Butler & Wanzel
[2024] FedCFamC2F 1207
•12 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Butler & Wanzel [2024] FedCFamC2F 1207
File number: SYC 9251 of 2022 Judgment of: JUDGE LIOUMIS Date of judgment: 12 September 2024 Catchwords: FAMILY LAW – CHILDREN – Where the parties agree that the mother should hold sole parental responsibility for the child and that the child should live with the mother – Whether the child should spend time with the father – Where the child has never met the father – Where there are allegations by the mother of significant family violence perpetrated by the father, including coercive and controlling family violence – Where findings are made that the father poses an unacceptable risk of harm to the child and the mother as a result of family violence – Where the father has long-term mental health issues – Where findings are made that the father’s mental health presents an unacceptable risk of harm to the child’s safety – Where the Court cannot be satisfied that the father is drug-free – Where the child is vulnerable due to developmental delays – Where orders are made that the child shall spend no time with nor communicate with the father – Where injunctive orders are made pursuant to section 68B of the Family Law Act 1975 (Cth) Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65AA, 65D, 68B
Mental Health Act 2007 (NSW)
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Keating & Keating (2019) FLC 93-894
Ramzi & Moussa [2022] FedCFamC2F 1473
Whisprun Pty Ltd v Dixon [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 238 Date of hearing: 6, 7 & 8 May 2024 Place: Sydney Counsel for the Applicant: Mr Schonell of Counsel Solicitor for the Applicant: Long Saad Woodbridge Lawyers Counsel for the Respondent: Mr Blank of Counsel Solicitor for the Respondent: Hennikers Solicitors Solicitor for the Independent Children’s Lawyer: Ms McMullen, Legal Aid NSW Domestic Violence Unit ORDERS
SYC 9251 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BUTLER
Applicant
AND: MR WANZEL
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE LIOUMIS
DATE OF ORDER:
12 SEPTEMBER 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for the child Y born in 2022 (“the child”).
2.The child shall live with the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
3.The child shall spend no time with nor communicate with the Father.
4.Pursuant to section 68B of the Family Law Act 1975 (Cth), the Father be and is hereby restrained by injunction from:
(a)Approaching or attempting to contact the Mother or the child except through a legal practitioner;
(b)Coming within 200 metres of the Mother and/or the child, including but not limited to the Mother’s residence and the child’s daycare, preschool or school; and
(c)Approaching the Mother, in the event that both parties are present at a location at the same time.
5.The Mother has leave to provide a copy of the Single Expert Report prepared by Ms B dated 25 January 2024, and the Reasons for Judgment published at the conclusion of the proceedings, to any child and family professional and/or psychologist upon whom the child may attend for the purpose of understanding and airing his views in relation to the parenting arrangements.
6.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
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
INTRODUCTION
This matter relates to the parenting arrangements for Y born in 2022 who was two years of age at the date of hearing.
The Applicant mother is Ms Butler born in 1989 (“the mother”).
The Respondent father is Mr Wanzel born in 1990 (“the father”).
The parties were in a relationship from mid-2019 to March 2022. They did not marry.
Y has never met the father as the parties separated shortly prior to his birth.
It is uncontested that the mother shall have sole parental responsibility for Y who will continue living with her. The primary issue for determination is what time, if any, Y should spend with the father.
The mother contends that she was subjected to family violence perpetrated by the father during their relationship, including sexual assaults, non-lethal strangulation, emotional and psychological abuse, and physical assaults. She asserts that the father’s perpetration of family violence, including coercive and controlling behaviour, together with his mental health issues, would present an unacceptable risk of harm to Y if he were to spend any time with the father. This position is supported by the Independent Children’s Lawyer.
The father denies that he has ever been physically, sexually, emotionally or verbally abusive towards the mother and it is his evidence that his mental health is stable. The father asserts that the parties were in a relationship until March 2022, when an argument ensued between the parties which resulted in an Apprehended Domestic Violence Order (“ADVO”) being made against the father for the protection of the mother. There has been no contact between the parties since this time. The father seeks time with Y.
For the reasons that follow, it is in Y’s best interests for orders to be made in accordance with the Minute proposed by the Independent Children’s Lawyer and supported by the mother.
ISSUES
The issue that requires the Court’s determination is as follows:
(a)Should Y spend time with the father?
EVIDENCE
The hearing was conducted in person and the parties were legally represented.
The mother relied on her Outline of Case document filed 2 May 2024 and the following documents:
(a)Amended Initiating Application filed 13 February 2023;
(b)Affidavit of Ms Butler filed 26 April 2024; and
(c)Affidavit of Mr C filed 26 April 2024.
The father relied on his Outline of Case document filed 3 May 2024 and the following documents:
(a)Amended Response to Initiating Application filed 9 April 2024;
(b)Affidavit of Mr Wanzel filed 24 April 2024; and
(c)Affidavit of Ms D filed 29 April 2024.
The Independent Children’s Lawyer (“ICL”) relied on their Outline of Case document filed 2 May 2024.
Both parties and the ICL also relied on the Single Expert Report of Ms B (“the Single Expert”) dated 25 January 2024.
I have also read and considered all evidence tendered and marked as exhibits.
Whilst I have read and considered all of the material relied upon by the parties and the ICL in these proceedings, I do not propose to traverse all of the evidence in these reasons but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
PARTIES’ POSITIONS
The parties and the ICL are in agreement that the mother should have sole parental responsibility for Y and that Y should live with the mother.
The mother and the ICL seek an order that Y spend no time with the father.
The mother and the ICL seek that the father be restrained by injunction from:
(a)Approaching or attempting to contact the mother or Y except through a legal practitioner;
(b)Coming within 200 metres of the mother and/or Y, including but not limited to the mother’s residence and the child’s daycare, preschool or school; and
(c)Approaching the mother, in the event that both parties are present at a location at the same time.
The father seeks an order that Y spend time with him as may be agreed from time to time, and failing agreement as follows:
(a)Stage 1:
a.For a period of 26 weeks, every second Saturday for 2 hours supervised by F Contact Centre.
(b)Stage 2:
a.Upon the completion of Stage 1 and alternate weekends 10.00 am Saturday to 2.00 pm Saturday supervised by the following:
(A)The paternal grandparents, namely Mr E, Ms G, Ms H or Ms D; or
(B)Such other third party agreed by the parties in writing.
The father seeks that, notwithstanding any order to the contrary, if Y is not already spending time with him pursuant to these orders, Y spend additional time via Skype with the father as agreed between the parties, but failing agreement as follows:
(a)On Y’s birthday and the Father’s birthday: from 4.00 pm to 4.30 pm.
(b)On Father’s Day: from 4.00 pm to 4.30 pm.
(c)On Easter Sunday: from 4.00 pm to 4.30 pm.
(d)On Christmas Day: from 4.00 pm to 4.30 pm.
The father also seeks alternative orders that, inter alia, he spend time with Y on four occasions per year for a period of two hours, and that his time take place at J Contact Centre or at such contact centre as the parties may agree.
BACKGROUND
The Applicant mother was born in 1989 and was 34 years of age at the date of hearing.
The Respondent father was born in 1990 and was 34 years of age at the date of hearing.
In 2013, the father says he was charged with offences involving someone he was going out with at the time. The father contends that the charges were dropped because the Police found the accuser to be dishonest. The father contends that this was a difficult period for him, and that he suffered from mental health conditions, and was prescribed medication for approximately two years.
In 2014, the father contends that he was admitted to the K Hospital psychiatric ward.
In 2018, the father contends that he was sitting in his car at traffic lights when three people unknown to him approached his car, opened the doors, and made him sit in the back seat while they drove to their home. The father contends that he was trapped in the house with the three people, and that they used his bank card and forced him to take drugs. He says he cannot remember how long he was at the house because he has partially “blocked out” this incident, though believes it was over a week. The father also contends that he was sexually assaulted during this incident.
In 2018, the father was admitted to L Hospital for a few weeks.
In mid-2019, the parties commenced a relationship.
In late 2019, the parties commenced cohabitation at a property owned by the mother’s parents in Suburb M, New South Wales.
During the relationship, the mother contends that the father sexually assaulted her. On one occasion, the mother contends that the father proceeded to penetrate her without her consent, despite the mother saying words to the effect of, “Please no, stop, I don’t want to do this here”.
During the relationship, the mother contends that the father was controlling. She contends that each time she tried to spend time with her friends, the father insisted on going with her even if she had expressed that she wanted to spend time with them on her own. The mother also contends that the father was critical of her spending time with her family and tried to discourage it. She contends that the father would often say words to the effect of, “why do you want to see your mum and dad so much?” and “they don’t love you. They’re controlling. You should be spending time with me. I don’t like you seeing them”. According to the mother, the father would monitor her devices and check her email and messages. The mother contends that at the start of the relationship, the father asked her for her phone passcode, and when she did not give it to him, he became angry and said, “you better fucking give it to me”. The mother gave him the passcode and at times, tried to change it. She contends that the father would find out, become angry, raise his voice, and say words to the effect of, “give me your fucking passcode now”. The mother contends that the father would often pick up her phone and go through it, would answer her phone when it rang, reply to her text messages, and look through her email and social media accounts.
In late 2020, the mother contends that the father tried to preclude her from taking her prescribed medication. As a result, the mother claims that she took her morning dose of medication whilst at work and did not consume her evening dose due to fear of what would happen if she did not comply with the father’s insistence that she refrain from taking her medication. The mother contends that for around four or five months, she was only taking a half dose of her medication and that she suffered a blackout in mid-2021.
In 2021, the parties purchased land in Western Australia.
In early 2021, the mother contends that the parties went on a trip to Town N, New South Wales. Whilst the parties were driving home, the mother contends that they began arguing and that she took off her engagement ring, told the father, “This is never going to work, we’re never going to get married, this is not a healthy relationship”, and threw the ring out of the car window. The mother contends that the father then started screaming at the mother and stopped the car, walked around to the passenger side of the car where the mother was sitting, and choked her. The mother asserts that she struggled to breathe before managing to break free from the father’s chokehold. She contends that the father said, “get the fuck out of the car and start looking for the ring”, to which she replied, “no way, it’s gone, and I’m done”. The mother contends that the father yelled words to the effect of, “we’re going to [City O] to buy another engagement ring”, and then, despite the mother saying no, drove the parties to City O and purchased a ring.
In late 2021, the mother contends that a formal investigation took place in relation to alleged misconduct by the father at his then workplace, P Company at Suburb Q, involving violence.
In 2021, the mother contends that the parties travelled to the paternal grandmother’s home in Town R. The mother contends that the father spent three hours trying to set up the television. The mother contends that when she changed the channel on the television and handed the remote control to the paternal grandmother, the father threw a can of drink at her and said, “oh my God, why did you do that?”, whilst he elbowed her in the chest. The mother contends that the father narrowly missed her pregnant stomach. The mother says that on this occasion, she told the paternal grandmother what had been happening between her and the father, including that the father would force her to have sex with him.
In early 2022, the mother contends that she and the father attended an event in Suburb S. It is the mother’s evidence that when they returned to their car, the father said he wanted to, “go out and have dinner and play [games]”, but that she said no because she was tired. The mother says that the parties continued to argue about other things, and that the father then pulled her seatbelt tight around her stomach and punched her in the face on her right cheek. The mother pregnant at the time. The mother contends that she did not go to the doctor because the father would not allow her to go to any medical appointments on her own.
In early 2022, the mother contends that the parties had an argument. The mother contends that she needed to eat earlier in the evenings because she had been diagnosed with a pregnancy related illness and was taking prescribed medication, which meant that she needed to eat at regular intervals. The mother contends that she had asked the father to have dinner ready by 7 pm on the nights that he was cooking. That night, the mother contends that the father did not finish preparing dinner until about 9.30 pm, and that the parties got into an argument about this. The mother says that she took a handful of ingredients and threw it towards the father, hitting the wall behind him. She contends that she then attempted to leave the house but that the father stood in front of the door and put her in a chokehold. The mother contends that she tried to open the front door and that the father slammed the door on her finger. The mother says she bit the father’s hand, and he released her. The mother contends that the father then punched her pregnant stomach, causing a bruise. The mother says she got out through the back door, climbed over a brick fence, and met on the road a neighbour who had heard the confrontation. The mother contends that she stayed in the neighbour’s house for two hours until returning home to get her medication. The mother asserts that she said to the father, “You need help for your behaviour. Please go back to see your psychiatrist, otherwise we can’t be together”, and that the father agreed. The mother contends that she did not go to the doctor after this incident because the father would not allow her to go to any medical appointments on her own.
In early 2022, the parties separated on a final basis. The mother contends that the parties travelled to a venue for their baby shower, which was hosted by the paternal grandfather and step-grandmother in their house. After the guests had left, the mother contends that the father argued with his father in the master bedroom about the parties’ wedding. The mother contends that she entered the bedroom, placed her engagement ring on the floor, and said words to the effect of, “our engagement is over”. The mother contends that she then told the paternal grandfather and step-grandmother, in private, about the father’s treatment towards her, including his physical and verbal violence and invasions of privacy. The mother contends that the paternal grandfather discussed this with the father and that the father became very angry, screaming words to the effect of, “I’m going to kill you” and “I’m going to crash into a tree”. The mother contends that she and the paternal step-grandmother attempted to leave the premises but that the father blocked the doorway. She says that the paternal grandfather had to physically restrain the father to allow them to leave. The mother contends that she and the paternal step-grandmother then drove to the parties’ Suburb M house, collected the parties’ dogs, the mother’s medication, and some clothes, dropped the dogs off at the maternal grandparents’ home, and then returned to the paternal grandfather’s and stepmother’s home, where the mother stayed for a few days.
In early 2022, the mother contends that she attended Region T Police Station with the paternal step-grandmother to make a report about the father’s violence towards her. On that day, the Police took out a Provisional ADVO for the mother’s protection.
In early 2022, the father was admitted to L Hospital with depressive symptoms.
In 2022, Y was born. He has since been diagnosed with a medical condition and according to the mother, there is concern that he may have autism.
In mid-2022, the ADVO matter was finalised in City U Local Court.
On 23 December 2022, parenting and property proceedings were commenced by the mother’s Initiating Application, to which the father joined issue by his Response filed 3 May 2023.
On 9 February 2023, Orders were made allocating this matter to the Evatt List.
On 22 May 2023, the parties attended a Conciliation Conference with Senior Judicial Registrar Bastiani and settled the property proceedings on a final basis.
On 2 June 2023, Orders were made by Judicial Registrar Buttriss requiring the father to inform the ICL and the mother’s legal representative with respect to the outcome of the Suburb V Local Court proceedings involving the father by no later than 72 hours after the Court date. The mother contends in her affidavit that the father did not inform her of the outcome.
On 9 February 2024, the Single Expert Report of Ms B dated 25 January 2024 was released in Court to the parties.
The matter came before me for final hearing on 6, 7 and 8 May 2024.
THE PARTIES
I had the opportunity to observe the father give evidence for an extended period in this matter. For reasons that will be discussed below, I found the father’s evidence in relation to his drug use, previous criminal proceedings, and mental health history to be untruthful.
When giving evidence, the father attempted to portray himself in a favourable light wherever possible. When faced with difficult records or with evidence inconsistent with his stated position, such as records taken by his treaters or of Local Court proceedings, he repeatedly disavowed that evidence. In many circumstances where a fulsome explanation would have assisted my understanding of what had occurred, the father stated that he couldn’t recall, or he deflected away from negative reports about himself. The father repeated on several occasions in response to negative reports that his behaviour was in response to his grief at not having a relationship with his son. This response was given even in circumstances where such an answer had no bearing on the issue being addressed.
The father needed several breaks while giving his evidence. It was evident when he requested the breaks that he had become agitated and unsettled. I accommodated his requests for breaks as frequently as they were sought. When he would return to the witness box, I was satisfied that the father was settled and able to continue giving his evidence.
By contrast, the mother’s evidence was given in a straightforward and clear manner. The mother was able to consider alternative positions and impressed as a truthful witness.
In this judgment, where the evidence of the father conflicts with that of the mother, I prefer the evidence of the mother.
CURRENT CIRCUMSTANCES
Neither of the parties have children from prior or subsequent relationships. The mother has not re-partnered.
Y is two years of age. As such, there is no dispute that he does not have the capacity to express any views. As between the parties, Y has always been in the sole care of the mother and he currently lives with her in the home of the maternal grandparents. The mother works on a casual basis a few times each week as a community worker.
Y currently attends W School Early Learning Centre four days per week between the hours of 8.30 am to 5.00 pm. He is cared for by the mother on Wednesdays unless the mother has to work, in which case he is cared for by the maternal grandparents.
Y has a medical condition, for which he takes medication twice per day. He attends upon a specialist every six months. Y has also experienced some developmental delays, including speech and gross motor delays, and attends upon a speech pathologist and occupational therapist weekly for assistance in this regard. Whilst he is saying a few new words each week, Y still struggles with verbal communication. He does very well with non-verbal communication and has a good understanding of words and instructions. The mother deposes that there is some concern that Y may have autism. He likes a strict daily routine and can get quite upset at change. He also has an aversion to some textures in foods and his surroundings.
The mother asserts that Y’s developmental delays will affect his ability to be self-protective. The Single Expert’s opinion that Y’s developmental delays and medical condition add to his vulnerability in circumstances such as spending time with a stranger was unchallenged and I therefore make such a finding. It was also not the subject of challenge that Y’s developmental delays would affect his progress of forming an attachment and associated attachment behaviours.
The Single Expert further opined at [210] of the Single Expert Report that:
[Y] has developmental delays that would make it difficult for him to understand and cope with future arrangements imposed on him.
This was not the subject of challenge and I therefore make such a finding. Thus, in addition to his very young age, Y is a vulnerable child who has special needs and considerations which must be taken into account when making orders that are in his best interests.
The father lives with his current partner, Ms D, in Town Z, New South Wales, and works as a community worker generally three days per week. In addition, he receives a disability pension due to a disability. The father reported to the Single Expert that he has been diagnosed with mild autism. The paternal grandfather and step-grandmother live in the Region T area, and the father sees them once every few weeks. The paternal grandmother lives in Town R. The father has a brother who lives close by and a half sister who lives in Town AA.
THE SINGLE EXPERT REPORT
A Single Expert Report was prepared for the purposes of the final hearing by Ms B (“the Single Expert”), a psychologist and clinical expert. Ms B has prepared Family Reports and Single Expert Reports for this Court for over 20 years. She is a registered Psychologist and completed her qualifications at University in 1991. She has participated in Trauma-Focused and Cognitive Behaviour Therapy and domestic violence informed training. I am confident that she is suitably qualified to provide her expert opinion to this Court.
The Single Expert interviewed both parties on separate occasions in December 2023. A follow-up telephone interview was conducted with the mother in January 2024. An observation of Y, the mother and the maternal grandfather was conducted on the same date as the mother’s interview with the Single Expert in December 2023. No observation of the father and Y took place. In addition, the Single Expert interviewed via telephone Ms BB, psychologist, who has been providing support to the father since June 2022 as well as Dr CC, the father’s psychiatrist.
The Single Expert had access to and read a wide range of material, including material produced under subpoena.
The Single Expert broadly recommended in the Single Expert Report that:
(a)Y live with the mother.
(b)The mother hold sole parental responsibility.
(c)There are no orders for Y to spend time with the father.
(d)The mother seek support from a child and family professional regarding how to explain to Y the circumstances of his parenting arrangements and any future arrangements (if these occur).
(e)The mother be able to decide when and whether Y spends time with his father or paternal family.
(f)If spend time arrangements occur between Y and the father and/or paternal family, consideration be given to this being delayed until Y is three or four years old.
(g)If consideration is given to Y spending time with his father in the future, such time occur at a contact centre, or with a contact agency supervisor, at a frequency of once per month or once per fortnight.
(h)If consideration is given to Y spending time with the paternal family, such time occur at a contact centre or with a contact agency supervisor.
(i)If Y spends time with his father or paternal family, consideration be given to initial meetings occurring in the presence of a trusted figure (in addition to a contact centre supervisor or contact agency supervisor).
(j)If consideration is given to Y spending time with his father or paternal family, some introductory activities (such as providing photos or missives) occur before time in person begins.
(k)The mother provide Y with an assortment of photos of his father and paternal family so that Y has some minimal information about their physical characteristics.
(l)If Y spends time in person with his extended paternal family, this occur about four times per year for the purposes of information-gathering and identity.
(m)The mother consider linking Y with a child and family professional when Y is older (such as about six years old) to help him understand and air his views about his parenting arrangements (or lack thereof).
(n)If the father is provided with trauma therapy by a psychologist, his treating psychologist first liaise with the father’s psychiatrist.
(o)The father be linked with appropriate professional supports (such as with his psychologist or via the Family Support and Advocacy Service) when the report is released and if orders are made that are not in line with the father’s proposals.
The Single Expert attended Court and was cross-examined. Prior to such cross-examination, she had read the trial affidavit of each of the parties.
I found the Single Expert’s oral evidence to be clear, thoughtful, and reasoned. She was an impressive expert witness. Having read the updating material, she affirmed her continued support of her written recommendations as contained within the Single Expert Report.
The Single Expert opined that, in addition to the above:
(a)On considering the evidence filed by the parties and the additional documents, there should be no order for time between Y and his father and that it was appropriate for injunctions to be made to protect Y.
(b)Y is very young and vulnerable and his capacity to understand what is happening would make a reparative approach to time with his father difficult.
(c)Implementing identity time as set out in the father’s alternate Minute would be very difficult for Y to understand and enact given that he has no relationship with the father.
(d)If there was aberrant behaviour by the father during Y’s time with him, including high levels of distress, inability to follow protocols and outbursts, that would be emotionally damaging to Y.
(e)An order for photos to be provided to Y would be appropriate and beneficial for Y given the mother indicated that she would support this.
(f)Cards and letters could be intrusive and confusing for Y if the Court found the mother could not support this level of contact.
(g)Significant consideration should be given to any negative impact on the mother’s parenting capacity if orders were made for Y to spend time with the father.
(h)There is a need to protect the mother’s parenting capacity in circumstances where she is the resident parent.
(i)If the mother does not support time between Y and his father, that would make any time ordered difficult for Y to engage in.
(j)Even if the concerns raised by the mother are exaggerated, they are an expression of concern and an indication of her level of anxiety, and the mother is not deliberately exaggerating her concerns.
(k)The father’s mental health remains a significant factor of risk and that the documents read in relation to the criminal proceedings in 2023 support her view that the father’s mental health poses an unacceptable risk to Y.
(l)The Single Expert had the opportunity to consider the father by meeting him and reviewing subpoenaed records in relation to his previous mental health and Police involvement; an opportunity not available to his treaters.
(m)There is a chance that as Y matures, he may reach out to his father.
(n)In the event that orders are made in accordance with the mother’s minute, Y may require counselling in the future to understand and accept why orders were made for him to spend no time with his father.
THE LAW
The Court is compelled to make such parenting orders as it considers proper: section 65D of the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration: section 60CA of the Act (and confirmed in section 65AA).
The objects of Part VII of the Act are twofold; to ensure that the best interests of the child are met, and to give effect to the Convention on the Rights of the Child: section 60B of the Act. A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Act.
The mother and the ICL seek injunctions for the welfare and protection of the mother and Y and, in that regard, my decision will also be informed by the provisions of section 68B of the Act.
Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”: Amador & Amador (2009) 43 Fam LR 268 at [88]. Proof to the reasonable satisfaction of the Court “should not be produced by inexact truths, indefinite testimony, or indirect references”: Briginshaw v Briginshaw (1938) 60 CLR 336.
In determining what is in Y’s best interests, the Court must consider what arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child: section 60CC(2)(a) of the Act. This involves a consideration of any past history of family violence, abuse, neglect or other harm involving the child or their caregivers.
FATHER’S MENTAL HEALTH
The father’s mental health and the impact of his mental health were significant issues throughout the hearing. The mother and the ICL both contend that the father’s mental health comprises a significant risk to Y’s safety.
The father’s evidence is that his mental health is stable and is well managed. The father’s evidence fails to disclose, or in fact misrepresents, his mental health.
The Single Expert Report outlined a useful summary of the father’s mental health records. The Single Expert reviewed the records which had been subpoenaed. I have reviewed the records tendered and find that the summary provided by the Single Expert is accurate.
During these proceedings, including during cross-examination, the father did not accept that this was an accurate reflection of his mental health at that time. The father was vague as to the reasons for his treatment and diagnoses.
Each of the parties and the ICL tendered various documents relating to the father’s mental health, cognitive functioning and criminal history. These documents provide expansive insight into the father’s diagnoses and the opinions and recommendations of psychologists and psychiatrists.
The earliest dated tendered document is a letter from Dr DD, clinical psychologist, written in late 2010 when the father was 20 years old.[1] The letter indicates that the father had completed 18 therapeutic sessions with Dr DD under the Mental Health Care Initiative for difficulty expressing his emotions, controlling his anger and managing his parents’ separation. No further sessions were required at the time of writing as the father had reached his initial therapeutic goals.
[1] Exhibit ICL 8.
In late 2011, a letter was written by Dr EE, consultant psychiatrist, who explained that the father had recently been admitted to the K Hospital Mental Health Unit with apparently a twelve-month history of behavioural change including irritability and aggression.[2] He noted that there was a history of the father hearing a single, harshly critical voice, which was concluded in hospital to be a mental health symptom. Dr EE opined that it was reasonable to continue with a working diagnosis of a mental health disorder, although noted that he was “not entirely convinced of this diagnosis”.
[2] Exhibit ICL 9.
The Single Expert Report notes that in 2011, the father was provided with a mental health plan due to a mental health disorder. Dr EE was consulted by the father and prescribed medication. The records for 2012 indicate that there was some self–harming behaviour.
In early 2012, a letter was written by psychiatrist Dr FF,[3] who described the father as “an enigma” which required diagnostic clarification. She noted that the paternal grandfather described periods where the father was experiencing mental health instability and mood swings. The father reported that apart from the mental health experiences, he had no recollection of any of the times his mood had deviated, nor episodes of self-harm. Dr FF wrote that the father had been charged with an offence in the year prior and that he said he was unable to recollect anything regarding the night of the alleged offence. Dr FF concluded with three possibilities regarding the father; that he was presenting a picture of dissociative symptoms in the context of trauma (being parental separation and a sexual assault charge) and a vulnerable personality, that there was a manifestation of a mental health disorder, or that the father was malingering.
[3] Exhibit M25.
Around one month later, the father was admitted to GG Clinic. He presented with “adjustment disorder with anxious/depressed mood - ?[mental health disorder]”.[4] This was characterised by periods of mental health symptoms, anxiety and self-harm. Dr FF, who was the attending psychiatrist, recorded that the father “responded well” to treatment.[5] He was discharged 20 days after being admitted.
[4] Exhibit ICL 10.
[5] Exhibit ICL 10.
In early 2013, Dr FF prepared a medico-legal report following the father’s charge of an offence.[6] She was asked to outline the father’s condition and his mental capacity to plead and stand trial. By this time, Dr FF had assessed the father on 10 occasions since early 2012 at her private rooms and had cared for him during his admission to GG Clinic. In that report, Dr FF opined that the father “presents as a young man, with a developmental disability and quite possibly a pervasive developmental disorder, such as high functioning autism.” She noted that the father had developed a constellation of psychiatric symptoms and that these had “worsened in the context of significant psychosocial stressors including intrafamilial and interpersonal conflicts and legal issues”. She also noted that, in a previous assessment of cognition, the father was found to have a generalised intellectual impairment which was deemed to be moderate. Dr FF concluded that the father was unfit to stand trial for his charge.
[6] Exhibit ICL 11.
Five months later, Dr FF wrote a letter to the father’s new General Practitioner indicating that the father was doing well and that she had not seen any recurrence of mental health symptoms.[7]
[7] Exhibit M26.
In these proceedings, the father’s evidence is that the charges were dismissed because the complainant was untruthful. That evidence is not truthful and is an example of the father misleading the Court as to his history and the seriousness of his mental health issues. It is also clear from the medico-legal report that the father’s mental health had some part to play in the father’s offending.
No documents were tendered with dates ranging from 2014 to 2017. The Single Expert Report records that there were further interventions assisting the father with an adjustment disorder and behavioural and mood difficulties in 2014 and 2015. The father attended group programs and individual therapy with a psychologist. The Single Expert Report notes that the father was reported to be suffering from a mental health disorder in 2017.
The next chronological tendered document is a referral letter from General Practitioner Dr HH to L Hospital dated mid-2018.[8] By this time, the father was 28 years old. Dr HH wrote that the father was known to have a mental health symptom, had stopped medications around 12 months prior, had been paranoid for a while, had lost his job, had no money and, in the day prior, had been robbed and also arrested. The father was admitted to L Hospital in mid-2018. According to the progress notes recorded on that day, the father stated that he had been manic for months.[9] He further reported recent illicit drug use.
[8] Exhibit M7.
[9] Exhibit M8.
In mid-2018, the following was recorded in the L Hospital records:[10]
… [the father] believes that a person he saw has a grudge against him and that the police have been involved. The story made little sense, was vague and more in line with a paranoid delusional system. [Mr Wanzel] was perseverative about this story. He thinks that a number of people are involved with this person [and] want to beat [Mr Wanzel] up. Vague, paranoid, lacks detail. Thinks that if he walks outside someone will see him and beat him up. He was thinking of punching the person. Had very poor sleep last night. Also has very raised anxiety. Worried that another patient has a grudge against him. Worried that someone in the hospital may be part of this group. He doesn’t want to notify the police as this “will be worse for me”.
…
He describes having angry thoughts in his head and hearing his own voice in his head. He described thoughts of getting “them” before they get him.
[10] Exhibit M10.
It was also noted that the father had previously used illicit drugs but he reported that he hadn’t had any for several weeks. The father was reported to have been talking to himself and making no sense, and a fellow patient witnessed the father punching an object.
The father was discharged from L Hospital in late 2018. On that day, a letter was written by psychiatrist Dr CC,[11] which listed the father’s diagnoses as a mental health disorder and drug-induced exacerbation. He noted that the father “has had a chequered history of sometimes being stable, either working in the open workforce or attending structured workshops but, he frequently decompensates and becomes disorganised, irresponsible and losing his job and his accommodation”.
[11] Exhibit M5.
The father reports having been abducted in 2018 where he was held by unknown assailants for an unknown period of time. The father provided a series of explanations and descriptions of this event during the trial. I am not satisfied that the father was accurate or truthful in his evidence.
The father’s oral evidence was that he had only ever used drugs when he was abducted. That assertion by the father is not congruent with his records over a long period of time including the summation that his current psychiatrist provided to the Single Expert.
Not long after the father’s discharge from L Hospital, he was reviewed by Dr CC. In his letter dated 14 September 2018, Dr CC noted that the father was currently living with his brother but that there had apparently been a number of arguments and fights, including a physical altercation.[12] The father did not report any recent paranoid symptoms. It was noted that the father had talked about moving to Tasmania or Queensland to get away from his family and establish independent control. Dr CC opined that whilst this is not unreasonable, the father’s past history suggests that when he has done this, he gets into crisis, and it is up to his family to rescue him from financial and legal problems. It was further noted by Dr CC that the father did not acknowledge the seriousness of any past difficulties or problems.
[12] Exhibit M11.
The father has maintained in these proceedings that he has a good relationship with his family members and does not disclose there have been any significant difficulties. He maintained throughout his oral evidence that he had some arguments with his brother but that they were unremarkable. I find that this was an attempt by the father to put before the Court a positive image of himself and his relationship with his family.
It is also of significant concern that Dr CC noted that the father did not acknowledge past difficulties and problems, and I infer from the records that the father has failed to take any responsibility for those difficulties. This is a pattern which emerges in the father’s medical records. It is a problem which was considered by the Single Expert. The rigidity in the father was also apparent during cross-examination.
The rigidity, untruthfulness and lack of taking responsibility creates an unacceptable risk if the father were to spend time with Y. The history of the father’s interactions with mental health practitioners is that that he does not accept positions or advice that do not accord with his own views. For Y, a reintroduction to the father would be a very challenging experience due to Y’s personal vulnerabilities. The father will need to take advice and if he fails to accept that advice, there is an unacceptable risk that Y will be exposed to conduct that does not accord with his needs.
In early 2022, a Mental Health Discharge Summary noted that the father presented to JJ Hospital Emergency Department with suicidal thoughts and an acute crisis reaction.[13] The parties in this matter had separated one day prior, and the paternal grandfather had contacted the Police due to concerns for the father’s mental state.
[13] Exhibit M12.
It was reported that the paternal grandfather stated that there was domestic violence in the parties’ relationship with the father becoming angry, verbally abusive, standing over the mother, and pushing the mother. It was noted that during admission, the father reported getting easily angry in situations that do not go his way and where the outcome is opposite to what he hopes for. The father reported frequent thoughts about hurting someone when angry. No evidence of acute mood or other mental health symptoms were reported, and the father’s predominant problems were noted to be his “emotional dysregulation, poor anger management and intellectual disability”.
The father was admitted to L Hospital in early 2022 and discharged a month later.
On 20 April 2022, Dr CC wrote a letter which recorded the father’s diagnosis as “adjustment disorder with depression” and “rigid, obsessive personality with a lack of awareness of other people’s points of view”.[14] Dr CC noted that the father had been admitted with depressive symptoms following the parties’ separation. He also noted that the father found it difficult to accept the mother’s decision to leave the relationship and blamed her family for this, denying any personal contributions.
[14] Exhibit M13.
According to Dr CC, attempts to assist the father in understanding his role were not successful. Dr CC wrote a further letter on 22 April 2022 where he stated that the father has “lifelong personality and psychological difficulties” and “has limited insight, and as a result may have some difficulty accepting ‘care and support that is appropriate’”.[15] In this letter, Dr CC recorded the father’s diagnosis as autism spectrum, and the father’s personality as rigid, with obsessive traits and narcissistic characteristics.
[15] Exhibit M16.
It was apparent during the hearing that the father has maintained the view which he held in March 2022 in relation to the separation. He continued, during the hearing, to deny that he had been violent and to downplay the seriousness of his own responsibility to the breakdown of the relationship. The father’s failure to have insight into the issues which led to separation and to take responsibility for the family violence that I find below he perpetrated forms an ongoing risk to Y’s safety.
In a NDIS form, it was noted that the father “does interact but he has a rigid, self riteous [sic] personality that leads to conflict and alienation”.[16] In relation to the father’s capacity for self-management, including his cognitive capacity to organise his life, plan and make decisions, and to take responsibility for himself, it was noted that the father “claims he can manage all these tasks, however his family do not agree and indicate he needs a lot of external help”.
[16] Exhibit M15.
In early 2023, the father was charged with offences. The father failed to provide complete details in relation to these charges. The facts relating to these charges, as recorded in the New South Wales Police Facts Sheet,[17] are summarised as follows:
[17] Exhibit ICL 6.
(a)The father was in a relationship with Ms KK. They had been together for three months at the time of the incident, and their relationship ended that night.
(b)In early 2023, the father and Ms KK had an argument and the father threw his rubbish onto the floor in front of the garage bin and refused to pick it up when confronted by Ms KK.
(c)The father became increasingly aggressive throughout the duration of the argument.
(d)Whilst yelling in Ms KK’s face, the father raised his right hand above his shoulder with an open palm and stated to Ms KK, “You deserve to be slapped across the face”. Ms KK felt fear for her safety and felt the father may actually slap her.
(e)The father then started to pack up his belongings to leave the apartment and whilst doing so, stated to Ms KK, “Don’t forget who my father is, he’s connected to the underworld, I’ll hire someone to kill you”.
(f)Ms KK reported the matter to Police at Suburb LL Police Station in early 2023, where she provided Police with a Domestic Violence Evidence in Chief via electronic recording.
(g)The father was arrested in early 2023 and taken to Region T Police Station.
(h)When interviewed, the father made admissions to threatening Ms KK with his father, stating it was in retaliation to Ms KK threatening him with her father. He also admitted to saying that Ms KK deserved to be slapped but denied raising his hand towards her.
(i)The father was served with a Provisional ADVO.
In early 2023, the father underwent a mental health assessment. In that assessment, the following was reported: “escalating, aggressive outburst – threatening other family members – intimidating”.[18]
[18] Exhibit M18.
In this matter, the father says that Ms KK was a person with mental health issues and that her complaint about the father threatening to use his father as a hitman was ridiculous and that she was delusional.
In October 2023, forensic psychologist Ms MM prepared a psychological report on behalf of the father.[19] In it, she opined that the father was suffering from a cognitive impairment but was not mentally ill or mentally disordered as defined in the Mental Health Act 2007 (NSW).
[19] Exhibit F7.
Ms MM wrote that:[20]
Difficulties in regulating his emotions, poor impulse control, and impairments in executive functioning (including decision making and the ability to foresee the consequences of his behaviour) associated with his diagnoses of ASD and moderate ID were identified as having contributed to his offending behaviour.
[20] Exhibit F7.
Ms MM concluded that the father’s diagnoses included Autism Spectrum Disorder with intellectual impairment, Intellectual Disability (moderate), and another mental health spectrum disorder.
Ms MM explained that a common theme in mental health spectrum disorders is a lack of insight into one’s mental health issues, and she found that the father had a tendency to minimise the severity of his symptoms and his need for interventions from mental health professionals.
Ms MM also noted that there was “nil indication he was receiving adequate psychosocial support within the community”.[21]
[21] Exhibit F7.
In November 2023, the father called psychologist Ms BB in distress. Ms BB detailed in her notes that the father had had an argument with his mother.[22] Ms BB noted that the father did not believe that he had done anything to provoke the argument. When Ms BB tried to speak to the paternal grandmother on the phone, she noted that the father “spoke over the top of both of us, using an angry voice to say his mother was a liar”.
[22] Exhibit M20; Exhibit F11.
The paternal grandmother said that the father had been aggressive and could not stay the night. The father was also unable to stay at the paternal grandfather’s house because he was apparently unwell and about to have an operation. Ms BB wrote, “[Mr Wanzel] could not focus on the need to stay somewhere else. [Mr Wanzel] threatened to call the Police. He seemed to believe that the Police would make his mother let him stay”. She further wrote, “[Mr Wanzel]’s conversation escalated, including to comments to exclude his mother from his (and his son’s life) and to harm himself. [Mr Wanzel] alluded to rejection when he was a child, stating his mother wished him dead”. Ms BB reported that she could not calm the father and was firm that his behaviour towards his mother was intimidating and would put him in the possible position of another charge for aggression. The father was insistent that he had the right to enter the house. Ms BB acknowledged that the father would make his own decision about his behaviour and ended the call.
On 8 December 2023, Ms BB challenged the father to consider his rights and responsibilities as an adult.[23] The father is noted to have remained adamant that his family were in the wrong and that he did not intend to change his behaviour.
[23] Exhibit M20; Exhibit F11.
In this hearing, the father did not rely on any mental health practitioner providing evidence on his behalf. In submissions, I was taken by the father’s counsel to the report of Ms MM as the evidence the father relied on in relation to his mental health. The father did not make an independent disclosure of this material in his primary evidence.
He said that his treatment includes seeing Dr CC on regular basis and also seeing Ms BB. None of these professionals were made available for cross-examination.
Ms BB provides support to the father in relation to these proceedings. She has said that she assists the father to manage his distress arising from these proceedings and the lack of a relationship between the father and Y.
Ms MM recommended that the father receive intensive support in the community and continue to see his psychologist. Before me was no evidence that the father was receiving intensive support in the community. This was a significant feature highlighted by the ICL in their closing submissions. I accept the submissions of the ICL and find that it is unlikely that the father is receiving adequate mental health support.
The father’s evidence was challenging. I am aware that his mental health treaters have noted that the father struggles with the capacity to provide information in a coherent and articulate way. Dr FF noted:[24]
… I am also of the opinion that [Mr Wanzel] copes with psychologically stressful material by suppression (forgetting), perhaps at times frank dissociating (a disturbance of conscious awareness of ones [sic] surroundings) or conscious non disclosure.
…
[The father] finds it extremely difficult to articulate his version of events, is highly suggestible, vague and as I understand it, has difficulty in expressing his account of events to his own barrister. I have observed this deficit is not merely limited to the circumstances around his offence. It is generalised to his entire personal history and general account of himself on a day to day basis. In fact, over the course of the past 12 months, I have asked [Mr Wanzel] to keep a diary to record his observations of his daily activities and mental state. Though he attends to this rigidly, the contents are grossly impoverished and insubstantial, either indicating a lack of ability to articulate his thoughts and behaviour, an actual deficit in memory for events, or combination of the two. He then has a tendency to answer questions on himself in a highly ambivalent and contradictory way, often, I suspect giving answers that he believes are desired by others. This has huge implications in terms of him being able to provide a meaningful account of his version of the alleged offence, and to give meaningful answers under cross-examination.
[24] Exhibit ICL 11.
I have had regard to these notes, and I raised with counsel for the father the limits of the evidence before me in relation to the father’s current functioning and mental health. I was not assisted by any evidence filed by the father from his own treaters and those treaters were not made available for cross-examination.
I have had regard to the diagnosis of intellectual disability, and I note that no submission or application was made that the father was unable to participate in these proceedings. No submission was made that the father was unable to give evidence or provide instructions. Accordingly, while I have regard for the evidence of possible intellectual disability, there is no evidence before me as to the extent or impact of that disability. There is no evidence filed by the father to mitigate concerns as to how his intellectual disability and general mental health would impact on his capacity to parent, participate in time with Y, or understand and follow instructions from professionals supervising his time.
What impact will the father’s mental health have on Y’s safety?
I accept the views of the Single Expert as to the risks that the father’s long-term mental health issues pose. I find it unlikely that the father can accept and respond to directions given by a supervisor. I find that there is sufficient evidence before me that when mental health professionals have attempted to redirect the father, their attempts have been met with significant resistance and difficulty and sometimes, failure. I find that there is a risk to Y’s safety that if the professionals’ views do not accord with the father’s beliefs, the father will likely ignore the advice he receives and react in a hostile and aggressive way.
The Single Expert said at [172] of the Single Expert Report that:
A further complicating factor is that during the assessment for this report [Mr Wanzel] did not seem to acknowledge his history of mental health issues, and this raises questions about his willingness and capacity to meaningfully address these issues, even if he does attend services. It is not clear whether he is being evasive due to undergoing an assessment for Family Court, or whether he is defensive and prone to minimising issues or whether he genuinely does not remember suffering these conditions. It may be that all three of these possibilities are contributing factors but any of these reasons make it difficult to be confident that [Mr Wanzel] recognises the importance of addressing issues, or whether he recognises the potential impact on his parenting if such issues remain unaddressed.
The father commenced his oral evidence by denying that he has ever been told he has a mental health condition or has experienced a mental health symptom. The father eventually made the concession that he had read this in his records.
The father’s oral evidence led me to conclude that the father, having failed to accept advice about his mental illness, his behaviour, and the effect that his behaviour has had on his interpersonal conflicts, lacks insight into the extent of his impairment.
I found that the father was not proactive in seeking intensive therapy. Indeed, his own evidence tells the Court that he is well and no longer needs medication. That is an inadequate response to the significant history which, as recently as December 2023, meant that the father was presenting with significant issues.
The father’s oral evidence was very much focused on his own needs and responses. When challenged about his conduct, he repeatedly expressed that things were very hard for him because he missed his son. When challenged about his behaviour and responses, he repeatedly answered that the behaviour or response was because he could not see his son. He repeated that he and his family suffered because he was not able to see his son. Throughout his oral evidence, the father was unable to demonstrate any empathy or capacity to understand Y’s perspective.
I accept the following submission of the ICL and make findings that:[25]
In terms of the father’s own insight into his mental health, the father initially denied that he had ever been told that he had [a mental health condition] or experienced [a mental health symptom], and then ultimately conceded he had read about it, but only in the context of these proceedings.
Perhaps the father was telling your Honour that in the hope that he might paint his mental health to be better than it was, or perhaps he truly doesn’t understand that for many years it has been suggested that he has those types of mental health conditions, but, either way, the father lacks genuine insight into his own mental health, and what the Single Expert says is that that raises doubt about his capacity and willingness to meaningfully engage with services to address his mental health.
[25] Transcript of final submissions only dated 8 May 2024, page 23.
I find that the father’s conduct towards the mother has included sexual violence, physical violence, and acts of intimidation.
I find that the father controlled the mother’s access to professional and personal supports. This has included isolating the mother from her family and friends and checking and controlling her phone. The father’s behaviour was designed to exercise his power over the mother and to command and dominate her.
The behaviour of the father over the course of the relationship leads me to find that there has been a pattern of behaviour from the father towards the mother which is coercive and controlling.
I am satisfied that the father embarked on this conduct as a means of control. It is clear from the father’s medical notes that the father does not tolerate views different from his own and that he is a man who is rigid and aggressive.
Given the findings above, I find that the father poses an unacceptable risk of harm to Y and the mother as a result of family violence.
Y’S DEVELOPMENTAL, PSYCHOLOGICAL AND EMOTIONAL NEEDS AND THE PARENTS’ CAPACITY TO MEET THOSE NEEDS
Y was two years old at the time of the hearing. He had not met his father. Y has been diagnosed with developmental delay. I accept the evidence of the Single Expert that Y is very young and vulnerable.
I find that the father’s mental health precludes him from being able to prioritise and meet Y’s developmental, psychological and emotional needs. The Single Expert said at [177] of the Single Expert Report:
In terms of [Y]’s relationship with his father, at this stage it is difficult to envisage how [Y] will be able to pursue and develop a meaningful relationship with [Mr Wanzel] while there are so many concerns about the possibility that this may place [Y] at risk. [Mr Wanzel]’s personality and mental health functioning may limit [Mr Wanzel]’s capacity to respond to [Y] and to demonstrate the necessary degree of understanding and patience that young children need during the course of forming relationships and learning and mastering developmental tasks.
I accept this assessment.
I have also found that the father has perpetrated coercive and controlling family violence towards the mother. Y was not born when the parties separated. However, that does not reduce the risk to Y. The Single Expert found at [182] of the Single Expert Report that:
[Y] is still a young child of not yet 2 years old and, as such, can be considered vulnerable to risk and as completely dependent on the protective responses of those around him. [Y]’s developmental delays and [medical condition] add to his vulnerability. Exposure to violence can have serious short-term and longer-term impacts on a child’s psychological and physical wellbeing and it is important that [Y] is protected from being subject to such exposure.
The mother’s evidence is that she meets Y’s day-to-day and long-term needs. It is apparent that Y is attending appropriate supports in speech therapy and occupational therapy.
Y’s speech has improved since the commencement of therapy, and he was observed to be a curious child responsive to the adults around him. Y and the mother were assessed as having a warm and loving relationship and Y was seen to be responsive to the mother. Y was assessed to be comfortable and secure in the mother’s presence.
I accept that the mother has been appropriately protective of Y and has ensured that she and Y have a good relationship with the maternal family.
I accept the mother’s evidence that she would obtain expert guidance on how to manage any distress that Y may have if he has no relationship with his father. I found the mother to be attuned and empathic to Y’s needs and I am satisfied that if such assistance was necessary, the mother would obtain guidance and would implement any recommendations made.
DISCUSSION – COMPETING PROPOSALS
The proposal of the father is that at first instance, the Court make orders for Y to spend time with the father supervised by F Contact Centre, before moving to time supervised by a family member.
The paternal grandfather filed an affidavit and gave oral evidence. I find that the paternal grandfather impressed as a witness who was trying to support his son. He was clear that the father’s mental health does not pose a risk to Y. In his need to support his son, he did not demonstrate the capacity to meet the obligations of a supervisor as he did not accept that the father’s mental health or his conduct posed a risk to Y.
I have found that the father poses an unacceptable risk of harm to Y arising from the father’s mental health and the findings I have made in relation to violence.
For orders introducing Y to the father and then moving to time supervised by the paternal family to be safe and in Y’s interests, I would need to be able to find that the risks the father poses can be mitigated.
I would also have to find that the father has the capacity to meet Y’s emotional needs and be responsive to his distress. I do not find that this is the case. As I have discussed above, the father has not demonstrated the capacity to respond in a child-focused and empathic manner.
The Single Expert considered whether Y’s initial time with the father could be supervised or in the presence of someone that Y knew. She said at [190] of the Single Expert Report:
When young children are acclimatising to a new people or situations, this is most effectively done with the presence and support of a trusted caregiver. If [Y] were to spend time with [Mr Wanzel], [Y] would need the support and presence of a familiar figure to assist him with gaining a level of comfort with someone who is, essentially, a stranger to him. He would need to experience a number of such meetings before he could achieve a sufficient level of familiarity to spend time with his father without a trusted figure nearby.
Given the findings I have made in relation to family violence, it is not appropriate for the mother to be placed in this role. I find that that would not be a safe arrangement.
The father proposed that his family undertake a supervisory role. The father maintained that he had a good relationship with his family. The Single Expert said at [196] of the Single Expert Report:
The behaviour of those with whom he is building these relationships is also an important factor in helping [Y] cope with the separation from his main carer and main base. If those he is spending time with are able to behave in a manner that is sensitive to his responses and attuned to his needs, this is more likely to assist [Y] in building a level of trust and comfort with them. The information gathered for this report raises questions about whether [Mr Wanzel] would be able to provide a consistently sensitive and attuned response.
While the father reported that he had a good relationship with his brother, I do not accept that this is the case. I also find that the father’s relationship with his mother has been subject to difficulties.
The father has poor impulse control and whether this is a result of his intellectual functioning or his mental health is not material. The paternal grandfather’s evidence was supportive of the father but did not accept that the father poses a risk to Y. I find that the paternal grandfather would not be able to ameliorate the risk the father would pose if the father became upset and aggressive during Y’s time with him.
I find that the father’s behaviour has been significantly dysregulated when with his family.[29] The father has spoken about his conflict with his family on a regular basis with his therapist.[30] I find that the father has been resistant to take on the advice of any professional, particularly when that advice does not align with his views. In all of the circumstances of the findings I have made in this matter in relation to the father’s mental health, family violence and Y’s vulnerabilities, I do not consider that supervision by a family member will be sufficiently protective of Y to mitigate the unacceptable risk of harm posed by the father.
[29] Exhibit M20
[30] Exhibit M20.
The Single Expert said at [168] of the Single Expert Report:
In terms of [Mr Wanzel]’s capacity to control his temper and his overall impulse control, the information gathered for this report suggests that this is still an area of difficulty for him. The history provided in the subpoenaed records gives several accounts of concerns about [Mr Wanzel] having angry outbursts and this concerns [sic] have been part of the reasons prompting him to be referred to services. It is not clear whether this is as prevalent an issue as it appeared to be during the first five years of him seeking mental health support. However, there are instances within his relationships in 2022 and 2023 (at least) where this has been a cause for concern. If he has difficulties controlling his temper, this will place a young child, such as [Y], at risk.
The father’s alternate position is that Y’s psychological and emotional needs can be met by having what is termed “identity time” with the father, where Y spends time with the father on four occasions per year. It was further submitted that the time could be professionally supervised. It was also argued that the paternal grandfather could supervise the father’s time.
Supervised time by a professional organisation will have rules and guidelines. Those rules apply to ensure that Y is protected during his time with the father. I accept the submissions of the ICL that the father has demonstrated great difficulty in accepting rules or views which differ from his own. Y also has developmental delays and may require particular attention or rules to be put in place to assist him to understand and adapt to spending time with the father. I am not confident that the father has the capacity to meet those rules or to comply with them. I was struck in the father’s evidence by the father’s focus on himself. He repeatedly expressed that life had been difficult because he wasn’t seeing his son. That answer was given in response to questions about his work, mental health, and relationships with his parents and girlfriends.
The father’s principal application before this Court demonstrates very little insight or empathy for how such an arrangement would affect Y. During cross-examination, the father could not prioritise Y’s needs over his own. That does not bode well for the future and the father’s capacity to accept instructions from professionals.
The Single Expert cautioned that if there was aberrant behaviour by the father during Y’s time with him, including high levels of distress, an outburst, or an inability to follow protocols, this conduct would be emotionally damaging to Y.
Given the father’s history of engagement with mental health professionals and his inability to hear or accept advice or alternate proposals, combined with his history of violence, I find that there is a risk of the father causing emotional damage to Y, even in circumstances where such time between the father and Y is supervised by a professional supervised contact service. The ICL said, and I agree:[31]
And, of course, we know that professional supervision services have rules and boundaries and regulations about the ways that parents are able to interact with their children, and there’s a risk, in my submission, that when those boundaries are enforced that the father may indeed lose his temper and become heightened and that would expose [Y] to that risk which can’t be ameliorated by the supervision.
[31] Transcript of final submissions only dated 8 May 2024, page 24.
The further difficulty which arises from the proposal of identity time is that Y has no relationship with his father. He has not met him. The Single Expert said that the purpose of identity time is to maintain some connection between a child and a parent in circumstances where the risk is too great for more regular time. In this case, there is no connection between Y and the father.
The overwhelming purpose of identity time is to provide for Y’s needs.
While I am sure there would be benefit for the father to spend time with Y in that it would satisfy what he wants, I am not satisfied that there is such a benefit to Y to spend time with the father that it outweighs the unacceptable risk of harm posed by such time. I find that making orders for time between Y and the father to be supervised, either by a professional supervised contact centre or family, does not mitigate the unacceptable risks of harm posed to Y by the father’s mental health and violent conduct.
For Y to spend time with the father, the Single Expert opined that such an arrangement would need the support from the mother. The Single Expert said that it was not clear whether the mother would cope with the process of, for example, receiving pictures or missives from the paternal family. Having observed the mother give evidence and as a consequence of the findings I have made in this judgment, I do not find that the mother would cope with the father spending time with Y or with the father or paternal family sending pictures or missives for Y. I also find that the father or paternal family providing photos or missives is not necessary in circumstances where orders are being made for no time between the father and Y, and the Single Expert recommended the provision of this material as an introductory activity to occur prior to in person time.
I find that the mother is fearful of the father and of what will occur if Y spends time with the father. The Single Expert said at [197] of the Single Expert Report:
A further consideration is how [Ms Butler] would cope with [Y] spending time with [Mr Wanzel], even if this time were for brief periods. [Ms Butler] presented as fearful of [Mr Wanzel] and as concerned about [Y]’s emotional and physical safety, even if [Y] spent time with his father in a supervised setting. As [Ms Butler] is [Y]’s main carer, it is important to safeguard her emotional wellbeing and it would not be in [Y]’s interests if [Ms Butler] held such heightened concerns that this may impact on her parenting. Under such circumstances, it would be difficult for [Ms Butler] to provide emotional support for [Y] when he is spending time with his father.
I find that there would be an absence of support by the mother for Y spending time with the father, and that this would have a negative impact on her parenting. I find that such an impact on the mother’s parenting capacity, when she is the primary carer of Y, would not be in Y’s best interests. I find that the mother’s lack of support for time between the father and Y is a genuine response to her lived experience of the father.
The father’s application for communication with Y, including via Skype, is not appropriate in this matter given that the father will spend no time with Y, Y has no current relationship with the father, and Y’s global delay would make such communication confusing for Y. I find that this type of communication would also be difficult for the mother to facilitate.
IS THERE A BENEFIT TO Y SPENDING TIME WITH THE FATHER?
Orders for no time between a child and a parent can lead to a sense of rejection and abandonment. Such orders can affect a child’s self-esteem and sense of identity. It is possible that children in those positions may develop idealised views of their absent parent, and there may be ongoing feelings of loss.
I accept that these are possible repercussions of the Orders I will be making for Y. In this case, however, I am satisfied that the risks of spending time with the father outweigh the risks of spending no time with the father.
I have found that the father’s poorly managed mental health has a negative impact on his parenting capacity. I find that the father has difficulty in regulating his distress and anger when challenged. I have also found that the father was violent to mother.
In this matter, I place significant weight on protecting Y and keeping him safe from the primary risks which arise from the father’s mental health, how those risks manifest, and the father engaging in family violence.
The mother gave evidence that she would obtain professional assistance to support Y in the future if he should show any distress at missing his father. I was impressed with the mother’s evidence in this regard, and I am satisfied that the mother would obtain such support if it was necessary. I therefore make an order granting the mother leave to provide a copy of the Single Expert Report and these Reasons for Judgment to any child and family professional and/or psychologist upon whom Y may attend for the purpose of receiving such assistance.
PERSONAL PROTECTION ORDERS
Orders are sought by the mother and supported by the ICL for injunctions to be made pursuant to section 68B of the Act.
In this case, the mother says that the orders are required to ensure that her and Y are protected from the father. I am satisfied that:
(a)There has been family violence by the father towards the mother.
(b)The father has demonstrated no insight into his behaviour.
(c)The father has not acknowledged his conduct was violent.
(d)The behaviour has caused the mother to be extremely fearful of the father.
(e)The father has continued to insist that he has been poorly supported and that he has been the victim of these proceedings.
(f)The father has limited understanding and insight into his own mental health and the impact that his mental health has on his day-to-day functioning.
I am satisfied that it is appropriate to make the restraints that I believe are necessary to ensure that Y and the mother remain safe from the father.
Taking into account the discussion in this judgment, it is appropriate for the Court to make orders as sought by the mother and ICL.
CONCLUSION
I have found that the father poses an unacceptable risk to Y. I have considered whether the risks posed could be ameliorated and lead to orders which were safe for Y.
The parties and ICL agreed that Y should live with the mother and the mother should hold sole parental responsibility. I agree that these orders pose a safe course of conduct for Y.
In relation to time and communication, I find that the only safe course of conduct for Y is for him to spend no time with nor communicate with the father.
I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis. Associate:
Dated: 12 September 2024
0
3
2