Dornan & Moloney - [2023] FedCFamC2F 691

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dornan & Moloney [2023] FedCFamC2F 691

File number(s): PAC 5768 of 2020

Judgment of: JUDGE MURDOCH

Date of judgment: 13 July 2023

Catchwords: FAMILY LAW – PARENTING – Where it is uncontroversial that the child should live with the mother – Where the father seeks orders for supervised time with the child until she attains the age of thirteen years and thereafter pursuant to the child’s wishes – Where the mother and the Independent Children’s Lawyer seek orders for the child to spend no time with the father where the child does not have an existing relationship with the father – Where findings are made that the father has perpetrated serious acts of family violence upon the mother including physical assaults, non‑lethal strangulation, threats to kill the mother, monitoring her movements via CCTV and other forms of coercive and controlling behaviour – Where it is found that the mother’s parenting capacity would be adversely affected were the child to spend time with the father – Where it is found that the child is at an unacceptable risk of harm in spending time with the father and that such risks cannot be mitigated by the orders sought by the father including supervision – Order made that the child spend no time with the father and protective injunctive orders made.

Legislation:
Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 4AB(1), 4AB(3), 4AB(4), 60B, 60B(4), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CG, 60CC(3), 65D, 65DAA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Chapter 7.

United Nations Convention on the Rights of the Child, Article 19

Cases cited:
A v A [1998] FamCA 24;

Amador & Amador [2009] FamCAFC196;

B & B [1993] FamCA 143;

B & K [2001] FamCA 880;

Blanch & Blanch & Crawford [1998] FamCA 1908;

Blinko & Blinko [2015] FamCAFC 146;

Carter & Wilson [2023] FedCFamC1A 9;

Helbig & Rowe [2016] FamCAFC 117;

Illgen & Yike [2018] FamCA 17;

Isles & Nelissen [2022] FedCFamC1A 97;

Keane & Keaneand Anor [2021] FamCAFC 1;

Keating & Keating [2019] FamCAFC 46;

M & M [1988] HCA 68;

Mazorski v Albright [2007] FamCA 520;

McCall & Clark [2009] FamCAFC 92;

R & C [1993] FamCA 62;

Sedgley & Sedgley (1995) FLC 92-623;

Whisprun Pty Ltd v Dixon [2003] HCA 48;

Zuen & Lhao [2020] FamCAFC 84.

Division: Division 2 Family Law

Number of paragraphs: 319

Date of hearing: 27-29 March 2023

Place: Parramatta

Counsel for the Applicant: Ms Otrebski

Solicitor for the Applicant: Hosking & Gosling Legal

Counsel for the Respondent: Mr Ford

Solicitor for the Respondent: Maguire & McInerney Lawyers

Counsel for the Independent Children’s Lawyer: Ms Angus

Independent Children’s Lawyer: John Dawson & Associates
ORDERS

PAC 5678 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DORNAN

Applicant

AND:
MS MOLONEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE MURDOCH

DATE OF ORDER:

13 July 2023

THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for X born 2016 (‘the child’).
2.The child shall live with the Mother.
3.The child shall spend no time with the Father.
4.Pursuant to section 68B of the Family Law Act 1975 (Cth) the Father is hereby restrained by injunction from:
(a)approaching or contacting the child and/or the Mother or causing any third person to do so on his behalf;
(b)assaulting, threatening, stalking, harassing or otherwise intimidating the child and/or the mother and/or causing any third party to do so on his behalf;
(c)attending, entering or remaining at any place the child and/or the Mother may live, attend school, preschool, play group or day care and/or causing any third party to do so on his behalf;
(d)attempting to locate the child and/or the Mother or any person with whom they live and/or causing any third party to do so on his behalf;

AND THIS IS an Order for the personal protection of the child and the mother, Ms Moloney born in 1992.

THE COURT NOTES THAT:
(A)Order 4 is an Order to which a power of arrest without warrant attaches provided the provisions of section 68C(1)(b) of the Family Law Act 1975 (Cth) are satisfied.

THE COURT DECLARES THAT:
5.Pursuant to sections 7 and 11 of the Australian Passports Act 2005 (Cth) and the Court being satisfied that it is not practicable to obtain the consent of the Father to enable the child of the relationship X born 2016 to obtain an Australian Passport to travel internationally, the Court makes the following Orders.

IT IS ORDERED BY THE COURT THAT:
6.The Mother of the child X be permitted to apply for an Australian Passport to enable the child to travel internationally, notwithstanding that the Father of the child has not signed the passport application form, and furthermore the said child be permitted to travel internationally without the permission of the Father.
7.The father is restrained from naming or posting any photograph of the mother or child on any social media platform.
8.The child previously known as X Dornan born 2016 shall be henceforth known as X Moloney.
9.The Mother, Ms Moloney, is authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X Dornan born 2016 be now registered as X Moloney.
10.Pursuant section 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW) the Registrar register the child’s name in the form specified in Order 8 herein.
11.The Mother is to forthwith serve a sealed copy of this Order upon the Registrar of Births, Deaths and Marriages of New South Wales.
12.The question of costs sought from each party by the Independent Children’s Lawyer in the sum of $7,208.11 (“the costs issue”) is listed for determination on 31 July 2023 and for such determination:
(a)each party is to file a Short Minute of Order in response to the costs issue and any costs sought by them against the other party together with any affidavit or Financial Statement relied upon by no later than 4:00 pm on 20 July 2023;
(b)the Independent Children’s Lawyer is at liberty to file and serve any submissions of no more than two pages by no later than 4:00 pm on 20 July 2023; and
(c)the parties are at liberty to file and serve any submissions of no more than two pages by no later than 4:00 pm on 27 July 2023.

13.Unless a party objects by way of their Minute of Order, the determination of any costs issue the costs will thereafter be determined in Chambers.
14.Save as to the question of costs, all extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION

This matter relates to the parenting arrangements for the child X currently seven years of age.
The parties lived together from 2015 until February 2018. X was two years of age when the parties separated.
The mother is the uncontested resident parent. X has not spent any time with the father subsequent to the parties’ separation, a period of five years. For determination is what time, if any, X is to spend with the father.
The mother alleges that the father occasioned serious family violence upon her including the perpetration of physical and verbal assaults and engaging in coercive and controlling behaviour. She asserts that X spending any time with the father presents an unacceptable risk that cannot be satisfactorily mitigated. The mother further alleges that X spending time with the father would adversely impact upon her parenting capacity.
The father proposes a number of protective orders that he submits would mitigate the unacceptable risk asserted by the mother. The father seeks to spend supervised time with X once per month until she attains the age of 13 years at which time X will spend time with the father as per her wishes.
For the reasons that follow I accept that the father presents an unacceptable risk of harm to X that is not sufficiently ameliorated by supervision and the protective orders proposed by the father. It is found that, on balance, it is in X’s best interests for orders to be made that she spend no time with the father, that the mother be at liberty to travel with X overseas without recourse to the father and to change X’s surname.
BACKGROUND
In these reasons a statement of fact is a finding of fact, unless it is obvious from the context that I am reciting the position of one of the parties.
The father was born in 1989 and is currently 33 years of age.
The mother was born in 1992 in City B, Country C and is currently 31 years of age.
The parties met in late 2014 and in early 2015 the father moved in to live with the mother and her two flatmates. In early 2015 an interim Apprehended Domestic Violence Order was made for the protection of one of the flatmates and restricting the behaviour of the father. Such Apprehended Domestic Violence Order was later withdrawn.
In early 2015 the mother and father moved into a rental property together at Suburb D. In mid‑2015 the mother received a text message from the property manager of this property advising that the rent had not been paid. Upon being evicted from this property in late 2015 the parties moved to a rental property in Suburb E. In mid-2016 the parties moved to Suburb F after being advised by the agent of the Suburb E property that they were to be evicted due to a shortfall in rent.
X was born in 2016 and is currently seven years of age.
The parties separated for a period of six months from late 2016 until early 2017. During this time the mother and X lived with the maternal grandparents. The parties are in dispute as to the time X spent with the father during this time and whether it mostly occurred with the mother present.
In late 2016 the mother commenced working at G Company. X attended day care four days per week and was cared for by the maternal aunt one day per week.
In late 2016 the mother commenced a relationship with Mr H. This relationship ended in early 2017.
The parties recommenced their relationship in early 2017 but did not immediately resume living together. X and the mother moved between the home of the maternal grandparents and the father during this period.
In mid-2017 X and the mother commenced living together with the father at his home.
In mid-2017 the New South Wales Police raided the parties’ home and located illicit material. A flatmate at the home was charged with various offences. Neither party was charged with any offences arising from this raid. Both parties assert that they were unaware of the existence of the material contained within the parties’ home and I make no findings and draw no inferences from this event.
The parties separated on a final basis on 22 February 2018. At separation X was two years of age. X has not spent any time with the father since this date.
In early 2018 an interim Apprehended Domestic Violence Order was made for the protection of X and the mother.
The father was arrested about one week later and charged with several domestic violence related offences.
The mother recommenced her relationship with her current partner, Mr H in mid-2018.
In late 2018 a final Apprehended Domestic Violence Order was granted for a period of two years for the protection of the mother and restricting the behaviour of the father. The police withdrew a number of the criminal charges. A plea of guilty was entered by the father to all remaining charges.
The mother and X commenced living with Mr H in late 2018.
In early 2019 the father was convicted and sentenced at Suburb J Local Court in relation to his criminal charges to multiple Community Corrections Orders (to be served concurrently) and fines.
The father commenced these proceedings on 29 October 2020 seeking both interim and final orders.
On 23 April 2021 the interim parenting orders sought by the father that X spend time with him every Saturday for a period of four hours supervised by the paternal grandmother and a weekly FaceTime call were withdrawn and dismissed by consent.
THE PARTIES’ PROPOSALS
Throughout these proceedings the father sought orders that X live with the mother and that the mother have sole parental responsibility for X with the condition she provide written notice to the father of decisions made with respect to X’s health and education. The father further sought that X spend time with him as recommended by a family therapist for a period of six months and thereafter that X spend time with the father one weekend per month and for block periods of one or two weeks during school holiday periods.
The orders sought by the father changed significantly on the first day of the final hearing. The father now seeks that:
·The mother have sole parental responsibility for X.
·X live with the mother.
·The mother be entitled to apply for an Australian travel document for X without reference to the father and travel internationally for holidays with her as and when she chooses.
·The mother notify the father by email in the event X is hospitalised.
·The father be restrained from:
·approaching or contacting X and the mother in any way except pursuant to these orders; and
·naming or posting any photograph of X or the mother on any social media platform.
·Both parties be restrained from posting on any social media platform any particulars relating to these proceedings and from denigrating the other parent in X’s presence.
·The mother be restrained from changing X’s surname without the father’s written consent.
·Within seven days the mother is to:
·attend upon her general practitioner and obtain a referral and mental health plan for attendance upon a psychologist;
·thereafter attend upon a psychologist and comply with all recommendations made by them;
·provide the psychologist at the first appointment a copy of these orders and reasons and the report of the single expert; and
·do all things necessary for X to attend upon K Counselling to engage in “therapy for the purposes of introducing the father to the child”, with the father to be responsible for payment of any shortfall in costs.
·Within seven days the father is to attend upon his general practitioner for a referral to an appropriately qualified professional to undertake Dialectical Behaviour Therapy (“DBT”) and continue such therapy for a period of two years with the father authorising the DBT therapist to advise the mother in the event he fails to comply with the recommendations of his treatment and/or treating practitioner.
·Upon the father undertaking 12 months of DBT X spend time with the father as follows:
·For a period of six months for two hours per month at a supervised contact centre nominated by the mother;
·thereafter for a period of three hours once per month supervised by L Contact Centre; and
·upon X attaining the age of 13 years she shall spend time with the father in accordance with her wishes.
·The father to be responsible for and pay the costs of the children’s contact centre and L Contact Centre.
·For a period of two years the mother shall be at liberty to request, not more than once every six months, that the father undertake hair follicle testing for the detection of illicit drugs and/or prescribed substances. In the event the father returns a positive hair follicle test for the detection of illicit drugs or fails to submit to a hair follicle test then X’s time with the father shall be suspended pending the provision of a negative hair follicle test with such test to cover a three month period before X’s time with the father recommences.
·The father be permitted to send cards and/or gifts to X on four occasions each year and for this purpose the mother is to obtain a Post Office Box at the father’s cost.
·The father have authority to contact X’s school and obtain school reports and photographs.
Thus the father’s proposal is that he undertake DBT therapy for a period of two years but upon the father completing 12 months of this therapy a gradual introduction through supervised time will occur with X having been prepared for this eventuality through therapy.
The mother seeks orders broadly that:
·The mother have sole parental responsibility for X.
·X live with the mother.
·X spend no time with the father.
·The father be restrained from contacting or communicating in any way with X or the mother with such an order being an order for the personal protection of X and the mother to which a power of arrest without a warrant attaches.
·The father be restrained from:
·posting on any social media platform as to these proceedings; and
·naming or posting any photographs of X or the mother on any social media platform.
·The mother be entitled to apply for an Australian travel document for X without reference to the father.
·The mother be permitted to change X’s surname without the father’s consent.
·The father pay the mother’s costs of and incidental to the proceedings.
The Independent Children’s Lawyer seeks Orders that:
·The mother have sole parental responsibility.
·X live with the mother.
·X spend no time with the father.
·The father be restrained from contacting X or the mother in any way unless the mother provides her consent to such contact in writing.
·The father be restrained from naming or posting any photograph of X or the mother on any social media platform.
·Both parties be restrained from posting on any social media platform any details as to these proceedings.
·The mother be entitled to apply for an Australian travel document for X without reference to the father and to travel internationally for holidays with X as and when she chooses.
·X’s name be changed to X Moloney and the mother be granted leave to register X’s name as such without the consent or signature of the father.
·That unless each party obtains a waiver from the Legal Aid Commission and within six months each party pay one half of their share of the Independent Children’s Lawyer’s costs in the sum of $7,208.11.
THE ISSUES FOR DETERMINATION
It is not in issue that it is in the best interests of X that orders be made for:
·The mother to have sole parental responsibility.
·X to live with the mother.
·The father to be restrained from naming or posting any photograph of X or the mother on any social media platform.
·The father to be restrained from posting on any social media platform as to these proceedings.
·The mother to be entitled to apply for an Australian travel document without reference to the father and travel internationally for holidays with her as and when she chooses.

The substantive issues for the court to determine were succinctly summarised by the Single Expert as:
·Whether the father’s potential for family violence, substance abuse and antisocial behaviour is as alleged by the mother.
·Whether there is any need to protect X from harm due to abuse, neglect or exposure to family violence.
·Whether there is any benefit to X in developing a relationship with the father.
·Whether the stress to the mother inherent in executing regular time arrangements between X and the father would exceed any identified or presumable benefits of such time.
THE HEARING
At a relisting of the matter on 21 March 2023 arising from the father’s former solicitors filing a Notice of Ceasing to Act, the father appeared self-represented and made an oral application for an adjournment of the final hearing that was due to commence some six days later. Such application was refused. These reasons assume familiarity with the oral reasons delivered for such refusal on that day.
On 22 March 2023 a Notice of Address for Service recording the father’s current legal representatives was filed.
On the first day of the final hearing, counsel for the father made a further oral application for the final hearing to be adjourned in circumstances where counsel held concerns as to the way in which the father’s previous solicitors had withdrawn from the matter and the forensic nature of the father’s case. After hearing oral evidence from the father and submissions by each of the parties and the Independent Children’s Lawyer such application was refused. This judgement assumes familiarity with the reasons for such further refusal. The oral evidence given by the father to support his adjournment application is discussed later in these reasons. The father was thereafter granted leave, without objection, to rely upon a further affidavit sworn by him that day.
THE EVIDENCE
The father relied on the:
·Amended Initiating Application filed 30 May 2022;
·Affidavit of Mr Dornan filed 2 June 2022;
·Affidavit of Ms M filed 30 May 2022;
·Affidavit of Ms N filed 30 May 2022;
·Affidavit of Ms P filed 30 May 2022; and
·Documents tendered during the course of the hearing.
The mother relied on the:
·Amended Response filed 10 May 2022;
·Affidavit of Ms Moloney filed 20 May 2022;
·Affidavit of Mr H filed 20 May 2022;
·Affidavit of Ms Q filed 20 May 2022;
·Affidavit of Dr S filed 22 November 2021; and
·Documents tendered during the course of the hearing.
The Independent Children’s Lawyer relied on the:
·Affidavit of Dr R (the Single Expert) filed 7 March 2022; and
·Documents tendered during the course of the hearing.
THE SINGLE EXPERT REPORT
A Single Expert Report was prepared for the purposes of the final hearing by Dr R, a registered psychologist of over 20 years’ experience (“the Single Expert”). Dr R has qualifications as a clinical psychologist and as a social worker and has extensive experience in family law and child protection assessments. There was no challenge to her expertise and experience and I am satisfied she is suitably qualified to provide her opinion to the court.
The Single Expert interviewed each of the parties on separate occasions on 22 November 2021 and 11 January 2022 via telephone and video as a result of the COVID-19 pandemic. She had access to and read a wide range of material including material produced under subpoena.
The Single Expert broadly recommended in her report that:
·If the evidentiary material is found to support the mother’s allegations as to the father’s prior coercively-controlling spousal abuse then there will be no benefit to X in establishing a relationship with her father at this stage of her life. This conclusion will hold even if there is no biomedical or police evidence that the father currently leads an irresponsible, substance-abusing lifestyle;
·Even if the court should find that the father does not pose an intolerable risk of serious physical harm to X, the stress inherent in executing the contact arrangements is likely to exceed any hypothetical benefit X might derive from spending time with her father. Orders for X to commence spending time with her father would risk disturbing the tranquillity of her home life and undermining her attachment security in general;
·Whatever the court’s findings with regard to the ongoing risk of family violence, shared and equal parental responsibility will be unworkable given the mother’s strongly stated fearful aversion towards the father, and the extremely poor prospects for effective co‑parenting which both parents report;
·No psychoeducation or counselling interventions can be envisaged which are likely to improve the identified parenting and co-parenting deficits on a timescale meaningful to X;
·The orders most likely to be protective for X and least likely to lead to further litigation would be for residence with her mother and no time with her father.
Dr R attended court via Microsoft Teams and was cross-examined. Prior to such cross‑examination she had read the trial affidavit of each of the parties. I found her evidence to be clear, thoughtful and reasoned. She was unequivocal in her expert opinion. She was an impressive expert witness. I give significant weight to her report and oral evidence which is discussed in more detail later in these reasons.
THE EXPERT REPORT OF DR S
Prior to the final hearing the mother was granted leave to rely upon a report prepared by Dr S, a specialist adult psychiatrist of over 25 years’ experience working as a psychiatrist in clinical and forensic capacities. In addition to his clinical work he has extensive experience in preparing reports in this jurisdiction. The doctor’s expertise and experience was not challenged and I accept that he is suitably qualified to provide his expert opinion.
To prepare the report, Dr S interviewed both the mother and the maternal grandmother and read material filed by each of the parties in the proceedings. Whilst the report was prepared at the request of the mother only, I accept that prior to the preparation of such report Dr S read and understood Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and used his best endeavours to comply with them. No reason emerged during the course of the doctor’s cross-examination to warrant a finding that he had not complied with his obligations pursuant to the Rules and I accept and find that Dr S has done so. The doctor’s expert opinion will be discussed later in these reasons.
THE LAY WITNESSES
I had the opportunity to carefully observe both the parties during the three day final hearing.
The father gave oral evidence to ground his further application for an adjournment of the final hearing that:
·He had received an email from his previous solicitor on 10 March 2023 that counsel could no longer represent him at the upcoming final hearing and in those circumstances his solicitor could no longer represent him at the final hearing.
·He had a text message exchange with his previous solicitor on 13 March 2023 where his solicitor sought further instructions and he was responsive to this text message.
·The only notice he received from his solicitor that they had ceased acting for him was when he received an email from his former solicitor serving the Notice of Ceasing to Act filed 16 March 2023.
The mother called for the email received by the father on 10 March 2023. The email was produced and reads:
Dear [Mr Dornan],
I now confirm my conversation with you in relation to this matter. We draw to your attention that we have tried to contact you several times in relation to putting some funds in our account to commence preparation for this matter. However, you have not put any funds yet.
I also provided you with advice that with the current expert report it is going to be difficult to have a successful outcome and you could end up being liable to pay the other side’s legal costs.
I need confirmation in writing that you want to proceed with this matter and the funds requested deposited into our trust account immediately.
I have also spoken to [Ms T] again about your matter and confirm herein that [Ms T] cannot appear for you.
Could you attend to the above at your earliest convenience. If we do not here from you we will file a Notice of Discontinuance on 15th March 2023.
(As per original)
Thus the oral evidence of the father is directly contradicted by the email from his prior solicitors. The father’s further oral evidence was that he had corresponded with the solicitors subsequent to this email. There is no corroborating evidence of such further correspondence. During cross examination in the voir dire the father would not concede that there was a reason for the termination of his retainer other than his counsel no longer being available to appear at the hearing. He disagreed that his failure to pay the monies requested was one of the reasons his retainer was terminated. I accept and find that the father’s evidence in support of his adjournment application was misleading.
I accept the submissions of the mother that the father did not engage with the mother’s allegations as to his perpetration of family violence upon her in his prior affidavit in chief despite being legally represented.
During the course of cross examination I observed that the father was loathe to make concessions until he was confronted with objective evidence in the form of contemporaneous text messages sent to the mother by him relating to her allegations of family violence perpetrated on her, or with photographs evidencing his use of CCTV cameras in the parties’ home. Upon being presented with such objective evidence the father was often questioned about his prior denial of the incident to which his response on numerous occasions was “I couldn’t recall” or “I no longer have access to these text messages.” I find the father’s evidence in this regard highly improbable. Whilst I will make specific findings of fact based on the evidence, I approach the father’s evidence with some caution.
The father’s partner’s sister, Ms N, gave evidence on the father’s behalf. Such affidavit deposed as to the father’s playful personality. Ms N orally affirmed her view that the father is a good role model in her daughter’s life despite the father’s concessions as to his conduct towards the mother. I place little weight on her evidence in those circumstances.
Despite the mother appearing to be visibly distressed throughout the course of the hearing she gave her evidence in a clear and responsive manner. She was thoughtful, considered and firm. She gave answers in cross-examination that may not have necessarily assisted her case. I accept that she emerged from cross-examination “unscathed.” I found her to be a credible and impressive witness.
The maternal grandmother gave evidence on behalf of the mother. She gave her evidence in a clear and measured manner and made an appropriate concession without hesitation that part of her written evidence was incorrect. I found her to be a credible witness.
THE CHILD
X presented to the Single Expert as a “pretty little […] girl who looked clean, healthy and well-cared for. The interview took place in her bedroom which was furnished and decorated suitably for a little girl […] and supplied with abundant toys”.[1] X displayed age-appropriate hedonism and concerns in discussing school, family, relationships and friendships. She appeared to the Single Expert as well-socialised for her age, confident, friendly, cooperative, polite and articulate.
[1] Single Expert Report, paragraph 27.
X enjoys school and has settled well into Year One this year. She is a happy and social child. It is uncontested that for a few months post-separation X was very sensitive and appeared anxious but as time has passed she has become more confident. X loves the water, going to the beach, animals and reading and attends a weekly extracurricular activity. Mr H left his job approximately six months prior to the report interviews and home schooled his youngest son and X for a period of time. Mr H takes X to school of a morning as the mother has an early start for her work. X is collected from school by either the mother or Mr H. The mother and Mr H attend X’s weekly extracurricular activity together and expect to do the same when X commences another extracurricular activity.
THE PARTIES
The father has been in a relationship with his current partner, Ms U for five years. As at June 2022 the father and Ms U were living together in a three bedroom home. Ms U did not give evidence in support of the father’s case. There was no evidence that she was not available to do so. The father works as a manager for a company. The father completed a parenting after separation course in March 2023.
The mother has been in a relationship with Mr H for a period of five years. Mr H gave evidence on behalf of the mother and was cross-examined. The mother and X live with Mr H in a four bedroom home, with his son V and Mr H’s brother. Each alternate weekend Mr H’s youngest son from a prior relationship; W, aged seven, stays with them. Mr H’s sons refer to X as their sister and she refers to them as her brothers. X has her own bedroom.
The mother deposes and I accept that she has a very close relationship with W’s mother and they regularly spend time together. W’s mother also has a younger daughter who X plays with. Special occasions are celebrated together with W and his mother.
At the age of 15 years the mother was sexually assaulted. The mother deposes and I accept that this was an extremely traumatic event for her. I accept the mother’s unchallenged evidence she felt ashamed and embarrassed and did not disclose this event to her family or friends at the time. She lost her motivation for school and sport and began to truant. The maternal family could not understand the reason for her changed behaviour and after a discussion it was decided that the family would move to Australia so that the mother could “make a new start.” It was only upon moving to Australia that the mother was able to disclose the assault to her mother who then arranged treatment for her with a psychiatrist. The mother has further been attending upon psychologists since November 2020.
THE LAW
Section 65D of the Family Law Act 1975 (Cth) (“the Act”) compels the court to make such parenting orders that are considered proper. Section 60CA provides that in deciding whether to make a particular parenting order the court is to regard the best interests of the child as the paramount consideration. This is confirmed in s 65DAA. X’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC of the Act.
THE PRIMARY CONSIDERATIONS
The primary considerations as set out in s 60CC(2) 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.
In balancing these considerations, the court is to give greater weight to the need to protect the children from harm or being subjected to, or exposed to, abuse, neglect or family violence. Considerations of protecting X from harm loom large having regard to the issues in this matter.
I am conscious of the serious consequences of the orders sought by the mother and the Independent Children’s Lawyer that there be no time between X and the father. As stated by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
[30]…Whilst s 60CC(2A) demands that greater weight be given to the consideration in s 60CC(2)(b) – something entirely consistent with the approach of the Courts since the commencement of the Act – the particular facts and circumstances of each individual case nevertheless require a careful evaluation and balancing of Considerations, and all the more so when what is at stake is the potential for a child to never know their parent.
Meaningful relationship
A meaningful relationship is not measured simply by the amount of time a child is spending with a parent, but the quality of the relationship between them.[2]This is an important consideration in this case given the length of time it has been since X spent time with the father. A “prospective approach” has been adopted with respect to considerations by the court pursuant to s 60CC(2)(a) so that the Court:
…should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents…[3]
[2] Mazorski v Albright [2007] FamCA 520.
[3] McCall & Clark [2009] FamCAFC 92.
Thus, I am not to assume that there is a benefit to X in having a meaningful relationship with the father but rather I am required to ascertain whether there is a positive benefit to her in the circumstances of such a relationship.
The proposal of the father would mean that X would continue to share a meaningful relationship with the mother and spend limited supervised time with the father until she is 13 years of age whereupon X would spend time with the father in accordance with her wishes.
The mother’s proposal as supported by the Independent Children’s Lawyer that X spend no time with the father would mean that X would have no relationship with the father.
Protection from harm
Family violence
In these proceedings there are a number of specific contentions about matters relating to X’s best interests that depend in part upon findings as to the allegations of family violence. Whilst the standard of proof with respect to such findings is the balance of probabilities,[4] having regard to the serious nature of the matters alleged and the potential consequences for X and her time with the father, proof to the reasonable satisfaction of the court “should not be produced by inexact truths, indefinite testimony, or indirect references”.[5] Findings should be made in relation to abuse or family violence if “they are available and necessary to determine what is in the best interests of the child”.[6] When considering X’s best interests it is not necessary to make findings of fact on every factual dispute of the parties.
[4] Evidence Act 1995 (Cth) s 140.
[5] M v M [1988] HCA 68. Also see s140(2) of the Evidence Act 1995 (Cth).
[6] Amador & Amador (2009) 43 Fam LR 268, 282 at [88]; [2009] FamCAFC196.
Family violence is defined in s 4AB (1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.”
Section 4AB(3) provides that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence.” Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence and includes seeing or hearing an assault of a member of that child’s family.
A party does not require their evidence as to family violence to be corroborated before it can be accepted by the court: Keating & Keating [2019] FamCAFC 46 and Amador & Amador [2009] FamCAFC 196.
The terms “coerce” and “control” are not defined in the Act. The Single Expert has helpfully clearly defined this term in her report as follows:
“Coercive control” is a term coined in 2007 by forensic social worker Evan Stark meaning: “a malevolent course of conduct that subordinates women to an alien will by violating their physical integrity (violence), denying them respect and autonomy (intimidation), depriving them of social connectedness, (isolation), and appropriating or denying them access to the resource required for… personhood and citizenship (control).[7]
[7] Single Expert Report, paragraph 54.

In Carter & Wilson [2023] FedCFamC1A 9 Deputy Chief Justice McClelland and Justice Campton sitting as the Appellate Division stated at [10] that:
The assessment of whether conduct that falls within one of the provided examples constitutes family violence as defined in s 4AB(1) of the Act necessarily requires that conduct to be considered in the context in which it occurred.
It is generally understood that coercive controlling behaviour by its very nature can be more difficult for the victim-survivor to recognise and escape, as such conduct can have significant impacts on the victim-survivor’s self-worth – thus creating a cycle of dependence and further family violence. I accept the unchallenged evidence of the Single Expert that:
…As a result of long-term coercion the controlled partner becomes severely demoralised and confined in an “invisible cage” in their own minds. Because no options for self-protection, resistance or escape are perceived, the victim becomes docile in her own oppression. This docility undermines her credibility as an informant when she eventually reports the abuse because anyone with normal self-efficacy is likely to wonder: “If the danger was as high as you say why did you stay/ go back/ not report the abuse previously?” The mental architecture of the “invisible cage” includes warped cognition which I call the triumph of hope over experience. From the point of view of family, friends and helpers, some abused women do not know when it is time to give up. Because their risk assessments are based on hopes for the future rather than memories of the past, they predict relationship outcomes based on the desirability rather than their probability….
Furthermore, this “invisible cage” can be re-invoked in subsequent court proceedings (even years after escaping an abusive situation) to the advantage of the abuser, as a result of the victim’s trauma induced responses to the perpetrators re-entry into her life including: anxiety, depression, PTSD, suicidal despair, confused thinking, incoherence and public emotional outbursts.[8]
[8] Single Expert Report, paragraph 56-57.
The mother alleges that during the course of the relationship the father subjected her to physical, verbal and psychological domestic violence on a daily basis. She further alleges that during the six-month period of the parties’ first period of separation the father continued to harass her by telephone, threatening to remove and withhold X and intimidating both herself and her family. Subsequent to the parties’ reconciliation the mother alleges that the father continued to be “obsessionally jealous” and continued to both physically and verbally abuse her and monitor her movements.
The father admits to threatening the mother through a communicative device and “in the heat of the moment” during their breakup but asserts that he never intended to harm her. He alleges that the mother physically assaulted him during the course of an argument by stabbing him with car keys. The father reported to the Single Expert his view that the mother has engaged in a course of conduct to deliberately alienate X from him so that she can replace him in X’s life with Mr H.
The father now concedes that he verbally abused the mother and destroyed property, thus perpetrating acts of family violence. In his latest trial affidavit filed on the first day of the final hearing (“the March 2023 affidavit”) the father deposes that:
I agree that during the relationship I subjected [Ms Moloney] to acts of domestic violence in the form of destroying property, name calling, put downs and threats. I agree that at times, especially towards the end of our relationship, this occurred on a daily basis.[9]
[9] Father’s affidavit filed 27 March 2023, paragraph 9.
He further conceded in such affidavit that, at times:
I took my anger out [on] the furniture or the wall whilst [Ms Moloney] was in the room.[10]
[10] Father’s affidavit filed 27 March 2023, paragraph 10.
The father conceded in cross-examination that during the course of the relationship he threatened to kill the mother saying:
I’ve had enough of you. I’m going to slit your throat.
He conceded that he “may have” threatened to punch the mother in the face.
During cross-examination the father conceded that he made derogative comments toward the mother with the intention of “not making her feel good about herself.” The father called the mother names including the following:
·cunt;
·a fuckwit;
·bitch;
·a dirty fucking slut;
·a whore;
·a dog;
·stupid, thick and worthless; and
·an unfit mother.
The father conceded that on a number of occasions he told the mother that she would “never see [X] again”, thus engaging in coercive and controlling behaviour.
The Facts Sheet tendered by the father relating to his various criminal charges and convictions records the following agreed facts with respect to his entering a plea to charges of use carriage services to menace/harass/offend:
·In early 2018 the father sent the mother the following text message:
Fuck off [Ms Moloney] thanks Im such a shot dad get the fuck out of my house before I kill u u r pushing me to far u dog.
(As per original)
·Five days later at 2:33 pm the father sent the following text message to the mother:
Fuxk off mate seriously just fuck off im going to make your life’s hell like your doing to me all my fault I’ll show you my fault [Ms Moloney].
(As per original)
·Three minutes later the father sent the following further text message to the mother:
U think I don’t know where u r [Ms Moloney] [Y Street] Don’t fuck with me Im tell U.
(As per original)
The father denied both in his written evidence and during the course of cross-examination that he ever choked, hit, pushed, punched, or pulled the mother’s hair[11] and I now turn to the contested allegations of family violence.
[11] Father’s affidavit filed 27 March 2023, paragraph 10.
Abusive text message – July 2016
In July 2016 the mother deposes the parties had an argument about finances. The father conceded and I find that he sent the mother the following text message:
FUCKING EVER U FUCKING MESS DON'T EVEN THINK ABOUT GETTING IN MY FUCKING WAY THIS AFTERNOON OK THAT IS YOUR WARNING WHILE I PACK MY SHIT…
You are not a nice person and u think I'm heartless u talk to me like I'm a fuck wit pull your head in before in punch the fucker what ever go get avo on me like your best mate I don't give a fuck anymore and I'm like this because of you.
You lucky I'm not near u now I told u u push me to far u mutt.
….
KEEP FUCKING GOING [MS MOLONEY] KEEP FUCKING PUSHING ME AN NO I HAVENT BUT I'M TELLING YOU THERE THE ONLY THAT WILL SAVE U WHEN I FUCKING FLIP IT DUCKING TRUST ME ALL YOU DO IS FUCKING PUSH NE.
(As per original)
Threat to slit the mother’s throat in September 2016
The mother deposes that in September 2016 she told the father that she was not comfortable around the father’s sister as she “tries to involve herself in our relationship. I don’t want her around me.”[12] The mother deposes that the father got angry at the mother during this argument and said “I’m going to slit your throat.”[13] The mother deposes that the threat left her shaking as she believed that the father would carry out this threat.[14] Tendered into evidence and marked as Exhibit M6 is a text message from the mother to the father on that day at 7:54pm:
I can’t believe u said u would slit my throat just cos I wasn’t comfortable about [Ms Z] coming over.
(As per original)
[12] Mother’s affidavit, paragraph 30.
[13] Mother’s affidavit, paragraph 30.
[14] Mother’s affidavit, paragraph 30.
The father’s written evidence is that he does not recall the incident where the mother alleges he threatened to slit her throat. He expressly states that he does not deny this may have happened but he does not have access to his response to the mother’s text message and therefore cannot confirm or deny whether he made the threat to the mother.[15]
[15] Father’s affidavit filed 27 March 2023, paragraph 21.
The father was cross-examined as to this incident. The father’s response to the proposition that he did indeed make a threat to the mother was “I don’t remember saying that but it might be true.” The father further conceded that there was no response to the mother’s text message sent to him in September 2016. When the proposition was put to the father in cross-examination that the fact there is no response in evidence suggests that there was no response at all he answered “correct”.
The father provides no explanation as to why the mother would send him a text message specifically referring to this threat on the same day that it occurred if it was not true, especially in circumstances where the parties were still together in a relationship at the time of the mother sending the text message.
I accept the mother’s clear evidence in this regard and find that in September 2016 the father threatened to slit the mother’s throat and the mother’s belief that such a threat was genuine caused her fear.
Further threats in September 2016
It is uncontested and I find that in September 2016 the following text message exchanges took place in response to the father’s request that the mother provide a friend of his, Mr AA, with an illicit substance from the father’s drawer in the home:
Father: [Mr AA] will be there in 10 min give him that stuff I want it out of the house
Mother: I’m out getting [X]
Father: How long will I be
Mother: Not sure I don’t want to go bk to an empty house. R u coming home 2moro.
Father: Well I need to know [Ms Moloney]
….
Father: Don’t fuck me around [Ms Moloney]
….
Father: Get fucked stick it up your arse
….
Father: I’m going there don’t even think about being there this is your only warning ok
Mother: Go where?
Father: [Overseas] where the fuck do you think
….
Mother: [Mr Dornan] can u give me my car bk? Why are you doing this?
Father: I’ll burn the fucking car
….
Father: [Ms Moloney] I’ll u one more time stop fucking around r u going back or not I’ll tell [Mr AA] to smash the fucking window and get it himself.
…
Father: He is at the house now waiting.
Mother: [Mr Dornan] I’ll take it to him im changing [X]
Father: That’s it you want to fuck me round you can fuck of seriously ur a fucking joke
(As per original)
I accept the mother’s uncontested evidence that she was terrified as to who was coming to the house and their potential actions. I accept and find that the mother believed the father’s threats.
Threats of late 2016
In late 2016 the parties separated for a period of approximately six months. X and the mother commenced living with the maternal grandparents in their home. The mother deposes that the father had retained her motor vehicle and she repeatedly asked him to return it to her but he refused to do so. There is no evidence to suggest that the father did not have the use of a vehicle at this time.
The father denies that at this time he refused to return the car to the mother. He asserts that the mother did not own a car at the time and instead had the use of her parent’s car.
The mother was not challenged on her evidence in cross-examination.
The mother deposes in late 2016 the father said to her with respect to her car that:
I am going to run you and your family down with it.
and
I’m going to send guys around to your parents’ and your sister’s house.
(As per original)
It was uncontested and I find that at or around this time the mother sent the father a text message as follows:
How hav I abused u I didn’t to threaten to run u over or abuse u last night saying I was going to kill ur family.
(As per original)
The father does not provide any context or possible reason as to why the mother would send this message to him. It was sent contemporaneously and supports the threats of physical harm the mother asserts the father made towards both herself and the maternal family.
I accept and find that these threats to perpetrate physical harm were made by the father subsequent to the parties’ first separation in late 2016. I accept and find that such threats were made in the context of the father refusing to return the mother’s motor vehicle to her.
Abusive and threatening texts in October 2016
The father concedes that in October 2016 the mother asked the father to return her car and he refused to do so. The father sent the following text message to the mother on this date in response to her enquiry as to the location of her car:
I’ll drop the cunt on your front lawn and set it on fire u don’t demand fuck all from me I’ll drop your car back tonight make sure u take money out for the full tank I put in you fuck wit who do u think u r.
(As per original)
By way of apparent explanation for his behaviour the father asserts that the mother at this time was working at G Company and had a child restraint installed in her work car. He asserts that the parties had “previously agreed” that the father could use the mother’s work car when he was spending time with X and that “Despite our agreement [Ms Moloney] then demanded the car back.”[16] This assertion was not put to the mother in cross-examination.
[16] Father’s affidavit filed 27 March 2023, paragraph 30.
The father conceded the following further text messages were exchanged between himself and the mother:
Father:[Ms Moloney] if I pay child support I don’t pay the child care if I get majority custody that I’m going for then I pay the child care and you will have to pay me $164 a week I went through it my solicitor
Mother: [Mr Dornan] after everything I’ve done for [X] u think you can do that after all the times u disappeared. Pls just give me my car bk fuck we hav a daughter together hav some respect
Father: it doesn’t matter I have the more stable environment job and past and it’s all taken into consideration and for you to turn around and say I’m not picking my daughter up that’s it it is going to cost u at least 20,000 to defend it so u better come up with a written agreement where I have [X] a lot more than I do now and go get it signed by a jp u have till Friday because on Monday I will be going to family law court to see my daughter
Monday Wednesday Friday and every second Sunday is fair I think
Mother: Pls just giv me my car back I cant take any of this shit any longer…..
Father: your not getting your car till I can see my daughter and frequently
Mother:[Mr Dornan] im going to the cops I’ve had enough of ur games im not stopping u seeing her
Father:OK it’s registered in my name [Ms Moloney]
…
Mother:[Mr Dornan] just give me my car back…
Father:we’ll agree on giving her to me 3 days a week
Mother:ive had enough stop trying to bully me
(As per original)
The father’s text messages to the mother contradict his own evidence. He clearly asserts that the car the mother was seeking the return of was her work motor vehicle which she had allowed the father to drive when he had X in his care. He clearly states in the text message when the mother threatens to make a complaint to the police that the car they are in issue over is registered in his name.
I am satisfied and find that the father was refusing to return the mother’s car to her until she agreed to have X spend time with the father as he demanded. Such behaviour is clearly coercively controlling. The father further threatens the mother with legal proceedings and the financial costs that will involve unless the mother does what he wants her to do – again epitomising coercive and controlling behaviour.
Threats of October 2016
In October 2016 the mother deposes that she took X to DD Venue with her friends Mr BB and Ms CC. Mr BB was driving the mother’s company car as the father was still refusing to return her car. It is uncontested that on this day the father threatened to take the mother to court and to take X. I accept that later during the day the father sent to the mother a text message:
Well [Ms Moloney] if I go through law court I’m not going for a couple of days I’m going for 50/50 7 days at a time.
(As per original)
The mother deposes that the father was angry that her friend Mr BB was driving X and two days later the father threatened the mother’s friend Mr BB stating:
..he is lucky I wasn’t there I guarantee he would have been going to the hospital not to [DD Venue]
and
I will also be going for 60% to 70% custody too now u are to speak to child support tomorrow.
(As per original)
The father denies making such a threat towards Mr BB but does not deny that shortly after this alleged threat he sent a text message directly to Mr BB stating:
Hi mate you don’t know me and you don’t want to I’m saying this is in the nicest possible way you are not to be driving my daughter around like you did on Sunday if I was there it wouldn’t of happen so next time you are asked say no if I find out it won’t be nice thank you.
(As per original)
The tone and tenor of the message was menacing.
I accept and find that the father threatened Mr BB, both to the mother and directly to Mr BB himself. Such threats are an attempt to intimidate both the mother and her friend to not act in a manner that the father does not agree with – another example of the father engaging in coercive and controlling behaviour whilst the parties were separated.
Threatening messages – work function in late 2016
It is uncontested and I find that in late 2016 the mother was at a work function and X was being cared for by the maternal family. The father sent to the mother the following text message:
You dirty fucking slut u think u keen to keep my daughter I hope you get drunk like u are get railed by your work colleagues then sacked see your ass in court I hope you have 20,000 you price of shit…. Don’t try to such up my ass tomorrow you will be told to fuck also tell your sister to watch herself having my kid for they day the dog.
(As per original)
Such a message is not only abusive of the mother but threatening of her sister for caring for X.
The father did not put into issue the evidence of the maternal grandmother that at approximately 6.00 pm on this date she read a Facebook message sent by the father to the paternal grandfather that stated:
Mate you are to get a hold of your daughter and tell her I want to see my daughter she can not stop me she is getting drunk and becoming a hero I'm telling if she tells me one more time I can't have my daughter I will personally come to your house and grab her myself she is the shit because I have seen my barrister and I’m taking her to court to see [X] show wouldn't agree to 50/50 custody so I'm taking her to court for 60% now as she would not agree to Monday Wednesday Friday and every second Friday she is pushing me to my limits if I have to come there and get my daughter it won't be pretty so it's best you ring and talk some sense in to that head of hers
….
Every second Sunday*
(As per original)
Such a message threatening to effectively snatch X unless the mother does what the father is demanding is another clear example of the father engaging in coercive and controlling behaviour. The threatening nature of the comment “it won’t be pretty” if the father attended at the home to obtain X is concerning.
Threatening to withhold X at Christmas –December 2016
In December 2016 the father threatened to withhold X from the mother so that the mother would not see X at Christmas as the father was angry and held the belief that the mother had gone out socially the night before with Mr H. The mother had sent the father a text advising him that she was out with her friend Ms CC and had sent him a photo of Ms CC’s dog to try and prove that she was telling the truth. It is unchallenged that at this time the following text message exchange occurred between the parties:
MOTHER: How is [X]? I want to see her after work.
U can fuck right off tell [Ms M] ill come n get [X] u r being a dickhead and it wouldn’t surprise me u taking [X] to work u did the last time..bk to being the same old [Mr Dornan] lucky me!!
FATHER: U won’t see her for Christmas if u keep going [Ms Moloney]
MOTHER: R u threatening me she’s my daughter what gives u the fucking right!! That’s the worst thing u could have said to me trying to withhold…
(As per original)

The mother deposes that the father eventually returned X to her but this was after the mother was crying hysterically, pleading and begging the father. The father denies this. The mother deposes that this caused her severe anxiety and distress.
The mother was cross-examined as to this incident. The mother conceded that she collected X from the father’s sister’s residence and that the father was not there at the time. When it was put to the mother that she did not have to plead and beg for X she gave clear and unequivocal evidence that she was calling the father “begging, screaming and crying and he was telling [Ms M] to keep [X] from me.” The paternal aunt did hand over X to the mother when she attended to collect her but I accept the mother’s evidence that this occurred after she called the father upset that he was threatening to withhold X.
I accept and find that on this occasion the father made threats to the mother to withhold X, causing the mother to be frightened – another example of coercive and controlling behaviour perpetuated by the father.
Text message and attending at the maternal grandparents’ home in January 2017
In January 2017 the maternal grandmother was caring for X whilst the mother attended a show with her friend Ms CC. The mother deposes that on this occasion the father attempted to call the mother many times as well as send her numerous text messages which the mother did not answer. The father eventually appeared unannounced at the maternal grandparents’ residence.
The father’s written evidence is that on this occasion the mother had initially asked the father to care for X. When the father was attempting to collect X he phoned her several times. Upon the mother not answering the father’s phone calls he drove to the home of the maternal grandparents.
The father’s evidence is at odds with the message it is agreed that the mother sent him on the same night:
[Mr Dornan] for u to show up at my house wtf r u doing all day u didn't ask to see [X]. Now im out with [Ms CC] like my dad confirmed all u have done is make me upset my mum wanted to spend time with [X] so I didn't ask u I was at a show […]. I can’t deal with this what upsets me the most not once did u ask to see [X] or ask how she was! Leave me alone u hav put me over the edge. Fuck sake I didn't hav signal and I come out to all these missed calls its ridiculous.
(As per original)
The father’s evidence is also at odds with the unchallenged evidence of the maternal grandmother that the father “randomly” turned up at her house whilst the maternal family were caring for X on this date and stated “I want to hold my daughter”, making her feel uncomfortable and intimidated.[17]
[17] Affidavit of Ms Q, paragraph 18.
The father provides no reason as to why the mother would send a contemporaneous message to the father stating that he did not ask to see X, nor does he challenge the maternal grandmother’s evidence. I accept and find that there was no agreement between the parties for the father to see X on this date and that he attended at the maternal grandmother’s home requesting to see X uninvited causing the maternal grandmother to feel intimidated.
The wedding at Town FF in early 2017
In early 2017 the wedding of the mother’s sister, Ms EE, took place in Town FF, New South Wales. The mother was in attendance with X, Mr H and members of the maternal family. The mother deposes that the father agreed for X to attend the wedding but did not want Mr H to be there. The father bombarded the mother with text messages and telephone calls until he attended Town FF with a baseball bat and threatened to harm the maternal family. The father was threatening to call the mother’s workplace to state that the mother and Mr H’s relationship was against workplace policy. The mother handed X over to the father on this occasion.[18]
[18] Mother’s affidavit, paragraph 49.
It is the maternal grandmother’s unchallenged evidence that she observed the mother looking stressed and worried as a result of the text messages she was receiving from the father. She deposes that:
It was suppose to be a happy occasion however [Mr Dornan] ruined the day for my family .This include my family that travelled from [Country C] for the day.[19]
(As per original)
[19] Affidavit of Ms Q, paragraph 19.
The father’s written evidence is that he agreed to the mother attending the wedding with X on the condition that Mr H not be present as he did not feel it was appropriate for the mother to introduce X to Mr H and then stay overnight with him. The father does not give any evidence as to why he felt that this was inappropriate. The father deposes that the mother initially agreed that Mr H would not be present and that X would stay two nights with the mother and then the father would care for X whilst the mother stayed in Town FF for the remainder of the week. The father unequivocally denies having a baseball bat or threatening to bring a baseball bat. He deposes that the mother met him up the road from the accommodation they were staying at in Town FF and returned X to his care.[20]
[20] Father’s Affidavit filed 27 March 2023, paragraph 34-37.
Tendered into evidence and marked as Exhibit M16 are the following text messages from the father to the mother on this day:
answer my call [Ms Moloney] u can not withhold her from me if u do I will do everything possible to destroy u like u r to me
U better call me [Ms Moloney] I am in my way down I know ur staying in [accommodation] I know he drives a [vehicle type] if your car is not there
I have all the messages printed off u can’t hide it any longer now [Town FF] is a small place
So please call me
I’ll be down there in an hour we will tsk then I’m not holding back either so who ever is around will find out
U think I’m a joke and joking [Ms Moloney] I’m not
(As per original)
The father then posted a map of his location, being on the way to Town GG so that the mother would know he was on his way to Town FF. The mother then threatened to go and speak to the police.
The father conceded that the messages he sent were threatening but that he had “no real intention behind” using the word “destroy” and that word was used in the heat of the moment although he may not have been driving whilst he sent the messages. The father further conceded that the mother would have taken these threats very seriously but denies that his behaviour was controlling. He again denied that he had a baseball bat.
The mother’s further oral evidence in cross-examination was that in addition to the text messages the father was sending there were a lot of telephone conversations between the parties at this time and that during one of these phone calls the father had made it known to her that he had a baseball bat. It was the mother’s firm evidence that she was standing right beside the father’s car and saw the baseball bat in his car:
I was right beside his car and he made it known to me in phone calls that he had it. …he was threatening to hurt my family.
The mother was not successfully challenged on her evidence and I accept the mother’s version of events. Such conduct by the father is clearly threatening and controlling.
Non-lethal strangulation: mid-2017
The parties reconciled in early 2017 but did not recommence living together with X until mid‑2017. The mother deposes that in mid-2017 the mother asked the father if she could go to her friend Ms CC’s house as she always had to ask permission to leave the house except to go to work. When the mother went to work the father would question her about which customers she was seeing and what she was doing at work.
The father insisted that he drop the mother right to the front door of Ms CC’s home but Ms CC was scared of the father and did not want the father knowing where she lived. The mother deposed that at this time:
[Mr Dornan] lost control and choked me and said: ‘You are a slut. You are going to meet other guys.’ I was trying my hardest to get [Mr Dornan’s] hands from around my neck and was begging him to stop for [X’s] sake. [X] was in her bedroom initially however when she heard the yelling she came running out and was screaming, ‘Mummy Mummy’ but [Mr Dornan] would not stop trying to strangle me. When I looked at [Mr Dornan] his face was full of rage and nothing stopped him until [X] kept screaming more and more.[21]
[21] Mother’s affidavit, paragraph
Tendered into evidence and marked Exhibit M17 is the following text message the mother asserts was sent by her to the father following this alleged incident:
I’m not touching shit go hav a look u hav hurt me enough choking me so I can’t breathe all over cos [Ms CC] doesn’t want u to drop me off at her house u destroy people’s lives… I asked u if I could go I asked u if u could take me and pick me up but still wasn’t gd enough… I ain’t ur punching bag I done nothing wrong…
(As per original)
In his trial affidavit the father denied that the mother had to ask him for permission to leave. He conceded that he called the mother a “slut”.[22] He denies choking the mother or that X came running in yelling and screaming and deposes that on this date X was not yet 12 months old and to the best of his recollection had not commenced walking or talking. He concedes that the mother sent him the above text message however “cannot recall my response to this message as I no longer have access to these messages.”[23]
[22] Father’s affidavit filed 27 March 2023, paragraph 47.
[23] Father’s affidavit filed 27 March 2023, paragraph 48.
The father conceded in cross-examination that he would question the mother about which customers she was seeing. He denied losing control and choking the mother but again conceded calling the mother a “slut” and accusing her of going to meet other men. To the suggestion that the mother sent him a message contemporaneously with this incident and he did not respond, the father’s response in cross-examination was “I don’t know if I responded, I don’t believe I did.” To the suggestion that he did not respond because the message was true the father asserted “I don’t agree.”
In cross-examination by counsel for the father, the mother:
·Disagreed that if the father was holding her so tightly around the neck that she could not breathe, she would be unable to scream.
·Disagreed that she was unable to scream so loudly that X could hear.
·Agreed that X was not yet 12 months old, but disagreed that X could not have understood what was happening. She disagreed that X could not say “Mummy Mummy”.
·Denied that she did not report this incident to the police in early 2018 when she made other allegations was because the father did not choke her. The mother’s response with respect to her reporting to the police was “There was so much going on. I had just left the house.”
It was not put to the mother that she did not send the above text message to the father contemporaneously with this alleged incident occurring. It was not put to the mother that she had received a response by way of denial from the father. It was not put to the mother why she would send such a message if the father had not in fact choked her. The father simply makes a broad assertion that if the incident had occurred as alleged the mother would not have been able to make enough noise to make X come running. That is not a sufficient evidentiary foundation for me to make such a finding. There is no evidence as to any attempt by the father to retrieve the text messages between the parties during the relationship or indeed, why he no longer has access to the text message exchanges. I do not accept that the mother neglecting to tell the police about this specific incident precludes it from having happened. There is no evidence that X was not walking or talking at this stage other than the father’s “best recollection”. The mother was firm and unshaken in her evidence.
I accept the mother’s evidence and find to the requisite degree required of me that the father perpetrated a non–lethal strangulation on the mother in mid-2017.
Driving past workplace and taking photographs
The mother deposes that the father regularly drove past her workplace and took photographs to make her aware that he was watching. In evidence and marked Exhibit M18 is a photograph of the mother’s place of work showing her boss and another work colleague forwarded to her by the father. The father agrees that he would drive past the mother’s workplace, but says that this was because he was frequently driving in his work role. He concedes that he “probably” sent the photograph “...however [I] deny that it was threatening. As I do not have a copy of the text message the photograph was sent with and do not recall the nature of the text message I cannot comment further.”[24]
[24] Father’s affidavit filed 27 March 2023, paragraph 49.
The nature and extent of the father’s evidence is unsatisfactory. Again he provides no explanation as to why he no longer has the text message exchanges between himself and the mother. Forwarding a photograph of a partner’s boss and work colleague is unusual and I would expect that the father would be able to recall why he would do this. I am satisfied that such behaviour would have caused the mother to feel intimidated.
The Queensland work conference: mid-2017
In mid-2017 the mother was in Queensland for a work conference. The father does not contest in his written evidence that during this period of time he was constantly sending the mother threatening and harassing messages including threats to retain X. It is uncontested that during a telephone call the father said to the mother “[X] will go missing.” The father forwarded a text message to the mother (Exhibit M19) that included:
we are over do what u want [Ms Moloney] don’t come back to my house that was ours and think u can have [X] this is not happening….
And as for your car explain to your boss why it’s missing
(As per original)
In cross-examination the father stated that he did not recall saying to the mother that X will go missing but that “I could have.” The father further conceded in cross-examination that the mother would have been distressed by the father telling the mother her car was missing as it was in his possession at the time but denied that he said these words to be hurtful – he said these words as the mother was “drunk and ignoring me.”
I accept the mother’s evidence as to this incident. The father gives no explanation as to why it was necessary for him to speak to the mother whilst she was at this work conference. Such conduct is coercive and controlling.
Texts of July 2017
It is uncontested that despite the mother not being in a relationship with Mr H at the time, in July 2017 the father sent her a text message telling her that he was standing outside Mr H’s workplace. The father’s explanation for this was that he had a supplier that was located next door to Mr H’s workplace. The message exchange was:
Father:           I’m next door to ur mates work
I’m next door to ur mates work
I’m next door to ur mates work
Mother:          Who?
Father:           [Mr H]
Mother:I dunno y u tell me stuff like this that part of my life is gone u need to move on to
Father:           Because he’s a fuck wit
I’m standing out the front on my work phone lol
(As per original)
The mother deposes and I accept in circumstances where she was not challenged, that she was scared for Mr H due to the father’s unpredictability. I accept that such behaviour would have caused the mother to feel intimidated.
The City HH Work Conference: mid-2017
The mother travelled to City HH during the course of her employment for four nights in mid‑2017. This period of time included an awards night. The mother deposes that she had to constantly send the father text messages and a photograph of the agenda as she felt she had to justify every move she made.
In evidence (Exhibit M21) are seven text messages from the father to the mother commencing at 10:18pm and concluding at 3:16am implying that the mother was doing something that she should not be. In the last message the father told the mother to not bother calling him in the morning.
The father does not challenge by way of his written affidavit that:
·The first evening of the conference was the awards night.
·She “may have” sent him a photo of the conference agenda.
·After the awards night the mother was in a room with her work colleagues watching a movie together.
·The father telephoned the mother and heard a male colleague laughing in the background. The father called the mother a “mutt”, “cunt”, “whore”, “slut” and “dog”.
·The father thereafter sent the mother an explicit photo of herself and threatened to forward it to her father and anyone that knew her. This continued through to the early hours of the following morning.
In evidence are a further 11 text messages forwarded by the father to the mother between 10:00pm the night after the awards night and 12:50am the following morning which includes the following exchanges:
Father:Ok [Ms Moloney] all I wanted was to talk to us hen u could doesn’t matter
Mother: It’s my awards night I’ll be surprised my boss doesn’t say anything y don’t u think of me for once instead of arguing support me just seems nothing is going to change u have really upset me can’t win with u.
Father:Ok [Ms Moloney]
…
Mother: [Mr Dornan] u can’t let me go out 1 night it’s a work function y don’t u trust ur partner for once it’s not that hard dnuno y u treat me like this
Father: Just remember when I don’t message u an update next time
U better call me back [Ms Moloney] or u won’t see [X] ever again
All ur shit is going in plastic bags and on the front lawn [Ms Moloney] we are over u lying fuck mute why u talk to her ur heartless
By the way me and [X] are going to someone’s house now who appreciates us [Ms Moloney] I’m so over u
I’m sending this video to every cunt u want a be a hero…
Haha no worries [Ms Moloney]
I’m ringing your dad better yet I’ll send it to him u don’t want to fucking answer I Dogg
(As per original)
In cross-examination the father conceded that these messages constituted harassment of the mother but disagreed that he was controlling her. His evidence was that the message that he sent to the mother that she would not see X again was “just a reaction” as he was being ignored. The father conceded that, as he felt he was being ignored, he sent the mother the most distressing message she could receive. The father then accepted that it was controlling behaviour “to a certain point.”
The father does not challenge in his written evidence that when the mother returned home she found some of her clothes shredded and the father said to her “You shouldn’t be a slut and I wouldn’t do these things.” As a result of this incident the father pled guilty to a charge of property damage.
I accept and find that the father’s conceded behaviour, including its culminating in the father physically destroying the mother’s property, was behaviour designed to coerce and control the mother.
Verbal and physical assault in September 2017
It is uncontested that in September 2017 the father verbally abused the mother, calling her names including “cunt” and “slut” and making threats towards her. The mother alleges that she was holding X at the time and the father turned around and pushed her with both hands on her arms with enough force that she fell backwards onto her back and hit her head on the ground. The mother deposes she was attempting to protect X from hitting the floor so X remained on top of her and was screaming and crying. The father then commenced punching the pantry wall and put two holes in the wall whilst X continued screaming and crying.
In cross-examination the mother conceded that the kitchen was probably tiled and she did not seek medical treatment. She confirmed that she did not sustain any injuries: “I just remember hitting my head.” The mother could not comment on the proposition that if she had fallen onto a tiled floor without being able to break her fall as she had X in her arms she would have seriously hurt her head.

To the question as to whether the father’s evidence now conceding as to his acts of domestic violence still supports her opinion as contained in her written report, the Single Expert stated:
As a group, spousal abusers are not characterised by any one particular psychiatric diagnosis, and many of them would attract no diagnosis. But the overarching attitude is entitlement, and the overarching behaviour is coercion, coercive control of others, whether it’s violent or not violent. Now, if the court finds that – that was my – what I said there, that suggests that degree of pathological narcissism, which I’ve already suggested among the reasons – and I’ve gone on to say that while there are some specialised forms of psychotherapy, it doesn’t happen quickly.
It won’t happen within two years, and it really depends on to the client’s insight and the need to change.
Now, that’s the difference between rational self-interest and saying, “I better say the right thing, and I better start trying to do it or I’m not going to get anywhere in this”, versus saying, “I have been deeply wronged in the way I’ve thought about relationships and the way I conducted my life. It has led to bad outcomes for me. I want to change. It will be hard. It will be painful, but I will do it.”
Now, I can’t – I can’t assess if that’s the case for the father in this case, but even so, 12 months wouldn’t cut the mustard.
The Single Expert’s executive summary at the conclusion of her report stated:
…mental health treatment is unpromising as risk mitigation. The determining consideration is the father’s potential for FV, the overarching feature of which is a sense of over entitlement relative to others which justifies tyranny. Pathological narcissism tends to resist treatment.[60]
[60] Single Expert Report, page 28.
The Single Expert was asked by the father as to whether the father’s proposal that he undertake DBT and complete a minimum of 12 months changes her recommendations at all. Her evidence was, again, that such treatment requires as the first step, freely acknowledging the behaviour. Referring again to the Reparative Framework contained in the appendix, the Single Expert stated:
If you go through, the first thing is changing abusive behaviour. That means freely acknowledging all of it. No excuses. “Yes, I did it.” And then changing it.
The next thing is modelling constructive – that doesn’t apply, because he has no relationship with [X].
The next thing is... Men who are sincere in their willingness to reform themselves completely renounce denial, blaming and justification – “she made me do it”; “it was only because of that”; “no, it wasn’t quite like that” – when it has been substantiated that these things happened.
The next thing is they accept all the consequences. That means criminal consequences; obeying the law; and also accepting that, as a result, they have been judged. They have lost the trust of people whose cooperation they need, and it may not be possible ever to regain it.
The next thing is acknowledging the damage. You know, the damage that has been done to their children, and so on.
The next thing is supporting the mother’s parenting….
And the next things come on to when the relationship with the child has resumed – listening; validating. But number 8 is the key point, and that means not forcing the page or – forcing the rate or trying to turn the page. That means someone who sincerely wishes to repair the damage caused by being violent to a spouse, with all the attendant effects that has had on their relationship with the chid or children, knows that this must happen at the child’s rate. When the child is ready – developmentally ready, psychologically ready, and willing – and on the child’s terms. Now, that means you can’t put a time on it. First of all, he would have had to have demonstrated a significant change with DBT. And secondly, where is the evidence that [X] has asked for anything here? That she has said, “Gee, I’d really like to know my own dad,” or, “Who is my own dad?” Where is the evidence here? Because if that had emerged, that would be evidence that there might be – it might be time to start something for [X’s] sake. But in the – in the lack of such evidence, then you can’t put a timetable like that – 12 months of this and six months of that and three months of something else.
He’s going to do DBT for 12 months. Bearing in mind that a lot of people say narcissistic personality disorder is incurable, but the optimists say that it can improve with five to 10 years of psychotherapy, but he proposes one year.
The Single Expert’s opinion that twelve months of DBT therapy is inadequate was unchallenged and I accept and find that this is so. Of additional concern is the father’s proposal that he undertake such therapy is not supported by any evidence that he is actually willing to engage in such a course. This is in circumstances where he was granted leave to rely upon a further unfiled affidavit on the first day of the final hearing. It is difficult to ground such an order sought and place weight on it as a mitigating factor as to risk in such an evidentiary vacuum.
In cross-examination the mother affirmed that she understood that the father proposes that she have a section 68B injunction made in her favour. She conceded that:
·The father did not breach the Apprehended Domestic Violence Order when it was in effect from early 2018 to late 2020.
·She has not had any contact with the father, other than coming to court subsequent to the expiration of the Apprehended Domestic Violence Order.
·She did not apply for a renewal of the protective orders.
It was put to the mother that in those circumstances the father’s proposal that there be injunctive orders in place would give her some comfort. I accept the mother’s response which was clear, unequivocal and unchallenged:
No, I don’t feel safe.
Dr R was also asked by the father as to whether the father’s proposal for a protective injunction for the mother’s protection gave her some comfort as to the mother’s safety and sense of safety. Her response was also clear and unchallenged:
Not really, but I – as I said, he has received excellent legal advice. I would like to say that in terms of coercively controlling men’s proposals, that’s the best one I have ever seen. Whether it’s sincere or not, I cannot judge, but it’s the most realistic in terms that most people try and say, “No, not me, I didn’t do it. It’s all a lie” or “So? Her fault” instead of saying, “Yes, I did something. Yes, I have a problem. Yes, I am going to deal with it”. That’s a good proposal.
But whether – do AVOs or section 68 or anything else ever protect anybody from somebody who really wants to do harm? That he proposes it is a good sign insofar as he – it could – he could be declaring, “See, I am now motivated by rational self-interest. I have not violated the previous AVOs. I really want this goal and I am even putting in there something that would shoot me in the foot if I disobeyed”.
So I don’t think it should give her any confidence about what he may or may not do, but it – because as we know, if people want to do bad things, there’s really nothing that can stop them. The police don’t respond until something has already happened. But it does – it does provide some reason to think that he might be acting a rational, goal‑oriented way.
I accept, in light of the mother and Single Expert’s evidence, that the father proposing or consenting to injunctive orders restricting his behaviour would not give the mother reassurance or comfort as to her safety in the future should X spend time with the father. I further accept that this is reasonable in light of the serious nature of the family violence perpetrated by the father upon the mother.
The father is proposing orders that X’s time with him be supervised for a period of six years. The Single Expert was asked to agree to the proposition that X’s time with the father occurring on a supervised basis mitigates any risk of neglect. The Single Expert’s evidence was:
If there was supervised time and it was supervised forever, if that’s the question you’re asking me, the route – the chance of abuse and neglect are mitigated. Equally, the potential for emotional abuse and neglect is reduced. Not eliminated but reduced.
But the point is why do it.
The mother expressed fear to the Single Expert that the father may harm X directly or alternatively, that X could inadvertently disclose details which would endanger the whole family – information about where she lives, what school she attends, the location of other family members and where the mother works. I accept and find that this is a legitimate fear of the mothers even in circumstances where the father is only proposing that, until X attains the age of 13 years, he have supervised time. This risk will significantly increase if time were to move to unsupervised.
The father seeks as a mitigating factor that an order be made that the mother is to attend upon a psychologist and that she comply with all their recommendations as to ongoing attendances and treatment. Such order is not sought to be made on a conditional basis; that is that X live with the mother conditional upon her undertaking such treatment. When asked the source of power to make such an order, counsel properly conceded that there “are difficulties” with making that order.
The mother agreed that she would benefit from continuing psychological support from Dr UU. She agreed that her mental health is important for X. She agreed that if the court decided that X should spend some form of time with the father that she would certainly need support from Dr UU.
Irrespective of whether there is the power to make such an order, I am not satisfied that it is in X’s best interests to require the mother to undertake external assistance. I am satisfied that as the uncontested resident parent that it is appropriate that the mother decide as to any therapeutic assistance she receives as she has done in the past.
I accept the unchallenged evidence of the Single Expert that that the father’s proposal for a period of six years of supervised time with X mitigates the risk of abuse and neglect. I am not however satisfied based on my findings above that the mitigation of supervision is sufficient to make such a risk acceptable. Further, I am satisfied that the father’s proposal that X spend time with him in accordance with her wishes upon attaining of 13 years in the circumstances proposed by him continues to pose a risk of unacceptable harm to X having regard to my findings made above. The evidence and findings above do not allow me to be satisfied that the father’s proposals, taken individually and cumulatively, sufficiently ameliorates the unacceptable risk to X in spending time with him.
The Mother’s Caregiving Ability
If I am wrong in finding that the father’s proposals do not sufficiently ameliorate the unacceptable risk of harm to X in spending time with the father, the mother submits that any court ordered time between X and the father in any event would detrimentally impact her parenting capacity such that it would not be in X’s best interests.
In R & C [1993] FamCA 62, the Full Court referred to the decision of the Full Court in B & B [1993] FamCA 143 (“B & B”) and stated, at [32]:
…In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
The Full Court in Keane & Keane [2021] FamCAFC 1 stated at [81]:
Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
The mother herself identified to the Single Expert that her main parenting weakness was anxiety “since [the father] filed an application to spend time with [X] which has made me have flashbacks of the past and to relive all the trauma.”[61] This evidence was not challenged and it is accepted.
[61] Single Expert Report, paragraph 15.
Dr S reports that at the time of the interview the mother reported that:
·She has poor sleep with initial insomnia, occasional nightmares, waking up sweating and breathless.
·She experiences flashbacks of the father choking her and she fears any mention of the father.
·She remembers being pushed up against a wall and the father calling her an unfit mother.
·Her appetite fluctuates and she has a lost a little weight recently.
·Her mood is anxious and she is often fearful. She has been managing her anxiety using Cognitive Behavioural Therapy (“CBT”) techniques she has learned through counselling and psychology.
·The mother avoids travelling through the suburb where the father and paternal family live.
Dr S opines that it is his belief that the mother genuinely believes that the father presents an unacceptable risk of harm to X:
Due to [Ms Moloney’s] emotional vulnerability, there is a significant risk that the mother’s capacity could be significantly eroded to the detriment of the child if she felt overwhelmed or threatened by the father. The mother’s vulnerability due to her previous traumatic experiences in the trauma that she experienced in the relationship with [Mr Dornan] could have an adverse effect on her ability to parent her child if she became overwhelmed or her trauma was re-triggered.
As to whether [X] should have supervised or unsupervised time with the father, I am unable to make firm recommendations as I have not met the father or the child. However, the impact of contact on the mother could be quite significant. I believe the mother does have high vulnerability in relation to her history of trauma as a teenager and from the relationship with [Mr Dornan]. On balance, I believe it would be difficult for the mother to manage her anxiety levels and this is likely to impact on her ability to care for [X]. At this point, I would hold serious concerns about the mother’s well-being should either supervised or unsupervised be allowed with the applicant Father is a mother is highly fearful that the father could track her of find herself and [X].
….. If the court believed that the father presented as such a high risk and threat to the mother and – or child such that the mother’s household could not achieve sufficient peace and tranquillity for the child to develop in a healthy manner then a no contact order would be appropriate.[62]
[62] Report of Dr S, p 19.
In cross-examination by the father, the mother:
·Confirmed her understanding that the father’s only proposal for time between he and X would be supervised and occur within the four walls of a contact centre and that she would not have to come into contact with him.
·Confirmed her understanding that it would not be tolerated that the father be under the influence of drugs or alcohol.
·Affirmed that she finds the idea of X spending any time with the father to be distressing and stated that the form of protective measures proposed by the father do not give her some comfort.
·Affirmed that she does not think that the father has changed.
·Agreed that she thinks of the father as “bad”.
·Disagreed that X has the right to know who her father or paternal family is.
The mother was cross-examined by the father as to the assistance she has obtained subsequent to her assault when she was 15 years of age. The mother conceded that the first time she spoke to her general practitioner about her mental health was September 2018. She agreed that in 2018 she was prescribed a trial of antidepressants and did not return to the general practitioner as she did not want the side-effects of the medication. She did not see her general practitioner for her mental health at all between September 2018 and November 2020 as:
I was getting support I didn’t need the medication.
The mother agreed that in November 2020 a mental health care plan was issued to her. She received a referral to see a psychologist from her general practitioner in November and went to counselling and psychology, first attending in November 2020. The mother met with a counsellor and at this time she went through various procedures and techniques of dealing with trauma. Her evidence was that there are a few techniques that she uses in her everyday life to cope. Tendered into evidence by the father are the handwritten notes of Dr UU, psychologist, of February 2021. The mother confirmed that she reported to Dr UU that she was reporting anxiety, flashbacks and nightmares at this time. The mother confirmed that she saw Dr UU one month later in March 2021 and she again reported that she was having flashbacks, poor sleep and appetite. She confirmed that she recalled saying to a counsellor that she thinks of the worst case scenario but “not always” and that she has been trying to work on this for herself. She does not know what cognitive behavioural therapy is. The mother agreed that in September 2021 she saw Dr UU again, and at this time she reported that her sleep remains in a fluctuating state, and that she is anxious, but that X is going okay.
The mother agreed that she reported being anxious and depressed from November 2021 but did not return to see Dr UU until May 2022, being a period of six months or more. The mother’s reason for this was that she was accessing support at this time from an Employee Assistance Program through her employer as Dr UU was fully booked during that period of time.
In cross-examination by the Independent Children’s Lawyer the mother stated that:
·She has adhered to her mental health plan since 2020. Her next appointment was the Friday immediately after the trial.
·She had sessions with her Employee Assistance Program through her workplace usually every couple of months via phone and because it was so long between her appointments with Dr UU. She spoke to the same person at her Employee Assistance Program each time.
·She also obtains the assistance of her friend who is a life coach and her evidence was that talks to him every week.
In cross-examination by the Independent Children’s Lawyer the father asserted that he has considered the impact on the mother of the orders he is asking the court to make and conceded that it might be hard for the mother to bring X to the appointments for supervised contact.
The Single Expert opined that given the mother’s diagnosis of post-traumatic stress disorder, it is predictable that the mother’s anxiety would be aggravated by any orders for X to spend time with the father:
When someone – a mother becomes extremely anxious and emotionally overwhelmed, then they’re less emotionally available to their child and makes them less good as a mother. I, however, would not use that as the only reason for not doing it if I thought there was any benefit to the child. I would say to the mother, “Suck it up.” You know, “Go and get some therapy and learn how to manage your responses.” However, anything that makes the mother anxious degrades her parenting capacity, and it’s not to be done unless there’s a very good reason.
I am satisfied and find that the mother’s distress was genuine. I am satisfied and find in light of the findings I have made above that the mother would be significantly and detrimentally impacted if the child was to spend time with the father and thus her parenting capacity would be discernibly impaired, even if such time were to occur on a supervised basis.
The Child

The Single Expert further provided her opinion as to the effect on X of orders being sought that she spend time with the father arising from the mother’s reaction. The Single Expert opined:
…to the extent that [the mother] sincerely dreads [the father] she would most likely inadvertently infect [the child] with her anxiety via non-verbal cues even if she did not openly revile him. When the primary caregiver cannot shield a child from adverse event experiences (such as tense handovers or unwelcome visits with a stranger in a strange place) a young child’s overall attachment security is eroded.[63]
[63] Single Expert Report, paragraph 60.
The Single Expert gave her opinion as to the impact the father’s proposal would have on X. Her evidence was that she disputes the premise that it’s important for X’s identity to know her real father: “I dispute that is relevant to her at this stage.” The Single Expert went on to say:
I dispute the 12 month of DBT would have made any significant impact, and I think that upsetting her by introducing her to a counsellor to talk about things that are not immediately relevant to her life, as well as preparing her for something that may not happen imminently and may not happen ever, would be an unnecessary disruption to the child, and I can’t think of anything that – any argument for it that serves the child’s interests at this time in her development.
The Single Expert’s response was clear and unequivocal when asked by the father at what point in time she would expect X’s idea of identity to start developing:
Now, as far as I can ascertain, [X] has no interest or no awareness of her father at this stage. The right time for her to have any contact for her father would be when she wants to. Now, that’s – I know that’s a vague answer but children vary. Some children may wish to know – you know, have a – she might have a little friend at school who goes to visit her biological dad on the weekend, even though she lives happily with her mum and her stepdad the rest of the time. She might say to her mum, “Well, Suzy goes to see her dad. Where’s my dad?” And that’s, at that stage, if a child draws negative conclusions, such as, “What’s wrong with me that my dad’s not interested in me?”, that can be harmful to identity. And that is at the time at which children need to receive some sort of explanations that they can make sense of that explain their family constellation and where they fit into it. And, after that, identity contact might be sensible and necessary. But at this point I can’t see that – well, I don’t know. Well, when I saw [X] she appeared to have no awareness of her father, and no interest in the family circle wider than the one she lives in now.
Counsel for the father posed a number of questions to the Single Expert relating to X’s identity and the effect that having no contact with the father would have on X. The Single Expert opined:
The first thing I would say is, if you decided someone is going to exercise parental responsibility, and you believe that they have empathy for their – her – their – her daughter and her – her best interests at heart, then you have to trust her to make a good decision later on…
If you’re not prepared to do that, and – and you want to do something else, to interfere in family life, in a level that would be unusual for people who hadn’t been divorced, then what you could do is ask for – for [X] to have a yearly check-up with an – a counsellor, nominated by the court, who was not ever directly raise the question of “Do you want to see your father?”, or whatever, but kind of see where [X] was in that stage – at that stage of her development or curiosity, and who had – and who could advise the mother, “This would be a good time for you to, you know, get in contact and suggest, blah blah blah, subject to the father having completed therapy, subject to this, subject to that, subject to whatever safety conditions”. That’s the only way you could really safeguard that for [X], if you feel you’re not – if the court wasn’t prepared to just leave it to the mother’s judgment. But I don’t think raising the issue with her now is a good idea, because it’s not meaningful and it’s not coming from her expert.
The Single Expert’s opinion that whether X saw her father should never be her decision as children do not know their own best interests was not successfully challenged and I accept and find that this is so. I accept and find that requiring X to undertake therapy or talk to a counsellor would be an unnecessary disruption to her and not in her best interests. I accept the Single Expert’s evidence that any decision and arrangements made should X begin questioning her paternal lineage moving forward should be left to be decided by the mother, noting that the father has proposed that the mother have sole parental responsibility. The mother will be in the best position to make those decisions in the future should they arise.
Conclusion
Even if I were satisfied that the father’s proposals sufficiently ameliorate the unacceptable risk of emotional and physical abuse to X from spending time with the father, weighing all of the competing considerations, I am not satisfied that the father’s proposal is in X’s best interests. X has no relationship with the father. She is happy and secure in her current arrangements. Balancing the competing considerations, I am not satisfied that any potential benefit X may derive from having a relationship with the father outweighs the potential risk of harm to her by such a relationship, including the discernible adverse impact on the mother’s caregiving ability. Having regard to all of the findings made above I am not satisfied that the father’s proposal is in X’s best interests.
THE ORDERS TO BE MADE
Parental Responsibility
The parties agree that an order should be made that the mother have sole parental responsibility. I am satisfied that the presumption as to equal shared parental responsibility does not apply in light of the findings as to serious family violence perpetrated by the father upon the mother including the manner of the father’s communications.
In circumstances where the parties report to the Single Expert that they have no effective communication or joint problem-solving capacity and the parties and Independent Children’s Lawyer all agree that is in X’s best interests that the mother have sole parental responsibility, I am satisfied that as the uncontested resident parent the mother should have sole parental responsibility for X.
Live With
I am satisfied having regard to the above findings that, as agreed to by the parties, it is in X’s best interests that she continue to live with the mother.
Time With
I am satisfied having regard to the above findings and assessment of risk made that it is in X’s best interests that there be no orders made for her to spend time with the father.
Cards and Gifts
I am satisfied having regard to the above findings and assessment of risk made that it is not in X’s best interests that she have any form of communication with the father. X has no relationship with the father. Receiving cards and gifts from a stranger would be meaningless for her and not in her best interests.
Section 68B Injunctive Orders
The father submits to an injunctive order being made restraining his behaviour. He submits however that an order should not be made pursuant to s68C of the Act in circumstances where the father has not breached an order of any court.
In light of the findings I have made as to the serious nature of the acts of family violence perpetrated upon the mother and her fears of him, I am satisfied it is in X’s best interests that the mother have the protection and safeguards of the ability of the police to arrest the father in the event of a breach of the injunctive orders to be made. I am more comfortable in making such an order where the father himself has consented to the order restraining him from coming into contact with X and the mother.
Changing X’s Surname
It was the mother’s oral evidence that whilst she has no immediate plans to change X’s surname, she does wish to do so in the future. The mother deposed that X has asked about her surname and why it is that she has a different surname to the mother. The mother has explained to X that children often take their father’s surname.
The father submitted that in the event orders are made for X to spend no time with the father together with the injunctive order the father is proposing, X having the same surname “may well be the last remnant of her biological father that [X] has to find him, if she desires, be it even when she is an adult”. In the alternative the father submits that any change of name include both parties’ surnames.
The Single Expert’s oral evidence was that changing X’s surname to Moloney would enhance her sense of identity.
It is better for the child to share a surname with the parent they live with, who is their primary caregiver, and with whose family they identify. That is much more sensible. If a child is in contact with both parents, a hyphenated name makes sense. If there’s likely to be never any contact, ever, well, just [Moloney] makes sense. If a link is desired to show the biological heritage, then [Moloney-Dornan] would be a sensible one. But whatever, I think it is much better for the child’s identity that some part of her name at least is shared with her mother.
I accept the evidence of the Single Expert that it is in X’s best interests to share the same name as her mother, the resident parent. I do not accept the father’s submissions that the only method by which X will retain a connection with her paternal lineage is by way of her surname. As I have made orders that X spend no time with the father, I accept the Single Expert’s opinion that it is sensible for X to have the surname of her resident parent only.
Orders Restraining Publication
I refuse to make orders sought by the mother and the Independent Children’s Lawyer restraining the father and/or the parties from posting details as to these proceedings on social media in circumstances where such conduct is an offence under s 121 of the Act and all parties are legally represented in the proceedings.
CONCLUSION
The father perpetrated family violence upon the mother both during the relationship and post‑separation. Such family violence included physical and verbal abuse. The father engaged in coercive and controlling behaviour, both during the relationship and periods of separation. I am not satisfied the father has undergone the necessary changes for him to appreciate his actions and to ensure that he does not continue to perpetrate family violence in the future. I have found that the father presents an unacceptable risk of harm to X and that such risk cannot be successfully mitigated by way of the orders sought by the father. Even if I were satisfied that the father’s proposals sufficiently ameliorate the unacceptable risk of emotional and physical abuse to X from spending time with the father, weighing all of the competing considerations, I am not satisfied that the father’s proposal is in X’s best interests.

I certify that the preceding three hundred and eighteen (318) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 13 July 2023

File number(s):	PAC 5768 of 2020
Judgment of:	JUDGE MURDOCH
Date of judgment:	13 July 2023
Catchwords:	FAMILY LAW – PARENTING – Where it is uncontroversial that the child should live with the mother – Where the father seeks orders for supervised time with the child until she attains the age of thirteen years and thereafter pursuant to the child’s wishes – Where the mother and the Independent Children’s Lawyer seek orders for the child to spend no time with the father where the child does not have an existing relationship with the father – Where findings are made that the father has perpetrated serious acts of family violence upon the mother including physical assaults, non‑lethal strangulation, threats to kill the mother, monitoring her movements via CCTV and other forms of coercive and controlling behaviour – Where it is found that the mother’s parenting capacity would be adversely affected were the child to spend time with the father – Where it is found that the child is at an unacceptable risk of harm in spending time with the father and that such risks cannot be mitigated by the orders sought by the father including supervision – Order made that the child spend no time with the father and protective injunctive orders made.
Legislation:	Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) ss 4AB(1), 4AB(3), 4AB(4), 60B, 60B(4), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CG, 60CC(3), 65D, 65DAA Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Chapter 7. United Nations Convention on the Rights of the Child, Article 19
Cases cited:	A v A [1998] FamCA 24; Amador & Amador [2009] FamCAFC196; B & B [1993] FamCA 143; B & K [2001] FamCA 880; Blanch & Blanch & Crawford [1998] FamCA 1908; Blinko & Blinko [2015] FamCAFC 146; Carter & Wilson [2023] FedCFamC1A 9; Helbig & Rowe [2016] FamCAFC 117; Illgen & Yike [2018] FamCA 17; Isles & Nelissen [2022] FedCFamC1A 97; Keane & Keaneand Anor [2021] FamCAFC 1; Keating & Keating [2019] FamCAFC 46; M & M [1988] HCA 68; Mazorski v Albright [2007] FamCA 520; McCall & Clark [2009] FamCAFC 92; R & C [1993] FamCA 62; Sedgley & Sedgley (1995) FLC 92-623; Whisprun Pty Ltd v Dixon [2003] HCA 48; Zuen & Lhao [2020] FamCAFC 84.
Division:	Division 2 Family Law
Number of paragraphs:	319
Date of hearing:	27-29 March 2023
Place:	Parramatta
Counsel for the Applicant:	Ms Otrebski
Solicitor for the Applicant:	Hosking & Gosling Legal
Counsel for the Respondent:	Mr Ford
Solicitor for the Respondent:	Maguire & McInerney Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Angus
Independent Children’s Lawyer:	John Dawson & Associates

PAC 5678 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DORNAN Applicant
AND:	MS MOLONEY Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	JUDGE MURDOCH
DATE OF ORDER:	13 July 2023