Cresswell & Conroy
[2023] FedCFamC2F 274
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cresswell & Conroy [2023] FedCFamC2F 274
File number(s): PAC 4677 of 2016 Judgment of: JUDGE OBRADOVIC Date of judgment: 15 March 2023 Catchwords: FAMILY LAW – CHILDREN – Final Parenting - Assessment of risk – Allegations of family violence – Mental health issues – Credit of mother – Best interests of child – Parenting capacity – Willingness to facilitate relationship with other parent – Issues in complying with parenting orders – Ability to make joint decisions – Parental Responsibility
FAMILY LAW – PROPERTY – De facto relationship – Property adjustment – Length of relationship – Assessment of contributions – Just and equitable
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA,65DAA, 90SF, 90SM Cases cited: Aldrin & Celona [2021] FedCFamC1A 16
Banks & Banks [2015] FamCAFC 36
Bevan & Bevan [2014] FamCAFC 19
Black & Kellner [1992] FamCA 2
Blandford & Esmore [2022] FedCFamC1A 67
Chapman & Chapman [2014] FamCAFC 91
Cresswell & Conroy [2017] FCCA 912
Dickons v Dickons (2012) 50 Fam LR 244
In the Marriage of Briese[1985] FamCA 23
In the Marriage of Weir (1992) 16 FamLR 154
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Oamra & Williams [2021] FamCAFC 117
Oriolo v Oriolo [1985] FamCA 54
Peters & Walker [2015] FamCA 732
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Slater & Light [2011] FamCAFC 1
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 323 Date of last submission/s: 19 November 2021 Date of hearing: 11-13 and 15 February 2019, 18-21 May 2020, 2-4 November 2020, 12 August 2021, 18-19 November 2021 Place: Parramatta Appearing for the Applicant: In person (11-13 and 15 February 2019) Counsel for the Applicant: Ms Houghton (18-21 May 2020, 2-4 November 2020, 12 August 2021) Solicitor for the Applicant: Wilkinson, Throsby & Edwards (18-21 May 2020, 2-4 November 2020, 12 August 2021, 18-19 November 2021) Counsel for the Respondent: Ms Breeze Solicitor for the Respondent: STC Legal Counsel for the Independent Children's Lawyer: Ms Stollier Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
Table of Corrections 02 May 2023 In paragraph 265, “Mr Cresswell” has been replaced with “Mr Conroy”. ORDERS
PAC 4677 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CRESSWELL
Applicant
AND: MR CONROY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE OBRADOVIC
DATE OF ORDER:
15 MARCH 2023
THE COURT ORDERS THAT:
Parenting
1.The Respondent father have sole parental responsibility for the child X born in 2014.
2.In respect of any decisions that need to be made concerning the child’s education and medical treatment (except in the case of an emergency), the father is to:
(a)Advise the Applicant mother and if practicable provide the mother with 14 days’ notice of his intended decision;
(b)Invite and take into consideration any view expressed by the mother; and
(c)Thereafter inform the mother in writing of any decision made.
3.The child live with the father.
4.The child spend time with the mother as follows:
(a)Until the conclusion of term 1 in the 2023 school year as follows:
(i)Commencing on 18 March 2023, and each Saturday thereafter, from 10am until 5pm.
(b)During the school holidays at the end of term 1 in the 2023 school year:
(i)From 10am on Easter Tuesday, 11 April 2023 until 10am on Thursday, 13 April 2023; and
(ii)From 10am on Tuesday, 18 April 2023 until 10am on Thursday, 20 April 2023.
(c)During term 2 in the 2023 school year as follows:
(i)Commencing on Saturday, 29 April 2023 and each alternate weekend thereafter from 10am to 5pm on Saturday, and from 10am to 5pm on Sunday (with no overnight time in between).
(d)During the school holidays at the end of term 2 in the 2023 school year:
(i)From 10am on Tuesday, 11 July 2023 until 10am on Saturday, 15 July 2023.
(e)During term 3 in the 2023 school year as follows:
(i)Commencing on Saturday, 29 July 2023 and each alternate weekend thereafter from 10am on Saturday to 5pm on Sunday.
(f)During the school holidays at the end of term 3 in the 2023 school year:
(i)From 5pm on the last day of school until 10am on Friday, 29 September 2023.
(g)During term 4 in the 2023 school year as follows:
(i)Commencing on Friday, 13 October 2023 and each alternate weekend thereafter from after school on Friday to 5pm on Sunday.
(h)During the school holidays at the end of term 4 in the 2023 school year:
(i)In alternating periods of seven (7) nights by agreement between the parties and in the absence of such agreement for the first seven (7) nights and in alternating weeks thereafter until the conclusion of the school holiday period.
(i)From the commencement of the 2024 school year:
(i)During school term:
A.Commencing on the second Friday of each school term from after school on Friday to before school on Monday each alternate week.
(ii)During school holidays:
A.For half of each school holiday period by agreement between the parties and in the absence of such agreement during the first half in even numbered years and the second half in odd numbered years.
(j)In the event that Mother’s Day does not fall on a weekend when the child would otherwise be spending time with the mother pursuant to these orders from 10am to 5pm on Mother’s Day.
(k)At such other times and dates and for such other periods as agreed to by the parties in writing.
5.In the event that Father’s Day falls on a weekend when the child would otherwise be spending time with the mother pursuant to these orders the child’s time with the mother on Father’s Day is to be suspended between 10am and 5pm on Fathers’ Day.
6.In order to give effect to the above orders all changeovers are so far as is possible to take place at the child’s school during school terms and on school days.
7.In the event that changeovers cannot take place at the child’s school, the father shall deliver the child to the mother’s residence at the commencement of the child’s time with the mother and the mother shall return the child to the father at his residence at the conclusion of the child’s time with the mother.
8.The parties shall each have reasonable telephone or face time communications with the child during any periods that the child is not living or spending time with such parent.
9.The mother is restrained from discussing these proceedings or any issues arising out of these proceedings with the child or permitting any third party from doing so.
10.In the event that the child shall suffer any injury, be hospitalised or suffer any significant illness the parent in whose care the child is in at the time shall notify the other parent immediately except in the case of an emergency where they shall do so as soon as is reasonably practicable but no more than 8 hours after the emergency.
11.The father is to do all things necessary and sign all documents required to authorise the child’s school(s) or any other school that the child attends from time to time to forward directly to the mother copies of the child’s school reports, school notices and any other documents which schools normally provide to parents. The mother shall have authority to communicate and obtain all information from the child’s school, with the father to do all acts and things and sign all necessary documents to give effect to this Order.
12.The parties shall keep each other advised and informed at all times of their respective residence and contact details including any address and contact details for vacation accommodation when the child would be staying at such accommodation.
13.The parties shall communicate with each other at all times in a polite and courteous manner.
Property
14.Within 42 days of the making of these orders, the Applicant do all such acts and things and sign all necessary documents so as to transfer to the Respondent all her right title and interest in the property situated at B Street, City C, NSW and being the whole of the land comprised in title reference … (“B Street, City C property”).
15.Contemporaneously with the transfer:
(a)The Applicant pay the Respondent the sum of $52,426;
(b)The parties do all such acts and things and sign all necessary documents so as to discharge the mortgage on the B Street, City C property; and
(c)The Respondent do all such acts and things and sign all necessary documents so as to indemnify the Applicant for all outgoings and liabilities associated with the B Street, City C property.
16.Contemporaneously with the transfer the Respondent is declared, to the exclusion of the Applicant, to be the sole legal and equitable owner of the B Street, City C property.
17.As of the date of these Orders the Applicant is declared, to the exclusion of the Respondent, to be the sole legal and equitable owner of:
(a)The property situated at D Street, City C, NSW and being the whole of the land contained in title reference … (D Street, City C property);
(b)The property situated at E Street, Town F and being the whole of the land contained in title reference … (E Street, Town F property); and
(c)The property situated at G Street, Town H NSW (“G Street, Town H Property”) and being the whole of the land contained in title reference ….
18.As of the date of these Orders the Applicant shall be liable for and indemnify the Respondent for all outgoings and liabilities associated with the D Street, City C, E Street, Town F property and G Street, Town H property.
19.Except as otherwise provided in these Orders the Applicant and the Respondent be solely liable to the exclusion of the other for any debt, past or future, standing in their respective names.
20.Except as otherwise provided in these Orders the Applicant and the Respondent be solely entitled to the exclusion of the other to :
(a)All items of personality in their respective possession, custody and control;
(b)Any funds , shares, or other investments standing in any bank account in their name; and
(c)Any superannuation fund in an account in their name.
21.Pursuant to section 106A of the Family Law Act 1975 (Cth) a Registrar of the Federal Circuit and Family Court of Australia is authorised to execute any document or do any such thing as is required to give effect to these Orders in the event of a default of a party to execute such document or do such things as is necessary under these Orders.
22.The Independent Children’s Lawyer is to file and serve any evidence and written submissions in respect of costs by 4pm on 29 March 2023.
23.The Respondent is to file and serve any evidence and written submissions in respect of costs by 4pm on 12 April 2023.
24.The Applicant is to file and serve any evidence and written submissions, in respect of costs by 4pm on 3 May 2023.
25.The Respondent is to file and serve any submissions in reply by 4pm on 17 May 2023.
26.Unless the parties object, the Court is to deal with the issue of costs on the papers and judgment will be reserved to be delivered on a date to be advised.
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 Cresswell & Conroy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
[1]
IN A NUTSHELL
[11]
EVIDENCE
[32]
Mother’s Case
[33]
Father’s Case
[36]
Expert Evidence
[39]
CREDIT
[40]
FINDINGS OF FACT
[42]
The Parties and Their Relationship
[42]
Allegations of Violence
[57]
Apprehended Domestic Violence Order
[62]
Mother’s Mental Health and Behaviour in Court
[67]
Expert Evidence As to the Mother’s Mental Health
[84]
Report by Dr J, Psychologist (2019)
[84]
First Expert Report by Dr K (2019)
[91]
Second Expert Report by Dr K (2020)
[97]
Oral Evidence of Dr K
[101]
Third Expert Report by Dr K (2021)
[110]
Recommendations of Dr K
[117]
X
[118]
Early Care
[118]
Post Separation
[123]
Change of Residence and Current Living Arrangements
[134]
Time Post February 2019 Orders
[135]
X’ attendance at pre-school and school
[165]
Expert Evidence As to Parenting Matters
[174]
Child Dispute Conference Memorandum - Mr L (2017)
[174]
First Family Report - Mr M (2018)
[177]
Second Family Report - Ms N (2020)
[179]
Oral Evidence of Ms N
[182]
Expert Evidence As to Child’s Development
[188]
Paediatric Report by Dr O (2020)
[188]
Compliance with Orders
[189]
Living arrangements at the time of Final Hearing
[200]
Real Property
[202]
D Street, City C
[202]
B Street, City C
[209]
E Street, Town F Property
[218]
G Street, Town H Property
[220]
Parties’ Current Financial Positions
[223]
DETERMINATION AS TO PARENTING ORDERS
[225]
Relevant Legal Principals
[225]
Court’s Determination
[234]
Parenting Capacity
[239]
Willingness to facilitate relationship with other parent
[242]
Capacity to meet X’s needs
[248]
Issues of Risk
[251]
Other relevant considerations
[258]
Capacity to make joint decisions
[265]
Where X is to Live
[272]
Time with non-resident parent
[276]
Parental Responsibility
[279]
DETERMINATION AS TO PROPERTY ADJUSTMENT ORDERS
[280]
Relevant Legal Principles
[280]
Court’s Determination
[288]
What are parties’ contributions?
[288]
The Pool
[301]
Assessment of Contributions
[307]
Future Needs
[310]
Overall Adjustment
[315]
COSTS
[321]
CONCLUSION
[323]
ANNEXURES
Annexure “A” - Procedural history summary
Annexure “B” – Documents read in the proceedings
Annexure “C” - Exhibits
Amended pursuant to r.10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 20021 (Cth) on 02 May 2023
JUDGE OBRADOVIC:
INTRODUCTION
These are Reasons for Judgment in respect of competing property and parenting applications.
The parties to these proceedings are the Applicant Mother, Ms Cresswell, and the Respondent Father, Mr Conroy. There is one child of the relationship, X, who is the subject of the parenting proceedings. X will shortly be 9 years old.
The proceedings have a lengthy and complex history as set out in Annexure “A” to these Reasons for Judgment.
Since proceedings commenced in 2016, there have been a number of interim parenting orders, the appointment and subsequent discharge of a case guardian, and in total 14 days of final hearing over almost 3 years, with over 700 pages of transcript, many hundreds of pages of evidence and lengthy written and oral submissions.
The parties had reached final agreement in respect of all matters, but that agreement fell apart on the last day of hearing and shortly prior to Reasons for Judgment being reserved in late 2021.
The legal costs incurred by the parties in this matter are significant, particularly so for Mr Conroy who has remained represented throughout the 6 years of litigation. The costs to the public purse are also significant, noting the judicial resources which this matter has consumed.
For ease of reference, a list of the documents the parties relied upon at final hearing and a list of the exhibits are respectively set out in Annexures “B” and “C” to these Reasons for Judgment.
By the conclusion of the final hearing in November 2021, the issues for determination in respect of the parenting dispute were significantly different than they had been at the commencement of the final hearing in February 2019.
It is a pity for X that his parents have not been able to agree as to what is best for him, and have remained deeply embroiled in a bitter dispute for what seems to be almost the entirety of his young life.
The property pool is relatively modest, and may likely be eclipsed by the total legal costs.
IN A NUTSHELL
Mr Conroy and Ms Cresswell met while they were in high school, commencing their romantic relationship in 2003 and finally ending it in about mid-late 2015.[1] During those years, there were many months at a time when the parties were separated, whether simply physically and/or while their relationship had ended, before further resumption of the relationship.
[1] cf Parties’ evidence but note earlier finding of Court in Cresswell & Conroy [2017] FCCA 912 at [33], [35].
Mr Conroy was born in 1985, and is presently 37 years of age. Mr Conroy works as a transport worker.
Ms Cresswell was born in 1985, and is presently 37 years of age. Ms Cresswell works as an educator.
The parties have one child together, X, who was born in 2014. At separation, X lived with his mother.
X did not spend time with his father from early September 2015 until interim orders were made by consent (and without admission) on 29 November 2016, being the first return date of the Initiating Application filed by Ms Cresswell on 4 October 2016.
Following a contested interim hearing on 31 March 2017, the Court made interim parenting orders on 9 May 2017. Such orders provided for X to live with his mother and spend time with his father. These orders were varied slightly on 3 July 2017.
On 2 September 2017, X began spending time with Mr Conroy overnight.
When the final hearing commenced in February 2019, X was living with his mother and spending time with his father, although not without significant difficulty. There were many instances when orders for time were not complied with and X missed out on spending time with his father.
On 15 February 2019, during the course of giving evidence in the final hearing, Ms Cresswell experienced a mental health episode. The final hearing was adjourned and orders were made for X to live with his father and spend supervised time with his mother, for 3 periods per week, and such time to be supervised by either an external agency or by the maternal grandfather, subject to written undertakings. Furthermore, orders were made for Ms Cresswell to attend upon a psychiatrist to provide an Expert Report in regard to the mental health of Ms Cresswell. An Independent Children’s Lawyer (ICL) was also appointed. A case guardian was appointed for Ms Cresswell on 22 February 2019.
From February 2019 until the conclusion of the final hearing, and after judgment was reserved, interim orders for X to spend supervised time with Ms Cresswell have remained in place (although they have been varied). There have again been difficulties with the implementation of those orders, whether because of availability of supervisors, whether because of Ms Cresswell retaining the child contrary to the orders, whether because of Ms Cresswell’s insistence that the only time supervision was required was when X was spending time with her during the times provided for in the orders, but supervision was otherwise not required (such as for example, when the parties agreed for X to spend additional time with his mother) or whether because of other matters.
In February 2019 Ms Cresswell was admitted to P Hospital, Q Centre, with the note “impression - acute stress reaction” (“first admission”). She was discharged a month later. The first admission occurred after the first tranche[2] of the final hearing and after X came to live with Mr Conroy.
[2] See Annexure “A” to these Reasons for Judgment
On 30 September 2019, Ms Cresswell retained X for a period of two weeks. The reasons for this are explained later in these Reasons for Judgment. Consequently, between 14 October 2019 and 15 December 2019 X did not spend time with his mother.
In 2020 Ms Cresswell was again admitted to P Hospital, Q Centre, where she was sedated for a period of 3 days (“second admission”). This episode was diagnosed as an “acute stress reaction and also possible disassociation”.[3] Ms Cresswell was discharged a few days later. This second admission occurred after the third tranche[4] of the final hearing. Ms Cresswell did not notify Mr Conroy of her admission to hospital. He found out independently and by accident, and consequently sought for the proceedings to be re-opened.
[3] See Report of Dr K (4 August 2021) lines 255-6
[4] See Annexure “A” to these Reasons for Judgment
X did not spend time with his mother from 26 June 2021 through to 11 July 2021, due to COVID-19 self-isolation rules at the time.
Following the end of the final hearing in November 2021, X has been living with his father. Interim orders continue to provide for X to spend supervised time with his mother.
On 21 December 2022, Ms Cresswell filed a Contravention Application. Such application is first returnable in the Court’s Contravention List on 17 March 2023. That application and any evidence filed in respect of that application is not part of the evidence before the Court and has not been considered in coming to a decision herein.
The above brief chronology of X’s various living arrangements and spend time arrangements have to be juxtaposed over the procedural history of these proceedings[5] in order to be fully understood. While it is regrettable that there has not sooner been a final determination of the parenting proceedings, in the scheme of this litigation and the issues it has thrown up, the delay has not been to X’s detriment.
[5] See Annexure “A” to these Reasons for Judgment
The conflict between Ms Cresswell and Mr Conroy does not in any way seem to have abated during the proceedings. It is the Court’s assessment that such conflict has its genesis primarily in Ms Cresswell’s unreasonable views and inflexibility towards Mr Conroy, in particular her views about her superior parenting capacity over that of Mr Conroy and her flawed belief that Mr Conroy should simply fall into line and do as she says in respect of how X is to be parented. While superficially Ms Cresswell appears to be a parent who can meet X’s needs, her evidence and behaviour during the proceedings leads to a different conclusion.
The issues for determination in respect of X are where he is to live, and what time he is to spend with the parent with whom he is not living. That determination is highly dependent upon findings as to the parties’ parenting capacity, their willingness to facilitate a relationship with the other parent, their capacity to meet X’s needs and in particular to place the child’s needs above their own, and whether X is at risk of emotional harm in either parent’s care and the assessment of that risk. Tied in with all of that, is the issue of parental responsibility and the parties’ capacity to make joint decisions if so required.
Mr Conroy and Ms Cresswell, between them, own a number of properties:
(a)In 2013, the property at D Street, City C, (“D Street, City C”) was purchased for $240,000 in Ms Cresswell’s sole name.
(b)In 2013, the parties as joint tenants purchased the property at B Street, City C, (“B Street, City C”) for $187,000.
(c)In 2016, the property at E Street, Town F (“E Street, Town F Property”) was purchased for $340,000 in Ms Cresswell’s sole name.[6]
(d)In 2018, the property G Street, Town H (“G Street, Town H Property”) was purchased for $135,000 in Ms Cresswell’s sole name.[7]
[6] See Affidavit of Ms Cresswell (16 July 2018) [23]
[7] See Affidavit of Ms Cresswell (11 May 2020) Exhibit 6
Apart from agreeing as to the properties which are currently held in the parties’ respective names, the dates of purchase and the purchase price, there is little else the parties agree on. It is in dispute between the parties how the purchase of the various properties were funded and in that regard, what their respective contributions were. It is also in dispute what the various contributions of each of the parties was in respect of renovations to both D Street, City C and B Street, City C. The length of the parties’ relationship is also in dispute, although for reasons which have been explained, it is not a matter which the Court was too troubled with. Overall contributions are, unsurprisingly, also in dispute including, for example, the contributions to the welfare of the family and as parent.
EVIDENCE
The evidence before the Court is as set out in Annexures “B” and “C” to these Reasons for Judgment. While all of the evidence has been considered, not all of the evidence is discussed in these Reasons for Judgment. Only findings of fact which are relevant to the issues the Court needed to determine are made.
Mother’s Case
Over the course of the proceedings Ms Cresswell alternated between being self-represented and legally represented. Ms Cresswell relied on a number of affidavits. Ms Cresswell was cross-examined by Mr Conroy’s Counsel, and the Counsel for the Independent Children’s Lawyer. On account of various adjournments, the cross-examination continued for the periods when Ms Cresswell was self-represented and when she obtained representation.
As explained in further detail in these Reasons for Judgment, Ms Cresswell did not impress as a witness of truth. She was prepared to mislead and in fact did mislead in order to support her case.
Evidence in Ms Cresswell’s case was also given by Ms R who impressed as being unquestioningly supportive of her daughter and her daughter’s case.
Father’s Case
Mr Conroy was represented throughout the proceedings by both his solicitor and counsel. Mr Conroy relied on a number of affidavits which were the subject of cross examination. He was cross-examined by Ms Cresswell’s Counsel, and Counsel for the Independent Children’s Lawyer.
Mr Conroy impressed as forthright and honest in his evidence.
Evidence in Mr Conroy’s case was also given by Ms S and Ms T who both impressed as witnesses of truth.
Expert Evidence
There has been an extensive amount of expert evidence which has been relied upon in these proceedings. For simplicity each expert and their recommendations will be dealt with separately. The evidence is grouped under three headings, the first dealing with expert recommendations as to parenting, the second dealing with X’s development, and the third dealing with Ms Cresswell’s mental health.
CREDIT
While not always desirable, particularly in parenting proceedings, it is necessary to make credit findings in this instance. Ms Cresswell’s evidence, in many respects was wholly unreliable and in many aspects bordered on the bizarre.
Where the evidence of Mr Conroy and Ms Cresswell are in conflict, the Court prefers the evidence of Mr Conroy, and indeed, for the most part where Ms Cresswell’s evidence is not independently corroborated by evidence arrived at from business records and subpoenas, her evidence is given little weight.
FINDINGS OF FACT
The Parties and Their Relationship
The parties met in high school and began a relationship in or around 2003.
Following the completion of her high school studies, Ms Cresswell completed tertiary studies and ultimately qualified as an educator. Ms Cresswell has also completed training as an allied health worker.
Ms Cresswell was in paid employment (although not consistently) from 2007 to 2020, and her annual income has varied over the years.
At the completion of his high school education, Mr Conroy was awarded a scholarship to obtain a transport worker’s licence in the Country U. Following his time in the Country U where he spent six months, Mr Conroy returned to Australia and moved in with Ms Cresswell at her mother’s home at V Street, City C. He worked at Employer W in City C for about 8 months. Thereafter, Mr Conroy obtained employment in City Y, and he stayed overnight at his grandmother’s home in City Z during the week and at V Street, City C on the weekends. Mr Conroy then worked for Employer AB, including for about 5 months being based in City AC. In the meantime he obtained a qualifications in transport operations.
In about 2008, Mr Conroy received an offer from Employer AD for a full training scholarship with a guaranteed position as a transport worker at the completion of the diploma. He finished his cadetship in 2009, and from about mid-2009 he was posted to City AE by Employer AD.
Mr Conroy invited Ms Cresswell to come and live with him in City AE which she did. The parties firstly lived together in a shared house and then in their own rental accommodation. Whilst the parties lived together in a shared house, Mr Conroy paid for the rent, food and utility bills. When the parties moved into their own rental accommodation, Ms Cresswell did from time to time make financial contributions, by depositing payments into Mr Conroy’s account for rent, food and utilities. Mr Conroy was otherwise responsible for meeting such costs. Whilst the parties were living in City AE, Ms Cresswell worked as an educator in a casual role and she also took up work as an allied health worker at a local business.
Towards the end of 2011, Ms Cresswell returned to City C from City AE, and moved back to V Street, City C. Mr Conroy remained in City AE for a further 12 months, whilst waiting for a transfer to Sydney. Mr Conroy returned to City C in late 2012.
During 2012, whilst Ms Cresswell was in City C and Mr Conroy in City AE, Ms Cresswell commenced purchasing the D Street, City C property. She told Mr Conroy that the property belonged to her grandfather and that it should be purchased in her name only. This conversation occurred after the parties had been discussing for some time the idea of purchasing a home together. After D Street, City C was purchased, Ms Cresswell then advised Mr Conroy that the parties would not be living in the property but that instead she would rent it out.
At times during the first half of 2013, Mr Conroy would stay in Sydney overnight (in a share house) in order to cater for his shifts with Employer AD. When his work enabled him to travel back to City C, he stayed at V Street, City C. At around this time, Ms Cresswell worked at City C, where her employment was ultimately terminated in 2013/2014[8] resulting in a compensation payout.
[8] It is not clear on the evidence when in fact Ms Cresswell’s employment was terminated. For the purposes of the Court’s determination, the actual date of termination of her employment is not a relevant matter. In Ms Cresswell’s Affidavit of 16 July 2018 at [27] she asserts it was due to her pregnancy and that concerns were raised to the Governing Authority in 2014 and acted upon later in 2014; by late 2014 documents were signed and settlement was agreed upon.
Shortly after Ms Cresswell fell pregnant with the parties’ child, there was a conversation between the parties where they agreed to remain living in V Street, City C so that they could save money towards a deposit for a home.
Neither Mr Conroy nor Ms Cresswell ever paid rent to Ms R for residing in V Street, City C. Mr Conroy was responsible for his own cleaning and washing. Ms R did the majority of the cooking for the household. Mr Conroy contributed to the grocery shopping, cooking, maintenance, and repairs of the house. For example, he completely cleaned the entire basement area of the home to make it usable as a study/office area, where he later had his work equipment.
In early 2014, Ms Cresswell advised Mr Conroy that she was going to buy a caravan at Town AF, and that Ms R would initially pay for it and then Ms Cresswell would repay her. There were in due course Local Court proceedings commenced by Ms R against Mr Conroy in respect of the purchase price for the caravan which were settled.
In early 2014, Ms Cresswell received compensation of $17,000 in respect of her unfair dismissal claim arising out of the termination of her employment with Employer AG. She did not inform Mr Conroy when she received the money. Of the $17,000 paid to Ms Cresswell, $5,000 was paid to the Australian Taxation Office and the remainder was put towards the purchase and upkeep of the caravan.
In mid 2014, Mr Conroy at Ms Cresswell’s request, opened up a new credit card account with Ms Cresswell as a secondary card holder. Ms Cresswell then transferred her credit card debt of $4,200 to Mr Conroy’s credit card, which Mr Conroy paid off.
In 2018, Mr Conroy resigned from Employer AD and commenced working for Employer AH in 2018. At the time of final hearing, Mr Conroy was employed on a part-time basis with Employer AH, after he requested to do so following X coming into his care on a full-time basis. Due to the COVID-19 restrictions which were in place in 2020-2021, Mr Conroy’s work has been affected.
Allegations of Violence
Ms Cresswell alleges that Mr Conroy exhibited abusive and controlling behaviour towards her during the relationship. Ms Cresswell alleges that the Mr Conroy pressured and threated her on numerous occasions saying the following:
· I’m going to quit my job;
· I’m moving back to City AE;
· I’m going to stop working on the house;
· I’m going to burn the house down.
Ms Cresswell also claims that Mr Conroy would constantly belittle her and demean her if she attempted to spend time with her friends, or have time away from X. This alleged behaviour included asking for the passcode for her mobile phone for the purpose of reading her messages, repeatedly calling and texting her when she was not at home, and repeatedly accusing her of having sex with other men.
Ms Cresswell alleges that Mr Conroy called her derogatory names such as “lazy”, “unfit”, “unmotivated”, “boring”, “slut”, and “cunt”. Ms Cresswell states that Mr Conroy would demand that she have sex with him and would be “very rough and aggressive”. Ms Cresswell alleges that Mr Conroy “would not stop having sex with [Ms Cresswell] until he had finished”.
Mr Conroy denies these allegations. Mr Conroy was not cross-examined about these matters and Ms Cresswell did not seek to make any submissions at the conclusion of the hearing in support of the Court making findings of fact.
Mr Conroy describes a number of incidents where he alleges Ms Cresswell was physically violent towards him, including hitting him in the side of the face causing his skin to be broken, and hitting him on the head following an argument. It is Mr Conroy’s evidence that a similar incident of domestic violence occurred between him and Ms Cresswell in July 2015, which lead to final separation. These allegations are denied by Ms Cresswell. Ms Cresswell was not cross-examined about these matters, and no findings of fact were sought by Mr Conroy in respect of the matters alleged.
Apprehended Domestic Violence Order
The Court accepts Mr Conroy’s evidence that the relationship between him and Ms Cresswell finally ended on or around 27 July 2015, following a disagreement about claiming receipts on tax returns.
It is Mr Conroy’s evidence that on 14 August 2015, Mr Conroy attended V Street, City C with the intention of talking to Ms Cresswell about property and parenting arrangements following the end of their relationship. Mr Conroy and Ms Cresswell talked for an hour. Ms Cresswell was adamant that Mr Conroy deserved nothing and should not be seeing X at all. Mr Conroy told Ms Cresswell that he had spoken to a solicitor and that he had rights, and if they could not come to an agreement they would need to go to court. While Mr Conroy was still present, Ms Cresswell then called the police saying that she had an “intruder in the house and [that she felt] threatened.” Mr Conroy says that she made the call with a grin on her face.
Ms Cresswell alleges that when Mr Conroy visited V Street, City C on 14 August 2015, he “would not leave” and was yelling and shouting “in an angry manner”.
On or about 14 August 2015, an interim Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of Ms Cresswell, with Mr Conroy named as the defendant.
On 21 January 2016, by consent and without admissions, the ADVO against Mr Conroy was made on a final basis for a period of 12 months.
Mother’s Mental Health and Behaviour in Court
Early in the proceedings, while being cross-examined by Counsel for Mr Conroy in relation to the date of their separation, Ms Cresswell was asked about travel they had undertaken during 2015. Ms Cresswell replied to each question saying she could not recall. When Counsel put to Ms Cresswell that she was lying to the Court Ms Cresswell told counsel to ‘back off’:
Counsel for father: Now, you know that you travelled to [City AJ] as a family in 2015. You know that don’t you?
[Ms Cresswell]: ’15. Is it school holidays? Is it term? I cannot recall.
Counsel for father: Your child is one year and three months old in 2015. You travelled on an aeroplane with [Mr Conroy] and with [X] to [City AJ]?
[Ms Cresswell]: Ms Breeze, I cannot recall.
Counsel for father: I’m putting it to you very seriously, ma’am, that you are lying to the court?
[Ms Cresswell]: Back off
Her Honour: Is that your answer? Back off?
[Ms Cresswell]: I said I cannot recall.
Her Honour: Is that your answer?
[Ms Cresswell]: My apologies your Honour.
Her Honour: There is no need to apologise to me. I’m just asking whether that’s your answer, “back off”, or did I mishear?
[Ms Cresswell]: I think you misheard and I – yes.
Her Honour: All right. I will go back and listen to the recording.[9]
[9] T:105.45-6, 106.1-16
The following day, when considering the urgent parenting application made by Mr Conroy following concerns about Ms Cresswell’s capacity, Ms Cresswell apologised to Counsel for the father:
[Ms Cresswell]: Yes. I would just like to apologise to Ms Breeze for telling her to “back off”. I would just like to apologies to my family because they have been so supportive, and I’ve been such a bitch. I haven’t …. And one more thing. To my friends, if I still have any, thank you.[10]
[10] T:150.46-7, 151.1-2
On 19 May 2020, during cross-examination, Counsel for the father was asking Ms Cresswell about her understanding of Mr Conroy’s work roster and RDO’s, and making X available to spend time with his father. During the exchange, Ms Cresswell questioned whether the roster was in fact Mr Conroy’s, and demanded to speak to the ICL:
Counsel for father: All right. You sent him a message saying, “How do I know this is your actual roster”?
[Ms Cresswell]: Well, I had ever seen a [Employer AH] roster before, so they – I can question whether or not – I hadn’t seen back then whether it was a [Employer AH] roster or not. I hadn’t had that experience of knowing what they look like.
Counsel for father: And, on that basis, you felt that you were justified in not making [X] available to spend time with his father on the rostered days off in the roster?
[Ms Cresswell]: Ms Breeze, what are you asking me to do? Comply with the orders or – or – or not? I-I’m confused, because I was trying to comply with the orders. Again, can we please move forward? This isn’t resolving this issue. The issue is [X] seeing his mum, who hasn’t seen him for quite some time, and he’s on supervision. Can we move forward? And if you are not going to move forward to resolve this, I would like to speak to the ICL.
Counsel for father: All right. Your Honour…
[Ms Cresswell]: What has happened in the past, is the past. Move forward. You are holding us here. You. I’ve been here all day. I will give you 15 more minutes to ask what you want to ask because my son – I have no idea where he is, who he’s with or what he is doing. Now, I would like – I have a team here, sitting there twiddling their thumbs, who are experienced, have qualifications and probably, combined, 50 years experience, which is more than you. Do you have ICL background? Do you? Move forward. 10 minutes, both of you. I’m cross. I’m angry. I’ve bent over backwards for this man. I love my son [X] and he loves his father. Let’s set up a plan. Get me the ICL now.
Counsel for father: I’m in the court’s hands, you Honour.[11]
[11] T:269.20-46
On 21 May 2020, while discussing the preparation of a updated family report, Ms Cresswell again expressed the desire to speak to Counsel for the ICL:
Her Honour: If you [Ms Houghton] need to take instructions, ask to be excused. I have been watching you on the screen for the last three days, and you have been talking for a significant amount of time to somebody who’s in the room with you. Now, you may well take instructions as and when appropriate, but I do need you to pay attention to this please.
Counsel for mother: I apologise.
Her Honour: Because when I have asked you things in the past, you haven’t been listening. It’s important that you listen. Ms Breeze.
Counsel for father: Thank you, your Honour. I need to take instructions from my client about the prospects of an expert report.
Her Honour: Right.
Counsel for father: And, your Honour, if it was …
[Ms Cresswell]: Your Honour, sorry to interrupt.
Her Honour: [Ms Cresswell]:
[Ms Cresswell]: Can I please talk to Elizabeth
Her Honour: Ms Stollier?
[Ms Cresswell]: Yes.
Her Honour: You will need to talk to your instructor about that – sorry, to Mr AQ about that. All right.
[Ms Cresswell]: I need to talk to her about [X] …
Her Honour: Just a minute, [Ms Cresswell]. Just a minute, please. Just a minute. What I will do is, Ms Haughton, feel free to speak to your client about anything that you need to talk to her about to take instructions and whether that includes speaking to the independent children’s lawyer. I’m not sure what [Ms Cresswell] wants to do. […].[12]
[12] T:357.6-43
The mental health of Ms Cresswell was first raised as a concern giving rise to possible risks for X, during proceedings in February 2019.
During the hearing in February 2019, the Court noted[13] its significant concerns about the mother’s demeanour while giving evidence, and in particular her expression, body language and inappropriate giggling whilst being cross-examined. Furthermore, during the discussion between the parties and the Bench for the possible appointment of a Case Guardian, Ms Cresswell was observed to be giggling again.[14]
[13] T:142.44-143.2
[14] T:144.20-2
Subsequently, on 15 February 2019, the Court ordered that Ms Cresswell attend a psychiatric assessment, and made interim parenting orders that X live with Mr Conroy and spend supervised time with Ms Cresswell.
Ms Cresswell’s condition deteriorated over the weekend following the hearing on 15 February 2019. She was admitted as an inpatient at P Hospital, Q Centre for two weeks in 2019. Upon being admitted, Ms Cresswell was in a highly agitated state and was confused. While in hospital Ms Cresswell was given several different medications, and she eventually settled. The diagnosis at the time of her release was ‘Acute Stress Reaction.’[15]
[15] See Report prepared by Dr K (23 August 2019) in Affidavit of Dr K (9 September 2021) 11 (annexure C)
From 19 March 2019 to 6 May 2019 Ms Cresswell attended upon Dr J after being referred by her general practitioner. Dr J’s report is before the Court. The evidence reveals that Dr J was aware of at least one further mental health episode on 25 March 2019 which prompted Ms Cresswell’s aunt, Ms AL, to call seeking medical advice.
During cross-examination Ms Cresswell said that she did not believe Dr J had the qualifications to make that diagnosis and maintained that there had been no further episodes to the one which resulted in the first admission.[16] Ms Cresswell conceded during cross-examination that she would speak to her aunt, Ms AL when she had “an upset”,[17] though later rejected the term “upset” and defined Ms AL as her emotional support.[18]
[16] T:307.8-29
[17] T:306.15-24
[18] T:393.1-13
Ms Cresswell appeared to be agitated and angry in Court during the hearing in May 2020.
The second admission occurred a week after the final hearing days in 2020.
In 2020 Ms Cresswell was admitted to P Hospital, Q Centre, after she was found by paramedics in Location AM in City C acting confused and talking about demons and spirits at home. During her stay Ms Cresswell was sedated for three days and given medication. When she was discharged in 2020 her diagnosis was acute stress reaction and possible disassociation.
Following discharge, Ms Cresswell was to report to Community Mental Health for a follow up, and she states that no additional treatment was recommended. During cross-examination Ms Cresswell conceded that she did not attend the appointment on 24 November 2020. Ms Cresswell did not attend any appointments or engage with Community Mental Health after her discharge despite attempts by Community Mental Health to reschedule the appointments. Ms Cresswell did see her general practitioner on 23 December 2020. During cross-examination Ms Cresswell said that she believed that she was well and did not need treatment.[19]
[19] T:674.13-5
Ms Cresswell has had 10 counselling sessions with Ms AN of ‘AO Counselling’ from late March 2021 to early August 2021.
Ms Cresswell has also had one session with psychiatrist Dr AP on 9 November 2021, and a second appointment was scheduled for 4 December 2021. Dr AP prescribed Ms Cresswell Medication (0.5mgs) for use during cross-examination in court. Ms Cresswell confirmed that she had taken the prescribed medication prior to the hearing in November 2021.
Noting the findings (referred to later in these Reasons for Judgment) in respect of compliance with orders, and Ms Cresswell’s reluctance to date to engage in following the recommendations of Dr K, the Court has little comfort that any order requiring Ms Cresswell to attend therapy and/or counselling is likely to be not only complied with, but that Ms Cresswell would engage in such therapy or counselling in any meaningful way. As such, no order in that regard will be made.
Expert Evidence As to the Mother’s Mental Health
Report by Dr J, Psychologist (2019)
Dr J, Ms Cresswell’s treating psychologist, prepared a report dated 25 April 2019, regarding Ms Cresswell’s mental health. Ms Cresswell saw Dr J on three occasions, following a referral from her GP. Dr J was not required for cross-examination.
Dr J concluded that:
Throughout our sessions, [the mother] has presented as appropriately concerned about her circumstances and aware of the complexities of the legal pursuits. This has been nonetheless profoundly confronting, and I am aware of at least one further episode of acute stress reaction which prompted supportive family members to seek urgent medical advice. [The mother] has good support from her family and this, as well as the support of clinicians – […] – will continue to help build up her coping skills in managing the challenges around Court proceedings, liaison with [the father], and her care of [the child].
The report was based entirely on Ms Cresswell’s account, including Ms Cresswell’s assertions to Dr J that Mr Conroy “had always been possessing and manipulative leading to constant meltdowns until she acquiesced”. The Court’s observations of Mr Conroy do not lead to any impression that he has been either manipulative or possessive. The evidence in the proceedings has not resulted in any findings of family violence against Mr Conroy.
Ms Cresswell uses similar language to describe what happened to her in Court in February 2019, as is evident from Dr J’s note “meltdown in court 3-4 weeks ago w erratic behaviour…”.
It appears that Ms Cresswell uses “meltdown” or an “upset” to describe behaviour which is similar to what occurred in Court, and that such occurrences are not limited to what occurred during the proceedings. Noting Ms Cresswell’s tendency to give evidence to the Court in a manner which suited her case, it is highly likely that she spoke to Dr J in a similar manner, disclosing things which suited her case and highlighting them in a way which shed the best possible light on her behaviour.
Given that Ms R, with whom Ms Cresswell lives, did not act with any urgency in ensuring her daughter obtained medical assistance after her “meltdown” in Court in February 2019 and that in November 2020 Ms Cresswell was found wandering by the Police,[20] together with Ms Cresswell’s denial that the incident where Ms AL was present was a further “upset”, Dr J’s opinion that Ms Cresswell was “appropriately concerned” and that she has “good support from her family” is not accepted.
[20] Noting that this event post dates the report
Overall, Dr J’s report is of very limited weight.
First Expert Report by Dr K (2019)
A psychiatric report dated 23 August 2019 was prepared by Dr K pursuant to orders made on 15 February 2019. The purpose of the report was to determine whether Ms Cresswell had any mental health issues which would impact her capacity to care for X, and her ability to promote a relationship between Mr Conroy and X. Dr K was cross-examined by both Mr Conroy’s and Ms Cresswell’s legal representatives on 20 May 2020 as to the contents of this report.
Ms Cresswell was noted as being “extremely sensitive”. Nevertheless Dr K “did not detect any thought disorder and there was no evidence of any delusions or bizarre thinking.” He also “did not detect any paranoid ideas”.
Dr K confirmed that Ms Cresswell “clearly had acute psychotic symptoms” during her cross examination on 15 February 2019. Dr K went on to state that Ms Cresswell “developed a psychotic break” due to the “extreme experience of duress in Court”.
Dr K concluded by stating Ms Cresswell “has now fully recovered and seems to be back to full function”.
Dr K stated the following in reference to Ms Cresswell’s parenting capacity:
I formed the view that there is every indication that [the mother] is a capable caring parent. There is no indication that she is an unacceptable risk of [sic] the child. The only possible concern is that [the mother] at times of extreme stress may have a vulnerability to developing a brief psychotic episode.
I am not in a position to make any specific recommendations regarding contact or residence. I have not assessed the father or the child on this occasion, therefore I do not have a direct opinion of the other important adults in this child's life. It is my view that if the Court decided to restore residence to [the mother] that this should probably be done in a gradual way over perhaps six months where there is a transition from supervised to unsupervised then from day contact to residence. I do believe that the mother is capable of promoting a relationship between [the child] and the father. I am aware that in the acute phase of the illness that [the mother] was quite confused and incoherent. However, she appears to have recovered from her brief psychotic reaction.
In the interview process, I found no direct evidence of anxiety, depression or mental illness. The main feature appeared to be extreme fragility.[21]
[21] Report prepared by Dr K (23 August 2019) 11-12 in Affidavit of Dr K (12 September 2019) 17-18 (annexure C)
In relation to the two questions asked by the court to be examined by Dr K, the following expert opinion was given.
[Ms Cresswell] experienced a brief psychotic disorder as outlined above and has now made a complete recovery which will not impact on the child. I believe that [Ms Cresswell] understands how to provide for the biological, psychological and social needs of the child. There is no indication that she would have difficulty parenting the child. I formed the view that there is every indication that [Ms Cresswell] is a capable caring parent. There is no indication that she is an unacceptable risk of the child.
I believe [Ms Cresswell] wishes to promote a relationship between the child and the father as she reported to me at interview.[22]
[22] Report prepared by Dr K (23 August 2019) 12-3 in Affidavit of Dr K (12 September 2019) 18-19 (annexure C)
Second Expert Report by Dr K (2020)
A further expert report prepared 6 April 2020 by Dr K was organised to answer the two issues: whether or not Ms Cresswell had the capacity to provide instructions as to how her case was to be conducted; and whether Ms Cresswell had capacity to participate in the proceedings, including answering questions in cross-examination.
Dr K found that Ms Cresswell’s “cognitive function appeared normal and her thoughts were logical”.
Dr K concluded the following in respect of the two issues:
With regard to [the mother’s] capacity to provide instructions as to how her case is conducted including negotiation versus settlement, I believe that she has the capacity to represent herself and indicate her wishes. I believe she understands the process of the court. She understands that the Judge can make decisions. [The mother] understands that she needs to be able to give clear instructions to Counsel. I believe she understands the purpose of the court and the potential outcomes from the court. I believe [the mother] does have the capacity to provide instructions as to how to conduct her case.
In relation to the ability to participate in proceedings, I believe that [the mother] would be quite capable of entering the witness box and answering questions and to be cross-examined by the father's legal representative. In relation to being able to endure and withstand such cross-examination, I am not concerned that it would be likely that there would be a recurrence of such an event as happened in February 2019. There may be some provision for there to be some breaks and if [the mother] does feel overly stressed during such proceedings, there may be a possibility for there to be some consideration to the fact that she has found this experience extremely stressful previously. However, on balance, I formed the view that it is unlikely that such a reaction would reoccur. As indicated above, 91% of individuals with a Brief Reactive Psychosis do not have a recurrence of the reactive psychosis.[23]
[23] Report prepared by Dr K (6 April 2020) 10 lines 326-43 in Affidavit of Mr AQ (23 April 2020) 28 (annexure C)
Dr K also stated that he was of the opinion that Ms Cresswell was capable of being the primary carer for X:
In essence, based on the fact that [the mother] was caring for [the child] competently for the first few years of his life, I can see no objection or reason for [the mother] not resume primary care of the child. I am not the family reporter, therefore I do not have any particular view about what the parenting and contact arrangements should be, however, I believe that [the mother] would be capable of taking over full-time care of [the child] if the court deemed this appropriate.[24]
[24] Report prepared by Dr K (6 April 2020) 10 lines 345-9 in Affidavit of Mr AQ (23 April 2020) 28 (annexure C)
Oral Evidence of Dr K
During the final hearing Dr K was called to give evidence on 20 May 2020. In cross-examination, Dr K was asked questions in relation to his report dated 23 August 2019.
When being cross-examined by Mr Conroy’s Counsel, Dr K was asked about the concerns for Ms Cresswell’s mental health in the circumstances of a second episode occurring:
Well, it would depend on the nature of the repeat episode or repeat crisis. If the repeat episode is deemed another psychotic episode which was similar in form to the previous one, then one would have to start questioning whether or not there was a – more likely, an ongoing psychotic process or condition such as a bipolar disorder or schizophrenia. Although, it is possible to, perhaps, have another acute stress induced psychotic episode that’s another ..... reactive psychosis. But it becomes less likely once one had more than one episode. The other possibility is an acute ..... type episode or acute stress reaction that’s not psychotic in nature. But, without knowing exactly what other episodes she may have had, I’m not able to make any comment. Although it was denied that she had anything when I saw her in February[25]
[25] T:333.21-32
When asked about the circumstances surrounding the episode during the final hearing in February 2019, Dr K stated:
I am aware that she was probably unwell for a period of time over the course of the hearing last February – this culminated in, I think – on what – the last day of the court hearing where she wasn’t able to continue as far as I’m aware. So – but the fact that she feels as though the last day was the bad day and not earlier doesn’t necessarily – isn’t really a game changer in terms of whether or not she has had an acute reactive psychosis.[26]
[26] T:335.37-42
In relation to Ms Cresswell’s reticence and dishonesty in disclosing X’s school Dr K could offer no medical explanation.[27] When it was suggested that the dishonesty may be association with an acute psychotic disorder, Dr K, looking at the transcript and noting the silences, offered the view that Ms Cresswell was likely not able to focus very well and that:
[A] possible medical explanation if she’s giving incorrect answers is that she might be distracted or not be understanding what’s going on in her environment. It was quite clear that – to me – that she described how she felt a sense of being disconnected with what was happening and that she felt that – she believed that there were bad things happening in the court room and that – what things were happening to people in the environment where she was at the court. So it’s possible that she wasn’t able to answer clearly what was going on. But whether she was intentionally giving wrong information about the school, I can’t say specifically.[28]
[27] See Reasons for Judgment below at [171]
[28] T:338-9
The cross-examination by Counsel for the Independent Children’s Lawyer focused on the basis of Dr K’s opinion as to Ms Cresswell’s parenting capacity. Dr K stated that his opinion was based on the information provided from Ms Cresswell, the maternal grandmother, and the material provided. Furthermore, when asked, Dr K agreed that his opinion on Ms Cresswell’s parenting capacity is limited to the assumption or diagnosis of acute psychotic episode having occurred and its impact on Ms Cresswell’s parenting capacity.[29]
[29] T:341-2
Before ending the examination, the Court also noted the factual discrepancy whereby Dr K was unaware that it was the Court who had raised the concern for the need of a litigation guardian based on the behaviour of Ms Cresswell.
Furthermore, the Court sought clarification on the basis of Dr K’s opinion of Ms Cresswell having a brief psychotic episode. The evidence of Dr K was:
I formed the view that – based on the [P] Hospital notes, that there was – the impression was an acute stress reaction and that it was not believed that there was an ongoing psychotic illness. And then that was confirmed by [Dr AR] who did an assessment a month later or several weeks later.[30]
[30] T:343.17-20
Dr K concedes however, that if the information that Ms Cresswell returning to a normal state was incorrect, then the information and his conclusions may be different. Nevertheless, he maintains the likely trigger for the episode was the Court proceedings:
Yes, it could be that the fact that she lost the direct care of [X] may have also precipitated an acute stress reaction. That’s a possibility. However, it does appear that she was quite incoherent and she did describe having what appeared to be psychotic type symptoms during the court proceedings. Such as, she reported to me that she felt like the father’s barrister was speaking like she had helium in her voice and other odd things – that she thought she recognised people in the court whom she had never seen before. So they’re – it did suggest to me that the psychotic process, if I accept that – that it was occurring before the end of the court proceedings that week.[31]
[31] T:344.19-27
Finally, concerning Ms Cresswell’s dishonestly, and the effect it might have on his overall opinion, Dr K stated:
If the dishonesty was to try and provide a positive spin and give her – give it more of a bolstering of her overall health and, perhaps, minimising some of the negatives – then, I guess that happens all the time and that’s, you know, within the bounds of, perhaps, normality in – in this situation. If there’s clear and fragrant [sic] non-disclosure of critical important events and – and how things unfolded, then that might reflect more of a tendency to not provide the truth. And that would be, I think, a different scenario.[32]
[32] T:344.32-9
Third Expert Report by Dr K (2021)
It is noted that the expert report dated 4 August 2021, prepared by Dr K, was not challenged during the hearing and all parties elected to not cross-examine Dr K in relation to its contents.
Consent Court orders dated 9 March 2021 asked Dr K to address the issues of Ms Cresswell’s mental health, supervision, and any change in Ms Cresswell’s stated case as future needs. Dr K considered Ms Cresswell’s two episodes:
[The mother] had not had any previous mental health problems and had been high functioning. [The mother] suffered an acute psychotic episode which appeared to result from the stress of being under cross-examination on the third day of cross-examination at the Family Court in February 2019. She was admitted to hospital and Dr AR diagnosed an acute stress reaction on 29/4/2019. [The Mother] appeared to make a complete recovery. At the time of the first psychotic episode she was hallucinating, confused, misidentified people and believed that someone was shooting a gun at her. I formed the view that her previous diagnosis was consistent with a brief reactive psychosis following which she was functioning well. I noted that this diagnosis was consistent with DSM 5 category, as at page 95 of my previous report.[33]
[33] Report prepared by Dr K (4 August 2021) lines 239-47
Dr K notes that in regard to the second episode, following the final hearing in November 2020, Ms Cresswell “had not slept for several nights and she was talking about getting away from demons at home.”[34]
[34] Report prepared by Dr K (4 August 2021) line 253
Dr K notes that report entries from Ms Cresswell’s hospital admission notes on 12 November 2020:
At [P] hospital it was noted she was discharged on 17/12/20 with a diagnosis of acute stress reaction and also possible disassociation. The case manager, [Ms AS], on 25/11/20 noted that she was taking [medication] 10mg at the time. The admission notes indicate she was admitted from 12/11/20 and then discharged on 18/11/2020. The entry notes by [Ms AT], registered nurse, on 12/11/20 noted she had been wandering and unable to redirected [sic] and had a vacant look. [Dr AU] on 12/11/20 noted that she wanted to be cleansed of demons that she felt were occupying her home, and she was given [medication]. On 13/11/20 [the mother] was delusional and disorganised. [The mother] wanted the staff to get rid of some demons in her room at that time. [Dr AV] noted there were persecutory delusions and it did appear that the court case was the trigger. [Dr AW], psychiatrist, and [Dr AX], noted on 12/11/20 there was an acute stress reaction and possibly a dissociative reaction.[35]
[35] Report prepared by Dr K (4 August 2021) lines 259-64
Dr K formed the opinion that it was in Ms Cresswell’s interest to consult a psychiatrist due to her having two psychotic episodes. Nevertheless, he was also of the opinion that such episodes did not preclude Ms Cresswell from caring for X. In the executive summary, Dr K expresses the opinion:
Even though [the mother] has now experienced two brief psychotic episodes, in my view if the court decided it was in the child’s best interests to restore care to [the mother], the condition would not prevent [the mother] from being able to care for a child, as I believe that her parenting capacity is intact.
Due to the fact there have now been two episodes, I would recommend [the mother] consult a psychiatrist for monitoring of her mental status and to implement some preventative management for future stressful events, such as potential prophylactic medication and therapeutic support at the time of cross examination with her.[36]
[36] Report prepared by Dr K (4 August 2021) lines 18-24
Dr K classifies Ms Cresswell’s condition following the second episode in the following way:
In essence [the mother] has had another brief psychotic episode. This does not change her condition or her prognosis. In my report dated 23/8/19, I formed the view that [the mother] was suffering from a brief reactive psychosis.[37]
[37] Report prepared by Dr K (4 August 2021) lines 274-6
Dr K makes the following conclusions about Ms Cresswell’s parenting capacity:
I remain of the view that the brief psychotic disorder should not prevent [the mother] from being able to understand and care for a child except for the brief episode when she was unwell, [the mother] would be able to fulfil the full role of caring for her child and managing the biological, psychological and social needs of the child. Therefore, I believe that her parenting capacity is intact and that she could care for the child. The only caveat is that she could become acutely unwell again if under extreme stress, but this would seem highly unlikely unless there is a predictable stress that occurs.
I do believe that [the mother] wants to promote a relationship between the child and the father as she understands that the child needs to have a relationship with the father.
As noted in my previous report dated 6/4/20 there as a 91% chance that she would continue to remain well, according to DSM5. The fact that she has had another acute stress reaction or brief psychotic episode, or dissociative reaction still does not cause me concern about her illness. I believe that she would be able to manage and continue to function well as, in general, she will not be exposed to the high stress of a situation, such as cross examination on any regular basis.[38]
[38] Report prepared by Dr K (4 August 2021) lines 333-47
Recommendations of Dr K
Dr K makes a number of recommendations at the end of his updated report, with the key recommendations regarding Ms Cresswell’s health being:
5. In relation to [the mother’s] mental health, I believe that there are two forms of treatment that would be helpful. Firstly, psychological support such as receiving ongoing supportive psychotherapy to help her make sensible decisions and cope with adversity and stresses, such as what she is receiving currently with her counsellor. This treatment is important and appropriate that should continue over long term with [Ms AN] or preferably a clinical psychologist.
6. The second form for ensuring her wellbeing over at least the next two years, I would recommend that she see a psychiatrist, perhaps on a 3-monthly basis over the next 2 years as reassurance for both her mental wellbeing and also to ensure that she can be fully involved in the life of [the child]. The court could then feel reassured that if there is ongoing psychiatric involvement this would act to an extent as an insurance policy against any future mental psychotic or dissociative reaction.[39]
X
[39] Report prepared by Dr K (4 August 2021) lines 370-80
Early Care
Ms Cresswell claims to have been X’s primary carer throughout the relationship. Ms Cresswell’s evidence describes Mr Conroy as uninterested in caring for X, noting that he was busy with his work as a transport worker and that when he “was at home, he preferred practicing his work skills rather than assisting [Ms Cresswell] with X’s care”.
Ms Cresswell states that she was the person who took X to all his medical appointments, play dates, pre-school, would prepare his meals, take him for outings, pack his bag and so on. It is Ms Cresswell’s evidence that Mr Conroy could not attend to any of this due to his work commitments.
For reasons which have been explained, the Court does not accept Ms Cresswell’s evidence about Mr Conroy’s lack of involvement in X’s care. Mr Conroy was available and did care for X at times when he was not at work. He was an interested and caring parent.
While Ms Cresswell was responsible for most of X’s care while Mr Conroy was at work (and she was not working outside of the home), both Ms Cresswell and Mr Conroy were involved parents, who met X’s basic physical and emotional needs. Ms R, also played a role in assisting the parties’ in their early care of X.
X was approximately 1 year and 4 months at the time of the parties’ final separation.
Post Separation
Following the parties’ separation, X did not spend any time with his father between 10 September 2015 and after the first court event on 29 November 2016.
Mr Conroy lived in Perth Western Australia for 7 months, from 2016.[40] He moved back to City C in 2016 and lived with his parents at AY Street.
[40] T:496.25-8
It is Mr Conroy’s evidence that the reason X did not spend time with him was due to Ms Cresswell’s opposition to such time occurring, rather than a result of Mr Conroy’s election, and in the face of an ADVO made at the behest of Ms Cresswell and consented to on a without admission basis by Mr Conroy.
Despite Mr Conroys’ attempts to spend time with X during this period, Ms Cresswell was resistant to time occurring and did not facilitate time in a manner that was in X’s best interest.
In the period after the November 2016 Court orders until March 2017, Ms Cresswell continued to act in a manner which was not child focused, resulting in X not spending time with his father on 8 of the scheduled occasions he was due to do so.
On 3 July 2017 the Court amended the orders from 9 May 2017 to include the words “including a requested rostered day off”. In this instance, Mr Conroy had made an application in the case after Ms Cresswell did not make X available to spend time with his father. Ms Cresswell formed the view that, as the orders specified a “rostered day off” (RDO), a “requested rostered days off” (RRDOs) was not covered by the orders.[41] Ms Cresswell stated during cross-examination that “I was only trying to follow the orders. Well, I thought I was doing the right thing.”[42]
[41] T:57.16-45, 58.1-38
[42] T:59.1-2
On 1 September 2017, the interim orders were further varied to provide for X to begin spending overnight time with his father. The following day, the police attended Ms Cresswell’s residence to inspect and check on X’s safety after Ms Cresswell sent text messages to Mr Conroy about X and a mark on his back and torso. The police told Ms Cresswell to take X to see a doctor, and no further action was taken by the police in this instance.
On 16 September 2017 a verbal altercation occurred at changeover between Ms Cresswell and Mr Conroy in front of X, where the parties argued and Mr Conroy accused Ms Cresswell of alienating X from his paternal family.
As noted, on 2 September 2017, X commenced spending overnight time with Mr Conroy. Thereafter, Ms Cresswell had a repeated pattern of behaviour where she ignored court orders and caused the X to miss spending time with his father on 33 occasions overnight. Mr Conroy supplied unchallenged evidence to this effect showing time-stamped and dated receipts from when he was waiting to pick-up X to spend time with him.
Between November 2018 and May 2018 there were numerous occasions where Ms Cresswell and/or Mr Conroy did not attend changeover, or there was a minor incident such as one or both parties arrive late to the changeover.
The reasons provided by Ms Cresswell as to why time did not occur included the following:
(a)X was in ill health (despite an express order being in place at the time, where X must be declared unfit to drive prior to the changeover);
(b)The paternal grandmother would arrive at changeover as Mr Conroy’s nominee, so Ms Cresswell would refuse to hand over X;
(c)Ms Cresswell had “pre-bookings”;
(d)Ms Cresswell did not accept Mr Conroy’s availabilities were because he had a rostered day off (“RDO”) or a requested rostered day off (“RRDO”);
(e)Ms Cresswell asserted Mr Conroy had not provided his available days off;
(f)Ms Cresswell asserted that X had declined “an overnight”; and
(g)Ms Cresswell asserted that Mr Conroy’s work roster “could be anyone’s roster”.
Change of Residence and Current Living Arrangements
On 15 February 2019, following observations of Ms Cresswell whilst she was giving evidence and an application by Mr Conroy, the Court made orders for X to live with Mr Conroy on an interim basis.
Time Post February 2019 Orders
The orders dated 15 February 2019 provided that X live with Mr Conroy and spend supervised time with Ms Cresswell. The supervised time was to be conducted by either the maternal grandfather or an external agency. The orders also specified that Ms Cresswell was not to attend any changeover.
Mr Conroy states that after the orders were made he made a conscious effort to be flexible around Ms Cresswell spending time with X in consideration of the maternal grandfather’s work commitments.
On 12 April 2019, Mr Conroy was collecting X from school following the school’s yearly event, which Ms Cresswell also attended. Ms Cresswell asked Mr Conroy to take X home with her, as he was tired. When Ms Cresswell was asked by Mr Conroy if the maternal grandfather was available to supervise she replied no, to which Mr Conroy purportedly replied “well I cannot do anything”. Ms Cresswell told Mr Conroy that he could say yes. This was done by Ms Cresswell in circumstances where the orders provided for X’s time with Ms Cresswell to be supervised.
On 20 April 2019 Mr Conroy agreed to X attending the Event AZ with Ms Cresswell after text messages to the effect that the maternal grandfather would be attending, and the grandfather collected X on the day. That night X told Mr Conroy that the maternal grandfather did not attend the Event AZ with him and his mother. Ms Cresswell conceded in cross-examination that X’s time with her on that occasion was not supervised. When giving evidence in chief under a s.128 certificate,[43] Ms Cresswell mentioned two occasions in 2019 when she was spending time with X unsupervised, one of which was at the Event AZ.[44]
[43] Evidence Act 1995 (Cth) s128
[44] T:168.10
On 6 July 2019 Mr Conroy says that Ms Cresswell attended changeover, and that they were late. Mr Conroy also lists three subsequent changeovers where Ms Cresswell attended. Ms Cresswell conceded in her affidavit that she attended a changeover on 14 August 2019. Such attendance by Ms Cresswell at changeover was not in accordance with the orders.
An incident occurred on 2 September 2019, between Ms Cresswell and Mr Conroy at P Hospital when X was taken to the hospital by Ms Cresswell.
Both X and Mr Conroy had been sick for the days leading up to 2 September, and Mr Conroy had taken both himself and X to the doctors on 30 August 2019 where they were prescribed antibiotics. On 2 September 2019, while X was sick, he had make-up supervised time with Ms Cresswell, and Ms Cresswell’s father, Mr Cresswell came to collect X. Mr Conroy informed Mr Cresswell that X was sick and that he needed to take his medication at a certain time.
At 6:30pm that night, after the time for X to be returned, Mr Conroy received a text message from Ms Cresswell that she had taken X to the hospital. Mr Conroy arrived at the hospital where Ms Cresswell was there with her mother and X, and no authorised supervisor. Mr Conroy informed Ms Cresswell that X had seen a doctor and needed to be at home resting. Ms Cresswell took X off Mr Conroy, claiming that Mr Conroy was intimidating her and her mother. Mr Conroy left the room to talk to the ‘nurse manager’. The police arrived, but no action was taken in this instance.
The doctor came and saw X and informed them that he did not need to be at the hospital and to take him home. Ms Cresswell was holding X as they walked towards the hospital exit, Mr Conroy intercepted them and took X home. X was crying and distressed throughout this event.
On 30 September 2019 X was picked up from Mr Conroy’s house by the maternal grandfather. X was not returned by 6pm and Mr Conroy could not contact Ms Cresswell or the maternal grandfather. That night Ms Cresswell replied to a text message that X had gone to bed. Mr Conroy called the police who attempted to conduct a welfare check, but were denied access. Mr Conroy filed an urgent application in a case on 1 October 2019 seeking a recovery order. Before the listing date Ms Cresswell returned X on 13 October 2019.
Ms Cresswell concedes in her evidence that she breached court orders by withholding X for a period of two weeks, between 30 September 2019 and 13 October 2019. She also states that she needs to “advise the court what happened” including “who was supervising” her, however she “object[s]” to providing the evidence in an affidavit unless directed by the Court to do so. Such evidence has not been provided.
Between 14 October 2019 and 15 December 2019 X did not spend time with Ms Cresswell, as Mr Conroy had formed the view that Ms Cresswell’s time with X was not being properly supervised. After X was returned to live with the father on 13 October 2019, Mr Conroy attempted to facilitate time between X and Ms Cresswell through an accredited supervision agency.
On the 28 October 2019 an incident occurred at X’s school between Mr Conroy and the maternal grandmother’s de facto partner, Mr BA. Police attended the incident and an ADVO application was initiated by the police on behalf of Mr Conroy.[45] The ADVO was ultimately dismissed on the basis of an undertaking provided by Mr BA.
[45] See Affidavit of Mr Conroy (11 May 2020) 17 (annexure )
On 11 November 2019 Ms Cresswell was informed that she could no longer work casually at Employer BB.
It was not until 3 December 2019 that Mr Conroy reached an agreement with Ms Cresswell’s then Case Guardian to use BC Contact Centre as the accredited supervision agency. Following some discussion, it was agreed that these visits would take place in City BD close to City Z starting on 22 December 2019.
Supervised time occurred until 5 January 2020 when Mr Conroy was unable to bring X due to severe weather conditions and Ms Cresswell informed BC Contact Centre that she would no longer be needing their services. During cross-examination Ms Cresswell conceded that she did cancel BC Contact Centre services on 5 January 2020.[46]
[46] T:288.31-2
Following conversations with Mr Conroy and BC Contact Centre , Ms Cresswell again retained BC Contact Centre services and the next visit was on 8 January 2020.
On 18 January 2020 email correspondence between Ms Cresswell and BC Contact Centre raised concerns over Ms Cresswell’s argumentative correspondence with BC Contact Centre, and advised Ms Cresswell and Mr Conroy that an internal case review would be conducted. During cross-examination Ms Cresswell denied she was being argumentative.[47] The service with BC Contact Centre was terminated by 23 January 2020.
[47] T:292.21-45
Further discussions then occurred between the parties as to appropriate supervision, and time occurred after agreement was reached.
Ms Cresswell makes a number of allegations that throughout the period from March 2019 to May 2020 the following occurred:
(a)That X said to her that he “hated” his dad and wanted to “kill him”, that X also said the following: “I want my dad dead”; and “I hate my dad. I am going to kill him. Wish I only had a Mum and a Nan.”
(b)That X appeared “dirty”, with “long finger nails”, “unclean clothes”, “messy hair”, dirt on his face, and scratches and bruises all over his body. Accordingly, Ms Cresswell had to take X to get his hair cut and/or cut his fingernails on numerous occasions.
(c)That X would often arrive tired and very hungry, often saying that he had not eaten or only eaten a single sandwich all day. He would on occasion take food with him back to Mr Conroy’s house.
(d)That X had been sick on many occasions to the point where she had to take him to the doctors. This would include fevers, vomiting, nausea, lethargy, dehydration, weakness, etc. Ms Cresswell contends that Mr Conroy would fail to take appropriate steps, pre-emptive or otherwise, to ensure X was in good health, including making and taking him to doctors’ appointments.
(e)That X began to swear, commonly using the words “idiot”, “stupid”, “fricken”, “fuck”, “fucker” and “fucking”. Ms Cresswell also alleges that X would say “fuck. F.U.C.K. spells fuck” and “I am going to fuck my mum”.
(f)That X had a number of disturbing nightmares in this period, including where he would dream of his father dying or being attacked. He would also have nightmares where he was not safe.
(g)That there were multiple instances where Mr Conroy did not make X available for changeover, or where Mr Conroy was late for drop-off and/or pick-up.
(h)That there was an occasion where X “put [his] finger up [his] bottom” and “smeared the poo on the bath”. X then went on to “put the end of the plug up his penis”. Ms Cresswell contends that such behaviour was “copied” from the children of Mr Conroy’s new partner.
(i)That X did not having stable living arrangements whilst he is living with Mr Conroy, where he sometimes sleeps “on the couch”, or in the “guestroom”, or simply “on a mattress”.
(j)That X told her he was watching “movies for older people”, which were age inappropriate films.
(k)That Mr Conroy, or an appropriate person, did not attend important events and/or functions at school to support X.
After X was born and until 2019, Ms Cresswell’s non-financial contributions towards the welfare of the family and as parent and caregiver were superior to that of Mr Conroy. This was no longer the case after early 2019, when Mr Conroy became X’s primary carer. It is Mr Conroy who has made the superior non-financial contributions as parent and caregiver after the beginning of 2019.
Having regard to all of the relevant matters, including those at paragraph 298 and 299 above, the contributions are assessed as being slightly in favour of Mr Conroy, namely as to 52% to Mr Conroy and 48% to Ms Cresswell.
Future Needs
Mr Conroy will continue to be X’s primary carer, with the child living with him and spending significant and substantial time with Ms Cresswell.
Both parties appear to be in good health and there is no evidence of any health issue which might be an impediment on either party’s capacity to work and earn an income.
Ms Cresswell has interests in three investment properties, and is the only recipient of the rental income from the two properties which presently earn an income. She has had the financial capacity and means to obtain finance to further her real property investment portfolio. She appears to be savvy in terms of property investment, and in addition has qualifications as a professional.
Mr Conroy has incurred significant debt as a result of the legal costs incurred over more than 6 years of litigation. However, it is likely that Mr Conroy, should he return to full time employment, will have a higher earning capacity than Ms Cresswell.
There will be a modest adjustment in favour of Mr Conroy of 3%.
Overall Adjustment
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not and will not thereafter be the joint use of property by the parties. The requirement is primarily so satisfied in this instance.
Noting the earlier findings, there will be an overall adjustment in favour of Mr Conroy of 5%.
The total pool is made up of $618,733 worth of assets.
As such, Ms Cresswell is to receive 45% namely $ 278,430, made up as follows:
Ownership Description Value Ms Cresswell D Street, City C property $385,000 Ms Cresswell E Street, Town F property $400,000 Ms Cresswell G Street, Town H property $135,000 Ms Cresswell Commonwealth Bank Account #...04 $2,126 Ms Cresswell Bank BL Account #...81 $5,902 Ms Cresswell Bank BM Account #...40 (In trust for X) $604 Ms Cresswell Motor Vehicle 1 $5,000 Ms Cresswell Superannuation, Super Fund 1 $58,874 Ms Cresswell Bank BL Mortgage (G Street, Town H property) ($115,637) Ms Cresswell Commonwealth Bank Mortgage (D Street, City C) ($165,519) Ms Cresswell Commonwealth Bank Mortgage (E Street, Town F property) ($329,497) Ms Cresswell Employer AH Visa Credit Card ($1,597) Ms Cresswell HECS Debt ($49,400) Payment to Mr Conroy ($52,426) Total: $ 278,430
As such, Mr Conroy is to receive 55% namely $ 340,303 made up as follows:
Ownership Description Value Both B Street, City C property $275,000 Mr Conroy Commonwealth Bank Account #...20 $1,514 Mr Conroy Westpac Bank Account #...90 $92 Mr Conroy Company BN Shares $456 Mr Conroy Superannuation, Super Fund 2 $80,605 Mr Conroy Motor Vehicle 2 $19,000 Mr Conroy Household contents $500 Mr Conroy Personal property (work equipment and tools) $3,000 Both Bank BO Home mortgage ($63,850) Both Personal Loan from Ms S (B Street, City C deposit) ($18,700) Mr Conroy Westpac Visa Credit Card ($4,221) Mr Conroy Employer AH Credit Card ($5,519) Payment from Ms Cresswell $52,426 Total: $ 340,303
In all of the circumstances, the proposed adjustment and consequential orders are just and equitable.
COSTS
The applications for costs are to be determined, if pressed, upon the parties being given the opportunity of putting on appropriate evidence and addressing the relevant matters in submissions.
As such, orders are made for the filing of evidence and written submissions, and unless there is objection, the issue of costs will be dealt with on the papers.
CONCLUSION
For all those reasons orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding three hundred and twenty-three (323) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 15 March 2023
ANNEXURES
Annexure “A” - Procedural history summary
Date: Event: 4 October 2016 Initiation Application filed by Ms Cresswell seeking property orders only. 15 November 2016 First court date, and response to Initiating Application filed by Mr Conroy joining parenting. 29 November 2016 Consent orders for X to spend time with Mr Conroy, Orders made for parties to attend Child Dispute Conference on 16 March 2017, and listed for interim defended hearing on 31 March 2017. 22 March 2017 Child Dispute Conference memorandum released. 31 March 2017 Interim defended hearing held with judgment reserved and Orders for parties to attend Conciliation Conference on 2 May 2017. 9 May 2017 Interim judgment delivered and Orders made for interim parenting proceedings which provided for X to live with Ms Cresswell and to spend time with Mr Conroy in accordance with his rostered days off and progressing to over-night stays, and Orders for the preparation of a Family Report. 3 July 2017 Orders slightly varying Orders dated 9 May 2017 to include the words “including a requested rostered day off” and that X spend time with his mother on Mother’s Day. 26 October 2017 Various injunctive orders made against the parties preventing them from leaving Australia, travelling outside City C area during other parents’ time with X, and from contacting employers. Mr Conroy’s costs were reserved. 1 November 2017 X began spending time with Mr Conroy overnight, in accordance with Orders dated 9 May 2017. 7 March 2018 Family Report prepared by Mr M. 16 July 2018 Date of filing of Amended Initiating Application by Ms Cresswell for property and parenting. 30 July 2018 Listed for final hearing in the running list at 10am 11 February 2019. 11 – 15 February 2019 Final Hearing (Tranche # 1)
Final hearing listed during a running list, to commence on 11 February 2019. The parties spent time talking and attending to housekeeping matters on Monday and Tuesday, with the evidence commencing on Wednesday 13 February 2019. The matter was then stood over to Friday 15 February 2019, when the evidence continued.
Final Hearing adjourned during the course of Ms Cresswell giving evidence on Friday, 15 February 2019. Orders made for X to live with Mr Conroy and to spend supervised time with Ms Cresswell for 3 periods per week, and such time to be supervised by either an external agency or by the maternal grandfather, Mr Cresswell, subject to Mr Cresswell entering into written Undertakings.
Orders made for Ms Cresswell to attend upon a psychiatrist to provide an Expert Report in regard to the mental health of Ms Cresswell. An Independent Children’s Lawyer (ICL) was also appointed.22 February 2019 Orders made appointing Ms Cresswell’s brother, Mr BP as case guardian to appear on behalf of Ms Cresswell. 16 May 2019 Orders made for Ms Cresswell’s then case guardian to forward documents to Dr K including: the Family Report; Orders 15 February 2019; Orders 22 February 2019; Transcript beginning 12 February 2019 through to 22 February 2019; Mr Conroy’s and Ms Cresswell’s trial affidavits. 28 June 2019 Orders made for audio recording of earlier proceedings to be forwarded by the ICL to Dr K. 12 September 2019 Dr K filed affidavit annexing expert report ordered on 16 May 2019, report dated 23 August 2019. 2 October 2019 Mr Conroy files an Application for a recovery Order. 4 October 2019 Date of father filing an Application for review seeking that the Application in a Case be listed urgently. 21 October 2019 Proceedings listed for final hearing on 18, 19, 20, 21 and 22 May 2020, and listed for compliance check on 14 February 2020. All outstanding interim applications stood over to the final hearing. 31 October 2019 Date of filing of Contravention Application on behalf of Ms Cresswell by Ms Cresswell’s then case guardian. 8 November 2019 Date of filing of Application in a Case by Ms Cresswell’s former case guardian on behalf of Ms Cresswell seeking that X live with Ms Cresswell. 4 December 2019 Date of filing of Application for Review by Ms Cresswell of the decision of the Court to refuse short service of the Application in a Case dated 8 November 2019. 13 December 2019 Application for Review filed 4 October 2019 dismissed, all outstanding interim and contravention Applications stood over to the Final Hearing. Final Hearing dates confirmed. Mr Conroy’s costs reserved. 14 February 2020 Consent orders to obtain a joint valuation of the properties. 6 April 2020 Date of further Expert Report prepared by Dr K. 9 April 2020 Interim parenting orders made by consent varying previous orders dated 15 February 2019. Orders stipulate that Ms Cresswell spend supervised time with X on three occasions each week, and that Ms Cresswell’s time be supervised by either: an external agency; Ms BF; Ms AL [sic]; Ms BQ; or Ms BE [sic]. Supervised time will not commence until the named supervisors have filed an Undertaking, and changeover will occur at G Street, Town H McDonalds. 23 April 2020 Date of filing of Application in Case by Ms Cresswell’s then case guardian seeking that the order appointing the case guardian be discharged. 27 April 2020 Listed for directions and first return of the Application in Case filed 23 April 2020 on 1 May 2020, and order for tender bundle in respect of the final hearing listed for 18-22 May 2020 inclusive. 1 May 2020 Orders made discharging the appointment of Mr BP as Ms Cresswell’s case guardian. Hearing dates confirmed, with hearing to proceed by way of Microsoft Teams. Extension of time granted for all parties to file updating trial documents and affidavits. 18 – 21 May 2020 Final Hearing (Tranche #2)
The Hearing proceeds over 4 days with evidence being given on the first three days. On day 4 of the hearing, the matter does not proceed.
Orders made granting leave for the parties to file and serve updating affidavits and amended Minutes of Order, and Ms Cresswell was released from cross-examination. Orders were also made by consent for X to be assessed by a paediatrician and to provide an Expert Paediatric Report, and the appointment of a Court Expert. The matter was adjourned part-heard until 2 November 2020 and set down as a special fixture, for 4 days.26 October 2020 Order made regarding the service and filing of tender bundles of the parties. 2 – 4 November 2020 Final Hearing (Tranche #3)
Evidence concludes and directions made for the filing of written submissions and judgment was reserved.18 December 2020 Father filed application in a case seeking that the matter be reopened so that he can adduce further evidence. 9 March 2021 By consent, Orders were made for the matter to be reopened and was listed for further hearing on 12 and 13 August 2021. 9 August 2021 Release of the Expert Report dated 4 August 2021. 12 August 2021 Orders vacating the hearing for 12 and 13 August 2021, adjourning the final hearing to 18 and 19 November 2021 due to late release of expert report and matter not being ready. 18 – 19 November 2021 Final Hearing (Tranche # 4)
Evidence given over 2 days and further oral submissions made.
Judgment reserved to be delivered on a date to be advised.Annexure “B” – Documents read in the proceedings
Ms Cresswell relied on the following documents:
(a)Amended initiating application filed on 16 July 2018;
(b)Amended financial statement filed 16 July 2018;
(c)Affidavit of Ms Cresswell filed 16 July 2018;
(d)Affidavit of Ms Cresswell filed 11 February 2019, titled “child matters”;
(e)Affidavit of Ms Cresswell filed 11 February 2019, titled “property matters”;
(f)Affidavit of Dr K filed 12 September 2019;
(g)Mother’s Case Outline document filed 13 May 2020;
(h)Further amended financial statement of the applicant mother filed 11 May 2020;
(i)Affidavit of Ms Cresswell filed on 11 May 2020;
(j)Affidavit of Mr BR filed 11 May 2020;
(k)Affidavit of Ms R filed 11 May 2020;
(l)Report of Dr K dated 6 April 2020;
(m)Balance sheet filed 15 May 2020;
(n)Applicant mother’s written submissions filed 14 December 2020;
(o)Affidavit of Ms Cresswell filed 16 October 2020;
(p)Affidavit of Ms Cresswell sworn and filed 11 August 2021;
(q)Affidavit of Ms Cresswell sworn and filed 16 November 2021;
(r)Minute of Order sought by the applicant mother and emailed to the Court on 16 November 2021 (in accordance with Order 6 of Orders made by Judge Obradovic on 9 March 2021).
Mr Conroy relied on the following documents:
(a)Amended response filed 20 July 2018 (property only);
(b)Amended financial statement of the respondent father filed 23 July 2018;
(c)Affidavit of Mr Conroy sworn 23 July 2018, filed 24 July 2018;
(d)Affidavit of Ms S (Paternal Grandmother) filed 19 July 2018;
(e)Affidavit of Mr Conroy filed 8 February 2019 (parenting only);
(f)Affidavit of Mr Conroy filed 12 February 2019;
(g)Respondent father’s minute of parenting orders dated 13 May 2020;
(h)Respondent father’s case outline Document filed 14 May 2020;
(i)Amended financial statement of respondent father filed 11 May 2020;
(j)Affidavit of Mr Conroy signed 11 May 2020, filed 12 May 2020;
(k)Affidavit of Ms S filed 11 May 2020;
(l)Affidavit of Ms T filed 11 May 2020;
(m)Affidavit of Mr Conroy filed 16 October 2020;
(n)Respondent father’s written submissions filed 1 December 2020;
(o)Affidavit of Mr Conroy filed 18 December 2020;
(p)Affidavit of Mr Conroy filed 5 March 2021;
(q)Affidavit of Ms S filed 5 March 2021 ;
(r)Affidavit of Mr Conroy filed 2 August 2021;
(s)Minute of Order sought by the respondent father emailed to the Court on 17 November 2021 (in accordance with Order 6 of Orders made by Judge Obradovic on 9 March 2021);
The ICL relied on the following documents:
(a)Amended initiating application filed on 16 July 2018;
(b)Amended response to initiating application filed 20 July 2018;
(c)Independent Children’s Lawyer’s case outline document filed 13 May 2020;
(d)ICL’s written submissions filed 19 November 2020;
(e)Minute of Order sought by the ICL emailed to the Court on 16 November 2021 (in accordance with Order 6 of Orders made by Judge Obradovic on 9 March 2021).
Annexure “C” - Exhibits
Key: AM Applicant Mother; RF Respondent Father; ICL Independent Children’s Lawyer.
Date No./Mark Tendered by Party Description of Exhibit 13 February 2019 1 AM List of documents relied on by Ms Cresswell, including various financial documents and balance sheet 13 February 2019 2 RF Valuations x3 13 February 2019 3 RF Email from mother to father dated 25 January 2008 13 February 2019 4 RF 2 x Images of X 13 February 2019 5 RF Photograph posted to Facebook dated 2013 13 February 2019 6 RF Facebook message from the mother to the father in respect of engagement rings dated 2012 13 February 2019 7 RF Text messages between mother and father dated 11 January 2015 13 February 2019 8 RF Photographs the father says shows the renovations that he conducted of D Street, City C together with the picture of the dining room floor 13 February 2019 9 RF Bundle of emails passing between the parties in 2008 13 February 2019 10 RF Documents produced under subpoena by Commonwealth bank of Australia. 15 February 2019 11 RF Westpac statements for Ms Cresswell in account ending …21 15 February 2019 12 RF Photo of the mother and the child in a pool in City BS in 2015 15 February 2019 13 RF Photographs of the father and X and the parties together with X at Location BT in City AJ in 2015 15 February 2019 14 RF Photograph of the mother and the father and X at a picnic in 2015 15 February 2019 15 RF Letter from the mother's solicitors to the father's solicitors dated 12 February 2016 15 February 2019 16 RF Facebook exchange between the Mother and father and photo of a Book from 2012 15 February 2019 17 RF Photographs referred to in paragraph 93 of the Father's Affidavit of July 2018 15 February 2019 18 RF Photographs referred to in paragraph 94 of the Father's Affidavit sworn in July 2018, depicting the later stages of the renovations of
B Street, City C20 May 2020 19 AM Identified lines of the report prepared by Dr K dated 6 April 2020: lines 47-59; notation and warning lines 66-73 inclusive; opinions at line 326, first opinion lines 326-332, second opinion lines 334-343 3 November 2020 20 RF Letter of offer from the Employer BU, transport worker specialisation, addressed to Mr Conroy in 2008 3 November 2020 21 AM Bank BV application 2013 3 November 2020 22 AM Bank BO home loan application 28 January 2014 4 November 2020 23 AM Text messages between the parties appearing at page 92 - 93 of the father’s Affidavit of 11 May 2020, dated 12 January to 18 January 2020 4 November 2020 24 RF Following documents:
• Counselling referral form 2 January 2014 (1 page)
Mental health progress notes 27 February 2019 (2 pages)
4 November 2020
25
RF
• Series of text messages between parents dated 2018 about Country U trip
4 November 2020 26 RF The following documents in the ‘Exhibit Bundle Filed 15 May 2020’:
• HH Report 13 January 2020 (Page 32 only)
• HH Client Case Notes 2019
• HH email to mother 18 January 2020
• HH Bundle of Emails
• Medicare Patient History Report Ms Cresswell
• File Note Ms BW 28 March 2019
• Correspondence Ms Cresswell /Employer BB
• Employer BB Application dated 4 September 2018
• Meeting note Employer BB and Mother 11 November 2019 Re position at Employer BB
• Letter to grandparents from Employer BB
• Letter to father from Employer BB 20 January 2020
• P Hospital discharge note 2019
HH Report 22 January 2020 (page 115)
4 November 2020 27 RF The following documents in the ‘Dr J Subpoena Paginated’:
• Dr J letter dated 24 April 2019
• Dr J notes of consultations with Mother
Dr J letter 19 March 2019
4 November 2020 28 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 23 July 2018’ (except any documents with references to electronic diary):
• Photo X reading manual 6 May 2015
• Photo toy airplane 2013
• Video still 5 January 2015 X
• ADVO 21 January 2016
• Mr Conroy Police Statement 15 August 2015
• Ms Cresswell Police Statement 14 August 2015
• Solicitor letter re X birthday 2016
• Letter Mother re X Birthday 2016
• Solicitor letter re X birthday 2016
• Mother letter X Birthday 2016
• Employer AD Roster 2016 to 2018
• Company BX Reports 30 November 2016 to 21 January 2017
• Email with RDO’s 3 March 2017
• Solicitor letter re RDO’s and breach 16 February 2017
• Email father to Mother re RDO’s and breach 19 February 2017
• Email father to Mother re breach 24 February 2017
• Email Father to Mother annexing roster 3 March 2017
• Solicitor letter to Mother annexing roster re breach 6 March 2017
• Father Urine Drug Analysis 28 March 2017
• Father Parenting after Separation Certificate 8 March 2017
• Email Father to Mother annexing roster 30 April 2017
• Email Father to Mother re spend time 8 May 2017
• Photo Father waiting at McDonalds 14 May 2017
• Email Mother to Father “Unaware of your scheduled RDO’s” 10 May 2017
• Email Father to Mother annexing roster 10 May 2017
• Email Mother to Father 12 May 2017
• Email Father to Mother re breaches 13 May 2017
• Photograph McDonalds Receipts 13 May 2017 and 23 May 2017
• Solicitors letter re breaches 18 May 2017
• Father texts to Mother “are you coming” 20 May 2017 and 23 May 2017
• McDonalds receipt 30 May 2017
• Solicitors letter re breach 1 June 2017
• McDonalds receipt 3 June 2017
• McDonalds receipt 4 June 2017
• Solicitors letter re breach 4 June 2017
• McDonalds receipt 6 June 2017
Ÿ Solicitors letter re breach 9 June 2017
Ÿ Solicitors exchange re breach 9 June 2017
Ÿ McDonalds receipt 10 June 2017
Ÿ McDonalds receipt 17 June 2017
Ÿ Letter father to Employer AD requesting 17/18 set RDO’s 27 March 2017
Ÿ Mother pre-booking email 24 July 2017
Ÿ Email Employer AD to Father confirming Mother called Employer AD re roster 25 July 2017
Ÿ Email father to Mother 26 October 2017
Ÿ Medical certificate X 27 November 2017 – 30 November 2017
Ÿ McDonalds receipt 2 December 2017
Ÿ Medical certificate X 2 December 2017
Ÿ McDonalds receipt 16 December 2017
Ÿ X Medical certificate 15 January 2018 – 19 January 2018
Ÿ X Medical certificate 15 January 2018 – 19 January 2018 can travel
Ÿ Mother’s “pre-booking” email 7 July 2018
Mother’s “pre-booking” email 20 July 2018
4 November 2020 29 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 8 February 2019’:
• Employer AH Roster 1 July 2018 to 7 February 2019
• Text Message train between Mother and Father 7 July 2018 to 1 February 2019 particularly pp 28-33, 38-42, 45-47, 49-51, 53, 56-57.
• Email exchanges Mother and Father re pre-bookings 8 August 2018 to 20 December 2018
4 November 2020 30 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 12 February 2019’
• Text message train between Mother and Father 18 December 2017 to 4 July 2018 subcategory preschool location enquiries pp 50, 51, 55-56 (pages 4-42 only).
4 November 2020 31 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 11 May 2020’
• BG School Statement re Informal Parent Meeting Term One 2019
• Email Ms BW to parents dated 30 May 2019
• BG School Meeting mother dated 19 September 2019
• Ms BW email autism concerns dated 18 August 2019
• Text messages between mother and father re pre-bookings 18 March 2019 to 25 March 2019
• Text messages between the mother and father re overnights 8 April 2019 to 17 April 2019
• Text messages re Event AZ 21 April 2019 to 24 April 2019
• Text messages re supervision breach 9 June 2019 to 11 June 2019
• Text messages 19 June 2019 to 21 August 2019
• Text messages hospital visit 2 September 2019
• Text messages re Term 2 holiday breach 30 September 2019 to 14 October 2019
• Text messages re supervision 5 January 2020 to 6 January 2020
• Text messages (pages 101 -102)
• Text messages Mr Cresswell and Father 24 April 2019
• P Hospital Record 2 September 2019
• Solicitors letter re contact centres 23 October 2019
• NSW Police Application ADVO re Mr BA
• Email Father to Mother re removing X from school 21 January 2020
• Mother’s CSA Assessment 8 April 2020 to 30 June 2020
Ÿ Father’s CSA Assessment 8 April 2020 to 30 June 2020
4 November 2020 32 RF The following documents in the ‘Exhibit Bundle filed 15 May 2020’:
• ASIC Search Company BY
• CBA Home Loan Offer E Street, Town F
• Employer BZ Deed of Release
• Employer Benefit Fund Beneficiary Direction
• Bank BL Company BY Debit Authority for Home Loan
• Company CA Ms Cresswell Home Loan Request
• HH Report 13/1/2020 (Page 32 only)
• Mother Westpac Account re house deposit
• Employer AD Scholarship letter
• Ms Cresswell professional License
• Company BY Bank BL Acc …81 $5902 balance
4 November 2020 33 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 23 July 2018’:
• Bank Statement Deposit B Street, City C $18700
• Westpac Bank Account showing Store CB transactions 16 March 2015 to 18 May 2015
• Father’s Payment B Street, City C Mortgage 2014 to 2018
• Rates and Insurance Payments B Street, City C 2015 to 2018
4 November 2020 34 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 12 February 2019’:
• Photocopies of receipts for D Street, City C renovations 2014-2015
• Father’s CBA Account statements for period 2010 - 2011 :City AE
• Father’s CBA Bank Statement 2013 to 2014 showing B Street, City C savings contributions being:
• 2013 savings house $5000
• 2013 savings $4000
• Transfer Savings $2,400
• Transfer House $5000
• Transfer House $1,600
• Transfer House $1800
• Transfer House Insurance $700
4 November 2020 35 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 11 May 2020’:
• Employer AH Letter Temporary Part Time 2020
• Employer AH Stand Down letter 2020
• Employer AH Jobkeeper letter 2020
4 November 2020 36 RF The following documents annexed to the ‘Affidavit of Mr Conroy sworn 16 October 2020’:
• Employer AH Jobkeeper Stand Down letter 2020
• Employer AH Payslip 2020
4 November 2020
37
ICL
• Report of Ms N dated 27 June 2020
4 November 2020
38
ICL
• Report prepared by Dr O dated 24 August 2020
4 November 2020
39
ICL
• Child Dispute Conference Memorandum to the Court dated 22 March 2017
4 November 2020 40 ICL Report prepared by Mr M dated 7 March 2018 18 November 2021 41 RF Husband's Tender Bundle prepared after 4 November 2020 18 November 2021 42 RF Dr K report dated 4 August 2021