Feld and Valenti

FEDERAL CIRCUIT COURT OF AUSTRALIA

FELD & VALENTI

[2018] FCCA 2603

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 68B

Applicant:

MS FELD

Respondent:

MR VALENTI

File Number:

PAC 1990 of 2015

Judgment of:

Judge Newbrun

Hearing dates:

26, 27, 28 March 2018

Date of Last Submission:

28 March 2018

Delivered at:

Parramatta

Delivered on:

17 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms De Vere

Solicitors for the Applicant:	Stanfords Solicitors & Conveyancers
The Respondent appeared in person

Counsel for the Independent Children’s Lawyer:

Ms Reynolds

Independent Children’s Lawyer:

Auslawyers

ORDERS

That the mother shall have sole parental responsibility for the child [X] born 2013 (“the child”).
That the child shall live with the mother.
That the father is permitted to forward to a postal address nominated by the mother a birthday card for the child, once per year for the child’s birthday, and the mother shall provide such birthday card to the child within forty-eight (48) hours of receiving it. Should the child wish to write a card or letter to the father, the mother shall assist the child to write such correspondence and forward to the father’s postal address.
For the purposes of Order 3, the father shall not:
(a)Denigrate or criticise the mother in the birthday card;
(b)Make any reference to the mother in the birthday card;
(c)Discuss any adult issues in the birthday card;
(d)Discuss the Federal Circuit Court proceedings in the birthday card;
(e)Make any inappropriate comments in the birthday card.
In the event that the father does not comply with order 4 above, the mother may dispose of the birthday card without showing the child.
Within 14 days of the child turning eight (8) years of age, the mother, her nominee or legal representative shall advise the father in writing of a supervised contact centre (“the contact centre”) nominated by the mother for the purpose of the father spending supervised contact with the child.
For the purposes of Order 6, the father shall provide the mother’s legal representative an appropriate postal address or telephone number for the father to receive notification by the mother, her nominee, or legal representative of the contact centre nominated by the mother.
Within 21 days of the father being notified by the mother, her nominee or legal representative of the contact centre nominated by the mother, in accordance with Order 6, the parties shall undergo an intake assessment at the contact centre for the purpose of the father spending supervised time with the child for no more than two (2) hours, four (4) times per year, with one of these occasions being on or as close to Father’s Day as possible.
The mother shall make the child available to spend supervised time with the father at the nominated contact centre, in accordance with Order 8 and in accordance with the policies and procedures of the contact centre.
The father shall be responsible for all costs related to his time with the child at the contact centre.
Upon the child turning fourteen (14), the child shall spend time with the father in accordance with her wishes, however such contact shall not include overnight time.
That pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father Mr Valenti (also known as Mr Valenti), shall be and is hereby restrained from contacting or approaching or attempting to contact or approach the child, except in accordance with these orders by any means whatsoever including through any third party and further the father is restrained from:
(a)Attending at or being within 100 metres of the place of residence of the child.
(b)Attending at or being within 100 metres of any place of employment of the child.
(c)Attending at or being within 100 metres of any school or educational institution attended by the child.
IT IS NOTED that the above Order 12 and each of its subparagraphs pursuant to section 68B of the Act are injunctions made for the personal protection of the child to which section 68C of the Act would apply and accordingly any Police Officer made aware of these Orders and who on reasonable grounds believes that such Orders and injunctions have been breached by the Respondent Father, by either harassing, molesting, stalking or physically harming or threatening to harm the child, may arrest the Respondent Father without warrant.
That from the date of these orders and pursuant to section 68B of the Act, the Respondent Father, Mr Valenti (also known as Mr Valenti), shall be and is hereby restrained from contacting or approaching, or attempting to contact or approach, the Applicant Mother Ms Feld, except in accordance with these orders by any means whatsoever including through any third party and further the father is restrained from:
(a)Attending at or being within 100 metres of the place of residence of the Applicant Mother, Ms Feld.
(b)Attending at or being within 100 metres of any place of employment of the Applicant Mother, Ms Feld.
(c)Attending at or being within 100 metres of any school or educational institution attended by the Applicant Mother, Ms Feld.
IT IS NOTED that the above order 14 and each of its subparagraphs pursuant to section 68B of the Act are injunctions made for the personal protection of the Applicant Mother, Ms Feld and the child [X] to which section 68C of the Act would apply and accordingly any Police Officer made aware of these Orders and who on reasonable grounds believes that such Orders and injunctions have been breached by the Respondent Father, by either harassing, molesting, stalking or physically harming or threatening to harm the Applicant Mother, may arrest the Respondent Father without warrant.
That the child be informed within six months that her biological father is the father in these proceedings, that the child be given a photo of the father, and that the mother follow Dr J’s recommendations in the manner in which that is carried out.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1990 of 2015

MS FELD

Applicant

And

MR VALENTI

Respondent

REASONS FOR JUDGMENT

Introduction

These parenting proceedings relate to the child [X] born 2013. Since birth the child has lived with the mother. The child has not spent time with the father since June 2015.

The parties’ proposals

The mother’s proposed final parenting Orders are set out in her Further Amended Initiating Application filed 19 March 2018. Inter alia, she seeks Orders that she have sole parental responsibility; that the child live with her; and that the father not spend time nor communicate with the child.
The father’s Response dated 13 August 2015 and filed 28 August 2015 proposed final parenting Orders, inter alia, that the parties have equal shared parental responsibility, the child live with the mother, and the child spend each alternate weekend from 5pm Friday until 5pm Sunday, and at any other time as agreed between the parties. At the trial he informed the court that alternatively he would propose to spend, presently, regular supervised time with the child.
In the father’s Affidavit filed 28 August 2015 he states that at the very least he would wish to spend time with the child at a supervised contact centre “to begin with to show I am able to care for her and that she is not at risk in my care”.
The Independent Children’s Lawyer (“ICL”) proposed final parenting Orders are set out in Exhibit G; inter alia, the ICL seeks Orders that the mother have sole parental responsibility; that the child live the mother; that the father be permitted to forward a birthday card for the child, once per year for the child’s birthday; that on the child turning eight years of age, the mother or legal representative advise the father in writing of a supervised contact centre for the purpose of the father spending supervised contact with the child; and that upon the child turning fourteen years, the child spend time with the father in accordance with her wishes, however such contact shall not include overnight time.
Further, the ICL sought a parenting Order that the child be informed within six months that her biological father is the father in these proceedings and be given a photograph of the father, and that the mother follow Dr J’s recommendations in the manner in which that is carried out.

Material relied upon

The mother relied upon the following documents:
a)Affidavit of Ms Feld filed 19 March 2018;
b)Affidavit of Dr J filed 13 March 2018.
The father relied upon the following documents:
a)Affidavit of Mr M filed 23 August 2017;
b)Affidavits of Mr Valenti filed 28 August 2015 and 23 August 2017.
The ICL relied upon the following documents:
a)Family Report by Dr C dated 18 August 2016.
The following exhibits were relied upon:
a)Affidavit of Ms Feld filed 20 March 2018 (Exhibit A);
b)Two page statement of Mr O dated 16 January 2016 (Exhibit B);
c)Four colour photographs dated 18 March 2015 (Exhibit C);
d)List of medical practitioners who have provided services to ‘Mr A, in Sleeve 24 of subpoenaed material to FACS (Exhibit D);
e)Father’s alleged alias names – Sleeve 7 NSW Police (Exhibit E);
f)One page document, Correctional Centres – Sleeve 3 Department of Corrective Services (Exhibit F);
g)ICL’s final parenting proposals (Exhibit G);
h)Costs notice for the provision of the Independent Children’s Lawyer (Exhibit H).

Evidence

During the final hearing, the mother was not present in the court room. At her request, during the final hearing she was present within another court room. During the final hearing there was a linkup via video such that the mother could be visually seen by the court, the father and legal representatives within the court room.
The main area of dispute between the parties was in relation to family violence. The mother asserted a significant history of family violence perpetrated against her by the father, involving both physical and coercive and controlling violence. On the other hand, the father only conceded what he contended was a minor assault upon the mother when she tripped in a shopping centre in 2015, and the incident at this Court’s Parramatta courthouse in 2016, when the father banged on the window of a safe room in which the mother was occupying.
In relation to this disputed issue of family violence, the Court accepts the mother’s evidence. Inter alia, the mother’s affidavit evidence in this context was detailed. Significant asserted incidents of family violence contended by the mother were supported by the mother’s signed statements to the police. Apprehended domestic violence orders were taken out by the police on behalf of the mother for her protection against the father. The father was convicted of breaching an apprehended domestic violence order. Exhibit C, being colour photographs of the mother, are supportive of the mother’s assertions that she was assaulted by the father in March 2015. The mother was cross-examined by the father in relation to family violence, albeit in a broad manner and without specifically challenging the mother’s allegations incident by incident; the mother’s evidence of family violence perpetrated against her by the father was left unshaken after this cross-examination. The mother’s assertions of family violence were broadly confirmed to her treating psychologist, Dr J.
It was not without relevance, in this context of competing allegations of family violence, that the father had sought to minimise the gravity of both the tripping incident (which included, inter alia, the father chasing the mother into the shopping centre) and the incident at this Court’s courthouse.
Further, the father’s evidence, seeking to downplay his role in relation to the tripping incident, lacked credibility. In both his affidavit evidence and in oral evidence he asserted that the mother had contributed to her fall upon the ground; in his affidavit evidence, he asserted that the mother had “tripped when she tried to run”, and in his oral evidence he had asserted that in some way the mother had clipped his body before falling. Yet the father failed to deal with the police material in relation to this incident, attached to the mother’s Affidavit, indicating that not only the CCTV footage of the incident confirmed the mother’s version of having been deliberately tripped by the father, but that the father had lied to security officers very shortly after the incident by stating that the mother had slipped on water. Further, there was no significant cross-examination by the father of the mother seeking to contend that the mother had in some way contributed to her own fall.
Further, the mother’s assertions as to the father’s historical demonstration of anger shown towards her by him, particularly at the time of family violence incidents, were consistent with the father’s own admissions of his raging anger experienced by him at the time of the tripping incident, his anger experienced at the time of the court house incident in 2016, together with the opinions of Dr C assessing the father’s anger issues.
The mother is aged 36 years. The father is aged 41 years.
The parties’ relationship commenced in about 2011.
The mother has one other child, and this child’s father is Mr O.
During the parties’ relationship the mother was the primary carer of the child. The father had limited involvement with the care of the child. The mother would encourage the father to learn how to do the basic care for the child but the father told the mother that she should do it.
During the relationship, the father was controlling of the mother. For example, when the mother was pregnant with the child in 2012, the parties had an argument. During the argument the father told the mother that she was not allowed to drive her car ever again.
During the relationship, the father perpetrated physical family violence towards the mother on many occasions.
About one month before the child was born, the father physically abused the mother. The father was angry at the mother and was swearing at her. The mother was upset and crying. She rolled up in a ball on the bed and pleaded with the father not to hit her. The father forcefully grabbed her by the hair and shoved her back on the bed. The mother made a comment that angered the father and he again grabbed her by the hair and shoved her head into the bed. Later that day the mother was in pain from this incident. The father tried to comfort her and apologised to her.
After the child was born, and when the mother and child came home from hospital, the parties had several arguments. On at least two occasions, the father had the mother leave the home. On one occasion the mother sat in the gutter at the front of the home. The father allowed the mother to return home because the child needed to be breastfed.
On another occasion the mother had difficulty breastfeeding the child and settling her, and this angered the father. The mother was sitting on a chair holding the child. The father grabbed her ankles and pulled her half off the chair. He then tightly grabbed her right arm, which was painful to the mother. He then verbally threatened the mother. He came right up to her and spat in her face. He continued to verbally abuse her whilst she was holding the child in her arms. That evening the mother was very scared of the father and could not sleep. She stayed up watching the door for the rest of the night.
The mother then, during mid March 2013 decided to visit her parents in New South Wales for a break. She took the child with her. Shortly thereafter she started to receive angry voice and text messages from the father demanding that she and the child return to Sydney. Inter alia, the father said to the mother, “Answer the fuckin phone. You’re going to pay for this”, and “[a]nswer fuckwit or I’ll call your mother. What’s the address I’ll go to Ms A [the mother’s sister]. You better let me know. My blood is boiling.” The mother felt scared and threatened by the father. At the time she was too scared to answer the father’s calls or reply to his text messages.
The following day the mother received further calls from the father. He left voice messages. They were angry and threatening. The father was screaming loudly over the telephone. Some of the messages were threats by the father against the mother and her family.
The mother attended the Town A police station on about 25 March 2013 and an interim Apprehended Domestic Violence Order (“ADVO”) was made against the father. A final ADVO was made against the father in April 2013 for twelve months. Associated assault charges against the father were dismissed.
Despite the ADVO, the father continued to physically and verbally abuse the mother and threaten her. In early May 2013 the parties had an argument. The father grabbed the mother around her right arm and tightly squeezed it. He verbally threatened her with physical harm. A few days after this incident, the mother was walking up the stairs holding the child and the father pushed her. The mother was extremely fearful of the father at this time.
In early June 2013 the mother returned to the home to collect some of the child’s things. The father started screaming at the mother. The father grabbed the mother around her neck and started to choke her shaking her head back and forth. The father picked up a plastic bag and tried to put it over the mother’s head. The mother was terrified. She believed the father was going to kill her. The mother’s uncle Mr G knocked at the front door. He began to assist the mother in removing her belongings from the home. The father verbally threatened to harm this man if he went to the police.
A few days later the mother attended the police and made a statement about these events.
The father was charged with breaching the ADVO in June 2013 and spent about six weeks in gaol, the charges being ultimately dismissed. The father developed anxiety and depression in gaol, causing him to have suicidal thoughts. He was assessed and scheduled in gaol and placed on medication.
From about August 2013 the father began to spend time with the child; he would often spend this time with the child at the mother’s residence. During these visits the father would not care for the child on his own. The father did not give reasonable notice of when he wished to spend time with the child. He would give the mother only a few hours’ notice or just arrive at her home unannounced.
When the father visited the child, he was often in an angry and irritable mood. He would intimidate and verbally abuse the mother. There were occasions when the father would refuse to leave the mother’s home after spending time with the child. The mother was scared of the father and felt that she had no option but to let him do what he wanted. It is likely that at some time during the second half of 2014 the parties were having sexual relations.
In early 2015 the mother commenced a relationship with Mr O. The mother was very scared about telling the father about her new relationship and initially kept their relationship private from him.
In about mid-March 2015, in the evening, the father called the mother and told her that he would be coming over in fifteen minutes. When he arrived he was not in a good mood. The father ran towards the mother. The mother was scared and asked him to leave. The father then pinned the mother up against the fridge with his hand around her throat. The father strangled the mother and the mother could feel the door handle of the fridge pushing into her back. Initially the mother tried to escape but she was unable to do so. Then the father let her go and she quickly ran to the bathroom and locked herself in there for fifteen minutes crying. Within the next two days the mother noticed bruising on her arms and body. She took photographs of these injuries (see the photos in Exhibit C).

The mother commenced parenting proceedings in this Court on 1 May 2015.
In about mid-June 2015 the father requested a reconciliation with the mother. He requested to see the child. The mother turned her mobile phone on aeroplane mode to stop the father from calling her. Thereafter the mother received countless missed calls from the father. A short time later the father physically confronted the mother as she was dropping the child off to daycare. The father demanded to know where the mother had been the previous evening, stating that the mother had not slept at her house. He asked the mother whether she had a boyfriend. The mother dropped the child off at the daycare centre. She returned to her car. The father followed the mother to her car and again asked the mother where she had been the previous evening and whether she had a boyfriend. The mother told the father that she had to go. The mother drove off in her car.
The mother drove to (Shopping Centre). The father’s car followed the mother’s car. The mother parked in a parking spot with the father parking directly beside her. The mother got out of her car. The father approached the mother and he yelled at her not to lie to him, stating that the maternal grandmother had told him that the mother had a partner. He told the mother it was not right for the child to be staying at the new partner’s house. In-cross examination, the father stated that it was the mother telling him that the child loved Mr O that had set him off.
The father forcefully pushed the mother and pinned her against the side of her car. The mother started yelling for help and the father yelled, “shut your mouth”.
The mother broke free from the father and ran to the shopping centre entrance. The father conceded during cross-examination that his “blood was boiling” and he was “in a rage” at this time, “because in my opinion she was putting my daughter’s safety at risk [taking the child to Mr O’s home].”
The father chased her to the doors and caught up with her. The mother continued to run inside the shopping centre, yelling for help. The father swung his leg out and tripped her. The mother fell and slid across the ground. The father stood over the mother pointing and yelling at her. He said, “shut your mouth”. The father requested that the mother tell him about her new partner, including his name and where he lived. In cross-examination the father stated that he just wanted the mother to tell him the truth in relation to the mother’s new partner. The father stated that the mother should have told him about her new relationship.
The mother was unable to stand or walk. A maintenance worker assisted her and called security. The father told security officers that the mother had slipped on water on the floor. He then left the premises. The police arrived a short while later and the mother made a statement to them. The mother was assisted to the daycare centre to collect the child and escorted home. She then went to Mr O’s home. The mother felt terrified and scared of what the father would do next.
As a result of the fall the mother suffered a knee injury requiring five months of rehabilitation and physiotherapy to repair the knee and walk properly again. She had pain in that knee for at least a year after the incident.
In June 2015 a provisional ADVO was made against the father for the protection of the mother. In September 2015 a final ADVO was made for two years against the father for the protection of the mother.
On 8 October 2015, in the local Court, the father entered pleas of guilty to a common assault charge, assault occasioning actual bodily harm charge, and a stalking/intimidation charge in relation to the above incidents on 17 June 2015. In relation to each plea, he was sentenced with a section 9 bond and given three years to comply with the ADVO.
The father conceded, in his Affidavit filed 23 August 2017, that in relation to the above incident at (shopping centre) he was very angry, because in his opinion the mother was putting the child’s safety at risk by allowing her to be taken to Mr O’s house and staying there overnight.
In December 2015 the police took out an ADVO against the father for the protection of the maternal grandmother; in March 2016 a final ADVO was made for two years in this context. The background to these proceedings is as follows.
In late December 2015, the maternal grandmother called the mother and told her that the father had telephoned her. The father had wanted to talk about spending time with the child. He started to become abusive and aggressive. The maternal grandmother became scared and contacted the police. The police took out an ADVO against the father for her protection.
On 1 January 2016 the maternal grandmother called the mother and told her that the father had telephoned her again and threatened to kill Mr O. She told the mother that she had reported the threat to the police.
The mother gave a statement to the police on 5 January 2016. Inter alia, in that statement she stated that:
Hearing [the father] got bail 02/01/16 has probably been one of my worst nights. After the last thing he said to my mother was something of the words ‘you have one week to get me my daughter or Mr O is dead’ I can’t keep living like this, its impacting on my health & all my family members I wish it would stop. … I would just like to get on with my life and not have to live in fear of this person, constantly having to look over my shoulder, lock my doors and window and even use security camera’s around the house.
The police laid further charges against the father relating to the above events from late December 2015. The father defended the charges, which were ultimately dismissed.
In late March 2016 an incident occurred at the complex of this Court at Parramatta, when the mother was in a safe room. The father, whilst outside the safe room, banged on the window of the safe room. The father was yelling at the mother. The father asserted in his Affidavit filed 23 August 2017 that he had “hit on the window and asked her [the mother] why was she calling the police.” In cross-examination he stated that his emotions had gotten the better of him. The mother was terrified and feared for her life. The Court security guards arrived, shortly followed by the police. The father was arrested. He was convicted of an offence and jailed for about four months. He was released on 31 July 2016.
About a week after the father was released from gaol, the mother was leaving her workplace and she saw the father in a shop next to her workplace. The father was about three metres away from her. The father observed the mother. He stared at her. The mother was terrified when she saw him and felt panicked. She was scared the father was going to hurt her. She immediately ran back into her workplace and hid in the back room. She was terrified and told her manager that the father was outside. After checking that the father had left, the mother’s manager escorted her to the mall security.
On about 20 March 2017, the mother spoke to Mr O about becoming a witness for these proceedings. Mr O told the mother that he could not be a witness. He told the mother that he was scared that he would be harmed by the father if he was to do so.
In December 2017, the mother moved in together with Mr O. They now live in a location that is about one hour drive from the Sydney region 1.
Moving away from the father has helped the mother’s mental state. She is no longer worried that she will run into the father. Previously the mother would not venture out to the shops with the child, but since she has moved she has felt safe enough to take the child to the shops with her for the first time in years.
The child is progressing well developmentally for her age and is enrolled in kindergarten. The mother involves the child in extracurricular activities. The mother currently resides with Mr O, the child and their new baby.
The father does not know where the mother lives. The mother is fearful of the father finding out her current address. Victim Services have assisted the mother in installing CCTV cameras around her home.
The father does not pay any child support. When the mother was receiving Centrelink benefits she asked to be exempted from collecting child support from the father.
The mother has been a relationship with Mr O for over three years. In the time that she has known him, she has not observed Mr O to drink excessive alcohol, use illicit drugs or have a gambling problem.
The ADVO in place for the mother’s protection expired on 7 September 2017.
The mother continues to be fearful for her welfare and the welfare of the child, Mr O and her family. She does not wish the father to contact her. The mother was greatly concerned that the father might seek to locate her or her partner when the ADVO expired. This is one of the reasons why the mother has moved out of the area.

Oral evidence of mother

The Court does not propose to set out at any length the mother’s oral evidence.
The mother has not told the child that the father is her biological father. The child believes that the mother’s new partner is her biological father.The mother conceded that at some point in the child’s life, the child should know the truth about her real biological father. The mother stated that if an expert stated that the child should be told within the next six months that the father was her biological father, then she would inform the child accordingly.
The mother was married on 2018. She plans to change her surname to Mr O.
In relation to potential supervised time between the child and the father, the mother is concerned that on leaving the contact centre the father may have someone waiting outside, and she would prefer to have her address kept private.

Oral evidence of father

The Court does not propose to set out at any length the father’s oral evidence.
The father stated that he is presently not working.
The father stated that he is presently in receipt of a disability support pension and has been receipt of such a pension for some eighteen months. The father stated that he has previously been in receipt of a disability support pension. He stated that the basis for receipt of the present pension is injuries he had suffered including anxiety and depression.
The father agreed that he had used the alias Mr A when consulting with the various doctors referred to in Exhibit D. He stated that he used the alias because he felt intruded on and he did not want these doctors to know his business. He stated that he used this alias after being released from gaol in 2016. (The Court interpolates here that the Department of Human Services records in evidence, Exhibit D shows the father using the alias Mr A from early August 2013.)
The father stated that he had seen his treating psychologist Mr M about a week to two weeks earlier. He had seen him under the surname Mr A.
The father conceded that he had sworn at the mother using the words “fucking cunt”. The father admitted there had been plenty of verbal altercations between the parties.
The father did not accept that his behaviour had had a negative impact on the mother.
The father stated that he had a new partner. This relationship was a few months old. He stated that he had previously been in an intimate relationship (after his relationship with the mother) with a woman which had lasted nine months.
The father stated that he would always be concerned about the mother having a new partner.
The father stated that he has suffered from depression and anxiety most of his adult life.
The father stated he had ceased taking medications recently.

Evidence of clinical psychologist Dr J

This psychologist’s report was dated 27 September 2017. This psychologist provided psychological treatment for the mother. She first met the mother in May 2016 and thereafter saw her for seven appointments.
The psychologist stated that the focus of therapy for the mother with her had been to provide supportive counselling to assist the mother to cope with the stress she experienced as a result of the ongoing family law matter and to help her develop strategies for managing her emotional responses to dealing with the father.
Inter alia, the mother reported to the psychologist a history of family violence perpetrated against her by the father, including the incident in July 2015 at the Shopping Centre.
The psychologist stated that the mother presented with symptoms indicative of an adjustment disorder with anxiety. She reported that the mother has continued to experience periodic anxiety in relation to incidents when she has had to deal with the father at Court.
The mother reported to the psychologist that she does not want to have any direct contact with the father or communicate with him at all. The psychologist stated that the mother has consistently expressed fears of the father doing something aggressive or vindictive to her or her partner. The mother stated that the father had made threats to harm her partner. The mother stated that she does not believe that the father would intentionally hurt the child but she is worried that the child might be put at risk by his behaviour towards her or her partner.
The mother expressed concerns to the psychologist that, if she continued to live in Sydney and had to take the child to supervised contact, the father would follow her home. She told the psychologist that she would feel safer living in a different city to him.
In cross-examination this psychologist stated, inter alia, that it was important for the child to know that the mother’s new partner was not her biological father. She stated that it would be better if the child were told earlier rather than later. There could be a detrimental impact on the child if this fact were not told until later – a feeling of betrayal might develop.
The psychologist stated that there was a risk of the mother becoming anxious if the father was to find out where she actually lives.
The Court accepts the evidence of Dr J.

Evidence of Mr M, clinical psychologist

The qualifications of this psychologist and his experience are set out in his curriculum vitae attached to his report dated 5 July 2017.
This psychologist treated the father. He stated that the father first attended counselling in September 2016. The report states that the father continued counselling with the father until the “present date”.
At the outset of the report, the psychologist stated that the reason for the report was to assess the father’s past and current mental health status and relationship to access the child. He stated that the father wanted particular reference to an assessment of his reported psychological issues with anger.
The psychologist stated that the father had stated that his initial reason for attending counselling was to discuss his frustration and anxiety about being restricted access to the child. The psychologist stated that the father had spent considerable time in the counselling process discussing and considering the grief and frustration he had about not being able to establish a relationship with the child since he had had the ADVO taken out against him in 2015.
The psychologist stated that the personal history was taken from the father. Inter alia, the father told the psychologist that his father was an old-style (nationality omitted) and was challenging and pressured. The father stated that he thought he had inherited his own pressured way of talking at times from his father.
The psychologist referred to the father’s past history of taking psychotropic medication for issues that the father had with anxiety and depression. In this context, the father told the psychologist that his anxiety had surfaced after his time in prison and he became hyper vigilant and fearful about crowds. He stated that he received medication for this, but never went to any form of counselling.
The Court interpolates at this point that Exhibit F, being a Correctional Centre mandatory notification document dated 25 June 2013, “For offenders at risk of suicide or self-harm”, records, inter alia, the father having “some crazy thoughts in his head. Recently divorced. In gaol over AVO. Very depressed. Wants meds. Frustrated”.
The psychologist carried out a psychometric assessment of the father. Tests were administered to him in early May and late June 2017. In relation to the personality assessment inventory test, the father was assessed as having elevated scales for paranoia and NonSupport.
In relation to the paranoia elevated scale, the only subscale which was elevated was Persecution. In this context, this elevation, according to the psychologist, was “moderate” and indicated that the father was quick to feel that he was being treated inequitably and easily believed that there was a concerted effort by others to undermine his interests.
In relation to the NonSupport elevated scale, the psychologist stated that the father scored in the moderate range, indicating that he was reporting that his social relationships offered him little support and family relationships were distant. Friends seemed to be unavailable when he needed them.
The psychologist also administered to the father the State-Trait Anger Expression Inventory test. In relation to the Anger Expression Index, the father scored in the high range. In this context the psychologist stated that, “the high score [of the father] in the subscale: Anger Control-In, can suggest that at times [the father] can get angry and express these feelings verbally.”
The psychologist stated that the father’s management of anger responses was marked by his need to control his anger, and his habitual response to angry feelings was to repress or hold them in. He stated that this strategy, whilst in the main effective for dealing with most angry feelings, leaves the father at a disadvantage in the longer term as the repression or denial of these feelings tends to lead to low mood or depression in the longer term. Later the psychologist stated that the father’s problem with anger is how he personally deals with it within himself.
The psychologist stated that his clinical hypothesis was that the father has struggled with anxiety since his time in prison. He stated that the father’s anxiety manifests as irritability with himself and angry outbursts are a product of the increasing pressure for the ongoing unresolved frustration and himself and others when things do not go to plan.
Under “Conclusions and Future Prognosis”, the psychologist stated, inter alia, that the father was not a risk to the child in terms of anger or any personal inability to be responsive to her needs or to form significant and healthy attachments. He could not see any significant reason why the father in his present state of physical and mental health could not be an excellent supportive parent to the child. As discussed later in these Reasons, the Court does not accept these conclusions.
The psychologist proposed ongoing treatment plan for the father which included CBT for effective Anger Management training, and stress management training to assist with current life stressors and life management in general.
Mr M gave oral evidence. The court does not propose to set out the entirety of his oral evidence.
The psychologist stated, in terms of discussions that he had had with the father regarding instances of violence between the parties, that he had discussed with the father the above tripping incident and the incident at this court house.
Regarding the tripping incident in the shopping centre, the father told the psychologist that the magistrate had stated that it was of a low order offence.
The psychologist stated that he had last seen the father the previous week. He stated that there had been twelve appointments since the date of his report on 5 July 2017.
The psychologist stated that he had not seen the father with the child.
The psychologist stated that the psychological tests administered to the father only give an indication at the time of the testings.

It was put to the psychologist that when the psychological tests were administered to the father, there were no stressors on the father and his anger was in control, and that this was reflected in the test results. In response, the psychologist stated that the tests indicated that at the assessment the father had no diagnosable categories, but that was not to say that he did not have issues.
The psychologist confirmed that the father had a strong need to moderate his anger (in reference to the last paragraph on page 7 of his report).
The psychologist spoke about the father’s partner. He stated that since he had known the father this relationship had been “going” or “certainly on and off”. He stated that he did not believe this was a live-in relationship.

Expert evidence of the Court appointed expert, Dr C, clinical psychologist

On 2 June 2016, Dr C, by consent of the parties and ICL, was appointed by the Court to prepare a Chapter 15 Expert Report to enquire into relevant issues relating to the welfare of the child. His report of 18 August 2016 was released to the parties and ICL on 23 August 2016. He was cross-examined by the parties and ICL at the final hearing.
At the outset of his report, Dr C set out the specific request of him in relation to his assessment, including:
·Whether the child was at risk of being exposed to physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
·The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs;
·The mental state of the father in so much as it related to parenting capacity issues;
·The mental state of the mother insofar as it related to the father spending time with the child;
·Any potential impact on the mother’s mental state and/or parenting capacity if Orders were made for the father to spend time with the child; and
·Any other matter considered relevant.
The qualifications of Dr C are set out in his report. He is a clinical psychologist with a Masters degree in clinical psychology and a PhD in research on personality. Inter alia, he has a 37 year history of work within the substance abuse and mental health fields.
Both parties were interviewed by Dr C in August 2016. The mother was observed with the child. Dr C concluded that it did not appear to him to be reasonable or safe to undertake an observation of the father with the child, noting that the child had had no contact with the father since June 2015 and had no effective memory of him.
The mother was interviewed by Dr C.
The mother’s history of her relationship with the father, including post separation history, provided to Dr C, is significantly mirrored in her trial Affidavit.
In relation to the child spending time with the father supervised at a supervision centre, the mother stated to Dr C that she could not be sure that she would not be followed when she left the centre. Dr C opined that the mother had realistic concerns with regards to the likelihood that the father would continue to pursue her if he had the opportunity to do so.
The mother described to Dr C a significant panic reaction on seeing the father or seeing any reminders of the father. It would appear, according to Dr C, that the mother was now quite traumatised by the various behaviours that had occurred to her. The mother said that anything that reminded her of the father stressed her out.
The father was interviewed by Dr C. Although at times the father could be somewhat hostile when talking about the mother, and was preoccupied with her, his manner towards Dr C was neither offensive nor intimidating, although his interlocutory style was somewhat truculent.
The interview with the father and Dr C lasted one hour and forty minutes.
The father told Dr C that the mother brought up everything to say he was a monster then proceeded to show Dr C a number of text messages in late 2014 that belied a number of comments that the mother had said to Dr C about what her attitude towards the father was in 2014. The text messages, Dr C noted, which appeared to have been sent by the mother, clearly indicated, inter alia, that the mother loved the father, had been having sex with him and wanted to have another baby with him.
The father told Dr C that the only issue in the relationship with the mother was the affair the mother was having with Mr O. The father accepted that when he found out that the mother had been going to a man’s house, the mere thought that she had had the child at this man’s house sent him into a rage.
The father agreed that, in relation to the incident at Court in 2016, he had banged on the window because the mother had said she was calling the police. From his perspective, the father told Dr C that all this was a “beat up and a joke”. Dr C stated that the father’s account as provided in the material available to him indicated that the father had little insight into his behaviour and significantly minimised his hostile behaviour.
Dr C took the father back to the various allegations that the mother had made in regards to family violence. He agreed that there had been some “domestics” some point. He said that occasionally when the mother tried to punch him he would hold her by the arms. He denied any choking behaviour.
The father told Dr C that from his perspective the fact that the mother continued to send loving texts, which indeed Dr C noted seemed to be the case, and the fact that the mother then sought to have all the charges withdrawn, indicated that the whole thing was simply a “put up job”. Dr C noted, however, that it was not uncommon for victims of family violence to demonstrate ambivalence in their relationships, and thus multiple explanations were possible as to the mother’s behaviour.
Dr C took the father to his criminal record. The father was simply resistant to the notion that there were any significant antisocial aspects to his history.
The father accepted that he was particularly, and almost to the point of obsession, protective of the child. He said that a baby needed a mother and he did not have any confidence in his capacity as the father. For example, he stated that he would not change nappies because to do so would make him feel ill.
The father told Dr C that he believed Mr O might abuse the child. He stated that he had checked out Mr O’s profile on Facebook. He stated that the profile picture in Facebook showed him pinching the panties of a female and he said that put him in a rage. He said it gave him insight into the mentality of Mr O and he was enraged that this man was around the child. Dr C stated that the father appeared to have developed a significant hate for Mr O on that basis.
Dr C noted that whenever he attempted to raise issues around parenting with the father, the father returned to one of three themes. The first was how he had been kept away from the child and how the child meant everything to him. The second theme was what a nasty person the mother was and how she was mendacious, lying and setting out to destroy his reputation. The third theme was anger at Mr O and particularly at the mother for introducing the child to another man.
Dr C noted that the father has little in the way of any cohesive relationships with any of his family members. The father had reported poor school adjustment and he was suspended and expelled from school for truancy. He finished school before completing his school certificate in Year 10 and reported no further education.
The father has no regular employment history. He worked with his own father for a period. He finally had an explosive argument with his father ten years ago. Dr C noted that the father appeared to be reluctant to tell him how he managed to support himself. He referred to being in receipt of a disability pension. He referred to having suffered neck and back injuries and having been diagnosed with anxiety and depression. However, it was extremely unclear to Dr C how those diagnoses had come about or who had made those diagnoses.
Dr C stated that the father’s continual preoccupation with the mother, despite the claims that he wanted to move on, created a concern for him.
The father made a point to Dr C that the mother was taking the child to child care. He said that when she was doing that, if he saw a bruise on his daughter he would go back to the child care to find out how she had obtained the bruise. Dr C stated that the father’s overprotectiveness of the child could in fact produce a quite hostile reaction if he felt that in any way she was being harmed or disadvantaged.
When asked about paranoia, the father stated to Dr C that some days were quite bad. He said that that was why he took the medication from time to time, because he would get overwhelmed with negative thoughts, which made him feel a strong need to be protective. He said everything he did is structured in order to make the world safe. He said that the worst thing he ever did was to let the mother go to her mother’s meeting. He said that prior to that the mother had no friends but he let her do it, and then she started changing and wanted to go out drinking and go to clubs. He did not like that. He said he did not want her to go out with friends. He said that she could not be a mother and also have a social life.
Dr C stated that it appeared that the father had quite an inflexible attitude towards what he saw as the inappropriate expectations of the mother to live with him. However, such attitudes and behaviours, according to Dr C, clearly indicated that the father was a controlling person who expected others to think and do what he wanted them to do, and that the father had no insight into the individuality of others, nor any preparedness to compromise in his behaviour.
Dr C conducted risk assessments for domestic violence, utilising various criteria relating to the father. He concluded that there was a moderate to high possibility of further domestic violence should the father get the opportunity to engage in such behaviour.
Under the heading “Formulation”, Dr C stated that the current situation presented by the parties was that the mother was the victim of sustained and significant domestic violence on the part of the father and that she had significant fear of him, such that any contact with him would be highly damaging to her psychological state.
Dr C stated that certainly the father presented as an extremely possessive man with little insight into the hostile and aggressive nature of his personality, and who seemed to misunderstand the relationship between love and care and simply being possessive of having somebody under his authority. He presented as a controlling person who was prone to aggressive outbursts, although he evidenced either a reluctance to accept that or little insight into his behaviour.
In relation to the text messages sent by the mother to the father through 2014, shown by the father to Dr C, Dr C stated that if it was accepted that these text messages came from the mother, then the mother’s argument that she lived in significant fear of the father through 2014, at least, could not be accepted.
Nevertheless, Dr C stated that irrespective of the mother’s frankness about her feelings in 2014, there was no doubt that the father has been aggressive to the mother, and that since January 2015 the mother has sought to extricate herself from that relationship.
Dr C stated that it was likely that the mother did experience fear of the father through the early part of 2015 about the possibility of the father discovering that she was in a relationship with Mr O.
Dr C stated that it appeared to him that there remained considerable concern in his assessment as to the ability of the father to gain insight and restraint in his behaviour. The father appeared to be quite preoccupied with the mother, particularly in what he saw as her betrayal. The father oscillated between saying it was time for him to move on and the idea that she had offended him in a significant way, at which at the same time he seemed not to be able to give up. It did not appear to Dr C that the father had any real understanding of the emotional needs of the child as opposed to his own needs to be viewed as a father to the child. He certainly appeared to present a mode of thinking such that his overprotectiveness would likely lead him into conflict with others if they disagreed with him about how the child should be treated in any way whatsoever.
Dr C addressed the Terms of Reference for his assessment and report.
It was the view of Dr C that the child had been exposed to family violence and arguments with both parties together. Certainly, Dr C stated the father impressed as a person who had almost no parenting skill, and if he were to have the care of the child it was likely that she would be exposed to neglect, unintentionally or otherwise, simply because he did not know what to do or how to care for the child.
Dr C stated that there was no likelihood that the mother would seek to facilitate a relationship between the child and the father. The mother claimed to be in significant fear of the father and Dr C was of the view that there was some reason to believe that the father could be quite intemperate and hostile in his attitude towards the mother. He clearly had a great deal of distaste for the mother and this was revealed throughout the interview with Dr C. He appeared to have difficulty exercising restraint and Dr C stated that contact between the father and the child would likely concentrate the father’s enmity towards the mother.
Dr C stated that the father presented as a person who also had a great sense of possessiveness about the child. He would question anything that he thought was untoward with the child, such as normal bruising that occurs with children as a function of play at that age. His possessiveness would likely lead him to suspicions of abuse and would increase the conflict between the parties.
Dr C stated that if the child were to spend some contact time with the father, he suspected that two things would occur. Firstly, the child would be somewhat confused and would, depending on the father’s attitudes, which Dr C suspected would remain somewhat overbearing and overpowering, experience initial anxiety in missing the mother, and in separating from the mother into a situation in which she was uncertain and had no familiar supports. Secondly, the mother would likely continue to experience a great deal of agitation and anxiety about the child spending time with the father, even in a supervised setting. Such concern might have some impact upon her ability to settle when the child was returned, thus increasing the child’s anxiety. Dr C stated that it needed to be considered that the contact with the father was unlikely to be a particularly psychologically conducive episode for the child and could be threatening to the mother.
The father, according to Dr C, appeared to simply have a view that it was important for him and a right for him to have contact with the child, and he was possessive in that view. He did not present to Dr C as having any real understanding of what the needs of the child might be as he was completely focused on his own rights as a father in that regard.
It was concerning to Dr C that, if the child were to have contact with the father, the father might be unable to restrain himself from making negative comments about the mother or Mr O. That would lead to increased psychological stress on the child. Following Dr C’s assessment, Dr C thought that this would be likely to occur.
It was clear to Dr C that there was no possibility of there being respectful communication between the parties. Indeed, he stated, it would be entirely unsafe for the mother to be put in a position where she would need to communicate with the father.
According to Dr C it was clear that the father experienced a great deal of psychological disorder. He appeared to present in an almost personality disordered fashion, according to Dr C. He had very poor psychosocial adjustment and he certainly experienced considerable anxiety and hypervigilance. He presented as a person who may have had a background of complex trauma, although the father denied that in discussion with Dr C. Dr C stated that the father was an abrasive character who was hostile in his attitudes. Such behaviour made it very likely that he would firstly lack insight into the emotional and nurturing needs of the child. Secondly, according to Dr C, the father was possessive and even aggressive in the way in which he responded to situations in which he felt that the child was not being treated in the way he thought should occur, without reference to the normative behaviours and experiences for children. Dr C believed that the father would be unable to engage in some of the normative behaviours of childrearing, simply because he lacked the ability to do so and was not inclined to be a nurturing character.
Dr C stated that whilst he believed that the mother had exaggerated the degree to which in the past she had feared the father, he nonetheless thought that there was currently a genuine level of fear in the mother in regards to the father. There was sufficient reason, on the basis of the information available to Dr C, despite the father’s redefinition of much of his behaviours, to suggest that he had been a consistently hostile person and that he had been quite violent at times to the mother. As such, it was likely that the mother would experience a significant degree of anxiety and trauma should she have to interact with the father, even at a distance through the child having contact with him.
Dr C stated that the mother would experience significant anxiety if the Court was to make Orders for the father to spend time with the child, either supervised or unsupervised, and that that would not assist the child in being settled once she returned from seeing the father.
It was also the belief of Dr C that the father would likely say things to the child, even in a supervised context, which were dismissive of the mother and would cause the child some anxiety and confusion. To that extent, and whilst Dr C did not think that this would result in the deterioration of the mother’s mental state to any significant degree, it would certainly be an unfortunate situation for the child, who would experience raised anxiety as a consequence of contact with the father, and the mother would have a great deal of difficulty in being able to settle that with the father. Dr C stated that the mother now held a genuine fear of the father and the father’s behaviour had given rise to a belief in Dr C’s mind that it was reasonable for the mother to have that fear.
Under the heading “Recommendations”, Dr C stated that the logic of the current assessment was that there would be substantial risks to both the child and the mother’s emotional wellbeing if she were to have unsupervised and ongoing contact with the father. Despite this concern, Dr C stated that there are advantages in a child knowing their biological parent, even if those advantages are delayed and most commonly experienced in adolescents. As such, Dr C submitted proposals for some contact between the father and the child as she matured.
It was Dr C’s view that the child is presently too young to begin contact with the father. A process of introduction seemed reasonable to Dr C, initially through the exchange of letters and cards on celebratory occasions. A photograph of the father should be supplied. When the child is eight years old it should be possible to begin a series of brief, supervised contacts. These should occur at a contact centre and last no more than two hours, four times a year, preferably on significant days such as birthdays and Father’s Day. The purpose of such visits would be to give the child an opportunity to gain some identification with the father. It may be possible on half of these visits for the father to bring along other family members. Dr C stated that he did not believe that the child should have any unsupervised contact with the father until she is fourteen years of age (and no overnight contact at any stage), and no supervised contact in the community until she is twelve years of age. Supervision in the community should be by way of a supervision company, not family members, as Dr C had little belief that the father could be controlled by, or would pay attention to, constraints put on his behaviour by family members. Supervision in the community should continue to have the same frequency of four contacts a year. It was not Dr C’s belief that any reasonable communication could occur between the parents and he believed that shared parental responsibility would place the mother at ongoing risk of harm and harassment by the father.

In view of the above matters, unsupervised contact between the child and the father should not occur until the child is fourteen years of age, being an age at which the child will have developed some maturity in her decision-making and will have an increased ability to act protectively of herself. However, such unsupervised time should not occur on an overnight basis, by reason of the matters discussed above, the Court observing that this child, having reached fourteen years of age, could not be expected to act protectively against the risk posed by the father on an overnight basis.
In the event that the Court were to order the child to spend supervised time with the father presently, on a regular basis (for example, fortnightly or monthly), there would exist a significant risk that the mother would experience significant anxiety about the child spending supervised time with the father.
As stated by Dr C, in circumstances where the mother has experienced significant family violence perpetrated by the father, supervised time between the child and the father would carry the significant risk of triggering memories, thoughts and feelings in the mother about such violence that she has experienced, and the fear that she has experienced, raising anxiety in the mother and impacting negatively upon her psychological wellbeing. In turn, such raised anxiety would carry the real risk that the mother’s parenting capacity for the child would be detrimentally affected, including the real risk that the child would be exposed to the mother’s raised anxiety and thereby experience anxiety herself.
Further, there would exist a significant risk that the mother would experience significant anxiety by reason of the mother having to bring the child to the contact centre and her apprehension in relation to being followed by the father after the contact centre visit.
Again, such anxiety and fear experienced by the mother would carry the real risk that her parenting capacity would be detrimentally affected with negative effects upon the child.
There is a significant risk in the child presently spending supervised time with the father, in that the child would be confused and experience initial anxiety, both in relation to missing the mother and separating from her into a situation in which she is uncertain and has no familiar supports.
Further, in relation to the prospect of a child presently spending supervised time with the father, there is a significant risk, by reason of the father’s continued preoccupation and enmity towards the mother and Mr O, as observed by Dr C, that the father would question the child in relation to the mother, and denigrate the mother or Mr O.
Further, in relation to the prospect of the child presently spending supervised time with the father, there is a significant risk, by reason of the father’s overprotectiveness of the child, as observed by Dr C, that the father would act in a hostile manner if he felt that the child was being harmed or disadvantaged in any way, or indeed if anyone disagreed with him about how the child should be treated. In this context the Court refers to the evidence of Dr C, who assessed the father as being an extremely possessive and controlling man prone to aggressive outburst, with little insight into the hostile and aggressive nature of his personality. Further, there is a significant risk that the father would question the child in a confronting manner if the child was to present with, for example, bruising, with a view to implicating third parties, including the mother or her partner.
The Court is of the view that prospectively the child would benefit from having an opportunity to gain some identification with the father. This should occur at a contact centre when the child turns eight years of age and then for about four times a year, and last no more than two hours, preferably on birthdays and father’s day. There is a significant prospect that at this time the mother will cope emotionally with the child spending such time with the father on a supervised basis.
In this context, whilst the Court is of the view that, with the passage of time, there is some prospect that the father will refrain from committing acts of family violence towards the mother, there are lower prospects of him refraining from denigrating the mother or her partner in the presence of the child, or refraining from exhibiting the other forms of adverse behaviour discussed above under this need to protect primary consideration.
The Court accepts the evidence of Dr C that the child is too young yet to begin this form of supervised contact with the father.
The Court accepts the evidence of Dr C that the above identification process should only begin at the age of eight years. Dr C’s reasons in this context were that the child between eight and eleven years of age would be reasonably emotionally settled, being a time of relative settlement in the child’s emotional state, and being a period when the child will have started to develop cognitive structures that allow her to play with information and develop some ideas and thoughts for herself; it is a safe time to start presenting children with alternative understandings of the world and things that are happening in it.
Dr C stated:
As I mentioned in – in response to this question that you asked me, your Honour, the issue is that there’s a – quite a substantial difference between the cognitive skills of a five-year-old and the cognitive skills of an eight-year-old. An eight-year-old is far more capable of taking in contradictory information and being able to manage that and deal with it more effectively. They are able to understand that sometimes people say things that they don’t mean and able to understand that they don’t need to believe everything that is said to them. A five-year-old child is still extremely vulnerable to the information that they receive. They are more easily confused and more easily sensitive to the moods and attitudes and behaviours of their parents. It is safer for a child, where they’re going into a situation where they’re going to be – have some kind of potential conflict or some kind of contradiction in their life to do it when they are older in what – as I referred to earlier as a more settled period of childhood. For these reasons, I have suggested the age of eight.
Dr C’s further evidence in this context, which the Court accepts, was that to begin the identification process presently, the child being aged five years, in circumstances where the father is not supportive of the mother’s relationship with her stepfather and has tried to undermine that relationship, the child would not be yet competent to be able to resolve or understand the tension between the views of the father and the reality of her relationship with the stepfather. In this context, again, the Court is of the view that there is a real risk, if supervised time was to occur presently, that the father would seek to undermine the child’s relationship with Mr O.
The Court should add, again, that if supervised time was to commence presently, there would also be a significant risk that the father would seek to denigrate the mother, with similar risks facing the child in processing and dealing with such adverse information.
In the view of the Court, should there be more extensive supervised time between the child and the father when the child turns eight years of age, beyond four occasions per year, a significant and increased risk would arise that the child would be exposed to the father’s negative views towards the mother and Mr O, the father’s previously stated attitudes towards females, and the real risk of the father becoming coercive, controlling and possessive in his responses to the child, and which would be emotionally confronting for the child.
Supervised contact in the community on the same regularity, should not occur until the child is twelve years of age, being an age when the child could herself be expected to act more protectively of herself, with the overarching assistance of supervision.
The evidence of Dr C is consistent with the above views.
In relation to the above discussion regarding the mother experiencing anxiety about the father, the Court also refers to its acceptance of the evidence of Dr J, including her opinion that the mother had presented to her with symptoms indicative of an adjustment disorder with anxiety, such as the consistent expression by the mother to her of fears of the father doing something aggressive or vindictive to her or her partner.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Not applicable, as the child is too young to express any relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The Court refers to its discussion above under the meaningful relationship primary consideration.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother has taken such opportunities.
The father has sought to spend time with the child and communicate with her. However, the mother has not been prepared to facilitate such time and communication because of her concerns that the child and herself would be placed at risk if the child was to spend time with the father. In this context, the Court refers to its discussion above under the meaningful relationship and need to protect primary considerations.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The mother has fulfilled such obligations. The father, it would appear, has provided no financial support for the child’s maintenance post separation.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The Court refers to its discussion above under the need to protect primary consideration.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

Not applicable.

(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities.
The father presently does not have such capacities. In this context the Court refers to the evidence of Dr C.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

The child apparently is developing well in the primary carer of the mother. The mother describes her role as homemaker, and the Court notes the birth of her new child.
The Court otherwise refers to its discussion above under the primary considerations.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The mother has demonstrated appropriate attitudes towards the child, and to the responsibilities of parenthood.
As to the father, the Court refers to its discussions above under the need to protect primary consideration.

(j) Any family violence involving the child or a member of the child's family

The court accepts the evidence of the mother as to the nature and extent of family violence perpetrated against her by the father both during and after the relationship.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

There were previous family violence orders made against the father for the protection of the mother, and there was a breach of such an order committed by the father.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

It would be preferable to make the ICL’s proposed final parenting orders, Exhibit G, in preference to the father’s proposed Orders, because they would be least likely to lead to the institution of further proceedings in relation to the child.
To accede to the father’s proposed Orders for the child to spend supervised time with him presently would carry the significant risk that the child and the mother would be exposed to psychological harm. In this context the Court refers to the evidence of Dr C.

m) Any other fact or circumstance that the Court thinks is relevant

The mother seeks a declaration that it is in the best interests of the child [X] that she should be known by the name of [X] and the formal record of this should be made with the NSW Registry of Births Deaths and Marriages.
The mother contends that she has married Mr O and they have a child. The child lives with them. The mother contends that the evidence reveals that the father uses other surnames besides Valenti (for example, the father has used the surname Mr A since his release from gaol in 2016). It is submitted that it would be incongruous for the child to be left with the father’s surname, which he does not use. The mother proposes to change her surname to Mr O.
The ICL does not support any change of name for the child. The ICL submits that if the ICL’s proposed parenting Orders in Exhibit G are made, such Orders would make it clear that there is some connection between the child and the father.
The Court agrees with the ICL’s position on this issue. In the event that the ICL’s proposed Orders in Exhibit G are made, resulting in the child ultimately spending some limited supervised time with the father, it will be confusing and thereby potentially emotionally damaging for the child to be spending such time with the father in the face of the effects of the mother’s proposed declaratory order.
As to the ICL’s proposed injunctions and restraining orders against the father pursuant to section 68B of the Act and otherwise sought by the ICL, the Court refers to its discussions above under the meaningful relationship and need to protect primary considerations; it will be in the best interests of the child, and appropriate for her welfare, that such injunctions be made.
It will also be in the best interests of the child to make a final parenting Order, as sought by the ICL, that the child be informed within six months that her biological father is the father in these proceedings, that the child be given a photo of the father, and that the mother follow Dr J’s recommendations in the manner in which that is carried out.

Parental responsibility

The father has perpetrated family violence upon the mother. The presumption of equal shared parental responsibility does not apply in these circumstances.
It will be in the best interests of the child to make an Order that the mother have sole parental responsibility for the child.
The parties have no ability to communicate with each other. The mother does not want to have to communicate with the father. The mother is fearful of the father. Having to communicate with the father would carry the significant risk of the mother experiencing emotional harm. The mother has been the child’s primary carer’s birth to date. The child has not spent time with the father for some considerable time now. An Order for equal shared parental responsibility would carry the significant risk of the mother experiencing significant anxiety and fear, by reason of having to communicate with the father, with consequential adverse effects upon her parenting capacity for the child. Further, and in any event, the parties would likely experience conflict with each other when seeking to reach agreement in relation to major decisions affecting the child in a timely fashion, again with consequential adverse effects upon the mothers emotional wellbeing and thereby adverse effects upon the child’s emotional wellbeing.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of the child to make final parenting Orders in accordance with the ICL’s proposed final parenting Orders, in Exhibit G.
Further, it will be in the child’s best interests to make an final parenting Order that the child be informed within six months that her biological father is the father in these proceedings, that the child be given a photograph of the father, and that the mother follow Dr J’s recommendations in the manner in which that is carried out.
In the future, should the father consider filing an application seeking fresh parenting Orders, he would need to establish to the Court’s satisfaction that there had been a significant change in circumstances since the making of the Court’s orders, such that it was in the child’s best interests to make such fresh parenting orders. In the event that the father commenced such proceedings, the Court, without being prescriptive, would anticipate the father adducing persuasive evidence, inter alia:
·Demonstrating that the child would benefit from having a meaningful relationship with him;
·That he admitted the full extent and nature of the family violence perpetrated by him against the mother;
·That he had developed and could demonstrate insight and awareness into the negative impact of such family violence upon the mother and the child, including insight as to why such family violence was perpetrated by him against the mother;
·That he had sought to address and obtain insight into this past behaviour by him by, for example, completing the Taking Responsibility course;
·That he had obtained adequate health professional treatment for anger management issues, in circumstances where treating health professionals had taken a fulsome history of the father’s past family violence perpetrated against the mother, his criminal record, and mental health history;
·As to the significant amelioration of his attitudes towards the mother and her partner.
The ICL sought an Order for legal costs against the father. The ICL sought an Order that the father pay half of the ICL’s total legal costs of $12,245. The evidence before the Court is of the father is in receipt of a disability pension. The Court is not satisfied that it would be just to impose such a costs Order upon the father and declines to make any Order for costs against him.

I certify that the preceding two hundred and sixty-one (261) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 17 September 2018

[2018] FCCA 2603

17 September 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs