Conan & Mott (No 2) - [2023] FedCFamC2F 223

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conan & Mott (No 2) [2023] FedCFamC2F 223

File number(s): MLC 10140 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 3 March 2023

Catchwords: FAMILY LAW – final parenting orders – father seeks resumption of previous final orders – risk of family violence – where child impact report family consultant cross-examined – problems where child impact report not released to a litigant in person – where section 65DAA presumption rebutted – orders for only time as agreed in writing – orders for sole parental responsibility.

Legislation:
Crimes Act 1914 (Cth)

Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), s 60CA, 60CC, 60CG, 65DAA, 65DAC

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Boyd & Sage [2020] FamCA 482

Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336.

Fox v Percy (2003) 214 CLR 118.

Division: Division 2 Family Law

Number of paragraphs: 188

Date of hearing: 9 & 10 February 2023

Place: Melbourne

Counsel for the Applicant: Ms A. Agresta

Solicitor for the Applicant: Fair Family Law

Counsel for the Respondent: Mr T. Byrne

Solicitor for the Respondent: RRR Lawyers

Counsel for the Independent Children's Lawyer: Mr R. Allen

Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers
ORDERS

MLC 10140 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MOTT

Applicant

AND:
MR CONAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

3 MARCH 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Mother have sole parental responsibility for the child X born in 2017 (‘the child’).
3.The child live with the Mother.
4.The child spend time and communicate with the Father at such times as agreed with the Mother in writing and on such conditions as agreed with the Mother in writing.
5.The Mother be at liberty to make a sole application for a passport for the child.
6.The Mother keep the Father advised via email of any serious illness or injury suffered by the child as soon as practicable following the onset of the illness or occurrence of the injury.
7.The parties, their servants or agents are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party with or in the presence of the child and from permitting any other person to do so; and
(b)Discussing these proceedings with or in the presence of the child and from permitting any other person to do so.

8.The Independent Children’s Lawyer be discharged.
9.All extant applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Conan & Mott (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The Applicant, Ms Mott (‘the Mother’) and the Respondent, Mr Conan (‘the Father’) ask the Court to determine what, if any, time their 6 year-old child should spend with the Father.
BACKGROUND
The parties commenced a relationship in or around 2013 and began living together in 2014. The parties separated in October 2015 when the Mother was approximately halfway through her pregnancy. There is only one child of the relationship, X, aged six years (‘the child’). The child has not spent time or communicated with the Father for approximately the last 18 months.
The Mother is employed as a carer and resides in Victoria. The Father is unemployed and currently residing in Queensland. This is the second time proceedings have been issued in this Court about the child.
THE PROCEEDINGS
The first proceedings
In July 2019, after trouble between herself and the Father, the Mother left Victoria with the child for a holiday in Queensland and once there decided to stay. In September 2019 the Father issued proceedings. In October 2019 the Mother was ordered to return the child to Victoria and for the Father to have time with the child. On 14 November 2019 a Family Report was released. That report will be referred to later in these reasons. On 24 August 2020 Final Orders were made by consent (‘the 2020 Final Orders’) which provided for, among other things, the parties to have equal shared parental responsibility, the child to live with the Mother and to spend time with the Father progressing ultimately to five nights per fortnight as well as additional time on special occasions and school holidays.
The current proceedings and Final Hearing
Just shy of a year later, the Father’s time with the child ceased when a Magistrates’ Court made an intervention order against the Father, protecting the Mother and the child, and suspended the operation of the 2020 Final Orders. The Mother issued further proceedings in this Court on 16 August 2021 and sought orders that included sole parental responsibility, the child to live with her, the Father to attend for a family violence risk assessment and for the child’s time with the Father to be reserved. The Father filed a response shortly thereafter seeking that the 2020 Final Orders remain in full force and effect.
The matter was listed for Final Hearing on 9 February 2023 and was heard over two days.
The Father was represented until 29 March 2022. The Child Impact Report (‘CIR’) was not released to the Father, unlike the Mother and solicitors involved in the matter, upon its release on 25 May 2022. Specifically, an order was made at that time giving the Father, as a litigant in person, liberty to attend the Melbourne or Dandenong Court Registry to inspect the CIR, and a restraint on him taking a copy of the report. This is addressed again at paragraph 123 in these reasons.
A CIR is more or less the same as what was previously known as a ‘section 11F’ report. Such a report was described in Boyd & Sage [2020] FamCA 482 as follows:
[15]Also ordered a s 11F Child and Parent Issues Assessment to be conducted on 28 July 2020. That assessment is a “Child Inclusive Conference” which is a meeting with a Family Consultant, the adults and the children involved in the matter and is ordered by the Court. Lawyers are not included. The conference is intended to give the Court an understanding of the family situation, and particularly of the child/ren’s experience. The conference can help the judicial officer hearing the case make short-term decisions about arrangements for the child/ren. It may also help the parties reach an agreement. A Family Consultant is an expert psychologist or social worker with a high level of training and experience in child development and parenting after separation and divorce. Family Consultants are employed directly and exclusively by the Court in Child Dispute Services which is located within the Registry.
A CIR is a very preliminary assessment. The purpose of a CIR is to identify issues for the management of the dispute including any issue likely to put a child at risk. But a CIR is not a family report and does not have the depth of analysis a family report does.
It became apparent when the Father was cross-examined about the CIR that because the order releasing the CIR did not make it available to him (unless he travelled to the Melbourne or Dandenong Registry to read it there) he had not read the CIR. When that became apparent I stood the matter down so that he could confer with his counsel. Following that the Father pressed that his cross-examination and the case proceed. Notwithstanding that he appeared to know of the recommendations.
The CIR made the following recommendations:
26.Given the level of risk to [the child] has been identified during the assessment, it is not recommended that this matter proceed to a DRC pathway. In addition, [the Father] has expressed his desire to withdraw his involvement and not attend future Court hearings, and he is unwilling to have supervised spend time with [the child] or seek professional support for his issues that have been identified during the assessment.
27.Given the nature and pattern of the alleged family violence and [the child]’s age, there is increased risk and vulnerability for her. Therefore, it is recommended that consideration be given to appointing an ICL.
28.While it is important for [the child] to have a meaningful relationship with her father, it is imperative that her time spent with [the Father] is physically and emotionally safe for her. As such, the Court may wish to take a very cautious pathway with regards to [the Father]’s spend time with [the child] until he is able to seek out professional support and assessment regarding the alleged family violence, drug use and possible mental health issues. Consideration to be given to sole parental responsibility for [the Mother] and supervised spend time contingent on [the Father] undertaking the aforementioned programs.
29.Prior to the introduction of spend time, it would be beneficial for [the Father to] undergo hair follicle drug testing, and a forensic risk and psychiatric assessment around the family violence and possible mental health issues. It would be beneficial to the court if this assessment focus[ed] on how these issues for [the Father] may impact on his parenting and [the child]’s safety and wellbeing. It may be of benefit for the assessor to have a copy of this report.
30.Should the matter remain unresolved, the Court may wish to consider a Family Report. Prior to a family report taking place it would beneficial for the Court to have access to police records, psychiatric assessments, and reports from any of the professionals working with the parents.
On 18 August 2022 a section 102NA order was made, permitting the Father to make an application to Victoria Legal Aid under the Commonwealth Family Violence and Cross Examination of Parties Scheme for representation at the Final Hearing. The effect of such an order is that the Father cannot personally cross-examine the Mother in the proceedings. The Father’s solicitor arising from this application came on the record on 14 December 2022. Hence at Final Hearing both parents and the Independent Children’s Lawyer (‘the ICL’) were represented by solicitor and counsel.
Mother’s case
The thrust of the Mother’s case, as outlined in her Outline of Case, was that the child would not benefit from having a relationship with her father and that to facilitate time would pose an unacceptable risk of harm to the child. The Mother submitted that the Father either had no insight into how his behaviour adversely impacts the child or he does not care enough to modify his behaviour. The Mother submitted that the child can only be protected from physical or emotional harm, and from being exposed to family violence against the Mother, by the Court ordering that the Father have no time with her save for time on terms as agreed with her from time to time.
The Mother’s case was that the Father’s threatening and disproportionate behaviour extends not only to her but also to other partners and to strangers. The Mother asserted that she had demonstrated her capacity to meet the child’s needs to date. She asserted that the child was attached to her and she was the child’s primary source of security in the world. The Mother asserted that the child was happy and safe and content in her care, and doing well at school. As to the impact of the Father’s behaviour on her, the Mother asserted as follows:
50.I have continued to consult with [Ms B] and I have benefitted from strategies and techniques she has taught me to manage my symptoms. For example I use sensory gadgets to relax when hyper-vigilant and if I experience a ‘flashback’ or wake after a bad dream I concentrate on my immediate circumstances such as what I can hear, see, smell, taste and so on and that works to reduce the stress.
51.I have become a better mother to [the child] with [Ms B]’s counselling but also not having to deal with the relentless abuse and threats from the Father has been an enormous benefit. It was hard to be present for [the child] when I was always distracted by fear. It has been difficult given the ongoing Court cases, including the IVO matter and criminal matters but I am much more present for her now. Contact with the Father would likely trigger an anxiety or panic attack.
It was the Mother’s case that she was unable to communicate with the Father at all because of the nature of his abusive communication, and that if the Father did or did not want something done for the child, for example a haircut, his proposal was accompanied by a threat. The Mother pointed to an example where the Father alerted her via text message that he was unhappy with the child’s hair, and that if she did not do what he wanted “… I’ll do it and I’ll get her bangs or a mullet.” When the Mother protested, he responded, “Well, get it neatened up or she will have a mullet next week.” The Mother’s case was that the threat to have the child’s hair cut in that fashion was a means to threaten distress to the child as a way of intimidating her.
The Mother’s case was that, at times, the Father had been so angry or heightened whilst the child was in his care that the child had overheard the Father abusing her and that, on other occasions, the Father simply did not take the child for the time that was available to him or returned the child early.
The Mother’s case included the allegation that the Father had raped her on 29 July 2019, the night before she took the child to Queensland. The Father strenuously denied the Mother’s allegation of rape.
Father’s case
The Father’s case did not deny any of the text message communications that the Mother regarded as threatening and abusive. His case was that the behaviour was by way of text message only, and as the child had not been exposed to the text messages, there was no risk of harm to the child. The Father was concerned about the Mother’s alcohol consumption, and that the Mother had used his time with the child as a bargaining tool to try and manipulate him about money or child support.
Rather than paraphrase the Father’s case, it would be more accurate to reproduce the detail of his case from his Outline of Case document, and I do as follows:
2.There are final FVIO in place protecting the Applicant and [the child] with the Father the alleged perpetrator. There have never been instances or allegations of the Father harming [the child] physically or emotionally. On the contrary, [the child] expresses that she misses her father and the time they spent together (refer to paragraph 7 of Child Impact report 28 April 2022).
3.The FVIO that are in place are not due to any physical violence against [the child] or the Applicant and there have never been issues of violence that relate to [the child]. The contraventions of FVIO that were pursued in the [City C] Magistrates Court related to text messages between the Applicant and the Father. [The child] would not have been exposed to these text messages. [The child] did not witness any family violence.
4.The Applicant exposed [the child] to considerable harm when she relocated to Queensland with [the child] in 2019, when [the child] was 2 years old. At that age, a significant change to her routine and surroundings and separation from the Father could have exposed her to considerable harm. (refer to paragraph 6 of Child Impact report 28 April 2022).
5.The Applicant has an alcohol issue and abuses prescription pain medications to self-medicate. This has occurred while [the child] is in her care and puts [the child] at risk of neglect (refer to paragraph 17 of Child Impact Report 28 April 2022).
6.The Applicant has been charged previously with drink driving, requiring her to have an interlock device and is irresponsible with alcohol (refer paragraph 18 of Child Impact Report 28 April 2022). She therefore is putting [the child] at physical risk of driving under the influence of alcohol with [the child] in the car, even though she denies having done so.
7.The Applicant has used the child… as a “bargaining tool” to try and manipulate the Father to pay for all her and [the child]’s expenses. When the Father refused to pay more than half of the legitimate costs related to [the child] and the Applicant in June 2021, the Applicant threatened to allege contravention of FVIO. When the Father continued to refuse to pay all expenses but agreed to half the expenses, the Applicant did allege breaches of the FVIO for actions that she previously had no issue with e.g. the Father being within 100 meters of her place of work at the Father’s friend’s [business] (refer to paragraphs 21-23 of the Father’s affidavit of 27 January 2023). This led to 50 charges being made against the Father that were later dismissed.
The Applicant’s actions have caused detriment to [the child] as she has been unable to see her Father since June 2021. [The child] expressed to the Child Impact report writer that she misses her father and enjoyed spending time with him (refer to paragraph 7 of Child Impact Report 28 April 2022).
The Applicant has used [the child] in her grievance against the Father, depriving the child of having a meaningful relationship and spending time with her father.
In cross-examination, it became clear that the Father’s case had further non-negotiable aspects. His case was that orders for a return to the 2020 Final Orders should be made. Not only should those orders be made, but the Father made it clear that if the Court was contemplating reintroducing his time by starting with supervised time, that he would not participate or take up that supervised time. The Father’s case was, further, that he would only attend Victoria at all (he having moved to Queensland in the middle of 2022) if he was guaranteed by way of court order the time as set out in the 2020 Final Orders or at least a guaranteed pathway to that time. The Father further made it clear in cross-examination that although he said he could afford to do so, he would not spend a dollar on further legal representation, or pay for such matters as psychiatric tests or risk assessments or hair follicle tests in this dispute. His evidence was that he had spent a fortune and that a line in the sand needed to be drawn, and that it was intolerable for him to be expected to spend one more dollar.
Independent Children’s Lawyer’s case
The Independent Children’s Lawyer (‘ICL’) relied on the Family Report from 14 November 2019, prepared for the purpose of the previous proceedings. The parents did not rely on that report, but did not object to reliance upon it. That report was Exhibit ICL1. The ICL also relied on the CIR. The ICL’s case was that there was a need to protect the child from harm, having regard to allegations of family violence, poor mental health and drug use. The ICL’s case was that the child had expressed affection and love for both her parents. The ICL’s opening position was that the orders ultimately in her best interests would be subject to a testing of the evidence.

The ICL’s case was that some form of supervised time, together with the Father’s participation in a risk assessment process, including psychiatric examination and the provision of hair follicle tests, may lead to it being in the child’s best interest to commence time by way of supervised time. However, the ICL’s case was stopped in its tracks because of the Father’s consistent and strongly expressed refusal to not only participate in such matters, but to contemplate ever participating.
Documents relied upon
The Mother relied upon the following documents:
·Notice of Child Abuse, Family Violence or Risk filed 16 August 2021;
·Affidavit of ‘Ms B’ filed 10 December 2021;
·Child Impact Report dated 28 April 2022;
·Amended Application for Final Orders filed 8 June 2022;
·Trial Affidavit of the Mother filed 19 January 2023;
·Affidavit of the Mother filed 3 February 2023; and
·Outline of Case filed 7 February 2023.
The Father relied upon the following documents:
·Response to Initiating Application filed 21 October 2021;
·Child Impact Report dated 28 April 2022;
·Affidavit of the Father filed 27 January 2023; and
·Outline of Case (Final Hearing) dated 7 February 2023.
The Independent Children’s Lawyer relied upon the following documents:
·Family Report dated 14 November 2019 (previous proceedings); and
·Child Impact Report dated 28 April 2022.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·F1:      Father’s criminal history only to 7 July 2021;
·F2:      Summary of charges form police brief (pages 29 & 30 of the Mother’s tender bundle);
·ICL1: Family Report dated 14 November 2019;
·F3:      Subpoena bundles (pages 57, 58, 59, 60 & 61);
·F4:      Text messages (pages 23, 24 & 25 of Mother’s tender bundle); and
·F5:      Notice of Ceasing to Act sealed 29 March 2022.
Witnesses and the CIR
The Mother and the Father both gave evidence under cross-examination in this matter. In addition, the family consultant, who prepared the CIR, was cross-examined.
The unusual way that the parties came to rely upon a CIR and then sought to cross-examine the CIR writer must be referred to. It is clear enough, at the time when the Court (another Judge) was contemplating trial directions to be made in the matter, that the Father was prevented from spending time with the child and had not spent time with the child for many months, and that the Father refused to participate in or contemplate the process that the CIR outlined as necessary matters preliminary to the assessment of whether the Father should best spend time with the child. In the context of the Father making it clear that he refused those matters, and notwithstanding that the CIR assumed and contemplated that a Family Report would be undertaken prior to the final determination of the matter, a Family Report was not ordered.
Shortly before the matter came on for Final Hearing, at the request of the ICL, the matter was listed for Mention, which became, in substance, a further Interim Defended Hearing. The ICL’s case, and I infer concerned about the history of the child’s relationship with the Father, pressed for an adjournment of the matter so that a Family Report could be undertaken to assist the Court. When the matter came on, the Mother’s solicitor opposed such application, and relied upon the history of how the matter had been set down for trial including the Father’s refusal to contemplate the matters set out in the CIR.
On this hearing the Father attended via videolink from a motor car and, he said, from Queensland. The Father had counsel appear in Court. The Father’s counsel opposed the application for the adjournment for the purpose of the obtaining of a Family Report and sought that the listed hearing proceed. Notwithstanding that the Father’s counsel had made those submissions, the Father insisted on himself addressing the Court, and I permitted him to do so, whereupon in angry and accusative terms he made it absolutely clear that he opposed any adjournment for the purpose of obtaining a Family Report and that he saw the request for a Family Report as a further manoeuvre by the ICL to thwart his long delayed day in Court and time with the child.
That the Father would be troubled by the many returns of the matter in Court, including when he has been paying solicitor and counsel to appear, is understandable. Upon the Mother’s application, the matter was first in Court on 15 November 2021, then on 16 December 2021, then on 10 February 2022, then on 25 May 2022 on two occasions before different officers of the Court, then on 15 June 2022, then on 18 August 2022 and then again on the ICL’s application on 24 January 2023.
In the week before the Final Hearing, the parties requested that the CIR report writer be available for cross-examination. The procedures of the Court are that a CIR report writer would not usually be cross-examined and exceptional circumstances would ordinarily have to be shown before such a time-consuming facility, at public expense, was made available to the parties. The CIR writer had contemplated that the CIR was a preliminary step along the journey of assessing the risk to this child and the benefit of a relationship with her parents, and she could not reasonably have expected to be available for cross-examination on a final hearing many months later. Nonetheless, because of the lack of the Family Report and all parties’ request to cross-examine the report writer, I requested Court Child Services to arrange for the report writer to be available. The report writer was available.
The parties had mistakenly assumed that at the time of writing the CIR, the CIR writer would have read the entire file, including reports from the previous proceedings. In fact, the family consultant had adopted the process of not reading reports from the previous proceedings to ensure that she dealt with the situation upon the current presentation of the parties and the current issues, unaffected or unbiased by any conclusion any other report writer may have previously made. The family consultant was a careful, courteous, professional and patient witness.
Mother as a witness
An issue in the previous proceedings had been the Mother’s alcohol consumption, and order 26 of the 2020 Final Orders was as follows:
26.If the Mother is transporting [the child] in a vehicle that she is the driver of she will only do so in a vehicle that is fitted with an interlock device and comply with the interlock device condition attached to her driver licence until such time as it is discharged.
In regard to her current alcohol consumption or the extent that be a problem, the Mother, in her affidavit of evidence-in-chief, over 55 paragraphs and 16 pages, did not refer to any alcohol difficulties at all. In response to the Father’s affidavit, and his allegations that the Mother continued to have an alcohol problem, the Mother deposed as follows:
26.I agree with the allegation in paragraph 40 that I was convicted of drink driving. I was 20 years of age at the time and this was near to 5 years prior to having [the child]. I deny I ever mixed pain pills and alcohol. I took medication that I was prescribed as it was prescribed. I haven’t taken a single pain medication since having two total hip replacements. I no longer require an interlock in my car. I am fully licenced with no conditions. The only medication I currently take is Lexapro 10mg to treat depressing and anxiety.
The Mother’s account of her alcohol consumption in the paragraph recited above was discordant with other evidence in the case. The Mother’s alcohol consumption had been a significant issue in the prior proceedings, as demonstrated by the interlock order (recited above) in the 2020 Final Orders. The November 2019 Family Report dealt with the issue of the Mother’s account of her alcohol consumption and the evidence then put forward by the Father as follows:
70.[The Mother] denied [the Father]’s claims she continues to have an issue with alcohol, admitting to two (2) to three (3) alcoholic beverages per week; however, she did admit to currently having an interlock device upon her car after a drink-driving charge when she was 21 years of age. [The Father]’s affidavit material … included a record of [the Mother]’s interlock device, indicating on multiple occasions between October 2018 and September 2019, [the Mother] had blown an alcohol reading [on the interlock device fitted to her motor car], sometimes quite low however several of these low readings were in the morning, (i.e. 0.023 at 9.14am on 10^th July 2019), indicating a high level could reasonably be expected overnight. Many readings were above the 0.05 legal limit, including 0.101 at 1.05pm on 31^st March 2019 and 0.06 at 9.24am on 28^th April 2019. This would appear to indicate that [the Mother] has been less than forthcoming with her alcohol consumption.
It was common ground in the proceedings that an interlock device, when fitted to a motor car, means that the motor car will not start unless the driver blows into the device and records a zero alcohol content. The interlock device on a motor car is not used for occasional or random checkings of blood alcohol content (‘BAC’). It is striking that at about 9 o’clock in the morning on 10 July 2019, the Mother had a BAC of 0.023, and that on 1 March 2019 at 1 o’clock in the afternoon, she had a BAC of 0.101, and on 28 April 2019 had a BAC of 0.06. That she was in the motor car blowing in the interlock device with a positive BAC inexorably means that, on those occasions, the Mother had intended to drive the motor car and, I infer, had assumed or believed or hoped that her BAC was zero. I am satisfied that the family report writer’s opinion that the Mother had, at the time of the Family Report in 2019, been less than forthcoming with her alcohol consumption is correct.
The disparity between that evidence and the Mother’s account caused me to look carefully at the Mother’s evidence as to whether it was reliable. In cross-examination, the Mother presented as a careful, thoughtful and honest witness. When asked, the Mother gave a frank account of her two high-range BAC readings when she was prosecuted. The Mother’s demeanour when being cross-examined demonstrated to me that I could and should regard the Mother as an honest and frank witness.
It was the ICL’s case, and the Mother’s case, that the Mother’s alcohol consumption was not an issue in the case and that there was no risk of harm to the child from the Mother’s alcohol consumption, notwithstanding the Mother’s history of alcohol abuse and drink-driving convictions. The Mother’s frank account of her current alcohol consumption was that she consumed about two glasses of wine about three times per week. I accept the Mother’s account. The Mother’s case, and the ICL’s case, was that I should not have any concern whatsoever about the Mother’s alcohol consumption, and that the Father’s violent and threatening behaviour overwhelmed any such concern.
Notwithstanding that significant omission from the Mother’s evidence in chief and having looked carefully as her evidence I regard the Mother as a reliable witness.
Father as a witness
The Father presented as angry and bombastic and self-confident. He demonstrated that he was capable of picking up on any inconsistency or perceived hypocrisy on the part of the cross-examiner or the Mother or the ICL. The Father was often, as far as I could tell, reasonably reliable in the evidence he gave.
The Father denied raping the Mother on 27 July 2019. Ultimately, in final address, the Mother’s counsel conceded that the state of the evidence, on this two-day hearing where this was one of many controversies, was such that I could not determine in accordance with either ‘The Briginshaw Principle’ (Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336) and/or the section 140 of the Evidence Act 1995 (Cth) (‘Evidence Act’) standard that, in fact, the Father was guilty of raping the Mother on that occasion. I accept that submission. However, because I have not accepted the Mother’s evidence on the balance of probabilities, taking into account the seriousness of the allegation, does not mean that I accept the Father’s denial and his account of only consensual sexual activity on the night. I am unable to and do not make a finding one way or the other in regard to this serious and terrible allegation.
Save as to that matter and that of her past drinking, I accept the Mother’s evidence. I do not accept the Father’s evidence where it contradicts matters of record. This includes the actus reus of the substance of the offence involving the teenage service station attendant discussed later. I do not accept the Father’s account of his attempt to minimise his criminal convictions as set out in his affidavit. The Father ultimately and frankly conceded that the particular charges that he pleaded guilty to on 11 January 2022 were what he called “broad” charges covering a range of particular events within them.
I accept the Father’s evidence that he would never intentionally harm the child or put her at risk. The issue in this case is whether when angry, for whatever reason, whether the Father would be able to protect the child from exposure to his own anger and reaction to whatever agitated him at any particular time.
I do not accept the Father’s evidence in cross-examination that he is currently undertaking psychological counselling or assistance that is adequately assisting him deal with his anger issues. I do not accept the Father’s case that he is able to separate his anger about almost any aspect of the Mother from his care of the child when the child is with him. I do not accept the substance of the Father’s case, which is that he really is a ‘Jekyll and Hyde’ person where he is able to care for the child calmly and that it is only when exposed to the Mother’s text messaging that he is ‘wound up’ or angry.
2019 Family Report
On 4 November 2019, in the first proceedings, the parties attended upon the family report writer for the preparation of a Family Report. The observations of the family report writer included the following:
19.Additionally, [the Mother] sought that [the Father] engages with a psychologist to address temper regulation and personality functioning and that [the Mother] to obtain reports from the psychologist and any other such Orders as this Honourable Court deems appropriate.
…
22.[The Mother] claimed that [the Father] was verbally and physically abusive towards her in [the child]'s presence. She claimed he attempted to rape her on 27^th July 2019 while [the child] was sleeping on her bed next to her and [the child] woke to find her visibly upset. She also claimed that [the Father] had threatened to kill her on numerous occasions, including prior to [the child]'s birth and shortly after he attempted to sexually assault her in July 2019.
…
40.Information obtained from Vic Roads revealed that [the Mother] was required to drive with an Alcohol Interlock device from the 13[^th]. February 2017 until the 13^th February 2020. [The Mother]'s licence was also suspended from the 22^nd December 2010 for a period of 17 months. These records indicate that [the Mother] has been recorded for exceeding the prescribed concentration of alcohol within 3 hours after driving or being in charge of a motor vehicle on the 11th July 2013, and the 22nd December 2010[.]
41.[The Father] presented as a calm and engaging man who spoke openly about the parents' relationship and his relationship with [the child]. He claimed that the parents' separated in 2015 before [the child] was conceived and yet they had a sporadic relationship over the last six (6) years. Overall, [the Father] spoke positively about [the Mother] who claimed that she was a good person and a great Mum "80% of the time," however, he held significant concerns regarding her excessive consumption of alcohol which he believed was detrimental to her relationships and her parenting capacity.
(emphasis added)
42.[The Mother] impressed as a quietly spoken and passive woman. She reported that she was assisted during the day of interviews by her stepfather … who cared for [the child] during the morning. She claimed that she did not wish to come into the presence of [the Father], stating that she was fearful of him following his assault upon her in July 2019. While [the Mother] advocated relocating permanently to Queensland, during her interview, she also provided future alternate plans if the Court restricted [the child] from leaving the [City C] area.
…
45.In her affidavit material, [the Mother] reported that she obtained part-time work in August 2018 as a [hospitality worker], working between nine (9) and 22 hours per week, with her mother and [the Father] sharing the care of [the child] during her work hours, with [the Father] typically caring for [the child] on Wednesday and Friday evenings. [The Mother] admitted to returning to [the Father]'s home on these nights after work to take over the care of [the child]. However, she claimed that [the Father] was constantly abusive, both verbally and via text message throughout this time.
…
51.Following [the Father] obtaining [the Mother]'s interlock records, he suspected that [the Mother] would commence drinking alcohol at the end of her shifts and inform him that she was working a double shift. He also expressed significant concern regarding the times when [the Mother]'s interlock records were matched with days [the Mother] had enrolled [the child] in childcare. He claimed that the combination of these two (2) records suggested that [the Mother] may have been intoxicated while caring for [the child].
…
53.[The Mother] claimed that [the Father] had perpetrated ongoing family violence against her, inclusive of verbal, physical and sexual abuse, abusive text messages and threats to kill. Many of these text messages have been attached to her affidavit material to support her claims.
54.In discussing family violence issues, [the Father] admitted that on occasions he had sent aggressive text messages and said inappropriate things to [the Mother]. He claimed he regretted these occasions and the parents had a volatile relationship, citing that the parents engaged in mutual verbal violence. He claimed; "there was lots of arguing to and fro, six years of it." While [the Father] admitted to sending the derogatory text messages to [the Mother], he indicated that [the Mother] had six (6) years of [information on] her telephone which he did not have as he had used three (3) different mobile phones over this period.
55.[The Mother] claimed that she fears requiring to consistently communicate with [the Father], that she feels that the majority of his communication comprises of threats, denigration and abuse and believes that Orders relating to shared parental care would only lead to ongoing abuse. She claimed that [the Father] also exposed [the child] to his derogatory verbal violence towards her.
56.During his interview, [the Father] reported that reading the multiple abusive text messages in one (1) document shocked him into acknowledging the extent to which it was inappropriate behaviour towards [the Mother]. He stated; "it looked worse when you put 10 pages in front of you.” He also noted that over the six (6) years of text messages between the parents, there had also been positive interaction which was not recorded by [the Mother]. [The Father] reported that he had enrolled in [the service], to access counselling in relation to his anger management issues.
(emphasis added)
57.[The Father] conceded that he had sent derogatory text messages and was verbally abusive "in the heat of the moment.” He claimed that while he had made threats to harm [the Mother], that he would never have followed through on these threats, reinforcing that he cared for and respected [the Mother]. Upon reflecting upon his verbally violent and aggressive text messages directed as [the Mother], be stated; “It is time for me to grow up.''
(emphasis added)
…
59.In her affidavit material, [the Mother] claimed that she fled to her father's home in Queensland with [the child] after an incident on 27^th July 2019 whereby she reported [the Father] returned home highly intoxicated after attending an AFL football match and being involved in a fight. She reported that the parents argued, and she went to check on [the child] who was sleeping on [the Father]'s bed. She claimed that [the Father] assaulted her and raped her, only ceasing when [the child] awoke. At this time, she was able to take [the child] to her room; however, she claimed that [the Father] continued to threaten her, saying, “If [the child] wasn't here you would be dead.”
…
81.[The Mother] noted that while she held concerns for her safety in the presence of [the Father], she held no safety concerns for [the child] in the care of his father. However, upon further questioning, [the Mother] conceded that she may be concerned regarding [the child]’s future exposure to family violence in the event [the Father] re-partnered. [The Mother] reported that [the child] loved her father, enjoyed spending time with him and missed him during their time in Queensland. She reported that she facilitated an additional visit between [the child] and her father upon her return to Victoria as [the child] wished to see her father.
(emphasis added)
…
94.When [the child] observed her father entering the premises, she shimmied out of [the Mother’s stepfather]'s arms until he placed her on the ground. [The child] then ran to her father, excitedly yelling "Daddy, Daddy.'' [The Father] picked up [the child] for a cuddle and then walked over to shake [the Mother’s stepfather]'s hand. [The child] snuggled into her father for the first five (5) minutes of their observation session and was reluctant to be placed back on the ground to play.
(emphasis added)
…
97.Throughout her play, [the child] was intermittently affectionate with her father giving him hugs and telling him that she missed him. Throughout this time, [the child] requested to return to her father's home and was confused as to why she needed to remain playing with her father in this environment.
(emphasis added)
98.At the end of this observation sessions, [the child] was reluctant to return to [the Mother’s stepfather] and attempted to hold onto her father, stating that she wished to go home with him. Both [the Father] and [the Mother’s stepfather] managed the situation well with both men reinforcing that [the child] needed to wait for her mother to arrive and that she would be seeing her father during the week. [The child] enjoyed an affectionate departure from her father while [the Father] and [the Mother’s stepfather] interacted in a positive and respectful manner.
…
106.Both parents agree that [the Father] was the primary perpetrator of verbal and emotional violence towards [the Mother], inclusive of threats to harm and threats to kill during conflict instigated incidences of family violence throughout their relationship and post-separation. [The Mother] attached [to] her affidavit material examples of [the Father]'s, violent and aggressive and demeaning text messages he would send her when he was angry. During his interview, [the Father] did not minimise his behaviours but took responsibility for his demeaning behaviour towards [the Mother]. He expressed that seeing his text messages over many years being compiled into one document was a ‘wake-up call', and he expressed remorse for his behaviours during his bouts of anger, stating that he genuinely respected [the Mother] and described her as a “good Mum.”
(emphasis added)
107.[The Father] reported that he had commenced personal counselling with a view to addressing his aggressive verbal outbursts during times of anger, stating words to the effect that "it is time I grew up.'' In addition to attending personal counselling, [the Father] may benefit from attending a Changing Abusive Behaviours Program. This service may be accessed at … This may assist him in gaining insight into the impact of his long-standing verbal, and emotional abuse may have had upon [the Mother] (and [the child]). During his interview, [the Father] claimed he was adamantly opposed to physical violence against women; however, he may benefit from some education into the harm verbal and emotional abuse can have upon his victim's physical, emotional and psychological health.
108.While [the Father] concedes that although he had threatened [the Mother] with harm, he claimed that he never had, and would never, physically harm her or act on his threatening behaviours towards her. He recalled one incident where he pushed [the Mother] on a bed on occasion when she attempted to hit him over the head with a bottle of-wine when she was heavily intoxicated. During her interview, [the Mother] indicated that she did not recall this incident, and [the Father] responded that it was likely she would not remember this incident given her level of intoxication at the time.
…
112.It appears as if [the Mother] has struggled with drinking alcohol to excess over many years as Vic Road documents reveal that this issue was first raised in 2010, again in 2013 and further in 2017. While it is concerning that [the child] has been living in primary care of her mother while she had struggled with excessive alcohol consumption, it appears as if [the Mother] has primarily lived with family members or [the Father] who have been secondary parental figures for [the child] and have assisted in her daily care. It is strongly suggested that [the Mother] engages in Drug & Alcohol assessment and treatment, which can be accessed through [details of service].
…
116.Both parents report that [the child] is a happy and healthy little girl who shares a positive and affectionate relationship with both of her parents. During [the child]'s observation sessions, both parents demonstrated their ability to remain child-focused, and [the child] lavished the attentions from both these significant parental figures in her life. Other than the concerns mentioned above regarding [the child]'s expression of family violence and [the Mother]'s ongoing concerns of alcohol dependence, neither parent identified safety concerns for [the child] in the care of the other parent. During their interviews, both parents praised the other as a parent for [the child].
(emphasis added)
…
Recommendations:
On the basis of this assessment and unless there is additional information presented to the contrary, it is respectfully recommended that;
126.     The issue of parental responsibility for [the child] as determined by the Court.
127.     [The child] live primary with her mother.
128.[The Father] continues to attend upon his personal counselling for a period of 12 months.
129.[The Father] participates in a Men's Behavioural Change Program and the authority is given for his counsellor/facilitator to engage with [the Mother] to share her accounts of his family violence towards her if she chooses to do so.
130.[The Mother] participates in drug and alcohol assessment and counselling facilitated through ]the service] (or another equivalent service if she is no longer residing in [City C]).
131.In the event [the Mother] is permitted to relocate to Queensland with [the child], that [the child] spends time with her father for four (4) consecutive nights each month in [City C] and that provision is made for [the child] to spend additional weekend or holiday time with her father in Queensland if this is able to be accommodated.
132.In the event [the child] and [the Mother] remain living in [City C], that consideration is given to [the child] spending time with her father each alternate weekend from the conclusion of childcare Friday until the commencement of childcare Monday and in the alternate week from the conclusion of childcare Wednesday until the commencement of childcare Thursday (if this could be accommodated through her current childcare centre in 2020).
133.That where possible, all handover's occur through [the child]'s childcare or future school, or otherwise facilitated through extended family members.
134.The parents use a parenting application such as Family Wizard or another equivalent method to communicate regarding [the child]’s health and well-being.

I refer to and repeat the manner in which the Father presented to the family report writer:
[The Father] presented as a calm and engaging man who spoke openly about the parents’ relationship and his relationship with [the child].
A CIR was undertaken on 28 April 2022 and I will address that in the context of the proceedings and events surrounding it when I deal with significant events.
Ms B as a witness
The Mother also relied upon the report of Ms B. Ms B holds a Bachelor of Social Work and a Bachelor of Arts with Honours and has a Master of Social Work and is an accredited mental health social worker. Ms B prepared a report on 8 December 2021. Ms B opined that the Mother had commenced seeing her on 10 September 2021 and at that time had attended five sessions. Ms B opined that her testing meant that the Mother had a diagnosis of post-traumatic stress disorder.
Ms B’s testing as part of her treatment or therapy showed “scores” from testing that demonstrated that the Mother was in the severe range for depression and stress and the extremely severe range for anxiety. She said that the Mother presents with high level of anxiety which impacts on her sleep and concentration. She said that she can experience hypervigilance which sometimes causes her words to get jumbled when speaking and regularly has nightmares connected to the violence she experienced. Ms B opined that those testing results are indicative of the family violence that the Mother has experienced over a period of five years from her previous partner. Ms B opined as follows:
It is important to note that, when pregnant, the Mother experienced a strangulation attempt by the Father. Strangulation and family violence perpetrated during pregnancy are listed as high lethality risk factors under the Victorian Government’s multi-agency risk assessment management (MARAM) family violence risk assessment tools. There is now an intervention order in place, but the Mother continues to be triggered and experiences panic attacks as a result.
Ms B concluded that the Mother’s prognosis was good.
I accept Ms B’s evidence. However, it is significant to me that there is no mention whatsoever in Ms B’s report of the Mother having ever had any issue with alcohol and this is more so significant given the recommendation at paragraph 130 of the Family Report as cited above.
A chronology of significant events
Usually events prior to final orders are not explored in detail. Where the parties have made consent orders usually there is a ‘line in the sand’ because both parties are consenting to orders that are in the child’s best interests. Hence the events that have occurred after those orders are usually the most relevant. Here, the evidence indicates the following significant events.
It is clear that the Father had threatened to kill Mother before the 2020 Final Orders and those events are relevant to this current dispute. I refer to and repeat the emphasised parts of paragraph 106 of the 2019 Family Report recited above.
On 2 November 2009 the Father was convicted at a Magistrates’ Court and fined $750 for the offence of contravening a family violence intervention order. The Father asserted in cross-examination, and I accept, that the victim of that offence was a previous partner of his who is also the mother of his older son. This court event occurred the year prior to these parents commencing cohabitation but whilst they were in a relationship.
In 2010 the Mother was convicted of a drink driving charge that involved high-range BAC. The Mother told me, and I accept, that she has three relevant driving offences. On 22 October 2010 she was found driving with a BAC reading, to her recollection, of 0.173.
On 11 July 2013 the Mother was convicted of a driving offence and she told me, and I accept, that this was the offence of driving whilst disqualified and, I infer, of driving whilst disqualified from the 2010 high-range drink driving offence.
In or about October 2015 the parties separated or at least ceased to live together regularly. The Mother alleges that the Father continually abused her in vile terms.
Sometime after 2015 a minor dispute escalated to obscene, graphic, demeaning abuse by beyond vulgar text messages, with descriptions of sexual intercourse by the Father to the Mother that continued despite requests “can you stop speaking to me like that” and “I’m sick of it stop or I won’t respond” and ‘”I’ve asked you to stop with those kind of msgs so respect that and move on.”
It must be noted in this chronology that the child was born in 2017. The Mother describes, and I accept, an incident of abuse said to have occurred in about 2016 and, I infer, at a time she is pregnant with the subject child. The message at -01 to the Mother’s trial affidavit (page 19 of 41) commences with the Mother answering what I understand to be an inquiry from the Father as to where she was. Her text message said “driving back from Melbourne”. The Father responds in not only very vulgar terms, but explicit sexual terms that are demeaning. Reading those messages some seven years later, the powerfully abusive and demeaning nature of them leaps off the page. The evidence also includes another barrage of abuse shortly prior to and the day before the child is born. A short time before the child’s birth the Father again texts the Mother and that includes;
I am going to see if I can pay the doctors to kill you.
and;
You will never hear from me ever again. We are done. Drop dead.
and also;
Make sure you do not put me on the birth certificate until DNA test is done.
At page 23 of 41 is a further thread of text messages, but I am not satisfied they continue on from the day before the child’s birth. However, it was not disputed that they were reasonably proximate to the child’s birth. At that time they included the Father’s statements by text message as follows;
If I ever see you again bad things will happen.
and;
I will do 20 years jail.
and;
You’re dead c[---]. I will kill you.
It is also significant that it is, on the evidence I have been provided, three days before the child’s birth that the Mother is dealt with in court for another driving under the influence high-range charge. The Mother told me, and I accept, that her recollection of the BAC range or reading was again in the region of 0.173.
The Father accepted in cross-examination that the record showing that he was dealt with at the [City C] Magistrates’ Court on 7 August 2017 for the offence of contravening a family violence final intervention order related to the Mother. On this occasion, the Father was fined $1,500 without conviction.
It is also significant that between 2018 and 2019 the Mother has attempted to start her motor car with BAC readings on the interlock device as described in the earlier recited paragraph 70 of the 2019 Family Report.
It is apparent that by the middle of 2019, although not cohabiting, the parents maintained a relationship of some sort. For whatever reason, the Mother was at the Father’s home with the child on the night of 27 July 2019. It is common ground that the Father had been in another city and was seriously affected by alcohol when he got home early in the morning. It was not disputed that the text messages tendered in Exhibit F4 passed between the Mother and the Father on that night. At 11:57pm on 26 July 2019 the Father had sent the Mother two text messages, the first, “massive punch on”, and the second, “I won”. At 3:15am on 27 July 2019 the Mother text the Father, “WTF where are you??” and then again in another text message soon after, “Come home, please”.
At some point between 3:15am and 4:49am it is clear enough that the Father arrived back at his home and that there was sexual interaction between the parents. It is in this interaction at this time that the Mother alleges she was raped and the Father alleges consensual sexual activity occurred. However, the messages, four of them, at about 4.49am conclude with the Father alleging sexual activity between the Mother and his friend who had also come to his home that night, and describing her in a sexually demeaning and derogatory manner. The Mother’s response the following morning was “You are very, very, very unwell”. The Mother texted the Father, accusing that he had threatened to kill her and that he had ”basically” raped her and questioned what was wrong with him and asserted that he was insane and needed help before he ended up in jail. The multiple text messages exchanged that day include the Father insulting the Mother in demeaning terms.
The Mother had already arranged to travel to Queensland for a holiday. Once there she decided to stay. As recited earlier, although at the commencement of the case the issue of whether the Mother had been raped or not was a live issue, in final address it was conceded that the evidence was such that I would not be able to make a finding on the appropriate balance of probabilities. Nonetheless, it is clear from that point on the allegations the Mother made against the Father included an allegation of rape.
On 6 September 2019 the Father issued proceedings in this Court, as it then was, and sought that the Mother return the child to Victoria.
On 9 September 2019 the Father was again dealt with at the Magistrates Court for contravening a family violence final intervention order against the Mother. On this occasion, without conviction, he was fined an aggregate of $2,000. A substantial fine.
On 17 September 2019, whilst still in Queensland, the Mother obtained a domestic violence order from the Court nearby where she was in Queensland. That order appears to have been made a final order on 30 September 2019 and continued in place until 29 September 2021.
On 10 October 2019 the Mother was ordered to return the child’s residence to Victoria to facilitate the child spending time with the Father. It was only a fortnight later that the family was interviewed for the Family Report. The efficiency of the solicitors involved to enable the family to have that level of resources in the time available can only be admired.
I refer to and repeat the Father’s presentation to the report writer on 4 November 2019:
[The Father] presented as a calm and engaging man who spoke openly about the parents’ relationship and his relationship with (the child).
On 17 July 2020 the Father is alleged to have commenced sending messages to the Mother that contravened the domestic violence order (see Exhibit F2).
On 24 August 2020 Final Orders were made in this Court as it then was. Those orders provided that the child’s time with the Father be built up quickly from alternate weekends to a five/nine arrangement where the Father spent time with the child from Friday evening to Monday morning in one week and then from Wednesday evening until Friday morning in the other week. That is, a three plus two nights each fortnight arrangement, as well as a build up to half of all school holidays. Other orders made at that time that are of significance include the following:
2. The parents have equal shared parental responsibility for the child …
…
6.Changeover that does not coincide with the conclusion or commencement of day care, kindergarten or school shall take place at the … Police Station … unless otherwise expressly agreed between the parties in writing.
7.For the purposes of these Orders while [the child] is attending day care and / or kindergarten:
7.1the Mother or her agent must deliver [the child] to day care by 10.00am each Wednesday and collect [the child] from day care after 2:00pm each Friday; and
7.2the Father or his agent must collect [the child] from day care after 10:00am each Wednesday and deliver [the child] to day care by 2:00pm each Friday.
8.The parents communicate about the care, welfare and development of [the child] as follows provided always that all communications are at all times polite, courteous and respectful:
8.1About all non-urgent matters pertaining to [the child] through the application “MyMob” or other agreed parenting app which the parents shall, within 7 days of the date of these Orders, download and maintain at their sole expense; and
8.2 About all urgent matters only pertaining to [the child] by telephone.
9.The parents do all such acts and things and sing all documents as may be required to enrol [the child] in four year old kindergarten at [the kindergarten].
On 28 March 2021 tragedy struck again. The Father’s sister, and it appears the sibling or half-sibling that he had some relationship with, attempted to end her life. The Father was notified and he viewed at least part of this tragic event. The Father’s sister did not die but was unconscious and was thereafter placed on life support. It is understandable that the Father would be distressed and angry about this tragedy and how he learned of it. The events of that time and the couple of months afterwards figure significantly in the Father’s feelings that, to him, justifies or explains the wave of abuse to the Mother that followed. The Mother deposes:
13.In relation to the allegations in paragraphs 18 to 20 which concern parenting arrangements around the time of the Father’s sisters death I say as follows:
(a)… attempted suicide on or around 2021. The Father rang me on a Friday as I was driving to work and informed me of what had happened. He informed me that she was on life support at a hospital in Melbourne and asked if I could take [the child] for him so he could go visit her in hospital the following day. I said that I was about to walk into work and that I would ask if I could get the following night off as I was rostered to work. I also said if I couldn’t get the night off that I would ask [the Mother’s stepfather] if he could take her. I informed the Father that I wouldn’t finish work that night until around 1.30am and that in the morning I would let him know who was going to take [the child]. The Father was displeased that I wasn’t able to give him a clear answer right away and began abusing me via text. He sent around 50 messages throughout the night calling me names and telling me to "die" or "drop dead". For the most part I ignored his abuse and messaged him the next morning and said [the Mother’s stepfather] would care for [the child].
(b)The Father dropped [the child] off to [the Mother’s stepfather], however he did not go to see his sister in hospital. Instead, he went out drinking at local pubs in … On a further 3 occasions during March and May the Father asked me to care for [the child] during his time and asked me to do so, so that he could see his sister in hospital. I took [the child] on all of these occasions however he did not go to see his sister. He was in fact out drinking each time, on one occasion he was drinking at my workplace, the [Employer].
(c)[The Father’s sister] died when her life support was turned off at … [in] 2021. The Father told me her funeral was held at [the] Funeral Chapel [in] … at …. The Father told he wanted to attend her funeral and the funeral was on a day on which [the child] would be at day-care. The Father asked me to have her for the whole weekend. I explained that I would take her on Friday but questioned why I would need to take her for the whole weekend when the funeral only went on for a couple of hours. He explained that it was because he wanted to drink all weekend. My job at required me to work all weekends and at the time I was only employed on a casual basis. This meant that if I were to cancel all my shifts I wouldn’t be paid. In the 5 to 6 weeks from when [the Fathers sister] tried to take her life, being on life support and her funeral I had [the child] on 3 occasions for [the Father], all weekends where I was rostered to work. I cancelled my shifts to care for [the child] during these times and wasn’t paid. I wasn’t receiving any financial assistance from the Father and I needed to work to be able to provide for [the child]. I never withdrew my offer to watch [the child]. Instead, the Father told me that he no longer wanted me to take [the child] and then abused me saying things like “I cant go to the funeral because of you" however I was happy and willing to take [the child]. I told the Father in text message: "I said i will work out the funeral" and "i never said I couldnt work out something for her funeral"[.]
In the days that followed it is clear that the Father regarded the Mother as responsible for the emotional predicament that he was in. The text messages in the thread -03 of the Mother’s trial affidavit show that the Mother responded in courteous but not particularly sympathetic messages. It must be recalled that by this point in time the Mother had received over a long period of time many, many demeaning and insulting messages and threats to be killed. Hence it is impossible to be critical of the Mother’s failing to communicate in the most empathetic or sympathetic terms, as it is clear the Father expected.
The Father’s responses included, in five separate text messages, the following:
you f[------] dog
…
You will pay for this, you f[------] maggot
…
You need to come get [the child] now
…
Before I blow my lid
…
f[------] right now
Over the coming days as the Father dealt with the horror and grief of his sister’s circumstances and his witnessing of it, he repeatedly texted the Mother in coarse, obscene, demeaning and insulting terms, including;
Don’t make me come over there
…
I’ll sort you out right f[------] now
…
Come here now
and in a separate message;
I hope you get in a car accident on the way to work and die
and in another message;
You have no idea what you have unleashed here today
The Father insisted that the Mother cease work and be available to care for the child, and the Mother had told him that she would be at work but that her step-father would be available to look after the child and that the Father was welcome to use that facility. The Father’s response in five different text messages was:
There’s no point
…
The only reason I would drop [the child] off now is cause I’m raging angry
…
I can’t go to the hospital anyway
…
But you will pay for this
…
For the rest of your life
After more demeaning and insulting messages, the Mother attempted to respond and defend herself and stated:
No it took for me on short notice to be able to find a solution which I have
The Father responded in a message that communicated that he would not drop the child at the Mother’s stepfather’s home as invited as follows:
And she is in the room crying
…
And a chic is coming to take her so I can calm down
…
At that period of time the text messages included the following messages from the Father where the Father continued to abuse the Mother:
Now do not contact me
…
This bird iv been seeing is coming to get [the child] for abit
…
She will be fine
…
Now she’s f[------] crying
…
See what you do
The Mother responded:
Drop her off to me
The Father responded “No” and also stated:
And do not ever contact me again
…
Like everything I do in my life I’ll do it on my own
…
But you remember this you maggot
He then abused the Mother as he characterised these tragic events as the Mother determining that her shift at work was more important than his sister dying.
I have no doubt that the Father genuinely felt at the time and continues to feel that his characterisation of events was an accurate one. However, I have carefully looked at the thread of the messages and the undisputed evidence of what the Mother had done, and I am satisfied that the Father’s understanding and characterisation is wrong and unreasonable and driven by rage.
At about this time the Father’s unhappiness with the Mother resulted in him deciding to sabotage the child care arrangements. The child care arrangements had been laid out in the 2020 Final Orders.
By text message the Mother responded in courteous terms that she would have the child care centre contact the Father’s solicitor to substantiate her understanding that it was the Father who should pay for the day care fees. The Father’s response was:
I’d like you to leave me alone before I cut your head off
…
Do not contact me

The Mother responded by requesting the Father contact the day care centre and let them know that he would be paying or otherwise she would not be able to attend on the Friday or the Monday and this was “up to you”. The Father’s responses were:
F[------] die
…
Do not contact me you mutt
…
Never contact me again
…
Ever
…
Or you will die
The Mother, no doubt anxious but needing to address childcare, responded:
No it needs to be resolved I have them calling me so sorry but it needs to be sorted. Sort it out or I’ll drop her to you at 10am Friday they are you[r] options
The Father responded with dozens of emojis and then:
I’ll f[------] sort you
…
Out maggot
When the Mother sought to negotiate in temperate terms about the fact that the child care issue had to be dealt with and could not be ignored the Father responded in vile, demeaning and sexualised terms.
The terms of the abuse demonstrate a preoccupation with sexual activity and sexual activity by the Mother and on the face of it describes sexual activity as if that was itself vile or demeaning behaviour. I will not repeat the actual terms of the Father’s abuse, but the terms of it are beyond what the terms vile and demeaning would ordinarily bring to mind.
On or about 2021 the life support system supporting the Father’s sister in hospital was turned off. Thereafter, over several days in 2021 a barrage of abuse was sent by text message to the Mother as described above. I do take account of the fact that the funeral for the Father’s sister was at this time (in 2021), however, the dispute over the payment of day care had not been resolved.
On 7 May 2021 the following text message exchange occurred. The Father sent the following messages:
I’m pulling her out of day care totally
…
I will not be paying for it
The Mother responded:
Why is [the child] going to suffer when you have the money to pay for it? Why do you not want to pay for your child. It’s about being a parent
The Father responded:
Hahahaha
And the Mother responded with a question mark. The Father’s response was:
Cause I hate your guts
The Mother responded:
Um I don’t go there,.. [the child] does. Your daughter so?
And the Father’s response was,
I don’t care it will make things more difficult for you
An issue in the case is whether such events and statements by the Father are merely a vulgar and unpleasant expression of outrage and irritation, or whether they are actually intended to, and calculated to, make things more difficult for the Mother. At this time the Mother was a single parent and working shift work, including late hours in hospitality, and enduring barrage after barrage of demeaning and abusive messages from the Father. Things were already difficult for the Mother. Having carefully considered the issue of whether such statements were merely an expression, however misguided, of outrage and irritation, or whether they were, as well as that, intended to make things more difficult, I sadly conclude that at times the Father has said and done things with the intention to simply make life, and the parenting of the child by the Mother, more difficult for her.
The Father places some weight upon the Mother’s reply to a text message in the middle of this barrage that occurred on 5 May 2021 and is annexure -2 to the Father’s affidavit. The exchange is as follows from the Mother:
You either do what was agreed for [the child] which means pay the daycare like you’ve said in writing you would OR there’s no reason for me not to have you charged if you aren’t doing what you’re supposed to for [the child] I will the only reason why I haven’t before is because you were doing what you’re supposed to do but if you stop doing that then I will so up to you
the Father responded with several laughing emojis and;
You do you boo now f[---] off
the Mother’s response was;
No free passes if your going to be a deadbeat.
and the Father responded;
Leave me alone you f[---] head
but the following day, 6 May 2021 at 2.48am the Father text the Mother with “I can’t sleep”.
On 28 May 2021 in a discussion about whether or not the child was ill the Mother text the Father in capitals;
ITS A REAL THING
and the Father responded;
Hahahaha
…
For a cough
…
Grow up scummy
the Mother’s response was temperate;
It’s more than a cough you can hear it I knew as soon as I heard her on the phone
…
She’s going to need to be covid tested probably too
and the Father’s response;
Omg cause your a doctor
…
Hurry up and die will ya
…
Like seriously
the Mother responded;
A doctor will prove me right you watch
the Father responded;
I cannot deal with you for the rest of my life
…
I might actually have to kill my self
On 17 June 2021 either the Father or someone who worked for him attended at a service station, put petrol in a motor car, did not pay for the petrol but left his mobile phone number with a promise to return and pay for the fuel. Ultimately the Father was convicted of an offence related to this day. Exhibit F2, being the summary of the charge, states that on 17 June 2021 the Father attended at a service station and did not pay for his fuel but left his name and phone number and promised to return. It was alleged some hours later and in the afternoon the service station attendant, who the Father described in cross-examination as “a teenager”, called the Father and asked him to return to pay for the fuel.
The police allege that the Father stated that he was too busy to return at that time. The service station attendant called back three-quarters of an hour later and at this time the Father stated:
Now that you’ve called, I’m coming after you now. I will meet you with a 12 gauge shotgun.
The Father’s account of this offence to which he pleaded guilty on 11 January 2022 was that it was an employee of his, not he, who had taken the fuel and left the Father’s mobile phone number, and that when the attendant had telephoned him, that person had failed to identify himself. The Father accepted that he pleaded guilty to that offence and in so doing had acknowledged the above account of events. In cross-examination before me the Father denied that he had said any such thing to the attendant. I do not accept that evidence. It was clear from the manner in which the Father gave his version of the event that day that he was irritated and angry about the manner in which the attendant had contacted him.
On the Father’s account of the events in cross-examination, he had failed to understand or contemplate what might have happened and been caught up in an argument with an impertinent and anonymous caller. On either account, the version pleaded guilty to or the version in cross‑examination, it was clear that the Father was angered that day by what he saw as the impertinence of the attendant in repeatedly calling him, asking for the fuel to be paid for.
It was clear to me that the Father’s anger that day was such that he did not readily grasp what would ordinarily happen when someone gets petrol and does not pay for it, and that the Father had no understanding of the impact upon the attendant of his anger. The Father demonstrated his capacity for quick conclusions and misunderstanding driven by anger.
On 22 June 2021 the Father was arrested and held overnight in custody. He was bailed on 23 June 2021. On that day the Mother attended the Magistrates Court and obtained an interim intervention order.
A few days later, on 6 July 2021 the Father provided urine for a urine screen analysis that showed at that moment the Father was clear of drugs. It was common ground that during COVID lockdown, at least, the Father had used illicit drugs, including cocaine and ketamine, which is also known to be a horse tranquiliser.
The day after the provision of the urine screen, the Husband was again before the Magistrates Court and on this occasion was fined $2,500 for refusal to comply with a COVID direction.
From the time of the intervention order obtained by the Mother on 23 June 2021 the Father’s time with the child was suspended. It is clear from the Father’s affidavit that at least by 19 August 2021 the Father had been prescribed diazepam, commonly known as Valium, and is commonly used to treat a range of symptoms, including anxiety.
By 1 September 2021 the Father had completed the ‘Speak Up’ program with the Men’s Behaviour Change group. The Father had attended counselling on 11 April 2021, 18 April 2021, 28 July 2021, 4 August 2021, 25 August 2021 and 1 September 2021. The Father had commenced the Men’s Behavioural Change program on 11 April 2021. Hence, it is clear that the barrage of abuse that the Mother suffered over May 2021 was during the process of the counselling for that program. That program described the Father as having engaged well and displayed a willingness to learn new strategies and make change.
On 16 August 2021 the Mother commenced the current proceedings. The matter was before the Court on 15 November 2021 when it is clear from the notations to the orders that the Father intended to press for summary dismissal of the Mother’s application to suspend the orders as soon as practical.
It is also clear from Ms B’s report that on 24 September 2021, that is shortly after the Father had completed his Men’s Behavioural Change Program, the Mother had her first session of counselling with Ms B to assist her with the symptoms of post-traumatic stress disorder and her depression and anxiety.
The Father saw Dr E on 14 December 2021 for the purpose of a psychological assessment to be tendered to the Magistrates Court on the sentencing of his Father in early 2022. At that time the Father faced the charges referred to above in regard to the service station attendant and another 54 charges relating to abuse and attending at the Mother’s workplace that had occurred between 17 July 2020 and 17 June 2021. With the prior convictions that the Father already had for breach of intervention orders, I infer that his legal advisors and the Father would have been anxious that he may well be sentenced to imprisonment.
The Father’s description in evidence of chief of what transpired on his sentencing is as follows:
24.The alleged breaches of IVO proceeded to the [City C] Magistrates[’] Court in 2021. In total there were 54 charges [l]aid against me, 50 of which were for each day that I attended my friend’s [business], while the Applicant was working at the premises, as I was within 100 meters of her. There were two charges relating to me carrying a device to transmit inappropriate messages. I pleaded guilty to four of the total charges but was not sentenced till January 2022.
25.In … 2022, I was sentenced in the [City C] Magistrates’ Court to 300 hours of Community Corrections Order (CCO) and issued a $3000 fine with conviction. The CCO was overturned on appeal in July 2022.
26.As a result of the sentencing in the Magistrates’ Court, the local … media published a number of sensationalized and negative articles about me. As a result, my work dried up and I was unable to secure work after this time. Prior to the January 2022 hearing, I owned my own business as a [tradesman], earning about $5 million per year. I was generously providing financial support to the Applicant and [the child]. …
27.I felt that the Applicant had betrayed me by alleging that I breached intervention orders in order to pressure me into providing her with financial assistance. In addition, I was disappointed and angry that that she failed to acknowledge that I had already provided for her and [the child] financially and that I had been able and willing to look after [the child] with no issues ever raised. It seemed that the Applicant was disingenuous in her actions against me and was using [the child] as a bargaining tool to negotiate financially with me.
Exhibit F2, being the preliminary brief and summary of police charges statement of alleged facts, and the Father’s cross-examination on that document included the following.
Between 17 July 2020 and 17 June 2021, the accused and the victim exchanged 9599 text messages. A large proportion of the messages were not relating to child care and were derogatory and abuse towards the victim. The charges also included a number of charges where the father had approached the mother at the [employer] where she worked or had attended the [employer] while the mother was working at the [workplace].
The police record of the convictions became Exhibit F3 and shows that in early 2022 the Father was convicted on two counts of use a carriage service to menace. Pursuant to the Crimes Act 1914 (Cth) he was sentenced to an aggregate of 180 days imprisonment but released upon his recognisance pursuant to the CommonwealthCrimes Act or what, in colloquial terms, could be described as a suspended sentence.
At the same time the Father was convicted of 11 charges of “persistently contravene family violence order” and was convicted and placed on a Community Corrections Order for 24 months. Further, upon enquiry from me when the Father was being cross-examined, the Father conceded that the charges with which he was dealt with were, as a result of negotiations, reduced in number but covered a broad range of activities and offences.
The presentation of the Father to Dr E on 14 December 2021 is significant. Dr E recites the tragic and appalling childhood the Father suffered as a result of ongoing family violence in his home and the circumstance that his mother was “an erratic lying junkie”. Upon psychometric testing, Dr E found the Father’s testing profile to be valid and had no significant elevations on personality pattern and clinical syndrome scales. He concluded that the Father did not present with a mental illness but presents with symptoms of trauma and that he manages those through distraction and working on goals.
The Father described his offending as “he would get angry and vent his feelings.” Dr E also opined, but incorrectly, his offending occurred in the context of his anger and not being able to have access to his child. In fact the offending for which the Father was dealt with had occurred over a period when he was, after the 2020 Final Orders, entitled to see his child on five out of 14 nights each fortnight and, save for the times when he did not attend to collect the child, had been able to see the child on each and every occasion.
During the period of the offending described in the police summary for the entire period, and including the most violent of the messaging, the Father had been having court-ordered time, alternate weekends until the 2020 Final Orders and the 5/9 arrangement thereafter. The Mother had been ordered by the court to return from Queensland on 10 October 2019. The offending period for which the Father was sentenced commenced on 17 July 2020.
Dr E opined that at the time the Father saw him that he understood the wrongfulness of his behaviour and his need to gain access through legal means. Dr E opined that the Father “does not present with an antisocial nature.” He opined that the Father was aware of the wrongfulness of his behaviour and able to access psychological support when needed. Based on psychometric testing, Dr E opined that the Father presents as “a low to moderate risk of future violent offending.”
Notwithstanding the significant error in Dr E’s observation of the context of the offending being at a time when he was not able to have access to his child, I otherwise accept as broadly correct the observations of Dr E. However, a low to moderate risk of future violent offending is not a risk that can be dismissed or regarded as minimal or non-existent when considering time with a six year old child.
It is further significant that at the time that Dr E interviewed the Father (14 December 2021) there was no mention that the Father intended to close down his business or sell off everything or of moving to Queensland and remaining there unemployed. Between 17 December 2019 and his sentencing in 2022, the Father was entitled to but did not take up time with the child over 26 and 27 December 2020, 30 December 2020 and 1 January 2021, resuming time only on 7 January 2021.
On 8 January 2022 the Father was involved in a violent altercation at a hotel and was banned from attending hotels in City C for a period of 12 months. Three days later, the Father was sentenced at the Magistrates Court. The Mother attended. From the Mother’s perception of the sentencing process, inexperienced and inexpert as it was, she perceived the Father to have narrowly avoided a sentence of actual imprisonment. Her perception was that the Father had avoided a sentence of imprisonment because it was likely that he would be needed to care for the Father’s teenage son, who had been placed in his care pursuant to a Children’s Court Order. The Father’s evidence was that prior to his teenage son being placed in his care, he had not spent time with him for about five years.
The sentencing in early 2022 was, of course, public. The local newspaper featured a story that included a photograph of the Father and referred to details of some of the offending. The Father appeared surprised that the local newspaper would report the offences or the sentence. His case is that, as a result of that reporting, his business deteriorated and, combined with what he regarded as unwarranted police attention by being repeatedly pulled over and the police visiting his house, he determined to close down the business, sell his equipment, sell his house and move to Queensland.
The Father’s account of the necessity for he and his partner to move to Queensland did not display any appreciation of the irony that he was now free to move to the very distant place from hence he had persuaded a court to order the Mother to return from some 2 ½ years earlier. The Father complained that in a short period he had been subject to 4 search warrants and 9 roadside tests, including 4 in his own street which had resulted in a charge for breaching COVID regulations. That, combined with the publicity on the Father’s criminal matters, compelled him, he said, to cease operating his long-established and successful business. This was the very same business referred to by Dr E as an indication of good prospects of rehabilitation.
The Child Impact Report (CIR)
On 10 February 2022 the matter returned to this court and a Senior Judicial Registrar ordered that the Father’s time be suspended until further order. On 29 March 2022 the Father’s solicitors filed a Notice of Ceasing to Act. On 28 April 2022 the parents and the child were observed for the purpose of the CIR which had been ordered back on 10 February 2022. At that time the family consultant observed as follows:
7.[The child] expressed affection and love for both her parents throughout the interview. It is clear that she has a loving and supportive relationship with her mother and feels safe and protected by her. It also became evident that [the child] misses her father and enjoyed spending time at his house previously. [the child]’s understanding of the current situation is that she cannot see her father anymore as he was “yelling at my mum when I was little”. She recalled a number of positive aspects of spending time with her father including playing games with him, and playing on the swing set and cubby house which he built. However, she also recalled him being angry at her one occasion when she was at his house, which lead to him slamming the door and frightening her. She also recalled him getting “mad” at her mother at times.
8.[The Mother] detailed a persistent, long term and serious pattern of alleged family violence by [the Father] towards her. She reported that [the child] has been exposed to the alleged violence throughout her life and during the pregnancy, and raised significant concern about both her and [the child]’s ongoing safety in relation to [the Father]. …
…
12.[The Father] denied any forms of physical violence towards [the Mother], and explained the context of breaching the IVO in June 2021 as being the result of an “argument after my sister [died]” and [the Mother] “didn’t get her own way”. [The Father] acknowledged that he does not always react well to [the Mother], and needs to find better strategies when responding to her but stated that “she knows how to push my buttons”. He reported that in the lead up to the beach of IVO, both he and [the Mother] were seeing and interacting with each other frequently, and he feels she only reported the breach to the Police when he refused to give her money. [The Father] was challenged about the abusive and threatening nature of the text messages sent to [the Mother] that led to the IVO being breached. He minimised the seriousness of the numerous threats to kill and harm her stating “it’s just the way the way I talk” and “I would never follow through on the threats”. He also expressed frustration that his messages were taken out of context, and that [the Mother]’s content beforehand had not been provided to the Court. [The Father] denied that this is his ongoing style of communication with [the Mother], and stated that they rarely argue in person as they have not been in a relationship for a number of years. He stated all their arguments are through text message and felt that both he and [the Mother] had been emotionally abusive and hostile to one another via text message over the years.
13.When questioned about family violence allegations made by [the Mother], [the Father] became visibly angry and called her a “fucken liar”. The writer informed [the Father] that abusive and derogatory langue would not be acceptable, and he apologised and settled in his demeanour quickly. [The Father] denied a pattern of family violence by him in previous relationships and explained his view that IVO’s are readily handed out with minimal evidence, and that his ex-partner used IVO’s to keep him away from his son, in a similar fashion he feels [the Mother] has done with [the child]. [The Father] denied having access to weapons or ever making [the Mother] and [the child] feel unsafe.
…
17.[The Mother] acknowledged to having issues with alcohol in the past, where she used it as a “bad coping mechanism” to address her emotional pain relating to her experience of the alleged family violence. She also reported that she would consume alcohol to self-medicate her chronic pain issues, related to a birth defect with her [body], which she has struggled with her whole life. [The Mother] advised that she sought help through drug and alcohol services and has not had any issue with alcohol for over two years. She reported that she now only drinks occasionally and in small amounts. [The Mother] explained that she previously took numerous pain relief medications prescribed by her specialists, to manage the chronic pain associated to her hip problems, and the surgeries she required. She stated that both surgeries have been completed, and she no longer requires or takes any pain medications.
…
25.[The Father] presented as being heightened, agitated and at times angry throughout the assessment. While it is clear he loves [the child] and wishes to have a relationship with her, his ability to understand and focus on her needs was not evident during the assessment. [The Father] was consistently focused on his ill feelings toward [the Mother] and his perception that the Court continues to favour her narrative and ignore the skewed perception towards him. At times he was unable to contain his anger about Court systems and [the Mother], and he was unable and unwilling to hear feedback presented to him, becoming angry and defensive when information was provided. [The Father] minimised the family violence, and a clear pattern of behaviour towards [the Mother] and previous partners, despite the collateral information. While he acknowledged some abusive language and an inappropriate response in his text messages towards [the Mother], he minimised the seriousness of the threats and continues to blame other parties for his reactions, without demonstrating any accountability for his own actions and behaviour. [The Father] was unable to identify or understand how his actions and involvement in the alleged family violence have been a parenting choice by him that has impacted [the child] and [the Mother] as her primary carer. [The Father] was also minimising and inconsistent with details related to his substance use, and was unable to demonstrate an understanding of how this may impact his parenting, or [the child]’s safety and wellbeing in his care. Despite wanting to spend time with [the child], [the Father]’s refusal to accommodate this in a safe manner with supervised time demonstrates his reluctance to work towards developing a safe and meaningful relationship with her.
KEY CONSIDERATIONS AND OPPORTUNITIES FOR RESOLUTION
26.Given the level of risk to [the child] has been identified during the assessment, it is not recommended that this matter proceed to a DRC pathway. In addition, [the Father] has expressed his desire to withdraw his involvement and not attend future Court hearings, and he is unwilling to have supervised spend time with [the child] or seek professional support for his issues that have been identified during the assessment.
27.Given the nature and pattern of the alleged family violence and [the child]’s age, there is increased risk and vulnerability for her. Therefore, it is recommended that consideration be given to appointing an ICL.
28.While it is important for [the child] to have a meaningful relationship with her father, it is imperative that her time spent with [the Father] is physically and emotionally safe for her. As such, the Court may wish to take a very cautious pathway with regards to [the Father]’s spend time with [the child] until he is able to seek out professional support and assessment regarding the alleged family violence, drug use and possible mental health issues. Consideration to be given to sole parental responsibility for [the Mother] and supervised spend time contingent on [the Father] undertaking the aforementioned programs.
29.Prior to the introduction of spend time, it would be beneficial for [the Father to] undergo hair follicle drug testing, and a forensic risk and psychiatric assessment around the family violence and possible mental health issues. It would be beneficial to the court if this assessment focus on how these issues for [the Father] may impact on his parenting and [the child]’s safety and wellbeing. It may be of benefit for the assessor to have a copy of this report.
30.Should the matter remain unresolved, the Court may wish to consider a Family Report. Prior to a family report taking place it would beneficial for the Court to have access to police records, psychiatric assessments, and reports from any of the professionals working with the parents.

Tragically in this case, the child loves her father and were it safe to do so would enjoy spending time with him and being parented by him. In this case, I find on the evidence, and also the lack of evidence that I have (the lack of recent psychological or psychiatric assessment including risk assessment), that the Father’s emotional and/or mental state has deteriorated significantly since November 2019 when he was assessed in the 2019 Family Report.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Credit of the parties
Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’) is a High Court case concerning the skid marks of a Kombi van on the correct side of the road. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
That is the context to that observation is that in Fox v Percy, the evidence of the rider of the horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with the horse and rider, the issue being upon which side of the road the collision happened. The High Court had to interfere with the first instance decision because by determining, by reason of the apparent reliability of the witnesses, which side of the road the collision occurred, the decision was wrong because the skid marks of the Kombi van incontrovertibly demonstrated that at all material times, the Kombi van had been on its correct side of the road.
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations. However, in this hard and tragic case, some findings are necessary and able to be made.
PARENTING
In deciding what particular parenting orders to make I regard the best interests of the children as the paramount consideration under section 60CC the Act. I must consider the matters described in the act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act including sections 60CA, 60CC and 65DAC, which read as follows:
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
…
65DACEffect of parenting order that provides for shared parental responsibility
(1)       This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The issues in dispute
The substantial issues in dispute are:
·Whether the Mother is granted sole parental responsibility on the Mother’s case, or whether I order that the parties have equal shared parental responsibility as the Father seeks; and
·What time, if any, the child spends with the Father, which in part turns on whether any time would be safe for the children and the Mother.
Section 60CC factors
I turn now to the application of the law to those facts recited earlier. I must determine what orders to make in this matter on the basis that the best interests of the child are the paramount consideration. I must take into account the primary and additional considerations set out in section 60CC.
In this case, the conflict between the two primary considerations is laid bare. Were the Father in control of his anger and emotionally and psychologically well, there may be a real benefit to the child having a meaningful relationship with him as well as with her mother. I must also consider the need to protect the child from physical or psychological harm or being exposed to or subjected to abuse, neglect or family violence. Section 60CC(2A) provides that in applying those two primary considerations, I must give greater weight to the need to protect the child, the consideration of section 60CC(2)(b).
The need to protect children from physical or psychological harm
There is a real and substantial risk in this case in ways that cannot be foreseen that if the child is in the care of the Father, the child will be exposed to the Father’s anger and frustration, although that anger and frustration would not be directed at the child, but rather directed at the Mother and/or the world around the Father. The child being subjected to or exposed to or observing that extreme anger and frustration of the Father as he fails to cope with the way the world is for him is likely to be harmful and damaging and cause psychological harm to the child.
Any views expressed by the child
The child has expressed views that she would like to, and wished to, spend time with her father and has missed time with him. The child’s presentation to the family report writer in 2019 and her close and affectionate relationship with him at that time weighs heavily on me.
Nature of relationship with each of the child’s parents and other persons
The child has a close and appropriate relationship with the Mother and I accept the Mother’s evidence and opinion that she is the core of the child’s security and wellbeing. The child has had a close relationship with the Father, and again the observations of the nature of the child’s interaction with the Father observed in the November 2019 family report weigh heavily on me.
Extent to which the child’s parents have taken or failed to take opportunities
I must take into account the extent to which the parents have taken, or failed to take, the opportunity to participate in decisions about the child and to spend time and communicate with the child. At times, and in particular in 2021 and early 2022, the Father did not take the opportunity to spend time with the child as was provided in the 2020 Final Orders. This was not because he did not care for the child. This was because the state of his emotions, and possibly his mental health, meant that he was simply not able to balance all the competing demands in his life at that time and look after the child.
Extent to which each parent has fulfilled or failed to fulfil obligations to maintain the child
I must take into account the extent to which each of the child’s parents has fulfilled, or failed to fulfil, their obligation to maintain the child. The Father has had throughout the child’s life the financial ability to contribute to the child’s day-to-day expenses. Save for being prepared to contribute to child care expenses at a time when it was necessary for him to have the child in child care, the Father has not made any meaningful contribution to the day-to-day expenses of the child.
The Mother has, in the difficult circumstances of being a single parent with a young child, worked hard in shift work, including late night work in the hospitality industry, to earn an income to support herself and the child. She has done that in the face of the very significant emotional and psychological impact on her of the Father’s abuse and the difficulty in communicating with him about the child.
Practical difficulty and expense
I must take into account the practical difficulty and expense of a child spending time with and communicating with the Father. The Father’s position of refusing to set foot in Victoria unless he has a guaranteed path to the 2020 Final Orders mean that there is enormous practical difficulty in working out how the Father’s time with the child could be recommenced were it in the child’s best interests that it occur.
The Father’s evidence as to the extent of cooperating with a time spend regime included the following:
MR ALLEN:If the court was to order – if the court and the court may not do this – if the court was to order that your time with [the child]be supervised, first of all, would you attend for such supervised time with [the child]?
THE FATHER: No. I would not and I have my reasons for that.
MR ALLEN:No. I’m just asking. And of course, that means that you would remain – if a supervision order was made, that means you would remain in Queensland?
THE FATHER: Yes.
MR ALLEN:Yes. Because I think your evidence is that you would only return to Victoria if it was to spend time with [the child] and that’s – I assume, is that spend time only if it’s on a 5/9 regime in terms of the old orders?
THE FATHER: No. It was significant time.
MR ALLEN:Okay?
THE FATHER: I’m not coming down there for a telephone call and one supervised visit.
MR ALLEN:What do you describe as significant time?
THE FATHER: I would like to see significant time go from, say, one to two FaceTime’s in an off week, to every second weekend with a progression to where the 2020 orders were prior to these proceedings.
MR ALLEN:Yes. And in fairness, that’s what was – your counsel and in one of your documents, you acknowledge there needs to be a re-introduction of time but you do want to get to the 5/9. In what kind of timeframe are you looking about?
THE FATHER: Well, based on with – now, this is a totally different – based on with my son, when I hadn’t had anything – like, I didn’t even know he existed until he was four. That was, say, over a six month process.
MR ALLEN:Okay. All right?
THE FATHER: And that did not involve supervised time. That was just a couple of hours on a Sunday, at [Location H], for a month or so and then it progressed to – so it progressed from there, but it was a quite quick progression to every second weekend, yes.
I accept that the Father means what he says. The Father presents the Court and the Mother with a conundrum. He says effectively, “You know the child loves me, but I will not cooperate or participate in a scheme of the child spending time with me except to quickly get to what I had.” Tragically, this rules out a consideration of supervised time to ensure safety for the child and for the Court and the Mother to get a sense of how the Father’s emotional circumstances would, or would not, impact upon his time with the child. I take into account that many people, including the Father, find the imposition of supervision on their time with their child or children as humiliating, and clearly the Father does as well. Nonetheless many parents, notwithstanding what they regard as unfairness and humiliation, for the sake of pursuing and maintaining a relationship with their child, participate in a formal supervised setting. They do this not because they think it is the best or a good outcome, but because it is a necessary step in all the circumstances to maintaining a relationship with his or her child.
I am concerned that the Father’s emotional instability, and possibly his mental health, means that he simply cannot contemplate such a course of action. I am concerned that the Father’s ‘take it or leave it’, ‘my way or no way’ approach, and genuinely angry and frustrated demeanour is indicative of a serious deterioration in his emotional stability and possibly his mental health.
I take into account that perceiving the other parent to be preventing his or her relationship with his or her child would likely make the most balanced parent angry. However, the Father’s expression of anger appears to be out of control at times.
Capacity to provide for the child’s emotional and intellectual needs
I must take into account the capacity of each of the parents to provide for the child’s emotional and intellectual needs. The Father has raised the Mother’s alcohol consumption as some sort of an equivalence or levelling out process that somehow sets off or balances out his anger and abuse of her. It does not. There is no evidence before me at this time that the Mother is not able to manage satisfactorily her care of the child, work, therapy for her post-traumatic stress and alcohol consumption in a way that is inconsistent with her care of the child.
The Father had consented to orders on 24 August 2020, the 2020 Final Orders, that provided that the Mother would care for the child nine nights out of every 14 as well as half of school holidays. Implicit in that, notwithstanding his concern about alcohol consumption, was a recognition that the Mother was in fact an appropriate and capable parent. I accept that there is substance in the Mother’s statements to the CIR family consultant that her previous abuse of alcohol was related to her attempts to cope with the destructive relationship with the Father and the continuation of the abuse and denigration that she was subjected to. It is unnecessary that I find that that is the entire answer or analysis of the Mother’s prior alcohol problem but I am satisfied that was a contributing factor. It is simply not acceptable, or in the child’s best interests, that the Mother is subjected to denigration, abuse, a lack of respect, intimidation and fear by the Father because he holds the belief that the Mother previously had, and continues to have, a problem with alcohol.

I am not satisfied that at this time the Father does have the capacity to provide for the emotional and intellectual needs of the child. That is because of the Father’s emotional state, and deteriorating emotional state.
Section 60CC(3)(g) and (h)
Sections 60CC(3)(g) and (h) are not relevant in this case.
Attitude to the child and to the responsibilities of parenthood
I must take into account the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. The Mother has demonstrated an appropriate attitude to the responsibilities of parenthood, at least over the last few years. The Mother has removed herself and the child from the environment of violence and abuse, as best she can, and there is no evidence that her current alcohol use is inconsistent with her care of the child.
The Father’s emotional state and perhaps his mental health at this time, although I cannot make a finding about that on the evidence I have, impact very significantly on his attitude to the responsibilities of parenthood. The Father demonstrates an attitude of love and devotion to the child. The tragedy of this case is that, notwithstanding that love and devotion, the Father’s emotional and possibly mental health circumstances meant that he is unable to demonstrate a safe and appropriate responsibility, and a safe and appropriate attitude to the responsibilities of parenthood.
Family violence
I must take into account family violence and any family violence order. In this case, the evidence is overwhelming that the Mother has, over many years, been subjected to family violence by abuse, intimidation and threats, including threats to kill, by the Father. There is a family violence order in place for very good reason. The continued and relentless abuse and attempts to humiliate the Mother, by the Father, had a significant effect upon her wellbeing and, I find, on her parenting. There is a significant risk that, were any attempt at time to be arranged, the Mother may be abused or intimidated again notwithstanding the intervention order that is in place.
The Father has demonstrated that he can, and will, breach a family violence order when his anger is out of control. I take into account that the Father is now subject to the sentence of 180 days imprisonment in regard to the past breaches, where he was dealt with on 11 January 2022. It is likely that Democlesian sentence hanging over the Father has an impact on his behaviour. Nonetheless, there is a real and substantial risk in this case of the Mother being exposed to further abuse, and intimidation and threats. I accept that, were that to occur, this will impact upon the Mother’s psychological welfare and parenting of the child.
I take into account the events described in the preliminary brief summary in Exhibit F2 (the police brief for the 2022 charges). Initially, the events that document was accepted into evidence about were what is described as “Victim 2”, the service station attendant. Initially I did not accept that the broad and general description of the events concerning the Mother was appropriate to be placed into evidence. However, those events and the description of events was then extensively cross-examined upon. The combination of the Mother’s evidence and the evidence of that cross-examination causes me to accept, on the balance of probabilities, that the behaviour described from 17 July 2020 to 17 June 2021 in the preliminary brief summary has occurred.
I am not prepared to get involved in an attempt to find exactly which charges and the basis of the charges the Father was sentenced on, and particularly so in the circumstances where it is conceded that the charges pleaded guilty to were “broad” charges. But I am satisfied on the balance of probabilities that the Mother was subjected to the behaviour described in the preliminary brief. It may well be that it was conceded by the prosecution that some of those events could not be proven beyond reasonable doubt, but that is not clear on the evidence.
I do not have the information of the precise basis of the Father’s plea of guilty. I do not have any report from the Office of Corrections as to the Father’s cooperation and demeanour during the brief period of the Community Corrections Order. I must make do with the information that I have. I am satisfied that the broad pattern of behaviour described in that preliminary brief occurred. I am satisfied on the balance of probabilities after taking into account how serious those allegations are in accordance with section 140 of the Evidence Act. I do so after taking into account the apparent logic of events on the evidence that I have.
Section 60CG
I also take into account section 60CG, which is as follows:
Section 60CG Court to consider risk of family violence
1.In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
2.For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Because of the Father’s emotional instability I am not satisfied that it would be safe for the child to spend time with the Father.
Because of the risks of emotional and psychological harm to the Mother and to the child that the time the Father seeks, or any other time, would involve, and because of the findings recorded above, the benefit to the child of a relationship with her Father is overwhelmed, at this time, by those risks.
Were I to make the orders sought by the Father I am satisfied, sadly, that those orders would, indirectly, expose the Mother to an unacceptable risk of family violence. Were I to make the orders sought by the Father, I am satisfied that it would be emotionally and psychologically harmful to the Mother and that would impact on her parenting of the child. The presumption of section 65DAA of the Act is rebutted in the circumstances.
Because of the findings referred to I am satisfied that an order for shared parental responsibility is not in the child’s best interests. I am satisfied in all the circumstances that it is impossible for section 65DAC of the Act to be applied without exposing the Mother to family violence. I am satisfied the Mother would appropriately exercise sole parental responsibility including use of a passport for the child.
CONCLUSION
In conclusion, because of the weight of the evidence, the Father’s demeanour as a witness and the findings made herein, I am not satisfied that it is either safe or in the child’s best interests to make the orders that the Father seeks. I am satisfied that it is safe for the child, and in the child’s best interests, to make the orders the Mother seeks. I make those orders knowing that in reality, at this time, the effect is that the child will not see her Father who she loves or would love if she could safely spend time with him. Tragically, in this case, I cannot find that it is safe for the child, psychologically and emotionally, for time with her father and joint parental decision making to occur.
For those reasons I make the orders largely as sought by the Mother and the ICL. The Father’s application for a resumption of the 2020 Final Orders is dismissed.

I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 3 March 2023

File number(s):	MLC 10140 of 2019
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	3 March 2023
Catchwords:	FAMILY LAW – final parenting orders – father seeks resumption of previous final orders – risk of family violence – where child impact report family consultant cross-examined – problems where child impact report not released to a litigant in person – where section 65DAA presumption rebutted – orders for only time as agreed in writing – orders for sole parental responsibility.
Legislation:	Crimes Act 1914 (Cth) Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), s 60CA, 60CC, 60CG, 65DAA, 65DAC
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Boyd & Sage [2020] FamCA 482 Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336. Fox v Percy (2003) 214 CLR 118.
Division:	Division 2 Family Law
Number of paragraphs:	188
Date of hearing:	9 & 10 February 2023
Place:	Melbourne
Counsel for the Applicant:	Ms A. Agresta
Solicitor for the Applicant:	Fair Family Law
Counsel for the Respondent:	Mr T. Byrne
Solicitor for the Respondent:	RRR Lawyers
Counsel for the Independent Children's Lawyer:	Mr R. Allen
Solicitor for the Independent Children's Lawyer:	Schetzer Papaleo Family Lawyers

MLC 10140 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MOTT Applicant
AND:	MR CONAN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	3 MARCH 2023