ELIAS & ELIAS - [2019] FamCAFC 53

FAMILY COURT OF AUSTRALIA

ELIAS & ELIAS

[2019] FamCAFC 53

FAMILY LAW – APPEAL – PARENTING – Supervised time – Whether there is a substantive difference between “supervised time” and time spent “in the presence of” someone – Whether the primary judge erred by ordering the father’s time with the child be supervised on an indefinite basis – Whether the evidence of the single expert psychiatrist supported the order for indefinite supervised time – No error demonstrated.

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Adequacy of reasons – Whether the primary judge erred in his findings as to family violence – Whether it was open to the primary judge to find that the child would be at an unacceptable risk in the unsupervised care of the father – No error demonstrated – Appeal dismissed.

Family Law Act 1975 (Cth) s 60CC

Bennett and Bennett (1991) FLC 92-191; [1990 FamCA 148
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Simmons & Kingley (2014) FLC 93-581; [2014] FamCAFC 47
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Elias

RESPONDENT:

Ms Elias

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

7597

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

28 March 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Austin JJ

HEARING DATE:

26 February 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 April 2018

LOWER COURT MNC:

[2018] FamCA 244

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Willis & Bowring

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Gordon & Barry Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

Orders

The appeal against paragraphs 2, 4, 5, 6, 7, 8 and 9 of the orders made by Johnston J on 20 April 2018 be dismissed.
Any party seeking a costs order is to file and serve written submissions on that issue within 14 days hereof with the other party to file and serve submissions in reply within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Elias & Elias has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 68 of 2018
File Number: SYC 7597 of 2013

Mr Elias

Appellant

And

Ms Elias

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mr Elias (“the father”) against parenting orders made on 20 April 2018 by a judge of the Family Court of Australia in proceedings between him and Ms Elias (“the mother”).
The parties have a child, X (“the child”), who was born in 2012.
The primary judge’s orders provided for the child to live with the mother, who was to have sole parental responsibility for him.
For a period of three months after the orders were made, the child was to spend time with the father at a professional contact centre for six hours each alternate Sunday. Thereafter, the child was to spend time with the father on alternate Sundays for six hours and on designated special days with “all time spent to be supervised by [C Group] (or other professional contact supervision service) or the [father’s] sister, [Ms D Elias] or a combination of both”.
A further order required the father to continue to attend his psychologist for a further 12 months, or such other period as the psychologist recommended, at a frequency recommended by the practitioner.
The father appealed against the orders as to the amount of time and the manner in which the child was to spend that time with him and the order requiring him to attend upon the psychologist. The Amended Notice of Appeal also challenged the order for sole parental responsibility but the only ground of appeal directed to it had been deleted.
The appeal was opposed by the mother and the Independent Children’s Lawyer (“the ICL”).
A cross-appeal by the mother against aspects of the property orders made by the primary judge was withdrawn.

Key issues at trial

Before we turn to the grounds of appeal, it will be useful to place them in context.
At the trial the mother raised three somewhat interdependent issues in particular which she submitted supported the orders for supervised time proposed by the ICL and ultimately made by the primary judge. These were family violence, the father’s mental state and the mother’s extreme anxiety.
Essentially, these considerations led to the orders that were made, although not all of the mother’s contentions were accepted by the primary judge.

Family violence

The mother alleged that the father was violent to her in many ways throughout the relationship. He made similar allegations against her. At different points during the trial, key facts were not in issue but the different interpretations each party sought to cast upon them were (for example, the father slapping the mother during sex – see [143]–[144] of the primary judge’s reasons).
The primary judge did not accept many of the mother’s allegations of violence or any of the father’s.
The father was found to have punched a photo of the parties, thereby breaking his hand.
The primary judge also found that the father had engaged in coercive and controlling behaviour. Significant weight was given to the father having recorded many conversations with the mother without her consent. This, the primary judge considered, demonstrated a “lack of respect for the [mother]” (at [174]).

The father’s mental health

The father’s mental health was the subject of evidence from a number of health practitioners but ultimately, in an unchallenged finding, the primary judge preferred the evidence of Dr DD, the single expert psychiatrist (at [120]). This led to a finding that the father was at risk of suffering a further psychotic episode, having experienced such an episode in the past.
In 2011 the father was involuntarily admitted to hospital after suffering a psychotic episode. He remained in hospital for a month and, upon release, did not take up the hospital’s recommended treatment plan (at [102]).
Dr DD was concerned that the father displayed signs of paranoid thinking and thought disorder in her interviews with him in 2015 and 2016.
The primary judge recorded the following:
108.Dr DD remained of the view that the [father] suffers from an ongoing psychotic process which she said is only mildly evident at present but carries a risk of relapse. Dr DD said the risk is documented in the scientific literature and she quoted the following:
There is a high rate of relapse within 5 years of recovery from a first episode; this risk is diminished by maintenance antipsychotic drug treatment, while discontinuing antipsychotic drug therapy increases risk of relapse by almost 5 times (Robinson et al, 1999) and non-adherence to treatment is associated with relapse, hospital admission and persistent psychotic symptoms (Morken et al, 2008). Non-specific early warning symptoms of relapse include ‘sub threshold’ or transient psychotic symptoms (Fitzgerald, 2001); relapse is usually preceded by subtle changes in thought, affect or behaviour, and medication initiated at early warning signs and maintenance medication reduce relapse rates (Birchwood et al, 2000).
109.Taking the above into consideration, Dr DD noted that the [father] did not adhere to recommended treatment and she said the concerns she has already noted about his thought processes were in keeping with “subtle changes in thought”. Dr DD also said that the matters which continued to cause her concern that the [father]’s psychotic situation had not completely resolved included the following:
·    subtle disturbances in the [father]’s thought processes;
·    making recordings of his partners which she said is really unusual behaviour and this has become a pattern of behaviour with his partners including recent relationships in respect of which there appear not to have been difficulties. Dr DD thought this was likely to be connected with the [father’s] previous paranoid thinking; and
·    a longstanding preoccupation with fertility - using testosterone, presenting the [mother] with a cup of his semen during his hospitalisation in 2011 (and informing her that it was his legacy).
110.Dr DD expressed concern that the [father’s] parents appeared not to accept that he is suffering from mental illness and do not accept that there are any limitations of his parenting capacity. She said that this contrasts with their clear concerns about his mental health, including concerns about him holding a knife at the time when they had arranged his admission to hospital. Dr DD again referred to the [father]’s denial, minimisation and attribution of blame and said that this is a common phenomenon in family violence. She said that if this is the case then, independently of any question of psychotic illness, such history and such externalisation processes suggest significant personality disturbance and a lack of insight that bode poorly for the [father’s] future adjustment and for his rehabilitation from previous psychiatric difficulties.

The mother’s anxiety

The mother’s contention at trial was that her extreme anxiety, which she said arose because she was terrified of the father and could not cope with the thought of the child being unsafe in the father’s care, adversely affected her own care of the child.
The primary judge noted that in her first report Dr DD said the mother presented as “terrified and traumatised”. At the last interview she was noted to be “manifestly in a state of severe hyperarousal, hypervigilance and preoccupation” (at [125]).
As to the mother’s mental state, his Honour accepted Dr DD’s opinion that the mother was suffering from a post-traumatic stress disorder (“PTSD”) saying:
136.Dr DD said that the [mother] has suffered trauma as a result of her relationship with the [father] including supporting him through a serious episode of psychosis, through very stressful legal and investigative processes, through the criminal court proceedings which involved a judgment which discredited her account which Dr DD said greatly intensified the [mother’s] distress. Dr DD said that the [mother] did not have the longitudinal history, particularly that of recurrent suicidality, self-harm and high service utilisation which she said are characteristic of borderline personality disorder.
137.The [mother] has been attending her psychologist Mr K twice a week. She is fragile, not sleeping well and described herself as feeling exhausted.
138.I accept Dr DD’s opinion that the [mother] is suffering from PTSD and not from a borderline personality disorder.
In the course of discussing the capacity of the mother to provide for the needs of the child (s 60CC(3)(f) of the Family Law Act 1975 (Cth) (“the Act”)), the primary judge said:
210.Dr DD said that the [mother] continues to feel traumatised by her experiences of the [father] and has a fear that he will intrude on her in some way. But the [mother] is managing her full-time employment, apparently functioning reasonably well and, in Dr DD’s view, caring for the child adequately and providing well for him. Dr DD said that the [mother] is in a state of chronic anxiety which is not an ideal state for a parent. She said that while the [mother] remains traumatised her capacity to care for [the child] is compromised.
211.There was a suggestion by the [mother’s] mother, Ms HH, that the [mother’s] anxiety appears to have settled. Ms HH said that by mid-2016 the [mother] had not been overly anxious except at times when Court hearings were approaching. She said that in early 2016 the [mother] had been totally emotionally and physically exhausted but since then her situation has improved.
212.I must say I am not persuaded that the Court should find that the mother’s anxiety has settled. The mother’s demeanour at Court was very worrying and I would find it difficult to accept that this was solely due to the stress of being at Court, particularly taking into account Dr DD’s opinion that the [mother] continues to have the condition of PTSD which she thought would not abate easily. When senior counsel for the [father] informed Dr DD that Ms HH said the mother’s condition had improved and that she was coping quite well apart from times when she had to come to Court, Dr DD said that she thought when these proceedings concluded the mother’s state of health would improve provided that there was an outcome which she could cope with.

Weight given to the above considerations

The primary judge’s determination of the issues outlined above led to the following conclusions:
264.In my view, [the child] would be at an unacceptable risk in the unsupervised care of his father for the reasons referred to above, namely, the state of mental health of the [father] and the fact that he has perpetrated some family violence against the [mother].
265.Even if I am wrong about this view, I accept Dr DD’s opinion that the [mother]’s high level of anxiety is unlikely to abate if she perceives that [the child] will be required to spend time with the [father] in circumstances which she would regard as not being safe for him. And as I have said, I also have the view that [the child]’s best interests require him to have a primary parent who is functioning as parent at the best level possible.
266.It is important therefore to put in place arrangements which will not cause the [mother] to have ongoing interaction with the [father] because such could make her fearful and anxious. And the time spent arrangements need to be designed to operate in a manner which would enable the [mother] to have confidence that during the time spent, [the child] would be safe rather than to cause her to fear for his safety. After all, as counsel for the [mother] submitted, the [mother] experienced the [father] in a psychotic state and said that she was an adult and did not feel up to the task of dealing with the [father] in that situation so she was fearful about the risk to the child if he was to be confronted with such a situation and there was no adult present to assist him. In my view, in all the complex circumstances of this case, including the fact that the mother is experiencing trauma as Dr DD has opined, such a fear would not be without some basis.
…
268.In all these difficult circumstances, in my view, the arrangement proposed by the [father] in the orders sought by him would not be in [the child]’s best interests. It would certainly not be perceived by the [mother] to be safe for [the child]. Overnight time would seem to me to be more than she would be able to withstand. For [the child] to retain his relationship with his father, in my view, would require regular opportunity for them to spend time together. Certainly a period each alternate weekend would be appropriate. In my view, in order to manage the risk it would be necessary for this time to be spent in the company of a trusted family member or an officer of an accredited commercial child supervision agency such as C Group. There must be reservations about whether such an arrangement would enable a meaningful relationship to develop between father and son. But, as indicated above, the protective consideration has to be afforded greater weight.

The appeal

Ground 7 was abandoned in the Amended Notice of Appeal and Ground 4 was abandoned at the commencement of oral argument.
The appellant sought, and was granted, leave to rely on the following additional ground:
That his Honour erred having made findings at [270] that the father’s time after three months’ supervision should occur in the company of Ms [D] or [C Group] failed to make orders to give effect to such finding.
Senior counsel for the father dealt with the grounds of appeal in two groups and it is convenient for us to do the same.

Should orders for supervised time have been made?

Grounds 1, 2, 6, 8 and the additional ground were approached on the basis that, in essence, they raised three challenges to the primary judge’s orders (although the Summary of Argument, which ranged more widely, was expressly adopted). These may be described as:
·the distinction asserted to exist between “supervised” time and time “in the presence of” someone;
·whether the evidence of the single expert psychiatrist, properly understood, proposed supervised time; and
·whether it was correct to make an order for indefinite supervision.

“Supervised” time or time “in the presence of”

This challenge largely focusses on the primary judge’s use of the two phrases “supervised time” and “time in the presence of” and the evidence of Dr DD where both those phrases were used. The father contends that the phrases mean different things, at least in the context of the evidence in these proceedings, and that the primary judge erred by failing to recognise and act upon that distinction. The point of the submission is that the orders wrongly imposed a requirement of constant supervision as opposed to a lesser form of attendance which would permit, for example, the father to be alone with the child for some time.
Before we turn to the matters raised by the father, we wish to record that we do not regard the word “supervision” or the phrase “in the presence of” as terms of art that have different meanings. The ordinary meaning of both suggests that constant presence is required of a person overseeing the child or children spending time with the parent subject to the supervision order. More particularly, it is our view that in the ordinary course the phrase “in the presence of” does not entail a lesser form of supervision which would permit, in the context of this case for example, the child to be left alone with the father, especially for significant periods of time.
We now turn to the father’s submissions on the appeal and how those words were used by his Honour
Senior counsel for the father commenced by taking the Court to the orders proposed by the ICL. These included a proposal for the father’s time to be “supervised” by a contact centre for a period, before moving to a regime of time to be spent by the child and father “in the presence of the [father]’s sister”. Thus, because of the difference in wording, it was suggested there must be a difference between the two phrases.
The mother’s proposed orders followed those of the ICL.
Thus, it was submitted there was no opposition by either the ICL or the mother to time, other than the initial period following the making of the orders, being “in the presence of” as opposed to being “supervised”.
Turning then to how these phrases, and similar ones, were used in the primary judge’s reasons, at [207] his Honour noted Dr DD’s opinion that moving the child “from a supervised situation to one where their time together was not supervised would be experimental”.
At [242], the primary judge rejected the paternal grandparents as “appropriate supervisors”. At [244], the mother’s submission that she had reservations about the father’s sister as a “supervisor” was recorded along with Dr DD’s view that the sister would be “an appropriate family member to be present during time spent”. At [252] the primary judge noted that Dr DD did not favour “unsupervised overnight time”.

We have already quoted [264] where his Honour found that the child would be at an unacceptable risk “in the unsupervised care of his father”.
At [268], again already quoted, his Honour referred to the need for the time the child spends with the father “to be spent in the company of a trusted family member or an officer of an accredited commercial child supervision agency”.
At [269] the primary judge said:
Despite the concerns referred to in B & B [(1993) FLC 92-357] about friends and relatives being appointed as supervisors, in my view, Ms D Elias inspired confidence that she would be alive to any behaviour which might indicate a deterioration in the [father]’s mental health and be able to act in an appropriate manner. In my view, she would be an appropriate adult to be present to assist the [father] and [the child] in spending time with one another. But she also has her own family responsibilities and these will no doubt place some limitation on her availability.
(Emphasis added)
These two passages strongly suggest that his Honour was using the word “supervisors” and the phrase “in the presence of” interchangeably. As they are not terms of art – or, for that matter, defined by the Act – this does not, contrary to the father’s submission, demonstrate loose thinking on the part of the primary judge or that his Honour conflated two distinct concepts.
Ultimately, the submission of the father focussed on the following passage:
270.Accordingly, I propose that the arrangement which will best serve [the child]’s interests in terms of providing opportunity for him to continue his relationship with his father will involve regular alternate weekend time in the company, either of Ms D Elias or C Group following a few months of supervision by C Group (or similar commercial supervision agency).
It was submitted that there was a disconnect between the finding that the initial time should be supervised and thereafter “in the company of”, whereas the order that was in fact made only referred to supervision.
We consider that the phrase “in the company of” is no different to “in the presence of” – both connote constant presence. The primary judge clearly understood this to be so and used the words interchangeably as meaning the same thing. It is an arid exercise in semantics to seek to find a difference of substance in the primary judge’s choice of words, let alone one which demonstrates appealable error.
Further, we consider there is force in the submission of the mother and the ICL that supervision is a word that naturally applies to professional supervision agencies because that is what they do, whereas “in the presence of” is more apt to apply to individuals, such as family members. Be that as it may, we accept that there is no difference of substance.
It follows that the orders that were made gave effect to the primary judge’s reasoning process.
This aspect of the grounds does not succeed.

Did the evidence of Dr DD support the primary judge’s findings?

The father submitted that, properly and completely considered, the evidence of Dr DD did not support the primary judge’s findings as to the risk of harm posed by the father or the orders as to the amount of time and the manner in which the child would spend that time with him. The submission continued that, upon a proper analysis, there should have been no long-term requirement for supervision, that the time should have been more frequent (that is, weekly) and for a longer duration.
There are two initial observations to be made.
First, none of the grounds of appeal challenge the frequency or duration of the time the child is to spend with the father.
Secondly, the primary judge, having generally favoured the evidence of Dr DD, was not obliged to accept all her evidence and opinions or act on her recommendations. That evidence was merely part of the factual matrix of the case and not determinative of it. Thus, even if it be accepted that the primary judge’s findings or orders did not conform precisely to the evidence or recommendations of Dr DD, that would not, of itself, demonstrate error (Muldoon & Carlyle (2012) FLC 93-513 at [105]; Simmons & Kingley (2014) FLC 93-581 at [42]).
The principal submission is that the primary judge did not consider the following evidence from Dr DD. Dr DD was asked if it was her recommendation that “time between [the child] and his father remain supervised or in the presence of other people until at least age 11”. Her answer was:
I don’t think strictly supervised, you know, the way that – usually supervision means staying within sight or earshot the whole time. I think it would be better for contact to be as much as possible involving his family or his partner. That would be the ideal way of going about it. I don’t know that I would say, you know, that he can never be alone with the child – not that level of supervision. But I – you know, I think it would need to be a slowly graded time spending with [the child] and as much as possible in a family setting or with his partner present. Yes.
(Transcript 31 July 2017, p.396)
Thus, it was submitted that Dr DD was suggesting that “time in the presence of” indicated something less than constant monitoring, and was to be contrasted with “supervision” which required someone to be within sight or earshot. Those words, however, must also be read with the words “that he can never be alone with the child” but that any time the child spent with the father would need to be “a slowly graded time”.
We consider that in this passage Dr DD was opining that family oversight would, in the long term, be preferable to commercial supervision. It is more difficult to conclude, however, that Dr DD was recommending that a family member need not be continually present, at least in the immediate term. The concluding words of the passage reinforce the slow nature of any progression and for it preferably to be in a family setting or with his partner present. The time and extent to which a family member or the father’s partner could leave the child alone with the father was not explored with Dr DD.
This passage is too fragile a basis on which to suggest that Dr DD had in mind that supervision by a family member involved a greater degree of oversight than the requirement that the time be spent in the presence of that person. Again, to the extent that was in fact her position, the primary judge was not obliged to act on it.
The father submitted that shortly afterward, Dr DD recommended overnight time when she said:
No. I think that overnight contact, maybe in his parents’ house, you know, or if he’s – if he’s living with a partner. But I would say to work slowly towards that.
(Transcript 31 July 2017, p.397)
The caveat was then added by Dr DD that said she would not countenance overnight time at the father’s house “absent any other person besides [the father]” at this stage (Transcript 31 July 2017, p.397).
The father then pointed to the following answers given to questions asked by senior counsel who appeared for him at the trial, which he submitted indicated Dr DD favoured weekly time for longer in the presence of a family member.
[COUNSEL FOR THE FATHER]: All right. We come, then, to how much time, I think, Doctor. Under your proposals – let’s just have them in terms of a quantum of time, if you could, moving forward?
[DR DD]: Well, so far, the – the times that the child is spending with the father have been satisfactory. There haven’t been any – there haven’t been any significant difficulties.
[COUNSEL FOR THE FATHER]: No, but that’s once a fortnight, isn’t it?
[DR DD]: Yes. Once a fortnight for a few hours. So, I mean, I think, as I’ve said in both reports, that I would see a cautious – a cautious progression of time.
[COUNSEL FOR THE FATHER]: And when would this progression step in?
[DR DD]: When?
[COUNSEL FOR THE FATHER]: Mmm?
[DR DD]: Well, I think I’ve said that I wouldn’t – I wouldn’t recommend an overnight until he turns five, but I would move, now, towards a full day on the weekend. So - - -
[COUNSEL FOR THE FATHER]: Is that each weekend?
[DR DD]: Yes. So, maybe, start straight away by making it every weekend rather than every alternate weekend, and then gradually increasing – well, then, the next thing is to have – whether the – the family being present is enough and not requiring a – a professional supervisor. And I think that – to move to say, half a day with family, straight away, would be reasonable.
[COUNSEL FOR THE FATHER]: When you say half a day, are we talking 9 till 1, something like that?
[DR DD]: Something like that. Whatever. Four hours, one day of the weekend, every week, with only family present and I think that would be a way to start, and then progress slowly from that point.
[COUNSEL FOR THE FATHER]: Using the same requirement which I understand to be implicit in that family are present, why could not that go to an overnight in, say, three or six nights time, if the family were present?
[DR DD]: Well, maybe overnight at the grandparents’ home, something like that.
[COUNSEL FOR THE FATHER]: Or if it’s at my client’s home, with a stated member present. Would that be something you would countenance?
[DR DD]: If it were – yes, if there were a family member present, yes.
…
[COUNSEL FOR THE FATHER]: So why couldn’t, Doctor, in the space of two or three months, we start talking about, in terms of your evidence, overnight time with a family member being present, in [the child]’s best interests?
[DR DD]: Well, yes. I would think that sometime in the next six months you could progress with someone overnight, yes.
(Transcript 31 July 2017, pp.438–439)
The father submitted that the primary judge did not address this evidence. The father contended that this evidence suggested that constant supervision was not necessary and supported weekly and overnight time.
For their part, counsel for the mother and the ICL submitted that the evidence of Dr DD, taken as a whole, did support the relevant findings and orders. In particular, counsel for the ICL submitted that Dr DD never resiled from her opinion that all time the child was to spend with the father should be supervised. They referred to the following evidence from Dr DD:
[COUNSEL FOR THE MOTHER]: As you sit here today, you have significant question marks, don’t you, about what the next step should be for [the child]?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: And, in effect, to move from anything other than what we have now, a supervised situation, would be an experiment, wouldn’t it?
[DR DD]: Yes, it would, really.
[COUNSEL FOR THE MOTHER]: Yes, because you would, ideally, want to have a lot more information about what’s happening in the father’s personal life than you do now?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: A lot more information about what’s happening in terms of the father’s treatment for a whole range of physical complaints, to use a generic term?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: More information about what it is that he is talking to his psychologist about and whether his psychologist is in a position to assist him?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: And you would want him to have engaged in a meaningful way with a psychiatrist since you made that recommendation now years ago?
[DR DD]: Yes.
(Transcript 31 July 2017, pp.407-408)
These answers clearly support taking a conservative position as to supervision.
This exchange then took place:
[COUNSEL FOR THE FATHER]: All right. And, of course, supervised time on an indefinite basis has its problems, doesn’t it?
[DR DD]: Well, it – it may not have problems if the supervision is – if it means that the child is seen in a family setting. That can – that can actually be a bonus. But I think formal supervision or commercial arrangement supervision is very limiting.
(Transcript 31 July 2017, p.410)
It follows that Dr DD did not see a difficulty in long-term supervision if it was to occur in a family setting as opposed to on a professional or commercial basis.
The father attempted to make something of the following question asked by his senior counsel:
And you were clear, Doctor, to be sure, you were clear at the outset of your use of that phrase that you didn’t envisage that – by what you meant of the supervision, it wasn’t the strict “can’t let the child out of your sight” type supervision. It was in the presence of, and so forth. I accepted that from your earlier evidence.
(Transcript 31 July 2017, p.410)
However, the questioner did not wait for an answer and proceeded to ask another question. A question is not evidence and this does not assist the father.
The following evidence of Dr DD highlights the basis of the recommendation for supervised time, namely the mother’s anxiety about the child being with the father as opposed to concerns about the father’s behaviour:
[COUNSEL FOR THE MOTHER]: Because nothing about the mother’s functioning would necessarily suggest that we automatically, in response, increase the amount of time that [the child] has with the father?
[DR DD]: No.
[COUNSEL FOR THE MOTHER]: It would really only be if the court formed the view that the mother’s functioning was so jeopardised by a diagnosis that [the child] needed to live with somebody else that it would come to have any relevance to the father’s time?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: Because the father’s time has to fall to be determined, doesn’t it, according to two things: (1) the history of [the child]’s engagement with the father to date - - -?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: - - - and (2) the father’s parenting capacity or lack thereof, having regard to the health and personality function disorders?
[DR DD]: Yes.
(Transcript 31 July 2017, p.442)
Later, Dr DD elaborated on this issue.
[COUNSEL FOR THE MOTHER]: And it’s likely when she knows that the father doesn’t accept his diagnosis and hasn’t sought the treatment you told him to, that she’s never going to feel safe unless there’s a professional supervisor or no time. That’s – at the end of the day- - -?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: - - - and the more she knows about the circumstances of his new relationship, that wouldn’t make he feel any more safe or that time is a good idea, from her perspective, would it?
[DR DD]: No. Well, it’s – the new relationship sounds like we can’t really be certain of that.
[COUNSEL FOR THE MOTHER]: Is it unfair of me to say that what you hope is that even though the father hasn’t sought the treatment and his – he doesn’t have any insight and his family don’t have any insight, but if we move slowly enough, the mother’s symptoms might settle, even though she still has all these question marks. Is that unfair?
[DR DD]: No. Well, it’s a very difficult situation; it’s very difficult.
[COUNSEL FOR THE MOTHER]: There are some cases, aren’t there, where [the child]’s need to know his identity might come from identity-type contact. You can’t discount that this might be one of those cases, if all those problems aren’t addressed, can you?
[DR DD]: Well, I certainly wouldn’t – I certainly wouldn’t advise anything less than identity contact.
[COUNSEL FOR THE MOTHER]: Right?
[DR DD]: I think something a bit more than that would be preferable, but it does really depend upon how much the family can be involved and [the mother] can feel that it’s a safe situation.
…
[COUNSEL FOR THE MOTHER]: If the court can have some confidence that the mother could place some confidence in family supervisors, and the court wasn’t concerned about the symptoms that you think might still be around in subtle form, then maybe some professional supervision might have to continue. Because that could allow [the child] to see his father but also allay the mother’s fears?
[DR DD]: Well, that would – that would be the easiest way around all these other complexities. It’s just a matter of how long that can be sustained, of course, because it’s – (a) it’s expensive - - -
HIS HONOUR: $700 a throw?
[DR DD]: It’s very expensive. You can’t sustain that in the long term.
[COUNSEL FOR THE MOTHER]: In addition to that, it has its own problems, doesn’t it, insofar as [the child] might feel as though, you know, it will start to become more invasive the older he gets?
[DR DD]: Perhaps the – the difficulty is about introducing overnight contact because ..... day – day contact with other members of the family involved ought to be okay.
[COUNSEL FOR THE MOTHER]: But that - - -?
[DR DD]: But that - - -
[COUNSEL FOR THE MOTHER]: The mother is never going to feel safe, based on what you’ve read today, in [the child] being overnight in the father’s care, is she? Doesn’t matter who’s there?
[DR DD]: Well, I don’t think she will feel safe with the paternal grandparents, no. Maybe with [Ms D Elias] or some other member of the family but I don’t think she does have confidence in the grandparents. And neither do I, actually, because they’re full of denial about all the problems.
[COUNSEL FOR THE MOTHER]: So we’re looking at something cautious, which is attempting to meet [the child]’s need but not at the risk of destabilising his primary carer?
[DR DD]: Yes.
(Transcript 31 July 2017, pp.446–447)
This evidence is reflected in the following passages in his Honour’s reasons:
258.The difficulty with this proposal is that Dr DD’s clear opinion is that whatever arrangements the Court puts into place for time between the [father] and [the child] must not be such as would cause the [mother] to think [the child] could be unsafe. And Dr DD has said that the [mother] is unlikely to feel that [the child] would be safe if he was in his father’s care overnight. If the [mother] feels [the child] is unsafe then Dr DD has said that her anxiety could well increase and her ability to function as primary parent could be severely compromised. Even worse, the child could be exposed to neglect or psychological abuse.
…
266.It is important therefore to put in place arrangements which will not cause the [mother] to have ongoing interaction with the [father] because such could make her fearful and anxious. And the time spent arrangements need to be designed to operate in a manner which would enable the [mother] to have confidence that during the time spent, [the child] would be safe rather than to cause her to fear for his safety. After all, as counsel for the [mother] submitted, the [mother] experienced the [father] in a psychotic state and said that she was an adult and did not feel up to the task of dealing with the [father] in that situation so she was fearful about the risk to [the child] if he was to be confronted with such a situation and there was no adult present to assist him. In my view, in all the complex circumstances of this case, including the fact that the mother is experiencing trauma as Dr DD has opined, such a fear would not be without some basis.
…
268.In all these difficult circumstances, in my view, the arrangement proposed by the [father] in the orders sought by him would not be in [the child]’s best interests. It would certainly not be perceived by the [mother] to be safe for [the child]. Overnight time would seem to me to be more than she would be able to withstand. For [the child] to retain his relationship with his father, in my view, would require regular opportunity for them to spend time together. Certainly a period each alternate weekend would be appropriate. In my view, in order to manage the risk it would be necessary for this time to be spent in the company of a trusted family member or an officer of an accredited commercial child supervision agency such as C Group. There must be reservations about whether such an arrangement would enable a meaningful relationship to develop between father and son. But, as indicated above, the protective consideration has to be afforded greater weight.
The findings in these passages are amply supported by the evidence to which we have just referred. In essence, the continued supervision, or time in the presence of the father’s sister, was necessary to preserve the mother in the role of a viable parent and therefore, in the present case, is an appropriate outcome. This is so notwithstanding the well-established view that there is a reluctance to make orders of that kind (see, for example, Champness & Hanson (2009) FLC 93-407 at [209]–[216] and the authorities cited therein).

A primary judge is not required to deal with every piece of evidence or even to refer to it (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). That does not mean the evidence has not been considered. This is especially so when the evidence relied on by the father, where reference was made only to those passages that supported his case, is highly qualified by other evidence given by the same witness.
The finding that all time should be supervised was open on the evidence.
To the extent that it can now be raised, we see no error in the orders as to frequency or duration of the time. As is apparent from his Honour’s reasons, a most significant consideration was the mother’s response to the time the child was to spend with the father. She was the child’s only viable parent – there was no suggestion that the child could live with anyone else. The primary judge was entitled, on the whole of the evidence, to proceed cautiously and slowly to ensure that she remained able to care for him.
This is sufficient to deal with the additional ground of appeal that suggests the orders did not accord with the reasons.
It is also necessary separately to refer to Ground 1 which is in the following terms:
That His Honour erred in making orders for the father’s time with [the child] to be supervised at all or upon an indefinite basis and failed to consider the utility and effect of the orders made as to the father continuing to attend upon Mr [H].
We have already dealt with most of the substance of this ground but it remains to consider the order requiring the father to attend upon Mr H.
At [123] of the reasons his Honour records the opinion of the father’s psychiatric expert Dr MM that “as a protection against any further psychotic episode the [father] should see an appropriately qualified mental health professional on a regular basis to monitor his mental health”.
The person proposed was Mr H, the father’s treating psychologist. Indeed, the father propounded an order that required him to consult Mr H indefinitely.
In his reports of 17 November 2016, 14 January 2017 and 19 July 2017, Mr H reported upon regular therapy sessions he provided to the father, and his ongoing assessment of his mental health.
Dr DD agreed this was the appropriate method to treat and manage the father’s mental health condition, but disputed that Mr H, as a psychologist, could provide the necessary long term monitoring and therapy. She considered Dr MM, who conducted a psychiatric assessment of the father and was the father’s psychiatric expert at the hearing, was also not appropriate as he was a forensic psychiatrist who did not offer treatment. Her recommendation was that a psychiatrist alone should be consulted and suggested anyone from J Clinic (Transcript 31 July 2017, p.431–432).
The mother had originally agreed with Mr H being the nominated professional, but at the conclusion of the evidence proposed an order that the father return to his previous psychiatrist Dr N for this purpose (the primary judge recorded this at [7] of his reasons).
There was therefore a divergence of both evidence and proposed orders as to the form of continuing monitoring of and counselling for the father. There was, however, no dispute that such a course should be followed and no suggestion that it should be truncated in any way.
Given the father was willing to engage with a mental health professional in the long term, the Court below was required to consider how this impacted upon the rational assessment of the risk of harm to the child arising from the state of the father’s mental health.
The primary judge found that the father had “a serious mental health condition” (at [214]). His Honour then recorded:
237.Dr DD said that because the [father] has had a psychotic episode there is a risk to the child. She said that in order to ameliorate the risk, a person in the positon of the [father] would demonstrate good insight, accept that they had experienced a psychotic episode and be reasonably amenable to treatment, and be co-operative about good follow up. She said that regrettably in the [father]’s case, he does not have insight into his condition, he has demonstrated that he finds it difficult to accept that he has experienced a psychotic episode and he did not follow the recommended treatment after his hospitalisation in 2011. Dr DD said that warning signs which might indicate a relapse of the [father]’s condition would include poor sleep, experiencing other than a calm mind and receiving feedback from other persons about his behaviour. She said that she did not think that the [father] would be able to identify such warning signs. To compound matters, Dr DD thought it most unfortunate that the [father]’s parents appeared to be in denial about his state of mental health.
238.Dr DD said that for [the child] to experience the sort of behaviours manifested by the [father] prior to his hospitalisation which involved him expressing concerns about being bugged, about persons intercepting his emails and presenting at his parents’ bedroom door with a butter knife, would be disturbing for him. She said it would not necessarily be hugely damaging, but [the child] would be aware of his father’s state of agitation and of him expressing ideas that would probably not appear to be rational to the child.
239.Dr DD said that the risk would be ameliorated by an acceptance by the [father] of the fact that he experienced the psychosis and by him becoming significantly engaged with a psychiatrist experienced in treating this sort of illness. She said that the appropriate treatment would probably include maintenance of anti-psychotic medication or if the [father] was considered to be stable for quite some time there might not be a requirement for medication but he would need ongoing monitoring for any signs of difficulty in the event of which further anti-psychotic medication could be prescribed. Dr DD said that attendance on such psychiatrist would need to be regular.
These passages explain the making of the order for attendance upon the psychologist. As it was not is dispute that some provision for continuing supervision should be made and as the order that was made largely followed that proposed by the father, it is not surprising that the primary judge did not engage in any discussion of the specific order.
No error has been established.
The final aspect of the challenge under these grounds focussed on the lack of overnight time, the indefinite nature of supervision and its frequency and duration. Those matters have been adequately addressed in our earlier discussion.
It follows that Grounds 1, 2, 6, 8 and the additional ground do not succeed.

Did the primary judge give inadequate reasons for finding the father posed an unacceptable risk of harm to the child?

Under Grounds 3 and 5 the father challenged the reasons underpinning the primary judge’s finding at [264] that the child
would be at an unacceptable risk in the unsupervised care of his father for the reasons referred to above, namely, the state of mental health of the [father] and the fact that he has perpetrated some family violence against the [mother].
Ultimately, submissions were only addressed to the issue of family violence. This is not surprising because the evidence of Dr DD as set out earlier, which was accepted by his Honour, easily established that the father had an unresolved psychosis that could lead to a further psychotic episode (see, for example, at [235]–[239]).
These findings were themselves sufficient to justify the finding of unacceptable risk and the orders that were made. So too was the alternative finding at [265] (which we have quoted at [24]) that the orders were necessary to reduce the mother’s anxiety over the child spending time with the father.
Therefore the issue of violence was not determinative. However we consider that the primary judge gave adequate reasons for the finding of “some family violence” (emphasis added).
As we have already recounted, the primary judge spent some time recording and evaluating the mother’s allegations of violence (at [139]–[174] and [221]–[227]). These considerations led to the rejection of many of the mother’s assertions, but his Honour accepted her contention that the father forcefully punched a photo hanging on the wall and engaged in conduct that was coercive and controlling.
Ultimately, the submission was reduced to challenging the findings at [166] by reference to some evidence given by Dr DD. It was submitted that the findings were not open on the evidence. The primary judge said:
166.Dr DD agreed that if the Court was to make a finding that the [father] had punched the wall, slapped the [mother] in the face, engaged in coercion and control, not only would there be consequences in terms of his relationship with the [mother] but also in his dealings with the child. She said this is because the relevant literature is overwhelmingly to the effect that persons who are violent to their partners are more likely to be abusive towards children and animals. Dr DD said that recording each of his partners reflects a pattern of behaviour on the part of the [father] which is that he has no respect for boundaries of other persons and she said that such behaviour would affect any relationship.
Dr DD said:
[COUNSEL FOR THE MOTHER]: I want you to accept that Dr [MM] gave some evidence about this topic. It was put to Dr [MM] that if the court were to accept that the father had over a long period of time had sex with the mother when she had made it plain that it hurt and that she didn’t agree, and that the court were to find that the father had punched the wall, slapped the mother in the face, controlled and dominated her, it was put to him that would certainly have consequences not just for him in interpersonal relationships but in his dealings with the child?
[DR DD]: Yes.
[COUNSEL FOR THE MOTHER]: Dr [MM] said that he might be able to be – that that was not necessarily relevant to his parenting capacity. Do you share that view?
[DR DD]: I don’t, and I don’t think it’s the view of experts. If you look at the literature on intimate partner violence that the literature overwhelmingly says that persons who are violent against their partners are more likely to be abusive towards children and animals.
(Transcript 31 July 2017, pp.398-399)
It was submitted that the second answer was subject to the same conditions as to the first, namely an acceptance there was violence as described. It was then submitted that as the allegations of sexual violence and slapping had not been established, the second answer lacked any probative value and the primary judge was wrong to rely on it.
We do not agree. The second answer was a statement of general principle which was not limited by the specific incidents referred to in the first question. As there was a finding that there had been “some family violence”, the primary judge was perfectly entitled to rely on this evidence.
Finally, it was open to the primary judge to find that the father had no respect for boundaries, as the following evidence makes clear:
[COUNSEL FOR THE MOTHER]: Now, if the court were to find that the father has given an account that he recorded [the mother] on a number of occasions, he is entirely unable to tell the court how often or how many recordings he made of [the mother]. As Ms Neville suggested, he may have recorded his next partner Ms [EE], and in the period just since March this year he has recorded surreptitiously his current partner on 10 to 15 occasions. Firstly, that says something about his dealings in interpersonal relationships, doesn’t it?
[DR DD]: Yes, it does.
[COUNSEL FOR THE MOTHER]: Okay. Should that concern the court when they come to making orders about how much time [the child] should spend with him?
[DR DD]: Yes. Because it’s a pattern of behaviour in close relationships, and although – although the child is not the same as an intimate partner, nevertheless, it’s that lack of respect for the boundaries of another – of another, whether it’s a sexual relationship or not, it’s obviously there’s a lack of appreciation of boundaries and personal space that – that will affect any relationship.
(Transcript 31 July 2017, p.399)
Returning then to the challenge raised by the grounds, we can easily follow the manner in which his Honour came to his conclusions. His Honour’s reasons for the finding that the child would be at an unacceptable risk in the unsupervised care of the father are clear and obvious and therefore adequate (see Bennett and Bennett (1991) FLC 92-191 at 78,266; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59] and the cases cited therein).
These grounds fail.

Conclusion and costs

The appeal will therefore be dismissed.
As requested by the parties, we will make directions as to the filing of submissions on costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Austin JJ) delivered on 28 March 2019.

Associate:

Date: 28 March 2019