … It is the undersigned’s professional opinion that [the mother] demonstrates strong commitment to rebuilding herself and her life post-abuse as challenging as this may be due to the pressures previously mentioned.
Accordingly, it is apparent that this therapy has been provided to the mother within the context of the mother having experienced domestic violence at the hands of the father; again, the Court refers to its contrary family violence and other findings above.
The mother has not adequately addressed her problems with mood regulation and anger, as well as anxiety; again, her treatment with her psychotherapist has been provided in the context of the mother being a victim of family violence. Ideally, as recommended by the Single Expert (at line 1778 of the Family Report), she should engage with a clinician to address, inter alia, her anxiety, particularly as it relates to the children’s relationship with the father, and develop her emotional and behavioural self-regulation skills. The mother proposes an order that she continue to engage with Ms L for therapeutic assistance. Respectfully, the mother should request this psychotherapist, or, ideally, a clinician with relevant expertise, such as those recommended by the Single Expert, to assist her with the above matters recommended by the Single Expert.
The Court finds that the father’s parenting capacity for the children is quite satisfactory and that he poses no risk of harm to the children, whether physically or emotionally, should they primarily live with him. At this point, the Court should state that it does not accept the evidence of the Single Expert (given by her during cross-examination by counsel for the mother) that prospectively the children face the same risk (or even a significant risk) of being exposed to emotional dysregulation by the father as they face with the mother. The Court has previously discussed the mother’s particular problems relating to mood regulation and anger, and anxiety, which do not apply to the father. He is being treated for stress and anxiety arising out of these proceedings. The father’s adverse behaviour towards the mother during the relationship significantly arose out of having to deal with the mother’s family violence and other adverse behaviour towards him. The father’s present relationship with his wife is harmonious and does not possess the adverse features that plagued the parties’ relationship.
History of family violence orders
In early 2022 an interim ADVO was issued against the mother for the father’s protection. In mid-2022 a final ADVO was made against the mother for the protection of the father, without admissions, which expired in mid-2023.
In early 2022, the police took out a provisional ADVO for the protection of the mother against the father. This order related to a number of historical allegations made by the mother to the police in early 2022 including allegations of assault upon the mother by the father between early 2020 and early 2021. In late 2022 the father received notice that the DPP were not proceeding with any charges against him. This order was made final in late 2023, on a without admissions basis, and expired in late 2023.
In light of the above discussions, what parenting arrangements will promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children?
Again, the Court has found above that the father poses no risk of harm to the children should they now primarily live with him.
Presently, the mother’s care of the children is adequate subject to, as discussed below, the mother not adequately supporting the children’s relationship with the father, which is of significant concern to the Court.
The Court observes that the mother is not presently in a relationship with any person and that she is expecting a baby in 2024, having received a donor sperm from a friend; the mother proposes to be a single mother in this regard.
Should the children continue to live with the mother and spend time with the father ultimately (that is, in about nine months’ time) for five nights each fortnight, as proposed by the mother, there is a significant risk that the mother will continue to not adequately support the children’s relationship with the father resulting in a significant diminishment of the children’s relationship with him. Further, if the mother’s proposals are accepted, there is a significant risk that as the children grow older and begin to test behavioural boundaries in the care of the mother, that the mother, particularly if she has failed to therapeutically address the above issues relating to, inter alia, her mood regulation, anger and anxiety, will confront the children in an adverse manner resulting in the children experiencing psychological and possibly physical harm; presently the mother lacks insight as to this risk. In this context, it is apparent that the mother lacks adequate insight into her own mental health, and into the effects upon the father (for example, he remains apprehensive of the mother in relation to the children) of her previously perpetrated family violence and adverse behaviour against him, as found above, by reason of her denials.
On the other hand, should the children now transition into living with the father (ultimately being nine nights per fortnight), with the children spending five nights per fortnight with the mother, as proposed by the ICL and the father, then the children’s relationship with the father can likely be consolidated and maintained, and their relationship with the mother can continue. It is likely that the father will consistently facilitate the continuation of the children’s relationship with the mother in these circumstances. Further, in these circumstances, with the children primarily living with the father, the risk to the children of being confronted adversely by the mother as they grow older and begin to test boundaries with her, can be mitigated.
The Court recognises that should the children now transition to live with the father, with the mother having been their primary carer, it will represent a significant change for them. The Court is of the view that the father, likely assisted by his new wife, will be likely able to emotionally support the children in this change. Again, assisted by his new wife, he will likely be able to adequately meet the children’s needs. The children have a meaningful relationship with the father. Whilst the father has expressed he is cautious of the mother, in particular in respect to her mental health, the Court finds that he will likely support the children’s relationship with the mother as he has done significantly post-separation. The children will ultimately spend five nights each fortnight with her. In all these circumstances, there is a significant prospect that the children will emotionally cope in transitioning to living primarily with the father.
The Court is of the view that there is a significant prospect that the mother will be able to cope emotionally with the children transitioning into the father’s primary care. If necessary, the mother can obtain therapeutic support. She has a significant support network. She will ultimately be spending five nights each fortnight with the children.
(2)(b) any views expressed by the child;
The children are too young to express a relevant view.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Single Expert in relation to these needs.
Subject to the Court’s concerns relating to the mother facilitating the children’s relationship with the father, discussed above and below, the children are progressing well in the mother’s care at present. The Court observes that the mother has been the children’s primary carer since birth to date, albeit that the father, during the parties’ relationship, provided significant assistance to the mother in the care of the children when he was not at work.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
The Court finds that the father has such capacities.
The mother, after the end of the parties’ relationship in about May 2021, unreasonably failed to adequately facilitate the children’s relationship with the father. In particular, there was a period of about 11 months where the mother failed to facilitate the children spending any time with the father. There was no reasonable basis for the children thereafter having to spend supervised time with the father.
The mother’s disregard for the father’s role as a father to the children as expressed by her to the Single Expert in July and August 2023 is of significant concern to the Court; the Court does not accept the mother’s evidence that she was “triggered” to make these statements to the Single Expert. Whilst the mother’s final proposed parenting orders ultimately provide for the children to spend some five nights with the father, the mother’s conduct in contacting DCJ in mid-2024 in relation to alleged adverse behaviour by the father towards the children was unreasonable and unnecessary and was consistent with the mother’s disregard for the father’s role as a father to the children as expressed by her to the Single Expert in July and August 2023. If the mother had wanted to seek advice about the children’s discomfort in having to change clothes on coming into the father’s care, as alleged by her, there were other avenues of enquiry that she could have made instead of contacting DCJ, a child protection agency.
Furthermore, the mother’s preparedness to unreasonably elevate information provided to her by the children, relating to their time spent with the father, to a matter of potential significant risk for the children when in the father’s care, carries the real risk that the children might come to view the father as a person who is unsafe to them. Should that risk come to pass then the children may well experience emotional harm and their relationship with the father could well be compromised.
The Court does not accept the mother’s evidence that she had contacted DCJ merely to obtain advice in relation to her concern that the father was causing the children emotional discomfort in requiring them to change out of their clothes after changeover and that incidentally she provided further information to DCJ, at their request, regarding other conduct of the father.
Similarly, the mother’s attendance upon her GP Dr R in 2024 in relation to her alleged concerns “over discussion of precocious behaviour by their father” (regarding the child X) and in relation to “family request assessment of sexual precocity” (regarding the child Y) culminating in the GP referring the children to a community health centre for treatment was unreasonable and unnecessary when one has regard to the statements of the children regarding time spent with the father.
Otherwise, the mother has such capacities.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The children have a meaningful relationship with both parents, and the children will benefit from the continuance of those relationships. In terms of physical and emotional safety of the children, the court refers to its discussions above in relation to the mother.
(2)(f) anything else that is relevant to the particular circumstances of the child.
The mother seeks Orders for telephone and electronic communication time between the children and the non-caring parent. It will be in the best interests of the children to make an Order for telephone time to be facilitated by the caring parent at such reasonable times as the children may request. The Court has a concern that the making of a more prescriptive Order in this regard may lead to conflict between the parties.
Parental responsibility
The parties do not communicate with each other by telephone or face-to-face in relation to the children. There is some communication between them by way of a parenting app. Overall, their co-parenting communication is, when viewed holistically, unsatisfactory. There is significant mistrust of the parties towards each other, particularly in relation to the children. The parties are in disagreement in relation to the children’s future schooling arrangements. The Court has no confidence that these parties could reach agreement in relation to major decisions to be made for the children in a timely fashion and without conflict. The children will ultimately live primarily with the father. And again, the Court has a concern that the mother will not adequately support the children’s relationship with the father which may well impact the parties’ capacity for joint decision making.It will be in the best interests of the children that the father have sole decision-making responsibility for major long-term issues regarding the children, however he should, as proposed by the ICL, be required to advise the mother of any proposed major decision for the children and then take into account and consider any views expressed by the mother, with the father advising the mother in a timely manner of his decision.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.The father shall have sole decision making responsibility for major long-term issues for the children X born in 2019 and Y born in 2020 (“the children”) provided that:
(a)The father shall advise the mother in a timely manner (in writing and within seven days if non-urgent and within 24 hours if urgent) of any issue in relation to the long term care, welfare and development of either of the children and the decision he proposes to make;
(b)The mother shall, (in writing and within seven days if non-urgent and within 24 hours if urgent), provide her views on the decision the father proposes to make and the father shall take into account and consider any views expressed by the mother;
(c)The father shall advise the mother in a timely manner of his decision.
2.The children shall live with the father as follows:
(a)For a period of four weeks from the date of these orders from 9.00 am on each alternate Thursday until 9.00 am the following Monday.
(b)Thereafter and for a further period of four weeks from 9.00 am on each alternate Thursday until 9.00 am the following Wednesday.
(c)Thereafter, each alternate week from the conclusion of school/childcare on Wednesday (or 3pm on a non-school day) to Friday the following week at 9.00 am (or before school) being nine nights per fortnight.
3.The children shall live with the mother when not otherwise living with the Father.
4.Notwithstanding any other order the children shall:
(a)Live with the mother:
(i)From 5.00 pm on the day before Mother’s Day until 5.00 pm on Mother’s Day;
(ii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2025 and each alternate year thereafter;
(iii)From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2024 and each alternate year thereafter;
(iv)From the time that Y commences school for one half of the holidays being the first half in years ending with an odd number and the second half in years ending with an even number;
(v)From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the mother on that day;
(vi)From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2026 and each alternate year thereafter.
(b)Live with the father:
(i)From 5.00 pm on the day before Father’s Day until 5pm on Father’s Day;
(ii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2024 and each alternate year thereafter;
(iii)From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2025 and each alternate year thereafter;
(iv)From the time that Y commences school for one half of the school holidays being the first half in years ending in an even number and the second half in years ending in an odd number;
(v)From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the father on that day;
(vi)From 9.00 am on Good Friday until 9.00 am on Easter Saturday;
(vii)From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2025 and each alternate year thereafter.
5.Telephone or Facetime communication between the child/ren and the parent they are not spending time with shall be facilitated by the caring parent with the non-caring parent at such reasonable times as the child/ren may request.
6.For the purposes of changeover:
(a)Changeover shall take place at school/childcare whenever that is appropriate;
(b)Otherwise, the changeover shall take place at an agreed location and failing agreement at Suburb B McDonalds.
7.Each party is restrained from:
(a)Denigrating the other party or any member of the other party’s family in the presence or hearing of the children;
(b)Discussing these proceedings or any family law matters in the presence or hearing of the children;
(c)Approaching the other party except as provided in these orders.
8.Both parties are entitled to receive any information ordinarily provided to parents from the children’s school/day care or other extra-curricular activities.
9.Both parties will notify the other party in the event that the children, or either of them, receive treatment from a medical specialist and will provide each other with a copy of any relevant report.
10.The parties do all acts and things necessary to make an application to the NSW Registry of Births, Deaths and Marriages to change the name of the children to X Harper-Bennett and Y Harper-Bennett.
11.Both parents are at liberty to attend at any school event to which parents are invited.
12.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the father be authorised to solely apply for passports for the children X (also to be known as X Harper-Bennett pursuant to Order 10 herein) born in 2019 and Y (also to be known as Y Harper-Bennett pursuant to Order 10 herein) born in 2020.
13.Both parents are permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel during their time with the children pursuant to these orders, or such other times as agreed, provided the following conditions are satisfied:
(a)That the travelling parent provide to the non-travelling parent with no less than 42 days written notice of the proposed travel, including:
(i)Dates of departure from and return to Australia, of the proposed travel, and;
(ii)Purpose and destination of the travel.
(b)That the travelling parent provide to the non-travelling parent, no less than 28 days prior to the proposed travel:
(i)Copy of return airline tickets;
(ii)Copy of itinerary, and;
(iii)A copy of the children’s travel insurance policies and certificates, which include as a minimum, hospital and emergency medical cover.
14.Within 24 hours from the date of these Orders, and failing agreement, the mother and father will download if not already done, the mobile phone application ‘AppClose’, and the mother and father will commence communicating via the mobile phone application from the date of these Orders.
15.Failing agreement, the mother and father shall communicate via the mobile phone application ‘AppClose’ relating to anything arising in relation to the children unless otherwise provided for in these Orders.
16.The children attend at a school nominated by the father but such school shall not be further geographically away from the mother’s home than the distance between Suburb C and Suburb D.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 30 October 2024
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