DALFREY & SALTMAN - [2020] FCCA 1733

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALFREY & SALTMAN

[2020] FCCA 1733

Catchwords:
FAMILY LAW – Interim parenting – for how long should children continue to have supervised time with their father – risk of harm to children.

Legislation:

Evidence Act 1995 (NSW), s.128
Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 65DAA, 68B, 68P

Cases cited:

Deiter & Deiter [2011] FamCAFC
Eaby & Speelman [2015] FamCAFC 104
Enmore & Smoothe [2014] FamCAFC 131
Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145
Goode & Goode [2006] FamCA 1346
Insley & Insley [2018] FCCA 438

Applicant:

MR DALFREY

Respondent:

MS SALTMAN

File Number:

WOC 49 of 2018

Judgment of:

Judge Altobelli

Hearing date:

12 June 2020

Date of Last Submission:

12 June 2020

Delivered at:

Wollongong

Delivered on:

7 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Gillies SC

Solicitors for the Applicant:

Hansons Lawyers

Solicitors for the Respondent:

DGB Lawyers

Solicitors for the Independent Children's Lawyer:

Sydney Family Law Specialists Pty Ltd

ORDERS PENDING FURTHER ORDER

The Order for equal shared parental responsibility made on a final basis on 27 June 2018 be suspended.
The children X (born in 2004), Y (born in 2005), Z (born in 2009) (‘the children’) spend time with the Father supervised at all times by Ms B and Mr C as follows:
(a)From 11:00am – 1:00pm each alternate Sunday for a total of 4 Sundays at the home of the supervisors; and
(b)Thereafter from 11:00am – 3:00pm each alternate Sunday.
For the purposes of changeover:
(a)The Mother and/or her nominee shall deliver the children to Mr C and Ms B at their residence at least 15 minutes prior to the commencement of the Father’s time; and
(b)The Mother and/or her nominee shall collect the children from Mr C and Ms B at their residence at least 10 minutes after the conclusion of the Father’s time;
(c)The Father shall not arrive at the home of Mr C and Ms B until at least 10:55am on the days that he is to spend time with the children pursuant to these Orders; and
(d)The Father shall leave the home of Mr C and Ms B after he has spent time with the children within 5 minutes of his time with the Children concluding.
The Mother will ensure that the children take their mobile phones with them during their time with the Father and the Father shall not do any act or thing to prevent the children using their mobile telephones to contact their mother if they choose to do so.
In addition to the FaceTime communication that the Father has with the children pursuant to the Orders made on 24 April 2020, he shall also have FaceTime communication with the children each alternate Sunday that he is not spending with the children, at the same times and on the same conditions as set out in Order 3 and 4 of the Orders made on 24 April 2020.
Pursuant to s68B the Father shall hereby be restrained by injunction from attending events at which the children are present that allow for parental attendance or participation, including but not limited to:
(a)Sporting fixtures;
(b)Extracurricular activities; and
(c)School functions and events.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 49 of 2018

MR DALFREY

Applicant

And

MS SALTMAN

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about three children, X who is 15, his brother Y who is 14 and their sister Z who is 11. Their father is the Applicant, the Respondent is their mother. The Court had to decide, in effect, for how long the children should continue to have supervised time with their father. These Reasons for Judgment explain why the Court has ordered that the children continue to spend supervised time with their father, pending further order of the Court.

Background

The parents commenced a relationship in 1988 and married in 2006. The Father is 39 years old, the Mother 38 years old. The Father lives in a Region D suburb of Sydney. The Mother and the children live in the Region E of New South Wales. The Father is a public servant, but is currently suspended on full pay.
On 27 June 2018, the parents entered into final consent Orders in the Family Court of Australia in Sydney. These Orders provide for equal shared parental responsibility, for the children to live with their mother, and to spend substantial and significant time with their father. During the school terms, and during the term 4 school holidays, this involved the children spending each alternate weekend with their father, from after school on Friday to 5:00pm on Sunday, and then from after school on Wednesday, to before school on Friday in the alternate week. The school holidays at the end of terms 1, 2 and 3, were to be shared.
Late in 2019, serious problems developed with compliance with these Orders. It appears that from late October, X and Z ceased to spend any time with their father, but Y was still spending each alternate weekend with him. Since 5 December 2019, the children have spent no time with their father, and have had limited communication with him.
The present Application first came before the Court in Chambers on 24 April 2020 when the Court was invited to make consent Orders on an interim basis. Those Orders suspended a number of the final Orders made on 27 June 2018, provided for the Mother to facilitate the children communicating with their father via Facetime, made a section 68B injunction, and there was also an order under section 68P of the Family Law Act 1975 (Cth) (hereafter referred to as “the Act”) noting the inconsistency between the Orders for communication, and an Apprehended Violence Order that had been made for the protection of the Mother and the children.
The matter came before the Court, again for Interim Hearing, on 12 June 2020. On that occasion, Ms Gillies of Senior Counsel appeared for the Father, Ms Longbottom for the Mother and Ms Smith as agent for the Independent Children’s Lawyer. Having heard submissions, the Court reserved judgment but made a number of interim Orders pending the present Reasons for Judgment and interim Orders.
The Orders of 12 June 2020 further suspended a number of the Orders made 27 June 2018. The Orders made 24 April 2020 were confirmed. An Order was made for the children to spend time with their father from 11:00am to 1:00pm on Sunday 14 June, 28 June and 12 July 2020. The Father’s time was to be supervised by named supervisors and Orders were made in relation to changeover, the provision of telephones, and a number of other Orders. The Court assumes that the Orders made 12 June 2020 have been implemented such that, by the time these Reasons are published, the Father will have recommenced time with the children, albeit, on a supervised basis.

The competing proposals

At the Interim Hearing, the orders sought by the Applicant Father were contained in a minute attached to his case outline document filed 10 June 2020. This minute is reproduced in full in the First Schedule to these Reasons for Judgment. For present purposes, he sought an order to spend time with the children as follows:
a)For a period of four weeks, from 9:00am to 5:00pm on Sunday supervised;
b)For a period of six weeks from 9:00am Saturday to 6:00pm Sunday each alternate weekend, again supervised;
c)Thereafter, for a period of eight weeks, from 9:00am Saturday to 5:00pm Sunday each alternate weekend, unsupervised;
d)Thereafter, each alternate weekend from after school on Friday to 5:00pm on Sunday, again unsupervised.
The orders sought by the Mother are set out in her case outline document filed 10 June 2020. These orders are also reproduced in the First Schedule to these Reasons. By way of summary, the Mother sought an order for sole parental responsibility, that the children continue to live with her, and that the children spend time at the home of named supervisors, supervised by both named supervisors, from 11:00am until 1:00pm each alternate Sunday for six Sundays and thereafter, on the same supervised basis from 11:00am until 3:00pm each alternate Sunday.
During submissions, Ms Longbottom on behalf of the Mother communicated to the Court that in view of the Independent Children’s Lawyer’s proposals, the Mother now proposed that there be four 2 hour supervised visits, and then four 4 hour visits, but in each case with supervision by both supervisors.
The Independent Children’s Lawyer’s proposal, also reproduced in the First Schedule, provides for the children to spend supervised time with their father from 11:00am to 1:00pm on Sundays: 14 June, 28 June and 12 July, and then from 26 July 2020 each alternate Sunday from 11:00am until 3:00pm.
The main issue for the Court to determine, therefore, is how much time the Father spends with the children, how it is supervised and whether and if so when supervision ceases.
Senior Counsel for the Mother indicated that all of the orders sought by the Independent Children’s Lawyer in her minute were consented to by the Father with the exception of orders 3(b), 7 and 13. Notwithstanding this, the Court believes that an issue that remained in contention between the Father, the Mother and Independent Children’s Lawyer is whether or not the two named supervisors were required, as opposed to just one of them.
The issue of parental responsibility can be dealt with here, and succinctly. The parties agree that the order for equal shared parental responsibility made on a final basis, be suspended. By way of operation of section 61C of the Act, joint parental responsibility is in effect. As the Independent Children’s Lawyer did not seek an order for sole parental responsibility, and as the Mother no longer pressed the issue, there is no need for the Court to adjudicate on this issue for the time being.

The issues

Underlying the differences in the competing proposals identified above, appeared to be three issues, broadly described. It was common ground that the children want to spend time with their father and indeed, love him and have a good relationship with him. To what extent should these views be given weight? At least, implicit in the Father’s case was the contention that he could not have a meaningful relationship with his children in circumstances where his time with them is so limited. There did not seem to be much doubt from all of the evidence that the Father does have a meaningful relationship with the children based on his extensive involvement in their lives both before and after separation. Perhaps, the most difficult issue was that relating to whether or not the Father presented a risk of harm to the children, and if so, how that risk was managed. Both the Independent Children’s Lawyer and the Mother submitted that the risk was so great that pending further order, and in particular the receipt of appropriate expert evidence, the Father’s time should only be supervised. Moreover, both the Mother and Independent Children’s Lawyer submitted that whilst there was common ground about the suitability of the named supervisors, the risk of harm could only be managed if both supervisors were present. The Father’s case was that for a relatively short period, the risk of harm could be managed by supervision via one of the named supervisors, but thereafter, there was no need for supervision.
As will be seen below, the risk of harm issues related to the Father’s mental health. The Father has suffered quite serious mental health issues since at least 2011. In 2019, particularly, towards the end of that year, his mental health condition deteriorated seriously, and this led to a series of violent incidents on or about 5 December 2019. In short, the Father’s case was that his mental health was under control, that he was medication compliant, and well-engaged with and supported by his treating professionals. The Mother and Independent Children’s Lawyer’s case was that even if this was the case, which is not accepted by them, the risk of relapse was an unacceptable one, and could only be managed by close supervision.

The evidence

In the Father’s case he relied on the following documents:
a)Case outline document filed 10 June 2020;
b)Initiating Application filed 19 March 2020;
c)Affidavit of Mr Dalfrey sworn 29 May 2020 and filed 1 June 2020;
d)Affidavit of Mr C sworn 2 June 2020 and filed 3 June 2020;
e)Affidavit of Ms B sworn 2 June 2020 and filed 3 June 2020; and
f)Notice of Risk filed 19 March 2020.
In the Mother’s case she relied on the following documents:
a)Case outline document filed 10 June 2020;
b)Response filed 29 April 2020;
c)Affidavit of Ms Saltman sworn and filed 29 April 2020; and
d)Notice of Risk filed 29 April 2020.
The Independent Children’s Lawyer relied on her case outline document filed on 11 June 2020.
The following documents were tendered as evidence during the course of the proceedings:
a)An aide-mémoire to the Court summarising subpoena material on behalf of the Applicant;
b)Child Dispute Conference Memorandum to the Court dated 5 June 2020; and
c)Tender bundle prepared by the Independent Children’s Lawyer.

Summaries of evidence

There are two documents that were helpful to the Court in assessing the evidence presented before it. The first is the chronology that is contained in the Independent Children’s Lawyer’s case outline document filed 11 June 2020.
The document is reproduced in the Second Schedule to these Reasons for Judgment. This chronology is helpful because it was prepared by an independent party and relies almost exclusively on documents that had been produced to the Court on subpoena, mainly business records, and which were contained in tender bundles.
The second useful document is an aide-mémoire tendered on behalf of the Father which summarised documents produced on subpoena; particularly documents relating to the Father’s treatment for his mental health conditions. This summary is reproduced in the Third Schedule to these Reasons.
The interim Application was heard during the COVID-19 pandemic, and was conducted by telephone. Both the documents identified above, as well as the very useful outline of case documents prepared in each case, greatly assisted the Court in the circumstances.

The applicable law

The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)    ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)    parents should agree about the future parenting of their children; and
(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)    to maintain a connection with that culture; and
(b)    to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)    to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a)    the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends or holidays; and
(b)    the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)    how far apart the parents live from each other; and
(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)    the impact that an arrangement of that kind would have on the child; and
(e)     such other matters as the court considers relevant.

Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

The case law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The matter of Insley & Insley [2018] FCCA 438, discusses some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.

The submissions summarised

By way of summary, Senior Counsel for the Father explained that whilst the Father’s mental health issues were longstanding, indeed relating back to at least 2011, the evidence that he has presented to the Court from his treating professionals, and the very detailed, prescriptive orders he proposes, would reassure the Court that the Father would remain accountable about his mental health, and transparent about engagement with services. Whilst there was an acceptance that the Father’s mental health had fluctuated over the years, the protections that he contended for would reassure the Court, particularly in circumstances where the children are old enough to, in effect, have self-protective capacity, and in any event had unlimited communication with their mother and others. The Father’s case emphasised the longstanding and good relationship that he has had with the children. The need for two supervisors to be present, and for the Father’s time to occur at their home, was suggested to be unnecessarily protective, and impractical and onerous for the supervisors. The Father also sought liberal communication with the children, as well as the ability to attend at extracurricular activities.
There is one submission made by Senior Counsel for the Father that the Court will consider separately. During submissions, the Court made observations to Senior Counsel about the very limited concessions the Father makes about the violent incidents on or about 5 December, as well as the significant disparity between his account of the events, the Mother’s accounts, and the documentation which the Father himself annexed to his Affidavit, relating to the Apprehended Violence Orders, and the criminal charges he faces. Senior Counsel submitted that whilst the Father makes a number of concessions in relation to the events, he could not be read as accepting responsibility for what occurred. To be fair to Senior Counsel, she never contended expressly that her client’s right to silence in the criminal proceedings meant that he could provide no further evidence about the contentious events in question, in the present proceedings. From the Court’s perspective, however, that was certainly the implied contention.
The Mother’s case, summarised, was in effect that the Father had minimised his own mental health issues, had minimised the very serious family violence that he perpetrated, was at risk of relapse in terms of his mental health, and in any event, showed significant lack of insight about the impact of his mental health, and his actions, both on the Mother and the children. Thus there was a serious ongoing risk of harm to the children that could only be managed by supervised time, using two supervisors, at the home of the supervisors, and that there should be minimal communication between the Father and the children, as well as engagement at extracurricular activities.
The Independent Children’s Lawyer’s case, summarised, was consistent with the Mother’s case. She described the allegations of family violence as being significant, the Father’s mental health episodes as being serious, and that the Father’s own evidence about these issues was incomplete and inconsistent. She expressed concerns about the multiple stresses in the Father’s life that he was still confronting including the present family law proceedings, as well as serious criminal proceedings. The Child X was reported as experiencing flashbacks. Both supervisors are necessary, and the time should occur at their home, but they were otherwise ready, willing, and certainly, appropriate supervisors. The Court was urged to proceed cautiously pending the availability of appropriate expert evidence. The Father’s communication needed to be limited, as well as his engagement in extracurricular activities.

Non-contentious matters

The Father’s case outline document at page 4 identifies a number of uncontested relevant facts, which are reproduced below:
·The parties separated in December 2016.
·The parties entered into consent orders in relation to parenting matters on 27 June 2018.
·The Mother concedes that she struck the Father in or about May 2017 through his car window.
·The Mother cracked the Father’s front windscreen and was charged. She received a section 10 dismissal.
·There was an incident on 5 December 2019 for which the Father has been charged in relation to the Father’s ex-partner, the Mother and the maternal aunt.
·The Father has had conversations with the children since 14 April 2020 on a weekly basis which are going well.
·Both parents agree that Mr C and Ms B are appropriate supervisors.
·The Father’s Court proceedings for criminal matters are next listed for 22 July 2020.

There are a number of other relevant concessions which emerge from the Child Dispute Conference Memorandum of 5 June 2020.
·The Father agreed that the children “would have been horrified and traumatised on 5 December 2019.”
·The Mother said that X, during their conversations, has told his Father that he, “Has trouble sleeping and that he has flashbacks about the night that his Father came to the house.”
·Both parents support the views expressed by the children, but in the Mother’s case it was subject to an overriding requirement of safety.
·The Father said that the children are physically safe in their mother’s care.
·No concerns were raised about the Father’s alcohol use.
·No concerns were raised by the Mother’s drug use.
·The Father suffers major depression and anxiety.
·The Mother has experienced depression on and off for some years.
In order to narrow the issues for adjudication to those which are determinative, the Court is prepared to assume that the children want to spend time with their father, and have a meaningful relationship with him. Thus, pursuant to section 60CC(2A) the focus is on risk of harm to the children.

Risk of harm to the children

As identified above, if there is a risk of harm to the children, it emanates from the mental health issues the Father experiences, and the consequent risk of family violence.
When one has regard to the chronology prepared by the Independent Children’s Lawyer, as well as to the concessions made in the Father’s case, it is clear that he has experienced mental health issues since at least 2011. The Court mentions in passing that in assessing a risk it needs to consider the possibility that the full extent of the Father’s mental health history is still not known, and thus not presented before the Court.
The first known diagnosis was that he suffered from adjustment disorder with mixed anxiety and depression. The medical record from Suburb F Clinic dated 3 July 2014 suggests that by that date, psychiatric admissions had, at least, been considered.
On 23 June 2015, when the Father attended on Suburb F Clinic, there is a note that he decided to cease Lexapro. This suggests, firstly, that he had been prescribed Lexapro, and secondly, that he had ceased it contrary to advice. Indeed, a record of 28 July 2015 indicates that he was advised to go back on Lexapro, but declined.
A record of an attendance on his General Practitioner on 24 May 2017 records a deterioration in his symptoms since the separation from the Mother. On 16 June 2017, correspondence between the Father’s treating experts indicates that the Father reported increasing thoughts of dying, a passive wish for death to eliminate the emotional pain, increasing isolation and reduction of activities and ongoing current stressors. The notes suggest that an additional stressor in the Father’s life at the time was his own mother’s diagnosis with cancer.
A note in the records kept by Suburb F Clinic dated 11 August 2017 records that the Father was, “feeling very anxious, frustrated and low in mood, vague suicidal ideation but denied plan or intent”.
The first known recorded mental health admission occurred in April 2017. This was a voluntary admission and a record dated 19 April 2017 refers to, “… intentional overdose… states wants to end life… still feels like he wants to die”.
The second known recorded mental health admission was again to Suburb F Clinic but in June 2017, and was again in the context of an overdose of prescription medication. The impression is recorded as being, “… situational crisis in person with multiple psychosocial stressors precipitated by alcohol/argument with ex/recent news of Mother’s illness…”.
What appears to be the third known recorded mental health admission was in September 2017 when the Father attended Suburb F Hospital. The record contains a note that the Father was feeling depressed and having suicidal thoughts, but the Father did not actually remain at the hospital.
Later on that month, on or about 27 September 2017, there is a record of the Father actually being admitted to Suburb F Hospital presenting with suicidal ideation with a record stating, “Wants to drive off the boat ramp” and feels like he wants to “overdose on medications”. He presented as being “very agitated”.
There was a further mental health admission to Suburb F Hospital on 8 January 2018, albeit it for the day only, following an intentional overdose of prescription medication. The formulation in the records is described as, “… acute stress reaction in context of ongoing toxic relationship with ex-Wife on a background of personality vulnerabilities and psychodynamic issues with possibly unresolved grief…”
There is a record dated 13 April 2018 suggesting a further admission to Suburb F Hospital, “presenting with depression, suicidal ideations with plan (drive car off cliff, or has rope in garage with intent to use… end life).” The records suggest the admission was related to a further overdose of prescription medications, the note recording: “… reported overdose was impulsive with intent to die.”
The next significant event in the chronology is the making of final parenting Orders on 27 June 2018. One aspect of the Father’s case is that the Mother entered into the consent Orders being aware of his mental health history. The Mother does not address this issue in her Affidavit filed 29 April 2020. The Mother’s knowledge is an issue that could be explored at a Final Hearing. Of course, there are many possibilities. The Mother may have known, in a general sense, of the Father’s mental health history. However, unless the Mother had subpoenaed Suburb F Hospital, or Suburb F Clinic, it is not necessarily the case that she would know of the events that have been summarised above.
Focusing on the Father’s mental health, the next relevant incident occurs on 5 December 2019 and it involves the Father’s actions directed towards the Mother, his former partner, and the Mother’s sister. The Mother’s allegations about what occurred, as well as the other alleged victims’ depiction of the relevant events, will be discussed (to the extent relevant) below. For present purposes, the focus is on the Father’s mental health. The Father appears to have been scheduled and admitted to Suburb G Hospital on or about 7 December 2019. The records suggest that the Father sent his friends and family messages saying he was going to end his life.
The Father was located in the garage of his home with a rope around his neck. Police attended and located three suicide notes. The records suggest the Father told police that he had overdosed on prescription medicine.
The next record summary dated 9 December 2019 suggests that despite his admission to Suburb G Hospital, he was released. But on 9 December he was observed by members of the public sitting in a car with a garden hose attached to the exhaust feeding exhaust gas into the cabin. When the Police attended, he told them he had taken a large quantity of prescription sedatives. He was, again, scheduled to Suburb G Hospital.
On 26 December 2019 there is what appears to be a further Police record indicating the Father was found with a length of rope wrapped around the headrest of the driver’s seat of his car. Suicide notes were located. The Father admitted to overdosing on prescription medication. The Father was taken by ambulance to City H Hospital.
A further record dated 31 December 2019 seems to refer to another, separate, self-harm attempt, this time at Suburb J. The Father was found with two knives, two small lacerations to his left wrist, in possession of a rope, and admitted to consuming 50 Valium tablets and attempting to hang himself. He was scheduled, and transported to City H Hospital.
A number of broad observations can be made about the Father’s perspective and response to the evidence that is summarised above. Firstly, it will be recalled that his case was, in effect, his current treatment regime is such that there is no unacceptable risk of harm to the children in spending unsupervised time with him. He submits that he has demonstrated compliance with his current regime of medication and treatment. His case is that the Court should, in fact, be reassured by the fact that he has been engaged in treatment and support for his mental health issues since 2011. Secondly, the strong impression formed is that the Father’s disclosure about his history both to the Court, and to his own treating doctors, is minimalistic and limited. Thirdly, there is nothing in the totality of the evidence presented in the Father’s case, ignoring hypothetically the other evidence before the Court, that would provide reassurance that the risk of relapse for the Father is a manageable one.
In many respects, the case about risk of harm presented by the Father to his children could be established on the evidence adduced in the Father’s case alone. For example, the obvious observation that can be made is that the Father was engaged with both a psychologist and psychiatrist, as well as his general practitioner, throughout 2019. Indeed, it is this same team of treating professionals that is referred to at paragraph 28 of the Father’s case outline, which is presented as some reassurance to the Court about the Father’s mental health, and of the minimal risk of relapse.
The evidence indicates that despite this team of professionals assisting the Father since early 2019, the mental health crisis that he experienced later that year was an acute one.
When the evidence that the Father adduces from his team of treating professionals is carefully examined. There are many disconcerting inconsistencies. For example, the Father describes Mr K as his treating psychologist. He annexes to his Affidavit Mr K’s report dated 29 January 2020, but when this document is examined, it was clearly intended for another purpose, not the present proceedings. It is addressed to the Employer W. Mr K explains that he has provided assessment and psychological therapy to the Father since May 2019. The Court assumes that the Father annexed this Affidavit as a means of reassuring the Court about his psychological health.
However, at the bottom of the first page, and over on to the second page of this report, Mr K says as follows:
I am very concerned with his current psychological state and welfare. Mr Dalfrey has been assessed suffering from major depressive and post-traumatic stress disorders (PTSD). His symptoms are in the severe range and in spite of current psychological treatment and medication he remains vulnerable to ongoing stress and mental decline.
In the Independent Children’s Lawyer’s tender bundle there are the notes of Mr K attendances with the Father. The notes cover the period 15 January 2020 to 15 April 2020. One of the interesting features of these notes are recorded admissions by the Father that he had not been complying with his medication regime as prescribed.
The Father annexes to his Affidavit a letter from his consultant psychiatrist Dr L dated 3 February 2020 to Dr M, the Father’s General Practitioner. At one stage, in the second paragraph of this letter, Dr M states: “He has never had any thoughts of harming his former Wife, or former partner. He has had no thoughts of harming himself or others.”
With respect, this is an extraordinary statement to make given the known history of the Father referred to above. There are a number of possible explanations. It is possible, indeed, perhaps likely, that the Father had not given a complete history to his psychiatrist, including the significant events in December 2019. Another possibility is that the psychiatrist is prepared to make cavalier statements and predictions based on his professional opinion.
Another letter from Dr L dated 21 February 2020, addressed: “To whom it may concern”, contains another disconcerting statement in the fourth paragraph: “He has been compliant with his medication and does not pose a risk to himself, community and his children.”
The Father annexes a report dated 17 February 2020 from his General Practitioner, again addressed: “To whom it may concern”. The Doctor acknowledges that the Father suffers from chronic anxiety and depression. He refers to the Father having seen a psychiatrist and who psychologists since the marital separation. The penultimate paragraph reads:
He has been sensible during challenging times and when he felt at risk to himself due to circumstantial emotional distress he has taken professional help voluntarily. During my professional assessment over the last few years, I did not note him posing any safety risk to either the community at large or to his children.
It is hard to understand this comment in light of the known history of the Father’s actions, particularly in December 2019. Again, one cannot help but wonder whether these are cavalier comments made with some knowledge, or whether the Father has very selectively told his doctors about multiple suicide attempts, several schedulings to psychiatric instructions, and serial overdoses on prescription medication.
The summary contained in the Father’s tender bundle, at exhibit A1 provides no reassurance to the Court. For example, it is clear that Dr N, the Father’s general practitioner, has been treating him since at least 2017 for anxiety and depression, and yet that did not avoid the mental health crisis in December 2019. The Father was engaged with a previous psychologist, Ms O, with no obvious tangible improvement to his mental health. The Father’s psychiatrist has been involved since at least 2018, and a letter dated 5 April 2018 to the Father’s GP expressly acknowledges past overdoses, thoughts of self-harm, and the provision of the crisis management plan.
With the greatest of respect to the Father, who has no doubt had an extraordinarily difficult time with his mental health, and also to those advising him, the trio of professionals supporting the Father’s mental health probably do not have a clear picture of his complete mental health history, and if perchance they do, their documentary records collectively give little to no confidence in the Court that, somehow, the risk of relapse is a manageable one. The Father’s recent psychiatric history shows that it is the fluctuating one. The Father’s known track record is of inconsistent adherence to his prescribed medication regime. When his consultant psychiatrist provides a report dated 4 June 2020 in which he states, referring to the Father: “He is not a risk to self, his former Wife, or his former partner or his children”, he is, with respect, making a prognostication that is inconsistent with the totality of the medical records pertaining to the Father and his known psychiatric history.
One can readily understand why the Independent Children’s Lawyer would wish to obtain independent psychiatric evidence about the Father’s mental health. In the circumstances, the evidence adduced in his case from his treating medical team is partisan, and unhelpful to the Court.
The Court concludes that there is a risk of harm to these children arising from the Father’s mental health, and that it is necessary for his time with them to be supervised on an ongoing basis, at least, until independent expert evidence is obtained. The risk of the Father relapsing into a mental health crisis is established by history. The Father is exposed to multiple serious life stressors at the moment. There are the current proceedings. There are the criminal proceedings. The Father is currently suspended from his employment. There is simply no room to be optimistic about the Father’s mental health, for the time being. The risk is so great, from the Court’s perspective, that the Father’s time will need to be supervised by both nominated supervisors and at their home. If this is unduly onerous, then the Father and the Mother should consider using a supervised contact centre.

Disclosure about the criminal proceedings

Both parents give evidence about the violent incident that occurred on 5 December 2019. The Mother deals with this at paragraphs 127 to 132 of her Affidavit of 29 April 2020. She also annexes a number of corroborating documents including a press report and some graphic photos of the injuries she sustained, as well as the damage both to the home she was occupying, and the car she was driving.
The Father’s evidence about the event in question is found at paragraphs 56 to 63 of his Affidavit filed 1 June 2020. He then gives evidence about the consequent criminal proceedings at paragraph 76 to 79. To his credit, he attaches some of the Court documentation including court attendance notices which include the facts sheets. It should be noted that the Father faces charges in relation to the Mother, his former partner Mr P, and the Mother’s brother, Mr Q. When these documents are studied what becomes apparent is the divergence between the facts that would be put to the Court and the Father’s evidence about the relevant events. There is much greater consistency between, for example, the Mother’s version of the alleged assault against her and the supporting documentation as compared to the Father’s version.
In his evidence, the Father indicates that he is defending the charges. In the Mother’s case there was criticism for his doing so, the implication being that it demonstrated lack of contrition and insight. The validity of the criticism is best considered once the outcome of the criminal proceedings is known.
In the Independent Children’s Lawyer’s tender bundle, the COPS entry relating to the event on 5 December 2019 contains an account of the incident that is closer to that of the Mother’s than the Father’s.
The Father’s case about the relevance of the incident is summarised at paragraph 24 of his case outline document of 10 June 2020. In his case, it is submitted that the incident of 5 December 2019 “was one which was largely occasioned by the mismanagement of his mental health regime.” There is, firstly, an implication that the Father’s mental health will be a defence to the criminal proceedings. But, secondly, there is presently a paucity of evidence which is corroborative of the Father’s assertion. The medical evidence sought to be relied on by the Father has been reviewed earlier in these Reasons. The Court’s concern about the probative value and the cogency of this material has already been noted. It may have enhanced the Father’s case for him to have provided further evidence about his perspective of the events in question and how the mismanagement of his mental health pertained to that.
In any event, when the Court suggested to Senior Counsel for the Father that on the basis of the material that was before the Court his disclosure of the relevant events was somewhat lacking, the inference to be drawn from her response was that he did what he could in circumstances where he is facing criminal charges. The Court took this to mean that the Father was invoking his right of silence in relation to the criminal proceedings.
This issue has recently been revisited by the Full Court in Langley & Tarelli and Anor (No. 2) [2020] FamCAFC 126 (hereafter referred to as “Langley”). The Full Court’s discussion about concurrent parenting and criminal proceedings commences from paragraph 29 of the Judgment. The issue for the Court was whether a trial Judge had prioritised the Father’s “right to silence (privilege against self-incrimination)” over the welfare of the Child in question, and in so doing had miscarried her discretion.
At paragraphs 31 and 32 of the Judgment, the Full Court states:
[31] As the Full Court said in Re K at 80,765, where there is a genuine contest between the parties in relation to the welfare of the child, it is generally inappropriate for the Court to make no orders and adjourn the proceedings. And, further:
… The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue. It would not usually be to the welfare of the child for disputed proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege.
(Emphasis added)
[32] I agree, and in my opinion, the statement of principle emerging from that paragraph could not be clearer. Any other approach would have the effect that the welfare of children involved in family law proceedings would be held hostage to criminal justice processes and may have the effect of discouraging victims of crime, including family violence, from taking their complaints to police.

The reference to an earlier Full Court decision in Re K refers to Re K (1994) FLC 92-461; [1994] FamCA 21.
In Langley, the issue arose about why a section 128 certificate under the Evidence Act 1995 (NSW) (hereafter referred to as “the Evidence Act”) could not have been granted to avoid the dilemma caused about the absence of relevant evidence in a parenting matter because of a privilege of self-incrimination. At paragraph 34 of the Full Court’s Judgment, the observation was made that no explanation was given about why the provision of a certificate under section 128 of the Evidence Act would not have provided an answer to the dilemma.
Thus, the Court observes, the Father could have, if he had really wanted to, provided a much more fulsome disclosure of his perspective of what are clearly critical events in this case, by, consistent with the Full Court’s decision in Field & Kingston (2018) FLC 93-850; [2018] FamCAFC 145, seeking a direction or order that he file an Affidavit to which the provisions of section 128 of the Evidence Act would apply.

Orders in the best interests of the children

It should be clear from the above that the Father’s time with the children needs to remain supervised by both of the nominated supervisors. A point of difference between the Mother and the Independent Children’s Lawyer and the Father, is that the Mother proposes that the Father’s time be at the home of the supervisors, whereas the Independent Children’s Lawyer does not seek that limitation, and the Father opposes it. There are a number of practical issues to consider here. The order for supervised time may continue for a considerable period. The age of the children is consideration. The Court will require the first four 2 hour visits to take place at the home of the supervisors, but thereafter it can take place elsewhere, subject to supervision.
The Mother proposed an initial four 2 hour visits, whereas the Independent Children’s Lawyer proposed three such visits. The Court can understand the Mother’s concerns and will order four such visits. The Mother and Independent Children’s Lawyer agreed that time should increase to 4 hours, pending further order.
The Independent Children’s Lawyer proposed an order proposed at order 7, being additional FaceTime communication between the Father and children on the alternate Sunday when he is not spending time with them. Given what appears to be a strong relationship between the Father and the Children, the Court can see no reason not to make the order.
The Independent Children’s Lawyer at order 13 sought a section 68B injunction precluding the Father from being present at the children’s sporting fixtures, extracurricular activities and school functions and events. The Father strongly resisted this. The Mother sought an injunction in similar terms. The Order will be made. The Father’s history is self-evident from these Reasons for Judgment. Bringing the Father and Mother into close proximity, as is likely to occur, at the events referred to in this Order, cannot possibly in the best interests of these children.
The Court will adopt as its template the orders proposed by the Independent Children’s Lawyer, but make the changes referred to above.
The Independent Children’s Lawyer is encouraged to engage with the parents about obtaining the earliest possible independent expert evidence for this case. The Court accepts that it might be best for the finalisation of the Father’s criminal proceedings to occur first.
The Court asks the Independent Children’s Lawyer to consider whether or not the Orders made should be explained to the children. The Child Dispute Conference Memorandum does raise the possibility of a Child Inclusive Conference. At this point, the Court sees no need to involve the children in this manner. It seems that there was common ground that they want to spend time with their father. This issue may be revisited in due course.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 7 July 2020

Schedule One

Minute of Order sought by the Applicant Father

Pending further Order, it is ordered:-

That the Orders dated 24 April 2020 be suspended.
Pursuant to section 68P, Order 3, 4, 5, 6, 9 and 14 are inconsistent with an existing family violence order made for the protection of the mother and the children, and to the extent of the inconsistency only, the family violence order is invalid.
That the children spend time with the Father as follows:-
i.From 9am to 5pm Sunday;
ii.supervised by either Mr C or Ms B;
i.From 9am on the first Saturday to 5pm Sunday and each alternate weekend thereafter;
ii.supervised by either Mr C or Ms B;
i.From 9am on the first Saturday to 5pm Sunday and each alternate weekend thereafter.
i.Each alternate weekend from after school (or at 3pm) on Friday until 5pm Sunday.
That, for the purposes of Order 3 above, changeover will occur as follows:-
That the Father be at liberty to attend any sports games involving the children and to approach the children and speak with the children PROVIDED that he does not come within 10 metres of the Mother if she is also present.
That the Father be permitted to telephone/facetime/message the children on a liberal basis PROVIDED that the communication is direct to their mobiles and social media accounts.
That within twenty-eight (28) days of the date of these Orders, the father will do all acts and things necessary to ensure that an Undertaking is filed (and served on the mother and the Independent Children’s Lawyer) by the Mr C and Ms B stating that:
a.They will supervise the time that the father spends with the children in accordance with Order 3(a) and (b);
b.They will be in attendance during all periods that the father spends with the children and will observe all activities and monitor all discussions between the father and the children and will not be absent during those periods;
c.They will intervene as necessary and terminate the time the father spends with the children if they form the view that the children are at risk of harm in any way, or become distressed;
d.In the event they terminate a visit, they will notify the mother and advise the mother of the reason the visit was terminated; and
e.They acknowledge that:-
i.The nature and terms of the Undertaking have been explained to them;
ii.They promise the Court that they will comply with the terms of the Undertaking;
iii.The Undertaking has the same effect as an Order of the Court; and
iv.If they breach the Undertaking, they may be guilty of contempt of the Court and may be punished by a fine or imprisonment.
That within 24 hours, the Mother inform the Father of the current residential address where she resides with the children.
That if the parties are required to communicate with each other, pursuant to these Orders, any such communication shall be:-
a.Via the Divvito parenting application (divvito.com) or any other parenting app as agreed between the parents regarding matters relating strictly to the welfare of the children;
b.By telephone only in relation to urgent matters regarding the welfare of the children such as medical or other emergencies.

10.That each of the children shall take their mobile phones with them when they spend time with the father and be permitted to contact their mother if they choose.
11.That the father continues to attend upon his regular doctor and specialists and that he follows all recommendations made to him regarding his treatment.
12.That the father shall provide his authority to his treating specialist to contact the ICL should the father experience any deterioration with his mental health such that they consider he is unable to care for the children as set out in the orders.
13.That X and Z continue to attend upon their counsellor and that the mother do all things to also engage Y in counselling.
14.That within 7 days, the parties do all acts and things and sign all documents necessary to engage in non-reportable family therapy for the purposes of parallel parenting coaching, improving their communication and improving the father’s relationship with the children, with the parties to facilitate the attendance of the children at family therapy as recommended by the family therapist.
15.Pursuant to section 68B of the Act and on a without admissions basis, each parent shall be hereby restrained by injunction from:
a.making any negative, critical, belittling and/or derogatory comments in relation to the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of any of the children or via written correspondence or on social media which may be viewed or accessed by any of the children;
b.discussing the parental relationship with or in the presence or within the hearing range of any of the children;
c.using any of the children as messengers to relay information between the parents;
d.discussing the Court proceedings in the presence or hearing range of any of the children;
e.showing any of the children or allowing any of the children to view any documents relating to the current Court proceedings;
f.discussing the criminal proceedings and family law proceedings with the children (or causing or allowing anyone else to do so.

16.That the Respondent pay the Applicant’s costs of an incidental to these proceedings.

Minute of Order sought by the Respondent Mother

The Interim Orders sought by the Mother consider the following:

(a)the final parenting Orders made in the Family Court of Australia at Sydney on 27 June 2018 not already suspended;
(b)the interim parenting Orders made by consent in the Federal Circuit Court of Australia at Wollongong on 24 April 2020.

On an interim basis and pending further Orders being made by this Court the Respondent mother seeks the following Orders that:

Previous Orders

Orders 1 and 2 of the final parenting Orders made in the Family Court of Australia at Sydney on 27 June 2018 relating to the children, X, born in 2004, Y, born in 2005 and Z, born in 2009 ("the children") shall be suspended.
(Noting that Orders 1, 2 provide for the parents to have equal shared parental responsibility for the children.)

Parental Responsibility

The Mother shall have sole parental responsibility for the children.

Spend time with

Commencing on the second Sunday after the date of these Orders the Father shall spend time with the children at the home of Ms B and Mr C and supervised by Ms B and Mr C as follows:
(a)From 11.00 am until 1.00 pm each alternate Sunday for a total of six (6) Sundays;;
(b)The Mother shall deliver the children to the home of Ms B and Mr C by not later than 10.50 am and the Father shall not arrive at the home of Ms B and Mr C until 11.00 am;
(c)The Father shall depart the home of Ms B and Mr C by not later than 1.00 pm and the Mother shall not arrive at the home of Ms B and Mr C to collect the children before 1.10 pm.

Commencing fourteen (14) days after the sixth Sunday of the Father spending time with the children in accordance with the preceding Order and continuing thereafter the Father shall spend time with the children at the home of Ms B and Mr C and supervised by Ms B and Mr C as follows:
(a)From 11.00 am until 3.00 pm each alternate Sunday;
(b)The Mother shall deliver the children to the home of Ms B and Mr C by not later than 10.50 am and the Father shall not arrive at the home of Ms B and Mr C until 11.00 am;
(c)The Father shall depart the home of Ms B and Mr C by not later than 3.00 pm and the Mother shall not arrive at the home of Ms B and Mr C to collect the children before 3.10 pm.
The Mother shall ensure that all the children take their mobile telephones with them when they are spending time with the Father.
The Father shall do all things necessary to ensure the children are permitted to contact the Mother at any time during their time with the Father.

Treatment

The Father shall continue to attend upon his regular doctor(s) and specialist(s) and follow all recommendations such doctor(s) and specialist(s) make regarding his treatment.
The Father shall provide an authority to each of his treating doctors and specialists authorising such doctors and specialists to communicate with the Independent Children's Lawyer should there be any deterioration in the Father's mental health such that the relevant doctor(s) and/or specialist(s) consider the Father to be unable to spend time with the children as provided for in these Orders.
The Independent Children’s Lawyer shall be hereby authorised to provide a copy of these Orders to the Father’s treating doctor(s) and treating specialist(s).
The Mother shall do all things necessary to facilitate the children, X and Z, continuing to attend upon their respective counsellors and/or psychologists.

Restraints

Pursuant to section 68B of the Act the Father shall hereby be restrained by injunction from attending events at which the children are present that allow for parental attendance or participation, including but not limited to:

(a)sporting fixtures;
(b)extra-curricular activities; and
(c)school functions and events.

Procedural

The Respondent Mother shall be granted leave to file an affidavit exceeding ten (10) pages and five (5) annexures.

Minute of Order sought by the Independent Children’s Lawyer

That Orders 1, 2, 5, 7, and 15 of the Orders made by the Family Court of Australia on 27 June 2018, regarding X, born in 2004, Y, born in 2005 and Z, born in 2009 (the children”), be suspended.
That the Orders made on 24 April 2020 are confirmed and continue.
That the children shall spend time with their father as follows:
a.From 11:00am until 1:00pm on Sunday 14 June 2020, 28 June 2020 and 12 July 2020; then
b.Commencing on Sunday, 26 July 2020 and each alternate Sunday thereafter from 11:00am until 3:00pm.
That the father’s time with the children pursuant to Order 3, shall be supervised at all times by Mr C and Ms B and the court notes the undertakings that have been filed at the Court on behalf of Mr C and Ms B on 1 June 2020, regarding their role as supervisors.
That for the purposes of changeover:
a.The mother and/or her nominee shall deliver the children to Mr C and Ms B at their residence at least 15 minutes prior to the commencement of the father’s time; and
b.The mother and/or her nominee shall collect the children from Mr C and Ms B at their residence at least 10 minutes after the conclusion of the father’s time;
c.The father shall not arrive at the home of Mr C and Ms B until at least 10:55am on the days that he is to spend time with the children pursuant to these Orders; and
d.The father shall leave the home of Mr C and Ms B after he has spent time with the children within 5 minutes of his time with the children concluding.
That the mother will ensure that the children take their mobile phones with them during their time with the father and the father shall not do any act or thing to prevent the children using their mobile telephones to contact their mother if they choose to do so.
That in addition to the FaceTime communication that the father has with the children pursuant to the Orders made on 24 April 2020, he shall also have FaceTime communication with the children each alternate Sunday that he is not spending with the children, at the same times and on the same conditions as set out in Order 3 and 4 of the Orders made on 24 April 2020.
That the mother and father are restrained, by injunction, from discussing these proceedings and/or the criminal proceedings pending against the father, with the children or with any other person in the presence or hearing of the children or causing or allowing any other person to do so.
That the father shall continue to attend upon his general practitioner in relation to his mental health and psychological treatment and shall follow all recommendations made to him, including but not limited to:
a.Taking all medication prescribed to him in the prescribed dosages; and
b.Attending upon all specialists to which he has been referred including but not limited to psychiatrists and psychologists and he shall follow all recommendations made to him regarding his treatment and he shall attend upon such specialist/s as is deemed appropriate by the specialist/s and/or her general practitioner.
That the father is to forthwith do all such things and acts and sign all documents as is necessary to provide his general practitioner and treating psychiatrist (and any future general practitioner and psychiatrist/specialist that he attends upon) with his authority to forthwith contact the Independent Children’s Lawyer, Sonia Collins of Sydney Family Law Specialists on 02 4648 2248 should he experience a mental health issue that affects his capacity to care for the children and/or if such general practitioner, psychiatrist and/or specialist considers that he is, at any time, unable to care for the children pursuant to these Orders.
That leave is granted to the ICL to provide the father’s general practitioner and treating psychiatrist and other mental health professionals with a copy of these Orders.
That the father shall keep the ICL advised of the name and contact details of all general practitioners and treating psychiatrists and other mental health professionals that he attends upon.
That pursuant to section 68B of the Act the father shall hereby be restrained by injunction from attending events at which the children are present that allow for parental attendance or participation, including but not limited to:
a.Sporting fixtures;
b.Extracurricular activities; and
c.School functions and events.

Schedule Two

Chronology prepared by the Independent Children’s Lawyer

Orange: Suburb F Clinic – Subpoena Sleeve 7

Green: Region E Local Health District – Subpoena Sleeve 15

Blue: NSW Police – Subpoena Sleeve 17

Date	Event	Reference
1998	The parties commence a relationship
2004	X is born.
2005	Y is born.
2006	The parties marry.
2009	Z is born.
2 August 2011	Suburb F Clinic prepare a report regarding the father and conclude “My diagnosis is adjustment disorder with mix anxiety and depression”	SLEEVE 7 Tender 4
3 July 2014	Suburb F Clinic prepare a report regarding the father and summarise “He twice presented in crisis and subsequently he attends for a few times to follow up. The first major issue was major depression mixed with anxiety symptoms in the context of work-related matters. The most recent was a severe generalised anxiety with health obsessions in response to a recent diagnosis with skin cancer. In both occasions he responded well to antidepressant and psychotherapy, but in those two occasions there were times were [sic] admissions to psychiatric unit considered”	SLEEVE 7 Tender 5
23 June 2015	Father attends upon Suburb F Clinic and reports “Decided to cease Lexapro 20mg in January. Hates being dependant on medication unless life or death, makes him queezy and tired”	SLEEVE 7 Tender 1
26 June 2015	Suburb F Clinic prepare a report regarding the father and within same they state “He is vulnerable to anxiety as you know, but he usually manages well unless he is under huge pressure, the problem if his anxiety is left untreated it becomes complicated with depression and obsessions”.	SLEEVE 7 Tender 6
28 July 2015	Father attends upon Suburb F Clinic “saw Dr R last week – advised go back on Lexapro – declined”	SLEEVE 7 Tender 2
25 January 2016	Suburb F Clinic prepare a report regarding the father and finds depression – severe, Anxiety – moderate and stress – moderate	SLEEVE 7 Tender 7
24 May 2017	Medical letter from S Medical Clinic to Dr R that includes “Thank you for seeing Mr Dalfrey……..for F/U assessment and management of Anxiety disorder. His symptoms have got worse since the separation from his wife. I have started Lexapro but this time he is not able to continue taking due to persistent mild nausea, fatigue and also interference with sexual function”	SLEEVE 7 Tender 8
16 June 2017	Letter from Ms O, registered psychologist to Dr M that includes “Clinical interview determined that his anxiety and depressive symptoms are elated to on-going and current stress with his marriage breakup and the ongoing interpersonal challenges with his ex-wife. During our final session Mr Dalfrey reported increasing thoughts of dying, a passive wish for death to eliminate the emotional pain, increasing isolation and reduction of activities and ongoing current stressors. He reported his mother has been diagnosed with cancer as an additional source of stress”	SLEEVE 7 Tender 9A
11 August 2012	Suburb F Clinic “crisis point with his mental health, significantly affecting relationship with wife….” “he told me he’s feeling very anxious, frustrated and low in mood vague suicidal ideation but denied plan or intent”.	SLEEVE 7 Tender 3
16 April 2017	The father voluntarily presents to Suburb F Hospital with mental health review	SLEEVE 16 Tender 15
19 April 2017	The father is admitted to Suburb F Hospital following an “intentional overdose……states wants to end life……HX depression, No current reg meds. NKDA. States still feels like he wants to die”	SLEEVE 16 Tender 14
21 June 2017	The father is admitted to Suburb F Hospital presenting with an overdose “following an altercation with his ex-wife over visiting his children today and finding out his mother has terminal CA yesterday. This is on a B/G of chronic anxiety/depression and ongoing financial battles since he separated from his ex-partner + non-compliance with medication prescribed” IMP situational crisis in person with multiple psyhco-social stressors precipitated by alcohol/argument with ex/recent news of mother’s illness chronic risk of self-harm that would not be mitigated by inpatient stay. Mr Dalfrey was thus d/c home and is to F/U with his regular psychologist in the community. Thankyou”	SLEEVE 16 Tender 13
2 September 2017	The father attends Suburb F Hospital requesting a mental health review “states feeling depressed having suicidal thoughts……” progress notes “1830 pt decided not to wait to see mental health I advised that they are on their way he states he had to go and get kids he refused to wait”	SLEEVE 16 Tender 12
27 September 2017	The father is admitted to Suburb F Hospital. Triage presenting information “Suicidal ideation, states “wants to drive off the boat ramp” feels like he wants to “overdose on medications” lots of recent stressors, hx of suicide attempts in the past. Pt drove self to ED. Very agitated. States took his usual antidepressant tonight”	SLEEVE 16 Tender 11
8 January 2018	The father is admitted to Suburb F Hospital and discharged the same day following intentional ingestion of Clomipramine 10 x25 = 4 ibuprofen. Described as impulsive decision as he had has enough secondary to a number of social stressors. “formulation – acute stress reaction in context of ongoing toxic relationship with ex-wife on a background of personality vulnerabilities and psychodynamic issues with possibly unresolved grief”	SLEEVE 16 Tender 10
13 April 2018	The father is admitted to Suburb F Hospital “presenting with Depression, suicidal ideations with plan (Drive car off cliff, or has rope in garage with intent to use …end life” Collateral History “GP feels he needs an admission to MH Facility”. “intentional ingestion of anafralin….x25 tablets + 4 ibuprofen tablets…reported overdose was impulsive with intent to die. Had sent SMS x 2 to his aunt and his current partner advising of overdose and saying “I have had enough”. “reports was prescribed Lexapro but self ceased due to feelings of nausea & medication not effective” “IMP: appears to be a situational crisis in a man with poor distress tolerance and coping skills. No clear features of melancholia. Low risk of suicide now. However, these risks are highly changeable”	SLEEVE 16 Tender 9
27 June 2018	Final Parenting Orders made.
5 September 2018	Event Reference: Victim: Mr Dalfrey POI: Ms Saltman. Incident whereby it is alleged the mother threw an icecream at the windscreen of the father. Father later identifies a small crack where the icecream has impacted with the windscreen Victim attends the police station.	SLEEVE 17 Tender 23
12 September 2018	ADVO protecting the father from the mother
26 February 2019	Event Reference: Police entry. Victim, Mr Dalfrey. Accused Ms Saltman regarding alleged incident at football. On 4 March 2019 the accused attends the station and is placed under arrest and makes full admissions “in relation to speaking to the victim”. Accused is charged.	SLEEVE 17 Tender 22
6 June 2019	Event Reference: Accused: Ms Saltman – arrested and cautioner for the offence of breach of ADVO	SLEEVE 17 Tender 21
11 November 2019	Event Reference: Incident in which the mother contacts police following an alleged phone call between the father and one of the children. No formal action taken.	SLEEVE 17 Tender 20
5 December 2019	Event Reference: Incident naming victim’s Ms P, Ms Saltman, POI: Mr Dalfrey	SLEEVE 17 Tender 19
7 December 2019	Event Reference: The father sent his friends and his NOK messages stating he was going to end his life and to look after his children. Emergency services were contacted and attended shortly after the NOK. NOK located the father in the garage with a rope around his neck. She got him down and lay him on the floor. He became conscious a short time later. Police located three suicide notes addressed to his ex-wife, NOK and his children. All the notes outline he is better off dead. Patient states he took all the tablets that were in the blister packs on the kitchen bench top the amount was 64 of the three medications from above. Conveyed to Suburb G Hospital where he was scheduled under a section 22.	SLEEVE 17 Tender 23.B
9 December 2019	Event Reference: The father is released from Suburb G Hospital after a previous suicide attempt. Following his release he receives information from his solicitors regarding time with the children and the information has made him depressed and suicidal. He is observed by members of the public sitting in a car with a garden hose attached to the exhaust feeding exhaust gas into the cabin. he has left the location in his car and police locate him in drivers seat with the hose attached. Police turn off the vehicle and remove the garden hose. Police speak with him and he tells police he has taken a large quantity of prescription sedatives. Ambulance is called and patient is admitted pursuant to section 22 to Suburb G Hospital.	SLEEVE 17 Tender 18
12 December 2019	Event Reference: The father is wanted for breach of bail for not reporting to Suburb U Police Station as required by his bail conditions	SLEEVE 17 Tender 17
26 December 2019	Event Reference: A call was broadcast via police radio regarding a vehicle that “driving all over the road”. The vehicle is located by police and police speak with Mr Dalfrey who was crouched down on the drivers’ side of the vehicle trying to change the blown front right tyre. As the police spoke to the patient “police have opened the vehicle to locate a length of rope wrapped around the head rest of the driver seat and three loose white tablets sitting on the driver seat. On further inspection of the vehicle police have located Valpam blister packs with 20 tablets missing, Diazapam blister packs with 70 tablets missing and I Temazepam blister pack with 25 tablets missing. Police approached the patient and asked him if he had consumed all the tablets from the empty blister packs and he said “yes”. It was established that he had consumed 115 tablets in total.” Noted that suicide notes found. Ambulance call, patient sectioned and taken to City H Hospital,	SLEEVE 17 Tender 17
31 December 2019	Event Reference: Police respond to a radio message for a concern for the welfare of Mr Dalfrey. Police arrived at Suburb J and located the MP’s vehicle……Police searched the area, finding 2 knives and water bottle near a fence…………The MP had two small lacerations to his left wrist, complained of a sore head, but did not appear to have any other injuries . Police called for ambulance. Police located a “skinny brown rope near where the MP was found. The MP told police he had consumed 50 valium tablets and attempted to hang himself. MP is scheduled and transported to City H Hospital.	SLEEVE 17 Tender 16
19 March 2020	The father files an Initiating Application.
2 April 2020	Orders made by the Court
24 April 2020	Orders made by the Court
29 April 2020	The mother files her Response

Schedule Three

Summary of subpoena material prepared on behalf of the Applicant Father

Legend: NSW Police Subpoena filed 27 March 2020

Mr K Subpoena filed 27 March 2020
S Medical Clinic Subpoena filed 1 April 2020

Date	Event	Reference
16 June 2017	Letter from Ms O to Dr M “Thank you for referring Mr Dalfrey for management of anxiety and depression who presented for assessment on 6/4/17 and completed the 6 sessions granted through Medicare on 6/6/17. Clinical interview determined that his anxiety and depressive symptoms are related to ongoing current stress of his marriage break-up and the ongoing inter-personal challenges with his ex-wife. During our final session Mr Dalfrey reported increasing thoughts of dying, a passive wish for death to eliminate the emotional pain, increasing isolation and reduction of activities and ongoing current stresses. He reported that his mother has been diagnosed with cancer as an additional source of stress. As Mr Dalfrey doesn’t present in immediate risk we devised a safety plan of social contact and support and a contract that he would take himself to then local emergency department should his circumstances intensify. As you know Mr Dalfrey has taken this action independently on 3 prior occasions. He has a number of protective factors such as his children, wanting to support his mother through her illness, a supportive family and circle of friends. I will continue to monitor his levels of risk ongoing.”	F4 – S Medical Clinic
25 August 2017	Letter from Ms O to Dr M “Thank you for referring Mr Dalfrey for management of anxiety and depression who presented for assessment on 6/4/17 and completed the 10 sessions granted through Medicare on 25/8/17. Clinical interview determined that his anxiety and depressive symptoms are related ongoing current stress of his marriage breakup and the ongoing interpersonal challenges of his ex-wife. Mr Dalfrey has also experienced the recent death of mother and subsequent affairs of the Estate in addition to his own separation and that has proven to be challenging. Treatment continued throughout the final 4 sessions of supported counselling, problem solving and risk assessment. He does not present with any active thoughts of dying. Given the ongoing nature of the stressful circumstances, further treatment is indicated and I kindly request consideration of an Enhanced Primary Care Plan.”	F5 – S Medical Clinic
27 February 2018	Letter from Ms O To Whom it May Concern “This is to certify that Mr Dalfrey attended an initial psychological appointment on 6/4/17 following issues surrounding the separation of his marriage in December 2016. He has attended a total of 17 sessions regarding this matter. Mr Dalfrey is a public servant and has been with the Department of approximately 10 years. Mr Dalfrey has been diagnosed with anxiety and major depressive disorder which is exacerbated by ongoing stressful encounters with his ex-wife since their separation which he reports as extremely toxic and the workplace conflict as below. Throughout our sessions Mr Dalfrey has reported the following stressful events which has significantly impacted his mental health. The incidents as reported by Mr Dalfrey include his ex-wife disclosing untrue personal information to an employee who has subsequently spread rumours in his place of employment, his ex-wife threatening and abusive communication style and manner and the impact this has had on him and his children, his ex-wife withholding important information from him regarding their children, custody and visitation of his children, and the financial matters of the separation. Also during this time Mr Dalfrey reported his mother to have suffered a sudden illness and subsequent death in July 2017 which has also had a significant impact upon him. During focused psychological intervention I have provided support to him and strategies regarding the abovementioned and will continue to do so”.	F7 – S Medical Clinic
5 April 2018	Letter from Dr L to Dr M “Thank you for referring Mr Dalfrey who was admitted under my care to the Region V Hospital on 23 April 2018. He was distressed by hostile process of separation from his ex-wife. The uncertainty of custody was adding to his distress. He has had overdoses in the past. The death of his mother almost one year ago left him in a process of grief as well. When he was admitted he was feeling depressed, distressed and having thoughts of self-harm. I adjusted his pharmacology and he was started on group psycho-therapy focusing on distress tolerance. There was an incident created by his ex-wife when he went to football training. I had a meeting with his partner to discuss his issues and coping in the future. He was discharged on 4 May 2018. He is on Lexapro 10 mgs main, Largactil 2.5mgs nocte and valium 5mgs pm. He would benefit from psychotherapy to cope with distress. He could see me as an outpatient. I have given him a Crisis Management Plan.”	F6 – S Medical Clinic
4 September 2018	Father is granted an ADVO for his protection and mother is charged with destroy/damage property “Victim – Mr Dalfrey. Fears held by victim. Victim states he fears for his safety. Fears held by Police. The victim has suffered constant verbal abuse from his former wife since their separation in 2016. The victim has shown enormous restraint in every incident without any retaliation. Investigating Police believe that due to the ongoing issues the Police involvement is certainly warranted to protect the victim from further verbal attacks that cause ongoing issues in the victim’s life. The victim and POI were married. They separated in December 2016. Since separation in 2016 the POI has made continual hostile attacks on the victim at his residence, in public and by electronic communication with a large number of the abusive rants taking place in front of the children, the continual aggression shown by the POI has caused the victim great anxiety and depression and the victim ultimately being admitted to hospital seeking help. The victim eventually sought assistance from Police in July 2017 requesting what action could be taken to protect himself. The victim had cause to contact Police for assistance on 8 occasions since August 2017 however was the victim of numerous verbal attacks where Police were not called. About 5.05pm today the victim exited a store at Suburb F and was walking towards his vehicle which was parked in a Car Park. Upon walking to the car park he saw his daughter running towards him and was yelling out “Daddy’ and approached the victim for a hug. The victim’s daughter said “Don’t worry dad mum’s inside so she won’t see you.” With this the victim looked over to see his ex-wife’s vehicle also parked in the car park and his eldest son redacted standing alongside the car looking towards him. At this point the victim attempted to flee the location before his former wife could approach him as the victim was fearing another verbal confrontation would occur in front of his children from his former wife. As the victim approached his vehicle he observed the POI exit the store with an ice-cream in her hand and immediately approached the victim who quickly entered his vehicle and locked the doors. The victim has attempted to reverse out of the car park but was stopped by POI. The victim remained seated in his car with the windows up and his doors locked. The POI has approached the side window to his car and yelled “stop stop you fucking idiot I need to talk to you about redacted”. The victim said “Go away and leave me alone I don’t want to talk to you, you know you’re not to come near me”. The POI said “stop and fucking talk to me you fuckwit redacted needs to go to hospital” . The victim said “Leave me alone I’m going to the Police again” . The POI then yelled “You’re a fucking dog and you’re a piece of shit fuck off then” At this point the POI who was holding an ice-cream at the time has thrown the ice-cream at the windscreen of the victim’s vehicle. The POI was standing right next to the front of the vehicle at the time. The victim has then reversed out of the car space and driven off. The victim has driven a short distance away near the old store and has stopped and exited his vehicle to look for damage and take photographs of the windscreen. It was at this time that the victim identified that a small crack had appeared where the ice-cream had impacted with the windscreen. The victim has then attended Region E Police to show Police the windscreen and take a statement of what had occurred.”	F11 – NSW Police
7 December 2018	Request for Review by medical officer for Employer W for Mr Dalfrey “Mr Dalfrey has been in his role since 2013. In the past 2 years Mr Dalfrey has experienced a key number of stresses : a protracted and toxic marriage separation including the division of marital property and Family Law Court proceedings over the custody of his 3 children; the death of his mother from cancer and the responsibility of finalizing her Estate. He moved home on 3 occasions during this period and after commencing a new relationship at the end of 2017 his partner’s estranged husband committed suicide in 2018. In April 2017 Mr Dalfrey experienced additional stress when his estranged wife Ms Saltman began contacting staff, specifically Ms AA and Ms BB. I advised all relevant staff of the potential contact from Ms Saltman and requested them not to engage with her and to report any contact by her to me. On 1 May 2017 Mr Dalfrey’s estranged wife went to the home of Ms AA and personal information such as Mr Dalfrey’s mental health was exchanged between the two. It then appears Ms AA divulged this conversation to several staff members upon entering the workplace. Ms AA did not advise Mr Dalfrey or me of her contact with Ms Saltman: Mr Dalfrey found out by chance ... According to Mr Dalfrey this event exponentially increased the animosity from his estranged wife and had a detrimental impact on his mental health.…As per advice from Mr Dalfrey he has actively sought assistance for his mental health throughout the past 18 months plus by his General Practitioner, medication, undertaking psychological counselling and attendances and an inpatient at a local hospital…I have never felt threatened by Mr Dalfrey or his behaviour as I have had the benefit of frequent lengthy discussions with him and have a good understanding of how he thinks and behaves which other staff may not possess. However there have been four occasions that I have had to cause to speak to Mr Dalfrey about his behaviour in the office…	F2 – Corrective Services
1 June 2019	Mother breaches ADVO “Actual breach AVO. POI Ms Saltman Victim Mr Dalfrey The victim and accused were married and in a relationship. They ceased their relationship in 2016. … an interim/final Apprehended Violence Order was made on 12 September naming the victim as the PINOP …on about 12.10pm on 1 June 2019 the victim attended the sporting fields at CC Oval located on DD Street, Suburb F in relation to watching his son participate in a local football match. With about 6 minutes of the match to go the victim has sighted the accused walking towards the reserve bench which is along the fence line of the oval. This is where the victim was standing. The accused has had a conversation where the victim has handed his son his football bag. The accused has approached and looked towards the victim before saying “Don’t you think this is a fucking joke? Why don’t you man the fuck up and do something about it”. The accused was referring to their son not getting enough match time. The accused just walked off. At about 2.20pm on 1 June 2019 the victim has attended Region E Police District to report the matter. Police have obtained a DVEC from the victim. Police to speak with the accused.”	F8 - NSW Police
8 January 2020	Father attends upon his GP “History: accompanied by father noted recent admission since then says he has seen the psychiatrist has advised to see another psychologist due to ongoing marital issue he was not let to see children during Christmas it upset and frustrated led to O.D. with Diazepam and in anger he has driven a car. He is very apologetic for his actions for it feels that he shouldn’t have done it’s ongoing … but not done in the past . he is much stable on assessing speech find no hallucinations or delusions. Denies any self-harm or suicidal thoughts. … Management: counselled letter issued reviewing his past behaviour and known him since 2013 for review in a week” Letter from Dr M to Whom it may Concern “This is to certify that Mr Dalfrey is registered in our Practice. I am his usual General Medical Practitioner. Mr Dalfrey is known to suffer with chronic anxiety disorder, related to his marital problems. He has been receiving treatment, both pharmacological and psychological. I confirm that he has been compliant with the treatment and been using Anxiolytics sensibly. I have not noticed any misuse of Anxiolytics or hypnotics or no past history of substance misuse. He has been using Anxiolytics only when it is needed and he is aware of not to drive after taking the medication. I have reviewed his recent hospital admission, presented with an acute exacerbation of chronic stressful situation anxiety disorder which (inaudible) to overdose on medication diazepam. I have reviewed him today in my surgery and in my opinion he is medically fit to drive (he doesn’t require practical driving test). His condition and medications will be regularly reviewed.”	F3 – The S Medical Clinic F19 – The S Medical Clinic
13 January 2020	Father attends upon his GP “History: post discharge need progress bloods says he was hurt by his wife has seen in Suburb G Hospital no correspondence for that presentation apparently he was told that middle finger is fractured nearly 6 weeks ago has got appointment with Psychologist on Wednesday Mr K Mental Health Care Plan done.”
15 January 2020	Father attends 1^st session with Mr K - psychologist “Session 1 – 15/1/20 – paid $165.00 he is not in a good way. He reported to have attempted suicide 3 times and has been lucky to have avoided death. Once he tried to hang himself and his aunt found him in time and another time, he took lots of tablets and in EE Park tried to hang himself on a tree but the branch snapped. His father is staying with him at this time and at this stage is safe but not sure about the future. He had been admitted to mental facilities during this time in December. Has been charged with various offences and assaults. Two incidents whereby with Ms BB at her home. They had been drinking. She hit him and reacted back and hit her. Left the house in a rage and went to see his ex-wife whom he demanded to come in. She opened the door slightly and his hand was on the door frame and she smashed his hand and broke. He came in and they had altercation. He then went to confront his brother-in-law at that point the Police arrested him and he was in detention for some time. Dr W what him to attend therapy now. He has been suspended with pay from his job but the director has banned him from having any contact with all staff. This means he will be socially isolated and has no contact with friends whom are from Employer W. Dr W wrote a letter to his boss and needs a letter on Friday for support. The trigger to all this has been a buildup of the issues with ex-partner. She has stopped him from having access to the kids and now has a (inaudible) on his kids, his ex and Ms BB. HR feel hopeless and has nothing to live for. He has legal rep and the solicitor is looking at going through Section 32, as mental incapacity which there are a lot of supporting evidence for this.”	F1 – Mr K
15 January 2020	Father attends upon his GP “Reason for visit: right metacarpal fracture”	F3 – S Medical Clinic
21 January 2020	Father attends 2^nd session with Mr K - psychologist Session 2 –– paid $165.00 seems a little better. Referred to the letter sent to his work about having access to his colleagues. He reiterated the events that took place leading to his arrest and the details were consistent. He is remorseful in what he did and realises that he acts inapproachable however this was due to a 3 year buildup of stress and distress from issues with estranged whom which in turn has a detrimental effect to his current relationship with Ms BB. He is still disappointed with his work the director not allowing him to have contact with colleagues. This is not good for his mental health. At all. He has very little social support outside his work. Mr Dalfrey reported that he is trying everything he can to repair this. He has sourced an anger management program on his own accord and is due to start soon. This will involve a 4 – 6-week therapy. He has completed the Mood Program at the Region V Hospital and is applying to complete the Depression Master Program. He has completed the Managing Distress Program at Region V Hospital twice. He reports he is trying his best to do all he can to fix this and get back on recovery path.	F2 - Mr K
21 January 2020	Father attends upon his GP “History: feeling a little better seeing the psychologist. Re-emphasized about thinking positive. His finger fracture has seen a hand surgeon will be follow up in fracture clinic and if movement’s not better will need surgery, tendon surgery. Pain is well controlled Reason for visit: anxiety/depression Actions: prescription printed Tamaze and Valium”	F3 – S Medical Clinic
28 January 2020	Father attends 3^rd session with Mr K - psychologist Session 3 –– paid $165.00 not coping well at all. His father is due to leave to go back home in Queensland. The only family he is contact with is an aunt and an uncle. He has not contact with his kids and he believes that the mother and the kids have moved. He has no idea where they are and he reported the Court family agreement states he should be informed. He is isolated and this is very conceding for his welfare as he is more isolated at home without direction and support. He suggested to a letter to his Union Rep who is trying to support him and overturn the decision by the Employer W to ban hum from seeing his friend in the Department and Police Force.	F3 - Mr K
28 January 2020	Father attends upon his GP “History: mood stable has started to reduce valium 3 – week more stress due to legal issue pressed by his wife. No concerning negative thoughts. Talked about events leading to the incident of alleged physical bilateral injury. Talked about working on managing provocative situations. Will work on”	F3 – S Medical Clinic
10 February 2020	Father attends 4^th session with Mr K - psychologist Session 4 –– paid $165.00. Seems a little better since the Union’s action of taking issue on to support him for the no contact rule. At this point it seems that the Acting Director Ms FF had changed her mind and allowed him to attend the game but not play. Also, he is now able to some of his colleagues from work as long as he’s first requested the name to the Employer W. He reported this was a compromise, but he is able to accept this. Mr Dalfrey is trying his best to do all he can to prove his incidents in degrees of the charges. He reported how his ex-wife has for years even bating him and trying to stop him from seeing his children. He has reported this to the Police on many occasions over the years and this result in an AVO. However, he tried to extend the AVO when it finished but the Police did not agree. Once the AVO was over the ex-wife continued to harass and make his life hard. Over as 3-year period he managed and avoided the conflict with her but on the day of the incident a combination of factors resulted in the behaviour outburst and then being charged.	F4 - Mr K
11 February 2020	Father attends upon his GP “History: mood stable has started to reduce valium 3 – week more stress due to legal issue pressed by his wife. No concerning negative thoughts. Talked about events leading to the incident of alleged physical bilateral injury. Talked about working on managing provocative situations. Will work on”	F3 – S Medical Clinic
17 February 2020	Letter from Dr M to Whom it May Concern “… This is to certify that Mr Dalfrey is registered in our Practice and I have been his usual general medical practitioner since 2013. Mr Dalfrey is known to suffer with chronic anxiety and depression. Since the marital separation his symptoms have significantly got worse needed multiple hospital presentation and admission due to severe depressive symptoms and suicidal attempts. Since early 2017, he has presented to the surgery on many occasions with emotional distress mainly related to toxic marital separation issues. In my assessment he comes across as a caring and loving father who has been craving to spend quality time with his children to be part of their childhood. It appears that he has been denied and has made him further distressed and at times angry and helpless. Marital and some of his personal matters have been allegedly taken into the workplace and discussed by his colleagues. This made him feel uncomfortable and similar to the above caused significant distress, frustration and helplessness. It appears from the history that it affects his working relationship with his colleagues and subsequently has moved to a different location. He was very close to his mother, unfortunately he lost her due to cancer during this challenging time. It appears that he didn’t get time to grieve properly due to ongoing stressfully marital separation issues. Alleged insensitive remarks and acts by his ex-wife related to her Estate caused severe emotional distress during early grieving time. Mr Dalfrey has seen a psychiatrist and 2 psychologists since the marital separation. He has regularly attended all consultation has been compliant with all treatments. He has been sensible during challenging times and when he felt at risk to himself due to circumstantial emotional distress he has taken professional help voluntarily. During my professional assessment over the last few years, I did not note him posing any safety risk to either the community at large or to his children.	F22 – S Medical Clinic
18 February 2020	Father attends upon his GP “History of work force. He has not been allowed to contact his colleagues not very happy feels isolated lonely no acute negative symptoms. Says has spoken to his psychiatrist who has suggested to CTTPI and use (inaudible). Appears the house in Suburb S is getting sold some financial issue with his ex-partner. Attending Anger Management course. Voluntarily due to some anger issue related to legal issue. Still frustrated and at times feels helpless. No risk posed. Review in a couple of weeks CTB seeing psychologist.”	F3 – S Medical Clinic
24 February 2020	Father attends 5^th session with Mr K - psychologist Session 5 –paid $165.00. He continues to struggle with his mental state. He has been trying to have contact with his kids. The ex-wife denies him all contact but the children, he has not seen for at least 3 months. His daughter had her birthday, but he was not allowed to have any contact with her at all. Mr Dalfrey has few family supports and his children are a major part of his life. He knows that his ex-wife has moved with the children but has no idea where they moved to and even whether they attend the same school. Mr Dalfrey reported on how the Department actions since late November 2018 have impacted on his mental health. He reports on the incident that led to his transfer from City H office to the Suburb G office. He received an allegation by a work colleague named Ms B who accused him of harassment in a meeting. She reported the matter as perceived safety concerns. He was suspended for 4 months pending an investigation which took place in 2019. The investigation found no wrongdoing. He did not do what was alleged of him threatening the woman colleague as there were 3 other witnesses in the room. Nevertheless, Mr GG and then Director still transferred him to another office in Suburb G in March 2019. The fact that he had to move office, that he did not have any evidence of wrongdoing, the additional time and travel all added to Mr Dalfrey’s mental health. This event and being transferred to another office for no apparent reason has impacted his mental health for some time.	F5 - Mr K
24 February 2020	Father attends upon his GP “History: ongoing issue with his children custody and legal issue. Near tearful about denied access to his children not seen for nearly 3 months. Seeing Psychologist regularly and also private anger and emotional control management – helping him, talked about use of medication. Says psychiatrist wanted him to use Diazepam PRN. Counselled on non-hypnotics use mediation etc. He is understanding not to rely on medication may develop dependency etc.”	F3 – S Medical Clinic
March 2020	Father attends 6^th session with Mr K - psychologist Session 6 – Paid $165.00. He is stabled in his mental state. Even though he has lots of issues to work through he has stabilized and coping better. He completes his 7 week ‘One to One Anger Management and DV program’ at HH Centre with Counsellor Ms JJ in Suburb G. He has begun to attend the gym 3 times a week and began football training again. He attended the work football match but was not able to stay for the whole week but left after several days. He was able to be a spectator and the charges that people were talking made him feel shame and decided to leave early. Issues with his ex-wife continues as he tried to have contact with his children. He has tried to via the legal (inaudible) to do supervised visits and the like but she refuses to allow the kids to have any contact with Mr Dalfrey. He has not seen the children November last year. He has put in a court review to the Family Court and this expected to take any 6 months before it will be heard. Also last week ‘The Newspaper had an article on the DV assault allegations. The paper also had a photo of him on. The reported allegations were leaked by his ex-wife or the place which is another added stress to him at the moment. Therefore, in spite of the stress of not seeing his children, the financial burden for the Family and criminal courts he is coping better. He reports that he does not what the outcome of the criminal charge will face and uncertainty about his work situation as well. He is trying his best to work on getting better, regular session. Sees Dr W monthly and regular contact with GP. Mr Dalfrey reported that is nothing more he can overcome his mental health and work on being a better.	F6 - Mr K
2 April 2020	Father attends 7^th session with Mr K - psychologist “Session 7 –bulk billed – Video link – he has been stable but this week he found out that his ex-wife has subpoenaed most of his records from various health professionals and work, Police and the like. He is feeling that this is a privacy issue for him for no logical reason as this is a Family Court. As a father he feels he should be assessed for his current ability and a competitive parent and father. He feels that his ex-wife is not sure why she would all historical record as they had been married for 18 years and she would know most of his life histories up until their separation. He reported that he began to do the Depression Master Program at the Region V Hospital sent report to GP.	F7 - Mr K
2 April 2020	Father attends on GP and obtains further mental health care plan “History: mood remains the same ongoing marital issue upset not being able to see his children affecting him feeling sad and upset too. No act of suicidal or self-harm thought. Work off they don’t want him to return to work until court matter settles. Started depression master classes Region V Hospital. Helping. Course total 6 weeks, finished 1 week feels ongoing longstanding relationship making him feel ill and worse is not able to see children. Anger Management course helped his anger. Legal issue ongoing.”	F3 and F23 – S Medical Clinic
3 April 2020	Father attends on GP “Has received Subpoena. He is off Diazepam Tamaze now. Psychiatrist and Psychologist happy with his progress. He came to get one of the forms signed for his driving. Reason for visit medication review.”	F3 – S Medical Clinic
15 April 2020	Father attends 8^th session with Mr K - psychologist “Session 8 –– bulk billed – Video link. He seems stable and coping quite considering the stresses and issues he had been facing. He was about to have contact with his kids via phone. His ex-wife allowed some temp contact by phone once a week after his legal rep requested. Mr Dalfrey is also doing physical activity by going walking and has personal trainer several times a week. He has been totally compliant with his medication and this is showing in terms of reduction in symptoms. He reiterated the event that led to his arrest. He has not slept well the night before and was not taking his anti medication consistently. He had not been complying to the medication as prescribed. On the day he also had taken a number of valium and Eprazinone tablets with some alcohol intake. If that combination of all this prescribed medication and lack of sleep and not complying to the anti-depressants may have triggered a temporary level of anger reaction that is not typical of Mr Dalfrey’s normal behaviour. He reported this as no excuse as he is taking responsibility for his behaviour but it could explain the unusual level of reaction to these events at the time.”	F8 - Mr K
4 June 2020	Father attends upon Dr L – psychiatrist “Mr Dalfrey was seen by me at the City H Clinic on the 4^th June 2020. He has been seen by me every three to four weeks this year. He has also attended Mr K for interpersonal psychotherapy. He has suffered from depression and anxiety for almost four years and has been a patient in his practice since April 2018. He had previously struggled in a conflict ridden relationship with his ex wife. There was no violence by him in this relationship with Ms Saltman. He has cooperated and complied with medication regime. His depressive illness is under control with antidepressants. There are no suicidal ideations or thoughts of hrming others. He had lived by himself without any contact with his former wife. He has completed the depression masterclass, anger management program and attached interpersonal psychotherapy with Mr K. When seen by me he looks settled. His mood is fine. His affect is reactive. He has no thoughts of harming self or others. He is not a risk to self, his former wife or his former partner or his children. I will see him monthly. He will continue on Lexapro 20mg mane.”	Tender - annexed