Caffrey and Caffrey

[2020] FCCA 142

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAFFREY & CAFFREY [2020] FCCA 142

Catchwords:
FAMILY LAW – Parenting – 1 child aged 12 – where the Mother seeks live with and sole parental responsibility orders – where the Mother is the primary carer – where the Father suffers severe mental health conditions including post-traumatic stress disorder, attachment disorder and borderline personality traits resulting in emotional instability, self-harm, suicidal ideation, coercive and manipulative behaviour constituting family violence against the Mother, the child and the Paternal Grandparents – where the Father has been charged with breaching AVO on numerous occasions – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 60CC(2)(a), 60CC(2)(b), 60CC(3), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 64B, 65AA, 65DAA, 68B, 68B(1)

Mental Health Act 2007 (NSW)

Cases cited:

Goode & Goode (2006) FLC 93-286
U & U (2002) 211 CLR 238
M & M (1988) FLC 91-979

Applicant: MS CAFFREY

Respondent: MR CAFFREY

File Number: NCC 721 of 2016

Judgment of: Judge Betts

Hearing dates: 4, 5 & 6 September 2019

Date of Last Submission: 6 September 2019

Delivered at: Newcastle

Delivered on: 21 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Guyder

Solicitors for the Applicant: Turnbull Hill Lawyers

Counsel for the Respondent: Mr Friedlander

Solicitors for the Respondent: Derham Houston Lawyers

Counsel for the Independent Children’s Lawyer: Mr Gorton

Solicitors for the Independent Children’s Lawyer: Foat Roberts Lawyers

ORDERS

1. All previous parenting orders are discharged.

2. The Mother is to have sole parental responsibility for the major long-term issues of the child X born in 2008 (“X”).

3. X is to live with the Mother.

4. X is to have no telephone or electronic communication with the Father unless otherwise agreed between the parents in writing, in which case the Mother may monitor any such communications and may terminate them at any time if she considers it appropriate.

5. Unless otherwise agreed between the parents in writing, X is to spend professionally supervised time with the Father on four (4) occasions each calendar year for three (3) hours on each occasion. 

6. For the purposes of order (5):

   (a)unless otherwise agreed between the parents in writing, the supervision is to be undertaken by “The Contact Centre C”;

   (b)the Father is to be solely liable for the supervisor’s costs;

   (c)the Mother is to provide the supervisor with a copy of these orders prior to any supervised visit taking place.

7. Pursuant to section 68B(1) of the Family Law Act 1975:

   (a)the Father is restrained from contacting, approaching or communicating with X except as authorised by these orders;

   (b)the Father is restrained from attending the child’s school, the child’s home or the child’s extra-curricular activities unless he has the Mother’s consent in writing to do so;

   (c)each of the parents is restrained from:

   (i)denigrating the other parent in X’s presence or hearing;

   (ii)knowingly permitting X to remain in the presence or hearing of any other person who is denigrating the other parent.

8. For the purposes of these orders, “writing” includes text messaging and email communication.

IT IS NOTED that publication of this judgment under the pseudonym Caffrey & Caffrey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 721 of 2016

MS CAFFREY

Applicant

And

MR CAFFREY

Respondent

REASONS FOR JUDGMENT

Introduction:

1. These proceedings concern the future parenting of twelve (12) year old X.  The parties to the proceedings are her parents, Ms Caffrey (“the Mother”) and Mr Caffrey (“the Father”). 

2. Like many children whose parents litigate about them in this court, X is a victim of circumstances. 

3. This is already the second round of parenting litigation since the parents separated in March 2015.  The first time around, despite some dramatic events (discussed later), they were nonetheless able to agree upon final consent orders. 

4. The co-parenting drama and difficulties continued notwithstanding.  These orders broke down, the current round of proceedings commenced.

5. At the core of this case is the Father’s compromised mental health and his associated emotionally abusive behaviour towards X. Specifically, while the Father was a functional and loving parent during the parents’ relationship, their separation has brought out some profound pre-existing personality vulnerabilities – an attachment disorder, and some borderline personality traits (if not fully-blown borderline personality disorder). These are overlaid against his anxiety and depression, further complicated by post-traumatic stress disorder arising out of a motor vehicle accident. 

6. The Father’s combination of mental health issues (however described) have profoundly impacted his behaviours and attitudes.  The Father’s fixation on his failed relationship, and on X, has impelled him to behave in highly manipulative and destructive ways. 

7. In the witness box, the Father explained:

   “If I am distressed by a forced detachment I can fret more than others…relationships in life have a greater importance to me and I have a greater tendency to fight for relationships”.

8. To put this in context, the Father’s self-described “fight” to maintain relationships has involved two (2) dramatic suicide attempts (or perhaps “cries for help”).  X was exposed to one of those events and was traumatised. 

9. X, the Mother and others have been exposed to the Father’s emotional volatility.  At times X has had to emotionally comfort him; at other times he has scared or intimidated her.  

10. Even when spending supervised time in a contact centre environment during these proceedings, the Father’s behaviour and comments to X have resulted in the contact centre having to intervene.

11. The Father’s emotionally abusive behaviours have taken a toll.  He has even “driven away” his own parents – who support the Mother’s position.

12. At trial, the fundamental issue for the court to determine was what form of relationship X should be able to have with the Father into the future.  The competing proposals were stark:

    (a)The Independent Children’s Lawyer (“ICL”) contended for limited, supervised “identity contact” only with the Father;

    (b)The Mother contended for time with the Father to be “as agreed” which would give her an absolute discretion;

    (c)The Father contended for specific defined time, committing to some specific psychological therapy.  He conceded that overnight time should not commence until he had had at least six (6) months’ worth of psychological intervention to address his “emotional attachment personality traits.” [1]

    [1] Orders 4 & 8 of exhibit “F-5”

13. This is a difficult case; it does not permit of an optimum outcome.  I have ultimately decided that it would be in X’s best interests to make the orders sought by the ICL, with some modifications.

14. My reasons are set out below.   Unless expressly stated otherwise, any statement of fact in these reasons should be taken as a finding. 

Material relied upon at trial:

1. The Mother relied upon:

   a)her Initiating Application filed 29 March 2017;

   b)her trial affidavit filed 9 August 2019;

   c)the affidavit of the paternal grandfather, Mr A, filed 12 August 2019;

   d)Outline of Case Document filed 2 September 2019 (exhibit “M-1”).  This document set out the Mother’s proposed minute of orders.

2. The Father relied upon:

   a)his trial affidavit filed 19 August 2019;

   b)his Outline of Case Document filed 2 September 2019 (exhibit “F-1”).  His proposed final orders were later amended and tendered as exhibit “F-5”.

3. The ICL relied upon:

   a)Child Inclusive Conference (“CIC”) Memorandum of Family Consultant K dated 3 August 2017 (exhibit “ICL-2”);

   b)Family Report of Family Consultant K dated 14 May 2018 (exhibit “ICL-3”);

   c)Outline of Case Document filed on 4 September 2019 (exhibit “ICL-1”).  At the close of the trial the ICL’s proposed orders were tendered as exhibit “ICL-7”.

4. During the course of the trial the parties tendered numerous other documentary exhibits.  These mainly consisted of subpoenaed records, including voluminous contact centre records as well as the complete file of the Father’s treating clinical psychologist, Mr D of L Counselling (“Mr D”).

5. Due to illness, Mr D was unable to be called as a witness.  Mr D has had a long-term therapeutic relationship with the Father since not long after separation. While it is regrettable that Mr D could not give evidence, his file has provided the court with substantial relevant information.

Brief observations of the witnesses:

1. I have been assisted by seeing and hearing the witnesses give evidence. 

The Mother:

1. I found the Mother generally a good witness. 

2. That said, her evidence and behaviours were by no means perfect.  In the early post-separation period she unreasonably resisted X spending time with the Father.  She wrongly claimed to have paid the contact centre fees – but the Father was able to produce documentary proof that he paid the fees (as the relevant interim orders required.) 

3. Overall however, I found the Mother a more reliable witness than the Father where their evidence conflicted.  I add that the Mother also came across as a caring and committed parent, wanting to protect X from the Father’s behaviour - but not wanting to shut him out of X’s life. 

4. I consider that the Mother was dismayed when the 2016 consent orders broke down.  She did not want to come back to court.  In the witness box she appeared somewhat “drained” by the litigation.  She seemed resigned to the Father emotionally harming X in the future, but was more worried about how he might react if he did not get to see her.

The paternal grandfather, Mr A:

1. The paternal grandfather supports the Mother and has a good relationship with X.  He and the paternal grandmother continue to play an ongoing, important role in X’s life.

2. His relationship with the Father has always been a difficult one since the Father’s childhood; each blames the other.  In cross-examination the paternal grandfather did admit to an act of family violence against the Father some twenty-five (25) years ago.  But that admission does not take me very far; I am much more interested in contemporary events. 

3. Post-separation the Father has perpetrated family violence against both of the paternal grandparents, assaulting them both and damaging their property.  They have also been witness to his at-times bizarre behaviour.

4. Regrettably the paternal grandfather has likely involved X in the adult issues – telling her for instance about the Father’s assault on the paternal grandmother.[2]  X knows the paternal grandparents’ feelings about the Father.  She no longer talks about him to them.

   [2] As reported by X to the Family Consultant: exhibit “ICL-2”, 4^th bullet point on page 4

5. While the paternal grandfather and the Father are estranged, I consider that the paternal grandfather was generally a reliable witness in relation to contemporary events.  His evidence was generally preferable to that of the Father and more consistent with other evidence.

The Father:

1. The Father had a real “presence” in the witness box.  Solidly-built, loquacious and loud, he was not one to “shy away from a fight” when being cross-examined.  Indeed he seemed to relish the opportunity.

2. Unhelpfully however, it was very difficult to separate fact from fiction in relation to a number of aspects of the Father’s evidence.  For instance, were his suicide attempts “genuine” or were they “cries for help”?  His own evidence was internally conflicting; he said different things to different people including his treating mental health practitioners. 

3. He minimised his post-separation family violence.

4. Despite substantial psychological counselling, the Father remains emotionally reactive and at times impulsive.  He does not yet have full insight into, or adequate control over, his behaviours.  He does not fully appreciate the impact of those behaviours on others – most significantly X.  He has only partial remorse, partial insight, and prefers to take the “victim” role rather than fully accepting responsibility for his actions.

5. He spoke with an obvious intensity, often coming across as highly egocentric. 

6. In the end I found him a largely unreliable witness in many respects.  But that said, I have no doubt that he loves X and wants to maintain a relationship with her. 

The Family Consultant:

1. Helpfully, the same Family Consultant conducted both the CIC as well as authoring the Family Report.

2. She held serious concerns about the Father’s mental health and its impact on the co-parenting arrangements.  She considered that it would be best if X could have a relationship with the Father.  But she also poignantly observed that, although he may have some insight into his mental health issues, he needs to take affirmative action to address them.

3. Overall, the Family Consultant’s evidence was thoughtful and helpful.

Relevant factual history and findings:

1. In order to appreciate the risks posed by the Father, it is necessary for me to set out the relevant factual history in some detail.  I will endeavour to do so in a chronological fashion but, to be clear, there was some confusion in the evidence as to dates of various events and so I have had to do the best I can.

Relationship:

1. The parents started their relationship in 2005 and married in 2007.  X entered their life in 2008. 

2. The Mother, a professional, had some time off after X’s birth, but soon returned to full-time work.  The Father, a labourer, was also working full-time.

3. X’s life was relatively unremarkable.  She attended day care; extended family members (including the paternal grandparents) also regularly cared for her.

4. The Father had been married earlier in life, and had a son – Mr M – born in 1999.  Mr M would spend time with them up until around 2012 or 2013 when, at around age 13, he abruptly stopped coming. 

5. The Father explains this by saying that Mr M’s mother (who lived an hour or more away in Sydney) was finding handovers difficult; and that he and the Mother thought that Mr M and X were not getting on. 

6. The paternal grandparents saw it differently.  They observed the Father to say negative things to Mr M about Mr M’s mother, undermining his relationship with her and damaging their relationship. They begged the Father to stop – but he could not help himself as, in their view, “he couldn’t see past the hurt she [Mr M’s mother] had caused him”.[3]

   [3] As told by them to the Family Consultant – see exhibit “ICL-3”, para 53.

7. This description of the Father’s manipulative, emotionally abusive and ultimately self-defeating behaviour in relation to Mr M bears an uncanny similarity to how the Father later behaved towards X.  This similarity, coupled with the Father’s subsequent mental health diagnoses, leads me to accept the paternal grandparents’ version. 

8. Regrettably, the paternal grandparents’ own relationship with Mr M was another casualty of the breakdown of the father/son relationship.

9. By late 2012, the Father was working away from home and the Mother took on a larger parenting role for X.  The parents’ relationship deteriorated. 

10. In 2014, the Father suffered a nervous shock injury as a result of stopping to assist a grievously injured motorcyclist on the side of the road.  He was later diagnosed with post-traumatic stress disorder.[4] 

    [4] Although the evidence is unclear, it seems the Father had also had another motor vehicle accident around 2013 which resulted in him suffering a neck injury.  It is however possible that this was one and the same accident.  Nothing turns on the exact dates, or whether there was one accident or two.

11. The Father was certainly suffering from mental health difficulties from late 2014 onwards.  In 2014 he seems to have attempted suicide.  But I only discovered this in tendered subpoenaed documents; neither party led any evidence on point and it does not take me very far. [5] 

    [5] Exhibit “M-4(b)”; exhibit “ICL-4”.

Separation:

1. On 5 March 2015 the Father instigated the parental separation, moving out of the family home.  He quickly entered into a short-lived and tumultuous relationship with another woman, who had two (2) children.

2. The Mother was deeply hurt.  She consistently refused his requests to spend time with X.  Her refusal was largely motivated by her own hurt feelings rather than by X’s best interests.

3. The paternal grandparents “cast their lot” in with the Mother.  They felt sorry for her and thought that she needed their support - which they were only too willing to give.  They felt they had already lost one grandchild due to the Father’s behaviours (Mr M), and did not want a repeat.   

4. After numerous requests, on 19 April 2015 the Father finally got to spend time with X again - some six and a half (6 ½) weeks after separation.

Father’s mental health starts to unravel & Mother obtains an AVO:

1. The Father’s trial affidavit concedes that he “did not handle the separation well”. [6]  With respect, this is an understatement.

   [6] Para 18.

2. He made desperate efforts to reconcile with the Mother.  He would send her numerous text messages, and on occasions attend uninvited at her home in the early hours.  At times the Mother (and X) felt intimidated or scared by his actions.  The Mother hinted at bringing AVO proceedings.[7]

   [7] See annexure “A” to the Mother’s trial affidavit.

3. The Father soon repented of his new relationship.  The feelings were mutual.  They quickly separated in acrimonious fashion.  Police were involved.  By text message, his new (and now “ex”) partner left him in no doubt as to her feelings:

   “I can’t do this anymore you need to do this on your own.  I’m done.  Please don’t contact me anymore through phone, Facebook or any other means including any third parties.  Don’t approach me, my friends or family or come to my house ever again.  I have changed the locks so you can throw my keys out and I have told my neighbours they are to contact the police if they see you at my house.  I’m sorry it has come to this but I have to put myself and my children first and you should do the same and focus on getting your life back together.  I hope you do for yours and X’s sake.  The police have advised me to get an AVO if you do not leave me alone.  I hope it doesn’t come to that but if you contact me anymore, even once in response to this text I will be down there tonight without hesitation.  Take care and goodbye”.[8]

   [8] Taken from annexure “B” to the Mother’s trial affidavit.  Notably, she later arranged for the Father’s belongings to be dropped back to him at the paternal grandparents’ home

4. In the meantime the Father went uninvited to the former matrimonial home, yelling and screaming at the Mother, ignoring X’s requests to stop, and ultimately taking the Mother’s car keys so she couldn’t leave.  X was screaming so the Mother walked with her around the block.  When she returned the Father was gone. Within hours she had complained to Police who had taken out a provisional AVO to protect her.

5. The Father now had no home, so the paternal grandparents invited him to stay downstairs in their one (1) bedroom flat.  He accepted their offer. 

6. They later observed his behaviour at times to be so bizarre that they thought he must be on drugs.  They described him sitting outside “wailing like a banshee.  He’d sit up all night looking for helicopters.  He’d go on and on and on about Ms Caffrey.  He would scream at both of us and accuse us of taking Ms Caffrey’s side and then the next thing you know he’d be in the foetal position on the floor wanting a hug.” [9]

   [9] Exhibit “ICL-3”, para 57.  See also paras 42 & 43 of the paternal grandfather’s affidavit

1. In early 2015, the Father sent the Mother a text message indicating that he was at “E Bridge” – and asking her to “please help” as he wanted to hear from her.  The Mother took this as a potential suicide threat.  In the witness box the Father denied it was so, explaining that he used to ride his motorbike to E Bridge to get away from things and be able to think.  Whether or not it was a genuine suicide threat, it was at the very least demanding and manipulative behaviour.

Father’s first suicide attempt / cry for help in 2015:

1. In 2015, the Mother and X went for dinner at the paternal grandparents’ home.  The Father, who was meant to be away, arrived on his motorcycle part-way through the evening. 

2. At one point during the night the Mother spoke to him downstairs; he was laying on the floor and he threatened to consume a bottle of prescription tablets on a table next to him.  The Mother went back upstairs, presumably thinking it an empty threat.

3. Later on, when X went downstairs to say goodbye to him she rushed back up.  She said words to the effect that the Father was “sad” and “had taken lots of tablets”.  The Mother then left with X, after briefly confronting him and telling him not to be “silly”.

4. The paternal grandfather saw that the bottle of prescription medication was in fact empty.  The Father told him - “she made me do this”.  He then got on his motorcycle to follow the Mother, pushing the paternal grandfather out of the way when he tried to stop him.

5. The paternal grandfather rang the Mother to warn her, and then drove himself to her home.  The Father was outside, crying and yelling, begging for forgiveness.  The Mother let the paternal grandfather into the home, he asked her to call the ambulance and then went outside to try to stop the Father from riding off again.  The Father pushed him over a retaining wall and rode off.

6. Police and ambulance services later attended and the Father ended up being admitted to N Hospital. 

7. Was this a genuine suicide attempt - who knows? 

   ·    The relevant record of his admission to N Hospital is not before me;

   ·    The paternal grandparents told the Family Consultant that he had grabbed a handful of tablets in front of X – in their words a “fake suicide attempt”; [10]  

   ·    When the Father spoke to the paternal grandparents later on, he denied attempting to overdose; 

   ·    Yet in other subpoenaed material the Father said he had taken an overdose.[11]

   [10] Exhibit “ICL-3”, para 60

   [11] See Exhibit “ICL-5” - the Region B Local Health District form completed by Police.

8. What matters most is that X was squarely placed in harm’s way, and was traumatised.

9. It was around this time that the Father first started attending upon Mr D.

Father’s family violence towards the paternal grandparents:

1. After the Father was released from N Hospital, he returned to live with the paternal grandparents.  Things were understandably tense.

2. One day, the tension between them erupted into a serious incident of family violence:

   ·    the Father and the paternal grandmother were arguing over him recording their conversation;

   ·    the Father picked his mother up and threw her across the room.  To put it into perspective, he is six feet, three inches tall with a large frame - whereas she is five feet, two inches with a delicate frame;[12]

   ·    the paternal grandfather was horrified and angry and he immediately lunged towards the Father to try and protect the paternal grandmother;

   ·    the Father, using his experience as a Labourer, put the paternal grandfather into a “sleeper hold” by grabbing him tightly around the neck, restricting his oxygen supply and causing him to pass out briefly;

   ·    seeing this, the paternal grandmother physically attempted to get the Father off him.  While the Father accuses her of attempting to “choke him” in the process, I find this to be an exaggeration.

   [12] As described in the paternal grandfather’s affidavit, para 51

3. Police were called but the paternal grandparents chose not to press charges.

Father moves back into the family home / Mother and X move in with the paternal grandparents:

1. In 2015 the Father moved back into the former matrimonial home against the Mother’s wishes.  The Mother and X left, moving in with the paternal grandparents. (The home was later sold).

More family violence / Father’s mental health is flagged as a key issue:

1. The Father texted the Mother at 12.41am on 31 July 2015 - requesting that she discontinue the AVO proceedings.  He also contacted her, or attempted to do so, on 2 and 3 August 2015.[13]  All of these communications were breaches of the AVO.

   [13] See Exhibit “M-4(b)”.

2. The Father admitted in the witness box that he did not respect the AVO. 

3. The Father was subsequently charged. While briefly in police custody on 8 August 2015, Police considered him mentally ill - a likely danger to himself or others.  They suggested that he would be dealt with under the NSW Mental Health Act.  This is what happened.[14]

   [14] He was originally fined for the AVO breaches in the Local Court, but successfully appealed to the District Court who instead dealt with him under the Mental Health Act

4. According to the relevant form completed by Police:

   Whilst in custody Mr Caffrey said “my friend died last week and it doesn’t seem like a bad way out.  There is a saying that pain lasts a lifetime.  I can’t take this pain.  He did the right thing”.  He attended a funeral today and another next Tuesday.  Has attempted self-harm in 2015 by OD tablets and in 2015 by jumping off E Bridge.  First time in custody.  Suffers PTSD and anxiety. Sees a clinical psychologist – has repeated threats of self-harm whilst in charge room”.[15]

   [15] See Exhibit “ICL-5”.  Notably he told them he “jumped off” the E Bridge – being another different version of events, indeed one which he scoffed at in the witness box.  He said if he had jumped off the bridge he would have died.

5. On another day later that year, the Father unexpectedly attended at the paternal grandparents’ home.  They told him to go.  He then tried to force open their security screen door, damaging it.  Police were called and he ran away.  The paternal grandparents again chose not to take any action. 

6. Around this time, and for obvious reasons, the Mother was keeping the Father away from X to keep her safe. 

Early 2016:

1. Around February 2016 the Mother and X moved into a townhouse.  At that stage their new address was kept from the Father.

2. The Father was actively seeking mental health treatment, predominantly from Mr D.  As at February 2016, Mr D considered that the Father’s prognosis was “guarded”.  He was suffering from major depression (moderate to severe) and post-traumatic stress disorder.  Importantly, he also observed that the Father “has struggled to accept that the marital relationship has ended.  The profound sense of abandonment he has been experiencing, together with frantic efforts to prevent the end of a relationship, are hallmark features of a borderline personality orientation”.

3. Mr D was concerned about the Father’s lack of improvement, notwithstanding his attendance upon multiple health professionals.[16] 

   [16] Exhibit “M-4(b)” – Letter from Mr D to Father’s GP dated 18 February 2016.

4. Importantly he recommended, amongst other things, a referral to a psychiatrist about the merits of psychotherapy (especially dialectical behaviour therapy or “DBT”) for the Father’s borderline personality issues. 

Final Consent Orders of 2 March 2016:

1. Somehow with all this going on, the parents agreed to final consent orders.  The orders provided for equal shared parental responsibility; X to live with the Mother; and for the Father to spend graduating time with X on alternate weekends and during holidays.  The Father was to promptly enrol in an anger management course. 

2. The Father did see a Psychiatrist, Dr F, around this time.  Dr F agreed with Mr D that the Father had post-traumatic stress disorder, features of borderline personality and mood disorder.  Dr F prescribed anti-depressants and continuing psychological therapy – observing that the Father “may well benefit further with dialectical behaviour therapy to address the BPD.” [17]

   [17] See exhibit “M-4(a)”  - letter from Dr F to Mr D dated 15 March 2016

The co-parenting situation remains volatile & X is emotionally harmed:

1. The Father never enrolled in, much less completed, the anger management course. 

2. He did however successfully apply to have the AVO revoked in May 2016.  Regrettably, the Mother was never made aware of the application and did not attend.[18] 

   [18] She complained to Police about this afterwards; they apologised to her

3. Pursuant to the consent orders, X was initially spending alternate Sundays with the Father.  In June these graduated to alternate Saturdays and Sundays.  In September 2016, the weekend time graduated to overnight.

4. Regrettably, the Father was emotionally abusing X during her visits.  He couldn’t help himself.

5. X would come back from his home saying such things as “Daddy says it’s your fault we are not a family” and “Daddy says I’ll understand when I’m older and I will want to live with him”.  She would question the Mother about the parental relationship and make statements about what happened. 

6. The Mother was legitimately concerned that the Father was not allowing X to simply “be a child”.

7. It is not as though the Father was ignorant of his personality vulnerabilities.  He acknowledged them to Mr D. [19]  It was incumbent upon the Father in X’s best interests to take positive action to be a more functional and less emotionally damaging parent.

   [19] See Exhibit “ICL-4” – report of Mr D to the Father’s GP dated 11 May 2016.

8. By June 2016, X was telling the Mother that the Father cried every time she went there, that “Daddy keeps saying he wants to be a family again.”

9. These things prompted the Mother to take X to regularly see a counsellor, Mr J.  She did not tell the Father – contrary to the orders for equal shared parental responsibility.  To be fair, she was trying to help X. 

10. X become increasingly anxious and worried about going to the Father’s place.  She took time to re-adjust when she got back home.

11. Mr J saw X’s emotional decline.   He was concerned about the emotional drain on the Mother and X of having to comply with the court orders.  Of most concern, X was telling him that the Father was saying inappropriate things to her, including talking about “saying goodbye”. 

12. Mr J considered that X was experiencing a psychological decline with increased anxiety, that her eye contact had been decreasing and she was becoming less open to discussion.  He was concerned as to her emotional, physical, and psychological welfare if she was continuing to see the Father.[20] His concerns were so great that he submitted a mandatory report to the NSW Department of Families & Communities[21] - but they took no action. 

    [20] The report appears as annexure “E” to the Mother’s trial affidavit.

    [21] Now known as the “Department of Communities & Justice”.

Another AVO:

1. The Father again began “ramping up” his text messages to the Mother. He stated that he would answer any of X’s questions “openly and truthfully and show her everything if she asks.”  He said that the Mother didn’t deserve to have such a beautiful girl and that the Mother was the one who needed forgiveness from him, not the other way around.

2. The Mother again complained to Police; they then applied for another AVO to protect her.  On 18 August 2016, the Local Court made an Interim AVO.  The Father was specifically ordered not to approach or contact her except through legal representatives or as authorised by a parenting order.[22]

   [22] Exhibit “M-3”.

3. As with the previous AVO, the Father breached this AVO as well by sending her further text messages.   He ended up in custody for a night. 

4. The parties had an altercation on 18 September 2016 when X wanted to go home early.  The Father accuses the Mother of behaving aggressively in collecting her but I do not accept that she was doing anything more than being firm. [23]

   [23] At trial the Father did not call his relevant witnesses.

5. X’s circumstances were becoming untenable.  On 26 November 2016 she wrote a note to her counsellor Mr J to the effect that “I’m scared about daddy getting angry with mum…sometimes I don’t want to go to daddy’s place.” [24]

   [24] Mother’s trial affidavit, annexure “D”.

The parenting orders finally grind to a halt – X stops going:

1. In early 2017 the Father was begging the Mother to drop the AVO proceedings but she would not.  On 3 February 2017, a final AVO was put in place for a period of two (2) years.  It included a “no contact” clause. 

2. The Father was devastated, seeing it as a “set-up”.  His devastation was obvious to X.  When he collected her the day the order was made, she saw him crying in his bedroom.  She comforted him, later calling the paternal grandfather and telling him that the Father had said that the AVO was the Mother’s fault.  X also rang the Mother, seemingly keen to go home to her – but she told her to stay. 

3. The next day, X either ran away from his home when he was asleep, or was collected by the paternal grandparents.  The evidence is conflicting but on balance I prefer the evidence of the paternal grandfather that she ran away.  In the end nothing turns on it.  By then X “wanted out”; her Father had already exposed her to far too many adult issues.

4. After this, and perhaps because she was scared of how he might react next time he saw her, X refused to go to the Father’s house at all. Prior to visits she would break down, yelling and screaming and throwing herself on the ground. 

5. The Father reacted defensively and aggressively, casting around for someone else to blame.  He abused X over the phone, which made things worse.  X in fact started drawing pictures of her Father yelling at her in her personal journal. 

6. The Father admits that he said things to the Mother in text messages “that I should not have said.   Hindsight is a wonderful thing.” [25]

   [25] Trial affidavit paragraph 49.

7. But this glib explanation ignores the fact that such behaviour was really only a continuation of what had gone before.  “Hindsight” had not proven for him a convincing enough teacher.

Father’s second suicide attempt / cry for help:

1. Within days of X running away, the Father spoke to Mr D, in a “very depressed” state, telling him “I am still in love with my ex-wife”.  He was distressed about the upcoming court appearance for breach of AVO.  He remained very distressed at their further consultation on 20 February 2017 and his suicidal ideation had “increased” due to missing his “wife and daughter”. 

2. On 23 February 2017, he complained to Mr D about X being disrespectful on the phone “like her Mother”, telling him “I have lost my little girl”.  Two days later he telephoned Mr D’s mobile number “in great distress, increased suicidal ideation.”  On that occasion, Mr D advised him to telephone the mental health line.

3. According to his file, Mr D had by this stage had some twenty-one (21) sessions with the Father.  His “guarded” prognosis of a year earlier was proving to be warranted. 

4. On 2 March 2017, Mr D advised the Father that he “needed to increase the focus on X in all conversations with her”.  By then the Father’s suicidality had increased to alarming levels, exacerbated by deterioration by the father/daughter relationship. 

5. Mr D again recommended that the Father may benefit from DBT for borderline personality disorder, perhaps as part of a structured outpatient programme. [26]

   [26] Exhibit “F-2(b)” – letter from Mr D to the Father’s GP dated 9 March 2017.

6. His marriage broken, his relationship with X suspended and with breach of AVO proceedings pending, the Father again acted in a suicidal manner.   His actions were dramatic, highly manipulative and damaging to others.

7. In his own words: “I was in a very bad place at that time.  I believed that I would never see X again.  I missed my wife.  I missed my daughter.  I felt like nobody was listening to me. I was in deep pain and did not think that I could go on…I was heartbroken”.[27]

   [27] Paras 53 – 56 & 58 of the Father’s trial affidavit.

8. The Father on this occasion decided to sit in his car in the garage with the engine running – and so gas himself. 

9. From the Mother’s perspective, it began with a text message the Father sent to her in the morning.  He told her he couldn’t live with the hurt she had inflicted on him any longer and that he had no choice but to kill himself, and that it was her doing.  He talked about being tortured and about loving the Mother will all of his heart and all of his soul.  He said that he had been begging her to stop hurting him and to let him see X. 

10. He refers to his proposed manner of death, stating:

    “Ms Caffrey you need to come turn my car off please before the onset of rigor mortis kicks in which happens fairly fast …

    I am so sorry but I couldn’t deal with what you are doing to me anymore and for that I hope you never forget this is what you done to me and what you have done to our little girl.  She is going to grow up without me now.  I will never forgive you for the pain you are going to cause X because her daddy isn’t around anymore. 

    Don’t be an inconsiderate bitch to me in death as you have in life.  Please do this for X she should be able to see me at peace and say goodbye. 

    Please I can’t have an open casket if I am bloated from rigor mortis.  I have left the front door open there are letters for you, mum and dad for X…please hurry with the heat from the exhaust it won’t take long for my body to go through the processes of death.  Tell X I have died with no physical pain but I sucum (sic) to the emotional injuries of losing his family. Tell X she was the last thing I thought about when I went to sleep because I had photos of her in my arms.”

11. But as with the “overdose” in 2015, it is very difficult to know whether this was a genuine attempt at suicide or a cry for help. 

12. After all, if the Father had genuinely intended to commit suicide then he need not have given the Mother any prior warning, much less urged her to “hurry” over.  He had in fact prepared a letter for her in handwritten form which was at the home and which stated amongst other things that he was hoping for “a miracle”, for some chance that the love that he considered she still felt for him would “bring him back to life.” 

13. Having been placed into this diabolical situation, the Mother sensibly alerted Police and the Paternal Grandparents. 

14. The paternal grandfather found the handwritten letter at the Father’s door.  The garage door was closed and he could hear the motor running inside.  In his own words:

    “I didn’t want to go into the garage as I thought I would find my dead son in there.  I yelled out to the police “he is down here!” The police went in and I followed them and I saw Mr Caffrey was half in the car and half out of the car and realised he hadn’t killed himself. 

    This was the worst day of my life.  I knew that within three minutes of carbon monoxide inhalation you would lose consciousness. 

    Mr Caffrey was not even unconscious.  Mr Caffrey was saying to all of the first responders ‘she’s done this to me’.  After Mr Caffrey was taken away I went into Mr Caffrey’s house to lock up after the police and ambulance had taken away and when I went into the house I saw that the windows were open and there were scented candles burning and that the shower was wet like he had just had a shower.”

15. The Father’s affidavit evidence is that his recollection is vague. He claimed to have suffered a “near fatal dose of carbon monoxide”. He was in N Hospital for three days.[28] However, in the witness box the Father said that he had “technically” only made one suicide attempt – being the 2015 overdose.   

    [28] Paras 61 & 62.

16. In the witness box the Father also admitted that he had placed wedding photos of he and the Mother on the bonnet of the car on this occasion. 

17. In the end, whether this was again a genuine suicide attempt or a cry for help, the Father’s actions were profoundly emotionally manipulative and damaging to others.  From the paternal grandfather’s perspective, the Father was “faking it” and this event marked the end of their relationship.

1. Police now advised the Mother not to send X to the Father, advice she was only too willing to accept. 

2. Once again, the Father’s actions provided to be self-defeating.  Of course, it goes without saying that if he had committed suicide the emotional fallout would have been devastating for X and others.

3. Some three (3) days later, having been discharged from N Hospital, the Father was immediately complaining to the Mother about her denying him telephone communication with X pursuant to the consent orders.  It was as though life was just meant to go on as before; the Father’s egocentric nature was once again on full display.

4. He made forty (40) or so attempts to contact the Mother on 14 March 2017 – again breaching the AVO. [29]  This resulted in more charges, which fortunately for him, were later dropped – perhaps because of his mental health at the time.

   [29] Although charged with contravening the order, these charges were later dropped.

Other violence?

1. Around March 2017, the Father was casually dating a lady named “Ms O” who he met on Tinder.  They split up after a brief relationship.  Not long after that, her car had been vandalised.  She complained to Police, and suggested it was the Father’s doing.  But the Father denied it, and she also had a violent ex-partner who may have been the culprit.  The Father was never charged. I make no positive finding, other than that there is a likelihood he was the perpetrator given his state of mind at the time and his other behaviours.

2. “Ms O” ended up blocking the Father’s number. 

Father dealt with for AVO breaches – dialectical behaviour therapy again arises:

1. On 29 March 2017 the Father received an eighteen (18) month good behaviour bond for his AVO breaches.  The bond contained a specific condition that he “continue to accept counselling from Mr D (Psychologist) and to accept any of his recommendations.” [30]

   [30] Para 117 of Family Report – exhibit “ICL-3”.

2. Notwithstanding, the Father never took up the suggestion of DBT.  Nor does it seem that Mr D actively pressed him to do it. In the witness box the Father explained that Mr D had told him that psychological counselling on its own could be sufficient.  History showed this to be over-optimistic.

The present round of litigation:

1. The Mother brought these proceedings on the very same day as the bond was imposed.  She sought discharge of the consent orders, sole parental responsibility and for X to spend time with the Father as agreed.

2. The Father’s Response of 22 June 2017 sought equal shared parental responsibility; a week-about arrangement; and “that the time that has been denied access between Father and daughter is to be made up immediately”.  The emphasis was on his rights, rather than X’s.

Interim orders of 23 June 2017:

1. On 23 June 2017, the consent orders were suspended and, instead, the Father was ordered to spend supervised time. The Father was also to have telephone communication three (3) evenings per week.  A Child Inclusive Conference (“CIC”) was also ordered.

2. Resumption of telephone contact quickly upset X.  She was upset on 15 July 2017 after talking to the Father.  After talking to him on 19 July 2017 she emerged from her bedroom crying and saying “Dad told me I am not acting like a nine year old.  You are acting like mummy who is a very nasty person and you talk like mummy who has caused all the problems in our relationship.”  All the Mother could do at that time was to tell X “not to think about it.” 

3. On 22 July 2017 the Mother overheard the Father call X a “liar… just like your mother.”  [31]  X started to have an anxiety attack, crying and hyperventilating.  Again the Mother was left to pick up the pieces.

   [31] The Father had made similar complaints about X to Mr D

4. Some four (4) days later, Mr D’s notes record that he “again” emphasised to the Father the need to avoid referring to the Mother when speaking to X.[32]

   [32] See Exhibit “ICL-4”.

CIC Memorandum and subsequent interim orders:

1. The CIC took place on 3 August 2017. X complained about the Father’s behaviour and did not want to see him that day.

2. X was however agreeable to seeing the Father at a contact centre.

3. On 14 September 2017 the parties consented to interim orders for supervised time at Suburb G Contact Centre (at the Father’s cost); telephone calls were reduced to one (1) night per week.  The Father was to contact Mr J for the purposes of attending therapeutic counselling with X “at the discretion and direction of Mr J.”

4. Mr J did not agree to meet the Father with X.  In her oral evidence, the Family Consultant supported Mr J’s decision. 

5. The Father had purchased X a mobile phone by around this time, but the location services were “active” and in the “Find my friends” app the Mother could not remove the Father.  Thus he could potentially track her, as a result of which the Mother restricted the internet use; the Father still did not know where they were living at that stage.

Visits at the contact centre:

1. Visits commenced at the contact centre in late August 2017.  Given the pressure on their services, they were only able to provide the family with the “standard” twelve (12) months supervision.  Regrettably, this meant the service ended about a year prior to the final hearing – during which time there were no formal time arrangements in place.

2. The contact centre notes are something of a “mixed bag”.  It would be fair to say that on some occasions X showed significant affection towards the Father, a close relationship being observed.  However, there are also a number of occasions when the Father said or did inappropriate things for which he had to be counselled by the service.  This included:

   a)On 29 August 2017, the Father was observed to call X “a liar”;

   b)In September 2017, he was very emotional, wanting to tell X his version of events.  He also said he now had “a puppy” at his home – an inducement for her to go there.  He told her about wanting to be able to talk to his parents again.  This made X upset;

   c)On 21 October 2017 X and the Father were discussing an upsetting phone call they had had earlier - and the Father was explaining that he was upset with her.  He asked X to talk to her “Nanna” for him.  This was not a good visit;

   d)On 18 November 2017 he was telling X “you could come to my place” - contrary to the orders and putting her under pressure;

   e)On 2 December 2017, X was misbehaving and he pointed out to her that the supervisors “write everything down you know”;

   f)On 16 December 2017, X was quite negative towards the Father after an earlier unhappy telephone call with him during the week.  She complained about him having accused her of “lying” and she said “everything has to be his way”;

   g)On 22 December 2017, X was upset following a telephone argument with the Father about the upcoming Christmas Day.  This visit was difficult and the Father made inappropriate comments.  X did not want the Father to know where they were spending Christmas as she was afraid that he would “turn up and spoil it”.  (Incidentally, the Father did text the Mother on Christmas Day seeking to spend half an hour with X.  She did not respond.)[33]

   [33] Father’s trial affidavit, para 73.

3. The Father admitted in the witness box that on one (1) particular supervised visit he had spoken to X about breaching the AVO and its consequences, only stopping after the supervisor intervened. 

4. The contact centre recorded other inappropriate comments and behaviour by the Father in January 2018 and February 2018. 

X’s behaviour becomes unmanageable – Mother ends up giving Father unsupervised time for a period:

1. Around March 2018, X’s behaviour briefly became unmanageable.  She would wake up at night, crying.  She was getting “worked up”. She refused to go to school.  She would not say why. 

2. Somewhat desperate, the Mother arranged to meet the Father - and over a number of weeks he then had about eight (8) separate unsupervised visits with X including taking her back to his house.  These ran in tandem with the supervised visits.  The Mother felt like things were “out of control.”

3. It is unclear why X behaved this way.  Perhaps the Father was behaving manipulatively towards her.  His purchase of a puppy was an obvious inducement to her to visit him.  Or perhaps he said something more sinister to X about “saying goodbye”.  The Family Consultant was concerned about such possibilities.[34]

   [34] Exhibit “ICL-3”, paras 17 and 106.

4. The Mother was concerned about manipulation when she spoke to the contact centre on 24 March 2018.

5. It is also possible that X just wanted to see the Father and try to force some sort of “end” the dispute. 

6. But X’s behaviour soon settled down and the visits then continued on an entirely supervised basis at the contact centre, where the Father continued to behave inappropriately on occasion. 

7. By this stage the Mother was taking X to a psychologist, Ms H, in place of Mr J.  Again the Father had no input.

Family Report:

1. The Family Report interviews were conducted on 30 April 2018.

2. At interview, the Father considered he had a very close relationship with X and he blamed the Mother for any deterioration.  He said that X’s recent defiant behaviour – leading to the brief unsupervised time with him – came about because she was unhappy and missing him.

3. The Father told the Family Consultant that once X turned twelve (12), she would be legally able to make her own choices about where she wanted to live.  She told him this was incorrect, but it was a somewhat troubling comment in the context of his other behaviours.

4. The Father denied having a criminal history.  This was despite him being convicted of assault in 1999, as well as being placed on a good behaviour bond for AVO breaches.[35]

   [35] Exhibit “M-6”.

5. In her interview, the Mother expressed reservations about the Father’s parenting capacity and his mental health.  She felt that X needed a relationship with him - but was concerned about his manipulation

6. She was ultimately agreeable to X spending some day time with the Father on alternate weekends, as X said she wanted this.

7. At interview, the paternal grandparents were highly critical of the Father’s manipulative behaviours and his violence towards them.  They complained of the Father’s long history of alienating people in his life.

8. When X was interviewed, she “presented as a sad stressed child.  She complained of being tired and looked to be quite pale.  She said that she did not get much sleep the night before because she was worrying about attending for her interview.” [36]

   [36] Exhibit “ICL-3”, para 79

9. X presented as being extremely confused, the Father telling her that he wanted to reconcile with the Mother and that it was her fault that they were no longer a family.  He was expressing to her his disappointment about the Mother’s refusal to reconcile. 

10. X said she did not want to spend any overnight time with the Father but would simply like to see him each alternate Saturday from 9:00am to 4:00pm, as well as having one (1) telephone call with him each week.   She considered that the Mother would support her to telephone or spend time with the Father outside of those times.

11. The Family Consultant was very concerned about X’s deterioration in March 2018.  She observed that if X really was missing the Father and wanting to spend more significant time with him, then it was incongruous for her to now only want to spend seven (7) hours with him per fortnight.

12. The Family Consultant was concerned about the Father placing inappropriate loyalty demands upon X.  She was concerned that the Father may be using X to try to reconcile with the Mother, and potentially undermining the mother/daughter relationship. 

13. While she noted some positive interactions at the contact centre, she also observed that X quite often appeared attended there looking tired, looking pale, sad and stressed. The Family Consultant emphasised that X’s emotional welfare needed to be prioritised over her relationship with the Father.

14. The Family Consultant considered that while X’s views were consistent with her needs and attachments, she held serious concerns about:

    ·    the Father’s mental health and behaviours;

    ·    X’s capacity to cope emotionally and psychologically with spending unsupervised time with the Father;

    ·    the impact of the Father’s behaviours and the ongoing parental conflict on X; and

    ·    their impact on the Mother. 

15. The Family Consultant thought the Mother should have sole parental responsibility.  She recommended that the Father spend time with X one Sunday per fortnight from 9:00am to 4:00pm as per X’s wishes.

16. She recommended that the court forward a copy of the Family Report to Mr D so that he could assist the Father with “separating his own emotional turmoil from that of X’s and to help him focus on his relationship with X rather than focusing on the Mother.”  As others had done before her, she also recommended DBT. 

Time at the contact centre runs down to a close:

1. The Family Report was released on 15 May 2018 and must have made for rather grim reading for the Father. 

2. The contact centre notes record that on 2 June 2018 the Father had had a negative call with the child during the week but that things improved during the course of the visit. 

3. On 16 June 2018 the Father did not attend.  He rang the contact centre, crying and very upset.  They were so concerned about his welfare that they arranged for a welfare check to be conducted afterwards.

4. The remaining contact centre visits reveal some negative interactions and some positive interactions.  In my view, they reveal that X does love her Father.  When he focussed on spending quality time with her rather than burdening her with adult issues, she generally responded warmly.

5. By August 2018 the time at the contact centre was coming to an end.  By arrangement with the contact centre, the Father had three (3) counselling sessions to assist him to talk to X in a more child-focussed way. 

The telephone communication becomes increasingly fraught:

1. Whatever the Father had learned in counselling, he still struggled to speak appropriately to X. On Wednesday 15 August 2018 he was telling X about court, saying he read everything that she had written down and that she hated him.  He told her she needed to change that or it would be used against him.  X started to cry, telling him “I have changed”. 

2. The Mother then interjected and the Father told her to butt out as it was her fault.  She later heard the Father continue to tell X about the puppy. 

3. When X terminated the call, she was quite upset.  She later complained to the Mother about why she had “given the court all the bad stuff about daddy as I have changed my mind.  Are you angry at me?” The Mother said she was not angry and the child became inconsolable, demanding to talk to the Father again.  The Mother later settled her. 

4. The next week, the child did not want to take the Father’s call and so the Mother blocked his number for a period.

5. Around then, X started sleeping in the Mother’s bed with her.  This was a serious regression, hinting at deep emotional problems.  She remained sleeping in the Mother’s bed until shortly prior to the trial in September 2019.

Mr D’s report of 30 October 2018:

1. On 30 October 2018 Mr D wrote a report to the Father’s GP which found its way into the Father’s trial affidavit as an annexure.[37] 

   [37] Annexure “D”.

2. By then Mr D had had thirty-nine (39) sessions with the Father.  Under the heading ‘Opinion’, he stated:

   “Mr Caffrey has continued to attend regularly…

   Despite adverse circumstances, including the recommendations contained in a recent court clinician report, and reduction/cessation of access with his daughter X, Mr Caffrey has managed to regulate his emotional and behavioural reactions in a mature manner indicative of an adult who has achieved personal growth and acquisition of coping skills via successful engagement with psychological therapy and life experience.

   The progress achieved by Mr Caffrey since commencing psychological therapy in 2015 foster Mr Caffrey’s confidence in his capacity to provide a safe and nurturing environment for his daughter to whom he remains deeply attached.”

3. This report, with respect, had more of a medico-legal flavour than a strict medical one.  It was overly optimistic and reads rather like a “defence” to the Family Report – although to be fair I do not know if Mr D had in fact seen it. In any event, Mr D’s report goes against the weight of the other evidence, including his later, more pessimistic report, which only came to light in his subpoenaed file.    

Ongoing problems in the leadup to the trial:

1. In November 2018, the matter was given trial directions for September 2019. 

2. In the meantime, the telephone calls remained highly problematic with X increasingly resistant to take them.  On a number of occasions, she reacted badly when they did speak.

3. In November 2018 the Father visited X at her school. 

4. On Christmas Day 2018 he showed up unexpectedly at the paternal grandparents’ home to give X some presents, including a $1,000.00 Segway.  The Father left after about half an hour after the Mother told him that he was breaching the AVO.  He said she should “grow up, it’s Christmas and I can see my daughter.”  Regrettably X was again in the middle.

5. The Father telephoned and messaged the Mother to try to see X on her birthday in 2019.  She did not respond, so he went to her home - knowing by then where she lived.  He dropped off gifts and spent about twenty (20) minutes there.  X was excited but the Mother said she would call the police if he did not leave.  The AVO prohibited what the Father was doing.  Again X was in the middle.  

6. There was another unpleasant telephone call between Father and daughter on 5 March 2019 in which the Father told X “mummy lies in court and is trying to take you away from me.”  X said she didn’t want to answer his calls sometimes - as he made her upset.  He then responded angrily, saying “no I don’t, I am only trying to tell you the truth about your mum and you will realise what she has done when you are older”.

7. The child refused to take calls from the Father for a number of weeks after this, only relenting after he sent her a message on 3 April 2019 that if she did not return his call then he would be coming around to the home to make sure that she was okay.  

Mr D’s report of 5 April 2019:

1. On 5 April 2019 Mr D wrote an updated report to the Father’s GP.  Though it post-dated the report annexed to the Father’s affidavit, this particular report was not mentioned by the Father in his affidavit.  It was only chanced upon in subpoenaed material at trial.   This report was less positive about the Father, noting that his mood and adjustment “generally continued to be impaired by unreliable and very limited contact with his daughter…complicated by lingering feelings towards her Mother.” [38]

   [38] This particular report is part of Exhibit “ICL-4”.

2. The Father’s communication with X continued to be sporadic and at times distressing for her. On 29 May 2019 he told X that the Mother would be in trouble in court for not allowing them to speak, and asking how she would feel if the Judge said she needed to live with him given the Mother was doing the wrong thing.  He told X she was making a mistake and would later realise he was right about everything. 

3. On other occasions when X refused to take his call, he texted her saying that he would come around to the house to show her that he loved her.   He in fact did attend the Mother’s home again on 26 June 2019 against the Mother’s wishes.

4. Following a call with him on 10 July 2019, X told the Mother “daddy has just called you sick in the head”, asking what that meant.

5. I accept the Mother’s evidence that on almost every phone call from then on, the Father brought up court proceedings, accused the Mother of doing everything wrong and blamed her for the separation.

6. The Father attended unexpectedly at X’s school on 26 July 2019.

7. On 27 July 2019, the Father rang the Mother from a private number.  The Mother answered, and he promptly invited her and X over for a barbeque.  She declined.   Four days later he told X about it on the telephone, laughing and telling X “I asked your mum if she wants to come over for a barbeque and of course she said no”.

1. This is classic emotional manipulation.

2. By the time of trial, it had become very much “hit and miss” whether X would answer the Father’s calls.

Parenting proceedings – the law:

1. The court’s power to make a “parenting order” [39] is found in Part VII of the Family Law Act (“the Act”).

   [39] That term being defined in s.64B of the Act

2. When deciding whether or not to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration: section 60CA, section 65AA.

3. Section 60B sets out a number of key objects and principles which underpin the operation of Part VII. These find practical expression in section 60CC, which prescribes the various mandatory considerations for the court. Section 60CC(2) sets out the two (2) so-called “primary” considerations, and section 60CC(3) sets out fourteen (14) so-called “additional” considerations.

4. Upon the making of an order for equal shared parental responsibility, the court must follow the statutory pathway set out in section 65DAA. [40] But as the Father belatedly, but properly, conceded that the Mother should have sole parental responsibility the pathway is not engaged here.

   [40] Goode & Goode (2006) FLC 93-286

5. In U & U (2002) 211 CLR 238, the High Court held that this court is not strictly bound by the competing parenting proposals of each party. Subject to each party being afforded procedural fairness, the court may craft different orders if required so as to meet the best interests of a child in any given case.

Best Interests findings:

1. I have already set out numerous findings of fact which engage the section 60CC considerations. In what follows I will endeavour to be brief and to proceed largely by way of summary.

PRIMARY CONSIDERATIONS:

Section 60CC(2)(a) – benefit of meaningful relationships:

1. X will maintain a meaningful relationship with the Mother whatever orders I make.

2. X loves the Father and prospectively she would also benefit from a meaningful relationship with him - but only if he can appropriately contain himself in his interactions with her.  He has chronically struggled to do so since separation. 

Section 60CC(2)(b) - protection from risk of harm:

1. The Father has perpetrated “family violence” [41] against the Mother, the paternal grandparents and X.  With the Mother and X the violence has been in the form of harassing and at times intimidating behaviours and communications.  The circumstances of both of his “suicide” attempts were plainly coercive and controlling.  His comments to X over the telephone have been coercive and have caused her fear on occasions.

   [41] As defined in section 4AB of the Act

2. He has breached previous AVOs.

3. His emotional abuse of X is of particular concern.  The Father’s combination of mental health traits and personality vulnerabilities make him akin to a “simmering cauldron” with a capacity to boil over at any time.  When he does, he cannot help himself but dump his adult issues onto X.  When she withdraws, he then blames the Mother.  He undermines.  He manipulates.

4. The ICL asks - if the Father could not regulate his behaviour in a contact centre environment, then how could he be trusted to do so unsupervised?  How could X possibly control him?  These are legitimate questions and their answers grim.

5. X needs to be protected from the serious emotional risks the Father poses to her, which have not been adequately addressed despite years of counselling and support.  The court is particularly concerned that the Father has never undertaken DBT despite Dr F’s (Psychiatrist), Mr D’s (Clinical Psychologist) and the Family Consultant’s recommendations.  He has never undertaken anger management counselling despite consenting to such an order.   Sadly, I consider that his failure to undertake such treatment or courses is at least partly because he still blames the Mother rather than taking full responsibility.

6. At trial the Mother made the curious submission that there is only “very limited evidence of short term, or inconsistent engagement by the Father with therapy.” [42]  I respectfully disagree – the Father has had plenty of therapy.  The fact is that his mindset has proven stubbornly resistant to change.  He likely requires a more substantial intervention – including trialling DBT.

   [42] Mother’s Case Outline, Exhibit “M-1”, paragraph 11.

7. Past unsupervised time resulted in the Father emotionally harming X.

8. At this point, the evidence paints a melancholy picture that the Father remains an “unacceptable risk” of emotional harm to X if he were to have unsupervised time with her.[43]  The risk is multi-faceted.  It may involve undermining behaviours, countless potential forms of manipulation either positive (puppies) or negative (suicide threats), and emotional abuse.  This is not an exhaustive list. 

   [43] The court cannot make an order which exposes a child to an “unacceptable risk” of harm – as was explained by the High Court in M & M (1988) FLC 91-979.

9. Supervised time would be an adequate safeguard against such risks.  The supervisor could intervene if the Father said or did something inappropriate – the odds of which remain rather high at this stage.

ADDITIONAL CONSIDERATIONS:

Section 60CC(3)(a) – X’s views:

1. X is torn; she has been greatly hurt since separation.  As at April 2018, almost two years ago, she wanted to maintain a relationship with the Father – but only of a limited nature.  Since then their telephone communication has been fraught and often non-existent as she will not talk to him. 

2. The Mother gave oral evidence that X has asked to spend more time with the Father and that she has resisted as she wants the protection of court orders.  She says X wants flexibility in the future.

3. On balance the Court considers that X does wish to see the Father, provided that she can be comfortable and know that it is safe.  She wants some flexibility and she trusts the Mother to facilitate.

Section 60CC(3)(b) – nature of relationships:

1. X is very close to the Mother, the paternal grandparents and extended family members including cousins. 

2. Her relationship with the Father is somewhat fractured and tenuous.

Section 60CC(3)(c) – participation in decision making:

1. The Father has played such role as he has been able to post-separation.  He has shown a determination to remain in his daughter’s life. 

Section 60CC(3)(ca) – parental fulfilment of child maintenance obligations:

1. At trial the Father was $3,863 in arrears of child support.  This was despite receiving a net compensation payout of around $400,000 in December 2018, some nine (9) months before trial.  He did not apply a single dollar of that money to meeting his obligations.  Instead he talked about entering into a payment plan.

2. He clearly had capacity to pay.  He had bought X a $1,000 Segway for Christmas in 2018. 

3. When queried about why he had not simply paid out the debt his answer was telling.  He “did not think I should be financially punished when I am not seeing X”.  Once again his egocentric nature was on display.

Section 60CC(3)(d) – change of circumstances:

1. At present the Father is not seeing X except in an entirely ad hoc manner initiated by him.  His phone calls to her are often answered.

2. The ICL is proposing that the child have no communication with the Father and that he spend limited, supervised “identity” contact with X only. 

3. The Mother proposes a more flexible arrangement whereby she would be arbiter of the time that is spent between Father and daughter, including any requirement for supervision. 

4. The Father proposes immediate unsupervised weekend time with X, which for the next six (6) months would be limited to daytime only.  It would move to overnight time after he had had at least six (6) months of  attending all appointments and participating in all therapies recommended by a psychologist – who is to assist him to work on his self-described “emotional attachment traits.”  He also wants twice-weekly telephone communication which is to occur in “complete privacy”.  He wants an order that he and X undertake therapeutic counselling to repair their relationship. [44]

   [44] Exhibit “F-5”.  There are also numerous other orders he seeks.

5. If unsuccessful, the Father prefers to take “identity” contact recommended by the ICL rather than have the Mother as the arbiter of time.  This reflects his distrust of the Mother. 

6. The irony here is that if the Father successfully undertook the treatment and therapy that might assist him – including but not necessarily limited to DBT – then I am of the view that the Mother would facilitate time that could graduate to something “substantial and significant”. 

7. The Father seeks to put the cart before the horse.  He wants the unsupervised time now – in the hope that the treatment he undertakes will bring the necessary changes in him later.  He wants therapeutic counselling with X in circumstances where his own behaviour and attitudes continue to pose her unacceptable risk.  He proposes a suite of injunctions in circumstances where he has shown limited respect for court orders and limited capacity to control himself.

Section 60CC(3)(e) – Practical difficulties and expenses:

1. These are not a serious issue here.

Section 60CC(3)(f) – The parental capacity

1. The Family Consultant observed that “adults with attachment issues cannot effectively handle conflict with others, and they cannot take responsibilities for their actions.  They too like to argue, seem to enjoy conflict, and cannot control their own anger”.  [45]  This aptly describes the Father.

   [45] Exhibit “ICL-3”, para 115

2. The Father’s parenting capacity may improve if he spends time with X.  But on its own that is not enough – as the events of 2016/early 2017 show.  He needs more intensive mental health intervention and support.  While his evidence is that “I need to see my child to improve my mood”, X also has her own emotional needs and they are more important.

Section 60CC(3)(g) – characteristics of the child:

1. X has just started high school.  Puberty looms. 

2. The Family Consultant was particularly concerned that unsupervised time could result in:

   ·    X feeling that she has to comply with what the Father wants, causing her to lose her own identity over time;

   ·    Alternatively, X becoming combative towards him (or vice versa), particularly if like many teenagers she starts saying “no”.   He has already had difficulty managing her behaviours, including calling her a “liar”.  This may not bode well for the future. 

Section 60CC(3)(i) – Attitude to the child and to the responsibilities of parenting:

1. The Mother has been an actively involved and a protective parent who has always been able to properly care for X. 

2. While her denial of time with the Father in the early post-separation period was a failure on her part, she tried to rectify the situation.  She entered into a consent order with the Father, the terms of which gave him the opportunity to play a meaningful role in her life. [46]  He wasted that opportunity.

   [46] Equal shared parental responsibility ?

3. It is difficult to criticise the Mother for not forcing X to take his telephone calls in circumstances where he emotionally harms her.

4. The Father’s difficulty is that he remains obsessed/upset about the parental separation and he continues to project his adult problems and issues onto X, which causes her harm.  He is not able to properly separate out his needs from X’s needs.  He does not take full responsibility for his actions.

Section 60CC(3)(j) and (k) – Family Violence & related orders:

1. I have addressed this earlier; the Father is a perpetrator.

2. The most recent AVO has now expired.

Section 60CC(3)(l) – making orders least likely to lead to further proceedings:

1. The proposals advanced by the Mother and the ICL are far more likely to achieve this. 

2. On the Father’s proposed orders, the risk of future litigation is high. 

Weighing up the competing proposals:

1. An order for defined unsupervised time as the Father seeks, even with safeguards, poses unacceptable risk. The Father has a proven propensity to emotionally harm his daughter. It only takes a few minutes on the telephone.

2. As the Father’s proposal gives rise to an unacceptable risk of harm, it can be excluded as a possibility.  The contest is thus between the ICL’s strict orders (including no communication) and the Mother’s more “liberal” proposal that she effectively act as gatekeeper.

3. X would like the opportunity for a relationship with the Father provided it is safe. The ICL’s recommendation is safe, but very limited in scope.

4. Is the Mother’s suggested flexibility a better option?

5. The Mother’s proposal enables the potential for a more meaningful relationship.  X trusts the Mother to act as gatekeeper and, on balance, I do too.  I accept she would rather X had a relationship with him than not. But understandably, the Mother wants the protection of a court order.

6. But one real disadvantage of flexibility is that it inevitably opens the door to harassment.  There is a real risk that the Father will text and text, call and call, drop over to the house etc, until the pressure to give him what he wants gets too much for the Mother. 

7. The Mother is willing to take that risk and can, I suppose, apply for another AVO if he harasses her.  But that would seem to be an unhappy scenario for all concerned.  The Father adamantly opposes what the Mother seeks - submitting that the Mother’s proposal would “put herself outside the court’s jurisdiction.”  Such is his lack of trust.

8. There is no ideal solution.  The court has to do the best it can for X.

9. In the end, I have come to the view that the conflict needs to end, that defined orders would be better than complete flexibility. 

10. The Father would be most embittered by my making the Mother’s proposed orders.  If he is left with simmering anger and a sense of injustice, that will not bode well for any future treatment he does access.  After all, successful treatment and behavioural change are the Father’s – and X’s – only pathway to a more meaningful relationship.

11. The court has ultimately come to the conclusion that X’s best interests would be served by making the ICL’s proposed orders, with some modifications. 

12. In particular, I am not strictly limiting the time to four (4) supervised visits per year.  The Mother may agree in writing to a greater number.  I am also leaving the door open for the Mother to agree in writing to some communication between X and the Father – which she may monitor.

13. To be clear, she is not obliged to agree to any communication, or to any time above and beyond the supervised time specifically provided for. I am also putting in place express injunctions essentially by way of enforcement pursuant to section 68B of the Act. The injunctions are self-explanatory and in my view appropriately protective. They are intended to regulate the parties’ conduct, particularly the Father. They are “appropriate” for X’s welfare – as section 68B requires.

14. The orders leave open the prospect of a more meaningful relationship if in future the Father can affect serious mental health and behavioural change. He should understand that his doing so is the first step; approaching the Mother to seek more substantial time or communication is very much the second step. If he can appreciate this, he will hopefully not harass the Mother and risk another AVO.  And if he “throws his hands up” and says he will live with the limited supervised time only, then so be it. At least X will be appropriately safe, and they can still maintain a relationship.

Conclusion:

1. Like all other children, X has a life to live.  This litigation is but one long, stressful and unhappy chapter in her young life.  It needs to end; she has been through too much already.

2. The court makes the orders which are set out at the commencement of this judgment.

I certify that the preceding two hundred and sixty four (264) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date:  21 February 2020