Coulson & Wayfield
[2024] FedCFamC2F 979
•26 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Coulson & Wayfield [2024] FedCFamC2F 979
File number(s): HBC 555 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 26 July 2024 Catchwords: FAMILY LAW – parenting – allegations that father poses unacceptable risk – allegations involving family violence, mental health and alcohol and substance abuse – dispute about whether there should be joint or sole decision making about major or long-term issues – whether there should be an order that the father not spend time with the children – mother withholding children who wish to spend time with father – allegations not all established – no contest that children should primarily live with the mother – interim orders for children to spend time with the father Legislation: Family Law Act 1975 (Cth) ss 4AB, 60, 60CA, 60CC & 60CG
Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 & Part 2
Cases cited: Carter & Wilson [2023] FedCFamC1A 9
Fitzpatrick & Fitzpatrick [2005] FamCA 394
Garrido & Garrido [2024] FedCFamC2F 634
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Jones v Dunkel [1959] HCA 8
Moose & Moose [2008] FamCAFC 108
MRR & GR [2010] HCA 4
Division: Division 2 Family Law Number of paragraphs: 75 Date of hearing: 9-10 May 2024 & 3 June 2024 Place: Hobart Counsel for the Applicant: Mr Trezise Solicitors for the Applicant: Mead Family Law Solicitor for the Respondent: Mr Saric, Jim Saric Law Counsel for the Independent Children's Lawyer: Mr McKenna The Independent Children's Lawyer: Ms Pagett, Pagett & Associates ORDERS
HBC 555 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COULSON
Applicant
AND: MR WAYFIELD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
31 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders concerning X, born in 2013, and Y, born in 2014, (collectively "the children") are discharged.
2.Subject to funding from Tasmania Legal Aid, the Independent Children's Lawyer's appointment is extended for at least a period of six months.
3.The proceedings are adjourned and listed for case management and possible further Interim Hearing on 14 November 2024 at 9:30AM, in person.
4.The Independent Children's Lawyer has liberty to apply to bring the proceedings back before the Court in respect of any issues regarding difficulty or compliance with these Orders.
UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
Parental responsibility
5.The children live with Ms Coulson ("the Mother").
6.The Mother shall have parental responsibility for the children and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children subject to the terms of Order 7 of these Orders.
7.For the purposes of Order 6 of these Orders and exercising sole parental responsibility:
(a)The Mother must message Mr Wayfield ("the Father") by the Our Family Wizard app of any decisions that she intends to make that concern "major or long-term issues" for the children at least 28 days prior to those decisions being made;
(b)Within 14 days of the date of any message sent by the Mother by the Our Family Wizard app to the Father pursuant to Order 7(a) of these Orders, the Father may respond in no more than two Our Family Wizard messages, setting out his feedback in a polite and business-like manner, in respect of the notified major or long-term issue which has arisen; and
(c)The Mother upon receiving the Father's communication pursuant to Order 7(b) of these Orders, must acknowledge receipt and give genuine consideration to the Father's feedback but is not bound by it.
Responsibilities
8.The Father must:
(a)Within 14 days of the date of these Orders, obtain from his general practitioner ("GP") a referral to a psychiatrist to assess the Father and diagnose whether he has a psychiatric/psychological disorder or condition;
(b)Ensure that his GP provides the results of the assessment referred to in Order 8(a) to the Independent Children's Lawyer within 7 days of the GP receiving them; and
(c)Within 14 days of the date of these Orders, obtain a mental healthcare plan from his GP and undergo psychological treatment as soon as practicable and thereafter follow the reasonable direction and recommendations of the psychologist.
9.If the Father is diagnosed with a psychological or psychiatric disorder or condition, he must engage with and undertake treatment and management as recommended by the psychiatrist who diagnosed the disorder or condition.
10.If the Mother has not already completed the "Parenting Separately" program at H Centre, she must enrol in the next available course and within 7 days provide written confirmation of enrolment in the course to the Independent Children's Lawyer, complete the course and upon 7 days of the date of completion, provide written evidence of the same to the Independent Children's Lawyer.
11.The Father must enrol in the next available "Circle of Security" course and provide confirmation of his completion of that course to the Independent Children's Lawyer within 14 days of course completion.
12.Subject to eligibility, the Father enrol in the next available L Program conducted by H Centre and provide confirmation of his completion of that course to the Independent Children's Lawyer within 14 days of course completion.
13.Within 21 days of the date of these Orders, the Mother must ensure the children enrol and then attend counselling and supports as follows:
(a)X's attendance at D Organisation on such dates and at such times as provided by D Organisation; and
(b)Y's attendance at the Children and Young Persons Program ("CHYPP") on such dates and at such times as provided by CHYPP.
Spend time arrangements
14.Within 7 days of the date of these Orders, the parents do all acts and things and sign all documents necessary to complete enrolment at J Contact Service for supervised time between the children and the Father.
15.The Father will spend supervised time with the children at his expense, on such days and times and at such frequency as can be offered by J Contact Service, commencing at the earliest available date offered by J Contact Service and subject to availability, attend for at least 2 hours weekly for a period of 6 weeks.
16.After 6 weeks of the children spending time with the Father at J Contact Service, the children spend time with the Father on a two-week basis as follows:
(a)In Week One, on Sundays from 10:00am to 3:00pm; and
(b)In Week Two, on Wednesdays from after school, or 3:00pm on a non-school day, until 7:00pm.
AND THE COURT NOTES:
A.At the listing on 14 November 2024, conditional upon the Father complying with the requirements in Orders 8, 9, 11 & 12 of these Orders, the Court will entertain making further Interim spend time with Orders.
Changeover
17.For the purposes of the Father spending time with the children pursuant to Order 16 of these Orders, the changeover arrangements will be as follows:
(a)On school days or during usual school hours, at the children's school NOTING they currently attend M School;
(b)On non-school days or outside of usual school hours, outside the Suburb N Library in the proximity of the CCTV camera;
(c)The Father will collect the children at the commencement of time and return them at the end of time to the school or to the Suburb N Library on non-school days or at non-school hours; and
(d)The mother will be present for changeovers at the Suburb N Library and the parties are not to approach within 20m of one another.
Restraints
18.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the children, the Father is restrained from:
(a)Being under the influence of illicit substances whilst spending time with the children or exposing the children to third parties under the influence of illicit substance;
(b)Exposing the children to drug paraphernalia; and
(c)Consuming or being under the influence of alcohol whilst the children are in his care.
19.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the parties and the children, the parties will at all times use civil and respectful language when communicating with the children and are hereby restrained from:
(a)Speaking critically, abusively, insultingly, belittlingly, negatively or rudely about the other party, or that party's partner and family to the children or within the children's hearing;
(b)Discussing parenting arrangements or parenting disputes, or these proceedings in the presence or hearing of the children; and
20.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the parties and the children, the parties are restrained from:
(a)Approaching within 20 metres of the other party; and
(b)Exposing the children or the other party to family violence as defined by s 4AB of the Family Law Act 1975 (Cth).
Authorities and communications
21.The Father has authority to receive information from the children's medical professionals and for that purpose this Order serves as authority as may be required from the Mother.
22.The Father has authority to receive information from the children's school, including but not limited to reports newsletters and school photographs and for that purpose this order serves as authority as may be required from the mother.
23.The Father is to provide a copy of these Orders, the Reasons for Judgment and Dr O’s report to his general practitioner and the psychologist to be consulted or engaged pursuant to these Orders.
24.The parents and the Independent Children's Lawyer have leave to provide a copy of these Orders to the children's school, J Contact Service and medical/allied health professionals.
25.The Mother and Father are to communicate only in respect of parenting issues and arrangements related to these Orders and must:
(a)Use the Our Family Wizard app except in the case of emergency;
(b)The Mother is to establish the Our Family Wizard app account within 7 days of the date of these Orders and invite the Father to join;
(c)The Father must join and accept the invitation for Our Family Wizard within 7 days of receiving the invitation; and
(d)Each party is to pay their own costs of obtaining the Our Family Wizard app.
26.In the case of emergency the parents can contact one another by phone AND FOR THIS ORDER, each parent is to keep the other informed of their preferred mobile telephone number, residential address and email address for use with the Our Family Wizard app.
THE COURT NOTES THAT:
B.Pursuant to s 68C of the Family Law Act 1975 (Cth), a police officer may arrest without warrant if that officer holds reasonable belief that the Orders for personal protection in Orders 18, 19 or 20 have been breached.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
A defended hearing in relation to these parenting proceedings was conducted on 9 and 10 May 2024 and 3 June 2024. There are two children who are the subject of the proceedings, X, aged 11, and Y, aged 10 (collectively “the children”). The children’s parents are the applicant, Ms Coulson (“the mother”) and the respondent, Mr Wayfield (“the father”), who were in a relationship for approximately four years between 2011 and 2015. Both parties were legally represented at the defended hearing and counsel for the Independent Children’s Lawyer (“the ICL”) represented the interests of the children.
By her Amended Application filed 7 August 2023, the mother seeks final orders that the children live with her and spend no time with the father. She also seeks sole parental responsibility and related orders. The suite of orders sought by the mother makes it plain that she considers the father should have no place or role in the children’s lives.
In contrast, by his Amended Response filed 28 August 2023, the father seeks orders for equal shared parental responsibility and a suite of orders aimed at resuming his relationship with the children. Namely, commencing time on a supervised basis for a period before progressing to unsupervised and more extensive time.
The ICL largely adopted the mother’s position but appeared to support the children spending supervised time with the father and that some communication between them be permitted if safe.
THE DEFENDED HEARING
The mother’s Affidavit of 7 August 2023 and the Parenting Questionnaire and Notice filed 20 June 2022 were taken as read into evidence. The father relied on his Case Outline filed 8 May 2024, his Affidavit of 7 May 2024 and the Notice of Risk and Response filed 10 October 2022, all of which were also taken as read.
Other documents listed in the parties’ Case Outlines were received as evidence and marked as exhibits, being:
·Exhibit ICL1: the affidavit of the single expert Dr O dated 16 April 2024, annexing her report of 14 April 2024;
·Exhibit A1: the Child Impact Report of Court Child Expert Ms P dated 8 November 2022; and
·Exhibits A2, A3 and A4: section 67ZA notification and 69ZW response from Child Safety Services dated mid-2022 and early 2023 respectively, and the section 69ZW response from Tasmania Police dated mid-2023.
Each of the parties also tendered further documentary evidence during the hearing:
·Exhibit A5: a bundle of records, notifications and reports from Child Safety Services relating to the parties and the children;
·Exhibits A6 and A7: notes from the father’s attendances on his general practitioner, Dr Q, dated 29 June 2023 and 6 July 2023;
·Exhibit A8: list of the father’s prior convictions;
·Exhibits A9 to A19: various offence reports and FVMS reports from Tasmania Police relating to the father;
·Exhibit R1: S Hospital note dated mid-2023 recording the mother’s attendance at a hospital service;
·Exhibit R2: revocation of a Domestic Family Violence Order against the father in respect of the mother dated late 2023;
·Exhibit ICL2: consultation note from a visit of the father on his general practitioner dated 2 June 2023;
·Exhibit ICL3: letter from the father to the children, undated but said to have been received by the mother in January 2024;
·Exhibit ICL4: bundle of documents from the Child Support Agency and texts exchanged between the mother and father in early 2021;
·Exhibit ICL5: memorandum of sentence of mid-2023 concerning the father;
·Exhibit ICL6: Suburb N Medical Centre record dated mid-2022 relating to the mother;
·Exhibit ICL7: list of the mother’s prior convictions;
·Exhibit ICL8: email from the father to the ICL sent 23 May 2024 (which had been tendered as an exhibit in other Court proceedings involving the father);
·Exhibit ICL9: email to the ICL dated 28 May 2024 and attached text message exchange between the father and a previous partner, Ms Gadsby; and
·Exhibit ICL10: S Hospital records relating to the mother, contained at pp 621-667 of the Court Book.[1]
[1] These records were received by the Court and marked as an exhibit on 22 July 2024, after the conclusion of the hearing, as all parties agreed and confirmed in writing that they ought to have been tendered.
The father also sought to rely on an audio recording but I declined to receive it as evidence, giving brief oral reasons during the hearing. The recording was apparently of the entire hearing before a Magistrate concerning a breach of family violence charge against the father. The relevance of the evidence and the Magistrate’s comments was not obvious and counsel for the ICL and for the mother submitted that it would not assist the Court in determining what parenting order should be made. I was not persuaded by the submission made on behalf of the father that the Magistrate’s findings gave rise to an estoppel, noting the differing standard of proof in these proceedings. I reserved to counsel for the father the opportunity to make further submissions before closing his case about the admissibility of the recording, in which case I would also hear further from other counsel. Counsel for the father did not seek to tender the recording at a later time. Although he refers to the recording in his written closing submissions of 3 June 2024, it would be an error of law to have any regard to it as it does not form part of the evidence in this case.
ISSUES FOR DETERMINATION
The Case Outlines expressed somewhat differently what the issues for determination were. But in essence, the parties acknowledged that the ultimate issue was whether the father presented an unacceptable risk of harm to the children, in which case the orders sought by the mother and/or ICL should be made rather than those sought by the father.
In turn, the parties contentions require the Court to make factual determinations about:
(a)The nature and extent of family violence perpetrated by the father and the risk it presents to the safety and welfare of the children;
(b)Whether the father had and still has a chronic pattern of alcohol or illicit substance misuse or a mental health condition that impacts on the safety of the children and his capacity to care for them adequately; and
(c)If the issues in subparagraphs (a) and (b) are answered in the affirmative or otherwise, whether parenting orders should be made that ensure the mother’s parenting capacity and parental decision-making are not unreasonably interfered with.
EVIDENCE OF THE SINGLE EXPERT, DR O
By agreement, the single expert engaged by the parties, Dr O, a psychologist, gave evidence first at the defended hearing. She had conducted interviews and assessments of the father, mother and children and her affidavit of 16 April 2024, annexing a detailed report of 14 April 2024, was received in evidence unopposed.[2]
[2] Exhibit ICL1, noting that the typographical error (referring to the date as 14 April “2023” and not 2024) was corrected by Dr O at the commencement of her oral evidence.
When cross-examined by counsel for the mother, Dr O's evidence was as follows:
(a)In general, the father’s reports of events differ to those of others and to that contained in third party reports.
(b)On a number of occasions the father said he could not remember or did not wish to recall matters and it was difficult to determine if he was being deliberately evasive or genuinely did not wish to recall events in history.
(c)She explained the Personal Assessment Inventory (“PAI”) referred to at [116]-[125] of her report, stating it was a self-report measure based on answers given by a person and is designed to assess information relevant to clinical diagnoses, treatment and screening for psychopathology. The PAI is designed with validity scales to assess factors that may distort the test results. The father’s results had suggested distortion, specifically some elevated scores were suggestive of him not understanding or attending appropriately to the PAI and there were inconsistencies between answers relating to similar content. Some indicators also suggested that he had not answered in a completely forthright manner or was defensive. The father’s PAI results also indicated periods of elevated mood presenting as aggressiveness, high impulsivity and over-reactivity.
(d)In isolation, the father’s PAI results did not indicate an inability to accept blame but could be indicative of feeling as though he was a victim and that people were working together to persecute him.
(e)The father had reported suffering post-traumatic stress disorder following an incident in his youth in which a friend had died.
(f)The father had described symptoms indicative of a mental health disorder but it was difficult to determine which type, he may have and it could not be diagnosed without further mental health assessment by a psychiatrist. Dr O observed that the medical records provided made reference to a mental health disorder and that the father had been prescribed medication used in the treatment of such.
(g)The father was not taking the medication prescribed to him and without it, it was likely he would experience instability in mood and an inability to helpfully engage in psychotherapy.
(h)The father had admitted that alcohol use has caused problems in his life[3] consistent with the typical effects of alcohol misuse, being that increased usage caused disruption to relationships, changes in behaviour and abusive patterns. However, Dr O noted that he had consistently maintained the ability to work, which suggested a level of alcohol tolerance.
(i)Dr O agreed the father had demonstrated poor reflective capacity, being an inability to be aware of one’s own emotional state and how it affects others so that behaviours could be adjusted. Based on research and her own experience, she concluded that this demonstrates limited capacity to change harmful behaviours.
(j)Asked about the risk to the children if they reengaged with the father, she stated that both children were alleged to have been exposed to family violence in utero, presented with trauma-based behaviours, particularly X, and are hypervigilant and sensitive to threats, meaning they are at risk of re-traumatisation, particularly if the father is unable to take responsibility for his actions and change. She also stated that the risk of re‑traumatisation of the children is higher if the father continues to abuse alcohol.
(k)That self-reports of alcohol or illicit substances typically underestimate actual consumption, but she could not determine whether this applies to the father’s self‑reporting.
(l)Asked about her recommendations at [224] of the report, Dr O explained that indefinite supervision by a professional service would be protective of the children, referring to J Contact Service, U Contact Service or perhaps a nanny service, but acknowledged that the services involved a cost.
(m)That whether indefinite supervised time was required depended on the father’s capacity to demonstrate a shift in his self-awareness and his capacity to change behaviours to reduce risk.
(n)She considered that the father was unable to gain self-awareness because he had difficulties across multiple relationships and a history of criminal charges, and that these past difficulties are the best predictor of future behaviour. Further, Dr O stated that if the father’s behaviours did not change, there was a risk that the children may be retraumatised, notwithstanding that the children wished to spend time with the father.
[3] Report of Dr O of 14 April 2024 at [110].
Dr O rejected the implication that because she had read the mother’s affidavit and other documents before interviewing the father, this caused her to form adverse views about him without reference to balanced information.
Counsel for the father directed Dr O to the father’s affidavit, specifically in reference to the mother being violent or abusive and using drugs, and suggested these demonstrated serious and concerning behaviours. Dr O agreed, but added that it was not uncommon for perpetrators of family violence to make such allegations against their victims and that there had been no concerns raised by Child Safety Services, Tasmania Police or the school for the children in their mother’s care. She believed that there was no validity to the father’s allegations about the mother and based her opinion in part on the children’s reports to her that there had been no violence perpetrated by the mother. Dr O noted the children’s ages and the honesty and consistency of their reporting to her and to others, and concluded that there was nothing that led her to question their reports.
Dr O also stated the following views in cross-examination by counsel for the father:
(a)She did not see any evidence of the mother adversely influencing the children’s views about the father and that she had in fact always permitted them to spend time with him until he physically harmed X.
(b)Both children told her they felt they could speak openly with their mother (including about their wish to see the father), not that they had been influenced in any way and her from this she concluded “the children feel able to express a view and [the mother] doesn’t have an opinion on that.”
(c)There was nothing to suggest that the children minimised concerning behaviours of the mother because they were protective or loyal to her.
(d)X had not given her any details about being “assaulted” and she had not pressed him due to his ADHD and not wanting to escalate his distress.
(e)She did not agree that if the serious allegations against the father were untrue, he would not pose a risk to the children. Dr O added that the allegations against the father were not isolated and there had been other incidents with other intimate partners.
(f)She clarified that if the allegations by the mother were untrue it would reduce her concerns about the risk to the children based on family violence by the father but said that there remained other concerns based on his mental health and alcohol use.
(g)When put to her that a Magistrate, in acquitting the father in relation to breaches of family violence orders, had found the mother’s evidence to be unreliable, Dr O agreed that previous false reporting would cause her to more stringently assess claims made by the mother.
(h)She agreed that police family violence orders are made on the basis of allegations and if not contested, they become final.
(i)She also agreed that, of the various allegations made, the father had only been charged with two breaches of family violence orders in respect of the mother. This included alleged breaches in 2022 to which the father had been acquitted.
(j)She was aware that the mother had been the subject of two family violence orders in relationships after she and the father separated.
(k)When challenged about describing the father as “dismissive” of his family violence, she agreed that it would not be unusual to be defensive if allegations were exaggerated and conceded that his communication was unsophisticated.
(l)Referring to the discrepancy between the family violence acknowledged by the father and what was reported, she stated that there was a spectrum of family violence and he acknowledged family violence at the lower end of it.
(m)She agreed that the father has not had an opportunity to demonstrate changed behaviour after completing courses (as he has not seen the children since that time) and that he displays a “general level of insight” into family violence behaviour.
(n)She agreed that one or two beers each night was unlikely to impair the father such that he posed a risk to the children, but added that his medical notes contained multiple entries about concern regarding his level of alcohol consumption. Further, she stated that the results of the PAI indicate alcohol use by him satisfying an alcohol use disorder.
(o)Asked about the mother’s psychological or psychiatric diagnoses, Dr O confirmed the views expressed in her report at [171]-[172].
As the mother’s refusal to allow the children to spend time with the father is said by her to coincide with him “assaulting” X in mid-2022, Dr O was asked whether her views would differ if the incident had actually occurred in late 2021 and the mother had been aware of it but continued to allow time to occur between the children and the father. Dr O stated that this would raise concerns about the mother’s level of protectiveness.
When re-examined by counsel for the ICL, Dr O addressed X’s diagnoses of ADHD and possible oppositional defiance disorder and stated that this meant parenting him would be more challenging. In particular, his carers would need to be attuned to his mood and learn strategies to manage the same with the assistance of services. Asked about the father’s attitude to X’s diagnoses and needs, Dr O stated that he was concerned about X being pathologized but did not dispute the diagnoses.
Dr O stated that although the father described the incident involving him “choking” X as protective of the other child and not physical punishment, she regards it as punitive and potentially retraumatising for X, giving rise to the potential for escalation and X becoming more aggressive.
When asked to identify the safety concerns held for the children if they spent unsupervised time with the father if he had an untreated mental health disorder, Dr O stated the disorder is characterised by heightened mania, and extreme or reckless behaviours, and therefore one would expect poor supervision of the children. Dr O also noted that X would be more vulnerable to harm.
Told that there had been difficulties with the children spending time with the father pursuant to Interim Orders, Dr O was asked if the mother would, in her opinion, have difficulty facilitating time ordered by the Court. She stated that she would have concerns about the mother facilitating face to face time but said that in a supervised setting, the mother’s level of distress should be capable of being managed.
Dr O also agreed it was important for the welfare of both children that they engage in medical and social work supports.
UNCONTROVERSIAL FACTS
There was agreement between all parties that:
(a)The mother and father commenced a relationship in 2011 and separated on a final basis in mid-2015.
(b)In the period from mid-2015 to mid-2022, both parties made allegations of family violence against the other.
(c)After separation, the children lived with the mother and spent time with the father pursuant to loose arrangements between the parties but there was no clear and settled pattern of the children spending time with the father. The parties had different perspectives about why they had not been able to establish a routine or pattern.
(d)The mother ceased facilitating any time between the children and the father in June 2022, after she says she met with the school social worker on 17 June 2022 and first heard of the disclosures by the children on 13 June 2022. The father has not seen the children since this time.
NATURE AND EXTENT OF FAMILY VIOLENCE
In making the findings below, I have had regard to the manner and nature of oral evidence given by both parties during the hearing. Neither party was a compelling witness for different reasons.
The mother was verbose, gave evidence at cross-purposes and repeatedly sought to justify or rationalise rather than state the facts. She gave her evidence in an exaggerated manner or reconstructed evidence to suit a narrative about extreme family violence with detail not supported by contemporaneous or objective sources. The mother’s presentation with post‑traumatic stress disorder (“PTSD”) is complicated and likely impacts the reliability of her evidence. I do not criticise the mother for the shortcomings in her evidence as described above, but I cannot ignore them. Accordingly, I reject the submission on behalf of the mother that I should prefer her evidence to that of the father in all cases where their evidence conflicts.
The father downplayed and aggressively or defensively responded to challenges of his evidence which showed how he responds interpersonally with disagreement or opposition.
For the reasons given above at [23] to [25], I have approached the evidence of both parties with caution and wherever possible made findings based on contemporaneous and objective sources, which are likely to be more reliable.
Based on concessions made by each party during cross-examination, I find that there was mutual and recurring verbal abuse and shoving or pushing, the nature of which constitutes family violence within the meaning of s 4AB of the Family Law Act 1975 (Cth) (“the Act”).
In relation to the mother’s specific allegations of physical violence or threats to kill by various means, I find and reason as follows:
(a)The mother’s evidence about the father pushing a heavy piece of furniture onto her and leaving her pinned by it on the floor in around 2011 or any time after is inconsistent and unreliable. She states that this occurred a number of times until X was born.[4] I am not persuaded it occurred because:
[4] Mother’s affidavit filed 7 August 2023 at [55].
(i)X was born in 2013; and
(ii)It is highly unlikely that the mother would not report this type of violence towards her if it had happened when she made reports about less serious incidents of family violence in 2012.[5]
[5] Exhibit A16.
(b)The mother’s evidence that the father locked her in a room in 2011/2012 and 2014 was vague, imprecise and without any context. Again, it is highly unlikely that the mother would not report this type of violence towards her if it had happened as she made reports about less serious incidents of family violence in 2012.[6] Based on Dr O’s assessment of the father’s character,[7] I am inclined to accept the mother’s evidence that the father on occasion locked her in a room during their episodes of mutually abusive behaviour. [8] It is consistent with Dr O’s views of the father as “immature” and I infer that he is ill-equipped to manage conflict, especially when one or both parties were intoxicated.
[6] Exhibit A16.
[7] Report of Dr O of 14 April 2024 at [217].
[8] Mother’s affidavit filed 7 August 2023 at [77]-[78].
(c)I am not persuaded on the balance of probabilities that the father assaulted the mother when she was pregnant with X by slamming an object into the side of her stomach.[9] Instead, she has likely constructed her evidence to fit an allegation that suits the narrative of the father being seriously physically violent towards her. I find that this incident is unlikely to have occurred in the manner described by the mother such that it jeopardised the pregnancy based on the following reasoning and assessment of her overall presentation contained in the objective medical records:
[9] Mother’s affidavit filed 7 August 2023 at [62].
(i)There was no dispute that X was born prematurely in 2013. The effect of the parties’ evidence and the medical records is that the premature birth arose due to complications from the mother’s pregnancy involving bleeding, the cause of which could be varied and many;[10]
[10] Father’s affidavit filed 7 May 2024 at [23]; mother’s affidavit filed 7 August 2023 at [67]; and Exhibit ICL10, S Hospital records, pp 621-667.
(ii)The reliable records show that the mother had presented with episodes of vaginal bleeding, and was hospitalised on a number of occasions for rest, observation and treatment during pregnancy;[11]
[11] Exhibit ICL10, pp 621-667.
(iii)An ultrasound performed during the mother’s pregnancy identified a small haemorrhage but this was undertaken in 2012 at 14 weeks pregnancy, later than the 8 or 9 weeks stated by the mother;[12]
[12] Exhibit ICL10, p 623.
(iv)There is no medical evidence linking the finding of “an injury” to a “knock to [the] stomach”, but the mother portrays that this was a cause-and-effect diagnosis or the opinion of medical staff. Instead, the medical records evidence the placenta being positioned anteriorly,[13] and “normal morphology and satisfactory growth” and make no reference or query as to the cause of such;[14]
(v)The mother’s presentation shortly before and after birth caused her to be seen by S Hospital;[15]
(vi)The entries in the medical records related to the pain service assessments identify concern about exaggerated or overreporting of complaints and confusion or misunderstanding about diagnosis and treatment;[16] and
(vii)There are several references in medical records to the mother being advised not to have sexual intercourse during the pregnancy but I accept it is likely that the parties continued to have intercourse during her pregnancy, noting the mother’s evidence under cross-examination that she acquiesced to such throughout the relationship.[17]
(d)The mother’s evidence about an alleged assault in 2013, during the parties attendance at a wedding, is unsatisfactory. While the father admitted to a fight with his brother on that date, he denied the mother’s allegations that he assaulted her. It is incongruous that the mother would remember the detail written in her affidavit of 7 August 2023 as stated at [68] to [70], but not recall when she prepared the affidavit or at the time she was cross-examined what precipitated the father’s alleged assault.[18] Further, on the basis of [7] of the mother’s affidavit, there are witnesses who could have been called on subpoena to corroborate her evidence.[19] Given this and concerns about the reliability of the mother’s evidence more generally, I am not persuaded on the balance of probabilities that the mother’s accounts of these events are reliable.
(e)Although the mother alleged that she was assaulted by the father in about 2013, resulting in her pregnancy with Y, and on other occasions, I am not persuaded on the balance of probabilities that what occurred was an assault, which implicitly involves a criminal intent and absence of consent to sexual intercourse. The mother’s evidence was that she would consciously acquiesce to intercourse,[20] and this does not necessarily involve absence of consent.
(f)The mother’s evidence in chief about the father strapping a “weapon” to her body was the subject of cross-examination.[21] The evidence given during cross-examination was different to that in her affidavit evidence in chief. I consider that there were material inconsistencies about the description of the weapon, the position it was alleged to have been put, and whether she was restrained.[22] The inconsistencies are significant, and the evidence is conflated and confusing. I do not accept the evidence as reliable for these reasons and also because her admitted degree of intoxication is likely to have materially affected her recollection of what actually occurred. I do not discount the possibility that some kind of prank occurred, in which both parties participated due to their lack of sobriety.
(g)The evidence of the mother being threatened with a weapon is potentially some construction of an event involving a weapon. But given the concerns about reliability of the mother’s evidence generally and the lack of contemporaneous reporting of this or the weapon incident, when less serious family violence had previously been reported by her, I am not persuaded that the father behaved as alleged.
(h)Both parties have alleged that verbal threats to harm the other have been made.[23] Noting information in the FVMS records before the Court and the content and style of text communications between them,[24] I am satisfied that each party used abusive language and have made threats of physical harm to the other, likely when agitated, intoxicated or stressed.
[13] Meaning “pertaining to a surface or part situated toward the front or facing forward”: Mosby’s Medical, Nursing & Allied Health Dictionary (ed. D M Anderson) (Mosby, Sixth Edition, 2002).
[14] Exhibit ICL10, p 623.
[15] Exhibit ICL10, p 659.
[16] See, eg, Exhibit ICL10, in particular the hospital service records, including p 660 (entry dated early 2013), p 665 (entry dated early 2013) and p 666 (entry dated early 2013).
[17] Transcript of 9 May 2024, p 22 at lines 45-47.
[18] Transcript of 9 May 2024, p 17 at lines 35-44.
[19] The Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference applies.
[20] Transcript of 9 May 2024, p 22 at lines 45-47.
[21] Evidence as contained in the mother’s affidavit filed 7 August 2023 at [79].
[22] Mother’s affidavit of 7 August 2023 at [79]; transcript of 9 May 2024 at pp 18-19; and transcript of 10 May 2024 at pp 30-31.
[23] See examples listed in ICL’s Case Outline filed 7 May 2024 at pp 4-5 (7 May 2015, 2020, 27 December 2021, 13 April 2022, 12 June 2022 and 13 June 2022).
[24] See, eg, text messages included in Exhibit ICL4.
With respect to the specific allegation that the father “assaulted” or otherwise physically assaulted X, I find that the incidents have been distorted and exaggerated by the mother. More likely, there were two incidents when the father physically handled X roughly and inappropriately, such that X became distressed around late 2021 and in mid-2022 based on Y’s disclosure. This is consistent with X and Y’s reporting to the school soon after the incidents.[25]
[25] Exhibit A2, Section 67ZA Notification from Child Safety Services; and Exhibit A5, bundle of Child Safety Services documents (in particular, entries relating to late 2021, and mid-2022 at pp 295-296 of the Court Book).
The mother’s account of the incident in late 2021 relating to X and Z has likely been construed in hindsight to justify her withholding the children from spending time with the father as the objective record from Child Safety Services demonstrates that she was aware of the incident at the time.[26] Alternatively, the mother’s psychological conditions have led to her giving an unreliable account that does not accord with the objective evidence.
[26] Consistent with the mother’s oral evidence at the defended hearing but inconsistent with her evidence in her affidavit of 7 August 2023.
The objective evidence which I prefer establishes that the father pushed X onto the bed by the back of his neck and I infer grabbed him from behind. The reporting to Child Safety Services is more consistent with the father’s account of what occurred when he intervened to protect Z, namely that he grabbed the back of X’s shirt and manoeuvred him and held him face down on his bed.
Y’s reports to the school[27] demonstrate a degree of fear of the father and protectiveness of the mother based on threats the father allegedly made about blowing up the mother’s house, amongst other things. Her reports also suggest at least one other incident where the father inappropriately physically disciplined X by the same actions described at [31] above.
[27] Exhibit A5, p 298 of the Court Book.
Y’s reporting coincides with when the mother began withholding the children and with the parties evidence about allegations surrounding phone calls in mid-2022 which became the subject of charges against the father for breach of a police family violence order,[28] which was subsequently revoked in Court.[29] I have concerns about the accuracy of that reported in Child Safety Services records,[30] as the reports are similar in nature to allegations by the mother and may suggest that the mother has been speaking to Y. Further, Y’s reports to Dr O about presumably the same incidents are concerning but less graphic.[31]
[28] Mother’s affidavit of 7 August 2023 at [15]-[16]; and father’s affidavit filed 7 May 2024 at [12] and “exhibit 3”.
[29] Exhibit R2.
[30] Exhibit A5.
[31] Report of Dr O of 14 April 2024 at [150]-[151].
It is quite possible that there were phone calls made between the mother and various individuals in mid-2022, but I am not satisfied that the father made threats or verbally abused the mother due to inconsistencies in the accounts given in her statutory declaration made in mid-2022, the text communications with Ms G, and her affidavit of 7 August 2023.
In view of the inconsistencies and timing of the mother’s allegations, I prefer the evidence of the father that the precipitator for withholding the children was his relationship with Ms T, a former friend of the mother.[32]
[32] Father’s affidavit filed 7 May 2024 at [12]-[14].
Nevertheless, based on the father’s own accounts of the incident with X in late 2021, I am satisfied that at least on this occasion he was rough, angry or aggressive when disciplining X. His actions are completely inappropriate and likely frightened X, but not to the extent that he is avoidant of spending time with the father given the wishes expressed.[33]
[33] Exhibit A1, Child Impact Report, at [15]; and report of Dr O dated 14 April 2024 at [143].
I also find that the father has perpetrated family violence against two other intimate partners, including Ms Gadsby and Ms R.[34]
[34] Exhibit A8.
ALCOHOL AND SUBSTANCE MISUSE
On the basis of the evidence of both parties and their concessions, I am satisfied that they both consumed alcohol at high levels during the relationship and abused it, with the effect of being emotionally dysregulated not infrequently.[35]
[35] Father’s affidavit filed 7 May 2024 at [26]-[27], [34]-[36] & [50]; mother’s affidavit filed 7 August 2023 at [59], [89]-[92], & [96]-[98]; report of Dr O dated 14 April 2024 at [28], [48], [69], [110], [122] & [217]; transcript of 9 May 2024 at p 4, lines 1-8; and transcript of 10 May 2024 at p 21, lines 42-47 and p 22, lines 4-11.
However, it is likely that the mother has reduced her alcohol intake as there is no evidence of continued alcohol misuse in her case. I find that the father continues to use alcohol at high and likely harmful levels based on his own evidence under cross-examination.[36] Further, I accept the evidence of Dr O that commonly alcohol use is underestimated, and so I find that it is quite possible the father has understated his alcohol use. This is likely to fit an alcohol misuse disorder or alcohol dependency based on the views of Dr O which are persuasive.
[36] That he drinks up to a couple beers daily and up to 12 standard drinks in a session on weekends, which is consistent with his reporting to Dr O, per her report of 14 April 2024 at [110].
Accordingly, I am satisfied that the father’s alcohol use continues to present a real and quite significant risk of harm to the children due to resulting emotional or physical dysregulation. The nature and number of alcohol related offences, family violence reports and his interpersonal difficulties also supports this conclusion.[37]
[37] Exhibit A8, list of father’s prior convictions; Exhibit A10, Offence Report No. …; Exhibit A12, Offence Report No. …; and Exhibit A14, FVMS-….
There is no probative evidence that the father continues to use illicit drugs to the extent or frequency that makes him dependent on them and likely to present as a material risk to the children. Notably, the father returned negative test results for illicit substances.[38]
[38] Father’s affidavit filed 7 May 2024 at “exhibit 7”.
MOTHER’S MENTAL HEALTH
I have accepted the views of Dr O about the mother’s psychological difficulties and further I accept, because it is not challenged, that the mother was diagnosed with a medical condition in 2021.[39]
[39] Report of Dr O of 14 April 2024 at [41].
Although there is limited expert evidence about the mother’s medical condition, Dr O stated as follows:
[Ms Coulson] has a diagnosis of [a medical condition]. Although widely recognised as a mental health condition, effective treatment requires input from both psychiatric/psychological services and neurology. The exact cause of [a medical condition] remains unknown, however in some individuals the onset is associated with significant physical and/or emotional trauma. The symptoms of [a medical condition] include seizures, speech difficulties, vision difficulties, pain, extreme fatigue, and paralysis. [Ms Coulson] reports a combination of these symptoms with varying degrees of severity at different times.
The mother’s medical condition is formally labelled as “a disorder” as stated by the mother in her evidence.[40] Dr O’s evidence about the mother’s medical condition does not capture the aetiology of the diagnosis, which involves unconscious psychic conflict being “converted” to physical symptoms.[41] I infer this involves the manifestation of psychosomatic reporting, also giving rise to concerns about the reliability of reports by the mother.
[40] Transcript of 10 May 2024, p 16, lines 44-46.
[41] Diagnostic and statistical manual of mental disorders, American Psychiatric Association (2022) (Fifth Edition).
Dr O also suggests that the mother’s presentation meets the criteria for PTSD and that her experiences during the relationship with the father are the precipitant for the development of PTSD.[42] However, she also reports that the mother has experienced many traumatising events in her life prior to meeting the father,[43] and I find that the possible diagnosis of PTSD may be due to multitude of events. I am not persuaded that I should accept the views of Dr O about the diagnosis or precipitant of possible PTSD.
[42] Report of Dr O of 14 April 2024 at [172].
[43] Report of Dr O of 14 April 2024 at [36] onwards.
OTHER FINDINGS ABOUT RELEVANT CONSIDERATIONS
I find that the children have each expressed a wish to spend time with the father and are of an age where their wishes should be given some weight.
Although the father has not spent any time with the children since June 2022, this has occurred because the mother has withheld them for reasons that are not fully justified due to the findings at [29] to [35] of these reasons. Further, because there has been non compliance with the Interim Orders made by consent on 7 September 2023.
Although the mother claims that she was pressured by the father to allow the children to spend time with him after the report on 8 November 2021,[44] I do not accept that to be so. The mother has been subject of multiple interactions with Child Safety Services since this time and despite making a plethora of allegations against the father dating back to the start of their relationship and including the period late 2021 to June 2022, nowhere does she report that she has facilitated time between the children and him only because of pressure or threats to be harmed. This leads me to infer that she did not hold the level of concern that she now asserts about the children’s safety in the father’s care. Despite Dr O’s evidence referred to at [16] of these reasons, all of my reasons convey that the mother had less concern claim about the incident in late 2021 to that which she has portrayed to Dr O and others subsequently. I do not accept that the father assaulted X on multiple occasions.
[44] Mother’s affidavit filed 7 August 2023 at [11].
Further, I do not accept the mother’s explanation that she was prepared to condone family violence by the father towards her and still allow the children to spend time with him until 2022, because the violence did not hurt them prior to this time.[45] Her own account is that the children witnessed family violence on many occasions and her claim that the father perpetrated an assault of her when pregnant with X is inconsistent with the explanation, which was given for the first time under cross-examination.
[45] Transcript of 9 May 2024, pp 22-23.
I find that the children have a loving and strong bond with the mother, as she has been their primary carer. They are open with her and can confide in her.
I also find that the children have a loving relationship with the father, and they had a fairly strong bond until the mother ceased permitting them to spend time with him. Although both children hold some fear because of the father’s behaviours, it is evident that the bond remains and is borne out by their wishes to spend time with him.[46]
[46] Report of Dr O of 14 April 2024 at [130]-[132], [137], [143], [150]-[160] & [164]-[165].
The mother has not facilitated time between the father and the children for over two years. I infer there was a failure for the mother to complete the intake process with J Contact Service and the father has not yet been afforded the opportunity to commence supervised time with the children.[47] Accordingly, the mother has demonstrated unwillingness or an incapacity to promote or allow time, either supported by others,[48] or because she has been influenced by her interactions and friendship with Ms Gadsby. It is unlikely to be pure coincidence that the mother ceased facilitating time around the same time that Ms Gadsby commenced parenting proceedings and also withheld Z from spending time with the father.
[47] Transcript of 10 May 2024 at pp 13-14.
[48] Transcript of 10 May 2024, pp 12-14 and 22-24.
It is unlikely that the mother has withheld the children solely motivated by a genuine or well‑founded fear that the father will harm the children and I do not accept that the mother only learned of the allegations of the father assaulting X in mid-2022 as she claims in her affidavit evidence for the reasons given at [29] to [35] above.
I am satisfied that the father does not pay child support according to his legal obligations. Further, I am satisfied that the mother’s attitude about the children spending time with the father is contributed to by her resentment that he does not adequately financially support the children. It is clear that the informal arrangements the parties have had about child support have failed and proved to be a source of disagreement. More generally, both parties evidence amply demonstrates that grievances about money were a source of dispute and I am prepared to accept that the mother experienced the father’s attitude as financially controlling, regardless of whether the father intended to be.[49]
[49] Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC 94-129 at [10].
Accepting part of Dr O’s evidence, I find that both parties experience poor mental health which poses a risk of causing psychological harm or neglect to the children if not managed adequately.[50]
[50] Report of Dr O of 14 April 2024 at [201].
The mother engages with supports but despite this they have not always served to protect the children.[51] The father lacks adequate insight into his own mental health and alcohol misuse.[52]
[51] Report of Dr O of 14 April 2024 at [178], [180], [181], [183] & [207].
[52] Report of Dr O of 14 April 2024 at [101] and [167]; and Dr O’s oral evidence referred to above at [12](i), (j) and (n) of these reasons.
I approach Dr O’s views about the extent of the father’s lack of insight about family violence somewhat cautiously because the allegations by the mother have not all been established. Despite this, there is a need for the father to better acknowledge impacts of his family violence, mental health and alcohol related difficulties, noting his defensive and somewhat dismissive attitude to what I have found to be family violence.
RELEVANT LAW
As briefly addressed in Garrido & Garrido [2024] FedCFamC2F 634 at [21] to [23], parenting cases determined after 6 May 2024 are to be determined pursuant to amended provisions in Part VII of the Family Law Act 1975 (Cth).
I have had regard to the amended provisions of the Act that require the Court to make parenting orders that are in the child’s best interests according to the non-exhaustive considerations in ss 60B, 60CA and 60CC, and the discretionary evaluation of the same.[53] Considerations of family violence remain an important consideration in the evaluation of what parenting orders should be made in a child’s best interests, as do the wishes of a child.[54]
[53] Family Law Amendment Act 2023 (Cth), Schedule 1, Part 1 and Part 2.
[54] Sections 60B and 60CG of the Act.
Further, considerations relating to whether a parent poses an unacceptable risk of physical or emotional harm due to conduct, conditions or other attributes remains important because of the need to make parenting orders that promote the safety and welfare of children.[55]
[55] Section 60CC(2)(a).
I consider that the assessment of risk of harm to a child remains informed by the principles established MRR & GR [2010] HCA 4, Isles & Nelissen [2021] FedCFamC1F 295 and Isles & Nelissen [2022] FedCFamC1A 97.
EVALUTION AND DETERMINATION
Noting the findings in the reasons above, I accept the submission by the mother that the children have been exposed to family violence perpetrated by the father, but the extent of it is not as grave as she has sought to portray. However, the mother reasonably holds a degree of fear of the father, but her stated extent of fear is somewhat exaggerated.
It is unlikely that the father now poses an unacceptable risk of physical harm to the mother or the children, noting that there have been no further family violence incidents since the mother’s allegations relating to mid-2022, which I have not fully accepted. Further, the risk of potential penalties if he repeats past behaviours will be a deterrent. However, I conclude that due to his compromised mental health, lack of treatment of it and alcohol misuse, the father likely poses a moderate risk of exposing the children to unacceptable physical discipline and emotional harm.
I am conscious that the conclusions at [62] and [63] of these reasons do not fully accord with the views of Dr O about the nature and extent of risk which the father poses to the children. However, I have not been persuaded that the nature and extent of risk is unacceptable and as high as that which Dr O assessed because:
(a)Not all of the allegations of family violence have been established, but it appears that Dr O accepted them at face value according to the mother’s reports;
(b)There are reasons to be concerned about the reliability of the mother’s reporting for the reasons given elsewhere;
(c)There is evidence contrary to Dr O’s opinion that Child Safety Services and Tasmania Police had no concerns about the mother’s reporting or capacity to care for the children.[56]
[56] See, eg, Exhibit A5 at pp 293 & 297-298 and Exhibit A13 at pp 477-478.
The extent of the risk of described harm to the children is capable of being ameliorated if the father is formally diagnosed and remains under a recommended treatment and management plan. Although the father gave evidence that he had attended a psychologist, Dr E, for six sessions,[57] this is unlikely to have involved a diagnostic assessment to identify and ameliorate any risks to the children posed by his mental health. The father stated in evidence he was prepared to undergo assessment for a diagnosis and would engage in treatment, but he has not done so to date and it is concerning that he ceased treatment and management after consulting with his general practitioner, Dr Q, in 2023.[58]
[57] Father’s affidavit filed 7 May 2024 at pp 62-63.
[58] Exhibit ICL2.
It is clear that the father does not appreciate the nature and extent of risk of alcohol abuse and until he does so, the children will remain exposed to risk of neglect and aggressive or dysregulated behaviour associated with alcohol abuse.
The children will benefit from knowing and spending time with their father given the love and bond that they have with him, providing the father accepts the conclusions at [62] to [66] of these reasons. Whether it is safe for the children to spend time with him on an unsupervised basis will depend on reestablishing consistent and safe time with the children that occurs without incident.
There is no justification for the children not to spend supervised time with the father. In a supervised setting, it is highly unlikely that the children will be exposed to any form of harm. However, there are limits to the suitability of supervised time arrangements and it is undesirable for them to continue indefinitely.[59] Neither party would be able to meet the costs associated with supervised time consistently in my view, and an inconsistent pattern of time between the children and the father foreseeably will impact adversely on the children’s emotional health and wellbeing.
[59] Moose & Moose [2008] FamCAFC 108; (2008) FLC93-375 at [119]; and Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227.
Before the father can spend unsupervised time with the children for lengthy periods, he needs to demonstrate that he has:
(a)Developed improved insight into the harmful effects of family violence;
(b)Been fully psychiatrically assessed to determine if there is a mental health disorder (whether alcohol abuse or some other disorder, symptoms or traits) that require treatment to mitigate potential harm to the children; and
(c)Engaged in alcohol misuse education and further reduced his alcohol use.
On the basis of [62] to [69] of these reasons, I intend to make Interim Orders for the father to spend time with the children initially on a supervised basis and to then progress to unsupervised time for limited daytime periods. However, in light of Exhibit ICL9, it would be detrimental to the wellbeing of the children to commence time and work towards a regular unsupervised arrangement if the father fails to address the issues outlined above at [69].
The father has not had opportunity to demonstrate that he is able to care for and spend time with the children safely, largely due to the mother’s withholding and non-compliance with the Interim Orders of 7 September 2023. He should be afforded this opportunity as it is likely to be in the children’s best interests.
In respect of the issue identified at [10](c) of these reasons, while I accept that the mother experiences a degree of fear due to her exposure to the father’s behaviours, it plainly does not materially impact on her parenting capacity as she has always been the primary carer of the children. In addition, she facilitated the children spending time with the father until June 2022 despite the allegations that she now makes, many of which relate to prior June 2022.
In view of Dr O’s evidence to the effect that allowing the father to provide gifts and cards to the children was suitable and safe, the mother’s explanation for not passing on the letter that the father had provided, being Exhibit ICL3, was unimpressive. I consider there is little utility in making a specific order about gifts/letters as the father will be spending time with the children and will at liberty be able to pass gifts and letters to them directly if he so chooses.
Accordingly, before pronouncing interim orders, I will invite oral submissions from the parties.
The Court’s proposed interim orders will include various injunctive restraints to ameliorate risks and provide mechanisms which promote child focused and effective communications and changeovers.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 26 July 2024
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