Fiedler & Vitale (No 2)
[2024] FedCFamC1F 584
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fiedler & Vitale (No 2) [2024] FedCFamC1F 584
File number(s): NCC 983 of 2018 Judgment of: SMITH J Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – PARENTING – Final Hearing – Oral reasons for decision - Best interests of child – Where neither parents household is sufficiently safe – Where the Department of Communities and Justice (NSW) (“DCJ”) repeatedly decline to intervene - Where Court must make a decision - Where child to live with the mother – Where child to spend limited time with father – Where mother to exercise sole long term decision making for child - Where no criticism of DCJ who work with limited information and resources – Where Reasons for Decision to be provided to DCJ for consideration of possible assistance to mother’s household or other action they deem fit. Legislation: Evidence Act 1995 (Cth) Pts 3.3, 3.7, 3.10, 4.1, ss 79, 108C, 128, 140.
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 65DAAA.
United Nations Convention on the Rights of the Child (“Convention on the Rights of the Child”) Article 12
Division: Division 1 First Instance Number of paragraphs: 326 Date of hearing: 15-19 July 2024, 16 August 2024 Place: Newcastle Counsel for the Applicant: Ms Adams-Nash Solicitor for the Applicant: McNeilly Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Lindeman Lawyers Counsel for the Independent Children's Lawyer: Mr Gallimore Solicitor for the Independent Children's Lawyer: Stevens Family Law & Mediation ORDERS
NCC 983 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIEDLER
Applicant
AND: MS VITALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.That all previous Orders be discharged.
2.For the avoidance of doubt, the undertaking made by Ms J on 20 October 2022 be discharged.
Parental responsibility and decision making to the mother
3.That Ms Vitale (born in 1985) (“the mother”) shall have parental responsibility for the child, X (born in 2016) (“the child”) and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.
Live with the mother
4.The child is to live with the mother.
Time with the father
5.The child will spend time with Mr Fiedler (born in 1978) (“the father”) as follows, and not otherwise:
(a)Commencing 1 September 2024, on the first Sunday of the September being Father’s Day, from 10.00 am until 2.00 pm; and,
(b)Commencing Sunday 20 October 2024, on the third Sunday of each month, other than September and December, from 10.00 am until 2.00 pm; and,
(c)On Boxing day, 26 December, each year from 10.00 am until 2.00 pm.
Location of time with the father
6.The child’s time with the father will occur only in public places but not in any private residence or isolated location.
Prior Engagements
7.The mother may suspend this time to ensure that the child does not miss out on a prior engagement, such as a school camp or other engagement, or during school holidays if the child will be away, on condition that the mother provide at least 7 days’ notice and that make-up time is provided on a Saturday or Sunday within a period of 4 weeks before or after the missed date.
Changeovers
8.Changeovers shall occur at the mother’s home with the mother to remain on the front veranda and the father to park at the end of the mother’s driveway and remain in the car.
Communication with the father
9.That the child shall have a video call with the father (or phone call if needed):
(a)each Wednesday at 4.30 pm for no more than 30 minutes; and,
(b)on the child’s birthday at 4.30 pm for no more than 30 minutes; and,
(c)on the father’s birthday at 4.30 pm for no more than 30 minutes; and,
(d)and for the purpose of this order the father will place the call to the mother’s nominated device and the mother will ensure the phone is switched on, charged with appropriate phone service and will ensure that the child is available to answer the call.
Authority to communicate and obtain information
10.That these orders be sufficient authority for the father to obtain all information about the child from his school, including but not limited to newsletters, circulars, reports, school photos, behavioural management plans, at his own cost, but not to interfere in the child’s educational decision making which resides solely with the mother, and may be provided to any school.
11.That these orders be sufficient authority for the father to obtain all information from the child’s medical providers at his own cost, but not to interfere in the child’s medical decision making which resides solely with the mother, and may be provided to any treating medical provider.
Communication between the parties
12.That parties will communicate by text message only except in cases of emergency.
13.The parties will only communicate in relation to the child and no other issue.
14.All text message communication will be civil.
Restraints and injunctions on parties
15.That each party be restrained by injunction pursuant to s 68B and or s 114 of the Family Law Act 1975 (Cth), for the safety of the child from:
(a)Allowing or permitting the child to spend time or come into contact with, or have communication with, Ms D or her children; and,
(b)Allowing or permitting the child to spend time or come into contact with, or have communication with, Mr E; and,
(c)Allowing the child to live with, or in a household with, or spend overnight time with, Mr G; and,
(d)Allowing or permitting the child to be in the unsupervised company of Mr G; and,
(e)Denigrating the other party, their family or friends in the presence of hearing of the child or permitting the child to remain in the presence or hearing of any third party doing so; and,
(f)Physically disciplining or assaulting the child (either by using their hand, another body part, or an object), or allowing anyone else to do so, and must immediately remove the child from the presence of anyone physically disciplining the child or attempting to do so; and,
(g)Permitting the child to be exposed to Family Violence or remaining in the presence of any person engaging in family violence, and shall immediately remove the child from the presence of anyone engaging in family violence behaviour; and,
(h)Using illicit substances in the presence of the child or whilst they are responsible for his care, or within 48 hours prior to the child spending time in their care; and,
(i)Discussing these proceedings or any other litigation involving the parents in the presence or within the hearing of the child.
16.The father be restrained by injunction pursuant to s 68B and or s 114 of the Family Law Act 1975 (Cth), for the safety of the child from consuming alcohol in the presence of the child or whilst he is responsible for the child’s care, or within 48 hours prior to the child spending time in his care.
Mother to ensure schooling
17.The mother must ensure the child’s attendance at K School on all days that the child is required to attend school, or must forthwith:
(a)do all acts and things and sign all documents necessary to enrol the child into his locally zoned public primary school; and,
(b)ensure that the child attends that school on all days that the child is required to attend school; and,
(c)notify the father of which school the child has been enrolled in.
Mother to ensure treatment
18.The mother will ensure the child attends upon all recommended medical appointment and therapies until discharged by the service provider.
Keeping informed
19.Each party shall keep the other party informed of their current residential address and a text number which may be used for communication.
20.The mother shall notify the father of the names and addresses of the child’s school and treating medical practitioners from time to time.
21.Should the child be injured or become ill and require emergency medical attention whilst in the father’s care he shall notify the mother immediately.
22.Should the child become seriously injured or ill or require hospitalisation the mother shall notify the father within a reasonable period.
Provision of orders to school
23.The mother is required to provide a copy of these Orders to the child’s educational providers.
Provision of orders and Judgment to medical and allied health treaters
24.The mother is required to ensure that the child has, at all times, a current treating general practitioner and, if and for so long as recommended by the general practitioner, a current treating paediatrician.
25.The mother must provide a copy of these Orders and the written Reasons for Judgment to the child’s current treating general practitioner and current paediatrician Dr L, consultant paediatrician, and to any new practitioners if there is a change.
26.The mother may provide a copy of these Orders and the written Reasons for Judgment to the child’s treating psychologist, counsellor or other practitioner.
DCJ - provision of Orders and Judgment
27.A copy of these Orders and the written reasons for Judgment are to be provided to the NSW Department of Communities and Justice (“DCJ”) in relation to the child, his siblings and paternal cousin.
Informing the child of these orders
28.A copy of these Orders and this Judgment is to be provided to the Court Children’s Service and to the Court Child Expert.
29.Court Children’s Service and the Independent Children’s Lawyer are requested to liaise, and to explain the effect of these orders to the child in an age appropriate manner.
Notifications to DCJ
30.Court Children’s Service are to consider these reasons for Judgment and to make such notifications to DCJ as are considered appropriate in relation to the child and to any child identified in the reasons for Judgment residing in either the mother’s household and the father’s household, and DCJ may be provided with, and have to access, to all affidavits, all evidence admitted, and all materials marked for identification, in these proceedings.
Change of residence
31.The parties are to liaise and the child is to be collected from school today by the mother or her nominee if possible, and if not possible is to be collected by the father or his nominee, and conveyed to the mother’s residence by no later than 4.30 pm Friday 23 August 2024.
32.The father is to arrange to convey the child’s clothes and other possessions in his care to the mother by 5.00 pm Sunday 25 August 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fiedler & Vitale has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These are oral reasons for decision in child-related proceedings to determine what parenting orders are in the best interests of X (“the child”) born in 2016, aged eight.
The decision is to be made, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), as amended from 6 May 2024 and now in force, in relation to a trial which concluded last Friday, having been part-heard and adjourned from July as it required one further day to conclude.
The applicant father is Mr Fiedler (“the father”) born in 1978, aged 46. The respondent mother is Ms Vitale (“the mother”) born in 1985, aged 39.
The Court Child Expert, Ms B (“the expert”), expressed the opinion, in the Child Impact Report at paragraph [40] that:
40. Neither [Mr Fiedler] nor [Ms Vitale] demonstrated any capacity to be child focused and keep [X]'s physical and emotional needs and his right to safety in the forefront…
Unfortunately, after a full trial, I must agree with that assessment.
The expert raised significant and serious concerns about the safety of the child in both households in her three reports. See, for example, Family Report at paragraph [96], including, as she elucidated in oral evidence, major impacts on the child's ability to feel safe, significant negative psychological, educational and general well-being impacts, and potentially, in the long run, an inability to form functioning relationships.
All of these negative consequences of being raised in circumstances of neglect and family violence appear to be manifesting, as evidenced by the child's recent troubling school records.
There is, unfortunately, at the end of the trial, no good option for the child before this Court. I consider both the father's and the mother's households to present significant risks to the child for full-time live-with orders, and if there was another option, I would consider it.
The Court has invited the NSW Department of Communities and Justice (“DCJ” or “the Department”), who have had involvement with both households, to intervene. The request was made on two occasions. DCJ declined to intervene on two occasions and is not a party.
This should not be taken as any criticism of DCJ. DCJ have an impossible task. They face overwhelming demand which they must address with resources that will never be adequate. They must make decisions with incomplete and conflicting information, indeed often false information provided by people who seek to misuse and abuse DCJ’s processes in both Family Court and in children's welfare cases.
DCJ have not, in this case, had the benefit, as I have had, of more than a week's intense scrutiny of both households, through the use of the compulsive powers of the Court to require witnesses, documents, to compel cross-examination, not only of the parents, but of other witnesses, and nor have they had the benefit of an expert with time to focus extensively and solely on the facts in this case and the best interests of the child.
The father's case is that the child is at significant, though not unacceptable, risk in the mother's household. The risks include physical and psychological injury and neglect, in particular physical and psychological injury from the child's older siblings, who I will refer to in greater detail later, M and S. As well, there is neglect arising from the mother's long-term mental health problems, which she has not been willing or able to address, her unwillingness to engage with support services, and the fact that in that context, she is clearly overwhelmed and unable to cope with the requirements of M and S, who both have high needs, and also of her toddler, V, who I will refer to later, and the child.
These risks, as raised by the father, are all clearly established on the objective evidence, despite the mother's denial of most of the relevant facts. The father's case is substantially accepted.
The mother's case is that the father presents a significant risk of physical and psychological harm to the child by reason of family of violence. She alleges the father has a long-term history of violence and family violence against prior partners, of family violence against herself and of family violence against the father's partner from about 2018, Ms D. The mother also alleges long-term substance abuse contributes to this behaviour. In the same way as I accept the father's case against the mother, I accept the mother's case against the father. These risks are all overwhelmingly established on the objective evidence, almost all of which the father and his partner, Ms D, denied.
As this is an oral decision, to avoid the parties having to wait for an hour or two, I indicate that for reasons I will go through now: while I find the child is at significant risk in both households, when faced with a choice between two extremely poor alternatives, but being required to choose, I consider that the risks in the father's household, which are exposure to his significant family violence, are likely to be more persistent and less amenable to correction or amelioration, since it is denied, and because it is fundamental to the father's character as far as I can tell, than the risks in the mother's household of neglect by the mother and family violence from older siblings, which the mother has shown some limited insight into, and which might be capable of reduction to an acceptable level if the mother was to be wrapped with extensive support services by DCJ, assuming she would not continue to refuse to engage with them, and if DCJ was willing to intervene to address the risks that M, in particular, poses to all three of his siblings.
Faced with two high-risk scenarios, and being required to choose the lesser, I will make parenting orders largely in line with the Independent Children’s Lawyers (“ICL”) proposal at MFI 18, which the mother ultimately adopted, and which is primarily that the child live with the mother, who, given the family violence issues and complete inability of the parents to communicate and co-parent, will mean that the mother will also have sole responsibility and sole decision-making power for making long-term decisions for the child.
Despite my significant concerns and reservations, and having raised in submissions the whether the established long-term history of family violence and coercive and controlling violence by the father meant there should be a no-time case, I ultimately accept the ICL’s and mother's proposal that there should still be some unsupervised time between the father and the child. Although I will restrict the time as proposed to daytime only, and I will make the orders that the father's partner, Ms D, not spend any time or have any communication with the child, for reasons I will discuss.
I will also make the time relatively infrequent, being approximately once a month for four hours in public places to reduce the risks of assault on a child, which I find are likely to have occurred by the father. I will also make the time effectively conditional by requiring the father not engage in any acts of family violence against the child. There are a range of other orders that I will make, effectively picking up the ICL’s proposal but with some modifications.
As indicated during submissions, I will direct a copy of these reasons for decision when taken out be provided to Court Children’s Service so that they may work with the ICL to explain the orders to the child.
Also, Court Children’s Service, as a mandatory reporter, may make such notifications as are appropriate to the Department in relation to all of the children in both the father's and the mother's households. In particular the child, the child's three half-siblings and also H, who lives with the father, who I find is likely a child who has also been exposed to the same family violence the child has.
BACKGROUND
The parents met in 2015. Their relationship lasted some months. It ended prior to the child's birth. They have never lived together. There was a dispute as to whether the mother informed the father she was pregnant, or whether the mother did not inform him she was pregnant until the child was an infant. It is common ground the father did not meet the child until the child was a number of months old.
Prior proceedings
The parties entered into an informal arrangement where the child lived with the mother and spent time with the father. They attended mediation in 2016 and agreed on time between the child and the father on the weekend and two days during the week. This agreement broke down. The parties disagree as to why it broke down. I do not need to make a finding.
The father commenced the prior proceedings in about March 2018, after having not spent time with the child for a number of months. The mother says the father had stopped spending time with the child, and she was surprised he commenced proceedings. He says she was not complying with their agreement.
Final consent parenting orders made on 26 February 2021 had the child live with the mother and spend time with the father each alternate weekend and for half of school holidays, with provision for special occasions that gave the mother sole parental responsibility with an obligation to notify, consult and consider, and included a range of relatively standard ancillary orders. I will come later to the fact that it is appropriate for the Court to have and to reconsider those final orders.
In 2021, as a result of having become aware of an AVO between the father and his partner, Ms D, arising out of an incident also in 2021, which will be considered in some depth later, the mother ceased time contrary to those orders.
Despite correspondence from the father's solicitors, the child did not spend time with the father between late 2021 and early 2022.
In 2022, the mother called and texted the father. The father says that the mother advised that she had had a fight with the maternal grandmother, Ms J, with whom she was living and asked him to pick up the child.
The father says that when they met and the mother told him that the maternal uncle, Mr G, had assaulted or attempted to assault the child and that when she, the mother, had intervened the maternal grandmother had yelled at her and threatened to call DCJ about her assaulting a child. The father says the mother told her that the maternal grandmother kicked her and her children out of her home which they were living in with the maternal grandmother and the maternal uncle, and the child and the other children.
I note at that time, the mother, M, S and the child were living with the maternal grandmother and the maternal uncle, Mr G. As I understand it, Mr G is similar age to the mother or perhaps a bit younger. Mr G has a significant intellectual disability and cannot live independently. I find that despite the mother's evidence to the contrary, it is clear that Mr G did attempt to assault the child and poses a real threat to the child or any child in his company.
No moral culpability arises, given that Mr G suffers from severe intellectual disability, but that intellectual disability does not make any child safer in his company. The parties effectively agreed to injunctions regarding Mr G, although I will make them more broadly than the mother and the ICL proposed.
The parties provide different histories around that event, but what is clear is that the mother was in conflict with the maternal grandmother and called the father and asked him to take the child, which he did. The mother's evidence on this topic, as with much of her evidence, was unpersuasive and unreliable.
A text message from the mother to the father that night read (father’s trial affidavit annexure B):
Thank you for coming to get [X] I couldn't stand him being around all that he is safer being with you until I sort things out Give my little guy a big squeeze hug from me with big kisses it's our thing we do every night
In 2022, it is common ground that the mother was admitted to N Hospital. She was released some days later. She was brought in by police as a consequence of posting on social media things suggesting to her friends that she was going to self-harm.
Her mental health, which was and which remains a significant concern, is considered in more detail later.
The father who lived and lives less than an hour from the mother, changed the child's school to K School which is closer to his home, for practical purposes.
In March 2022, the mother attended the child's school and removed him. The father says he was concerned the mother was again living with the maternal uncle, putting the child at risk and so, gave notice of intention to commence recovery proceedings.
The father collected the child in early March and retained him, not letting the child attend that school again until late March 2022, as he was concerned the mother would collect him.
In late March 2022, the child again commenced at K School where he remains.
The father's text in 2022 referred to the conditions of the AVO protecting the child from the maternal uncle, which had been put in place. As I have said, despite the mother's denials, the overwhelming evidence makes it clear, including the child's disclosures, that Mr G did attempt to assault the child.
I note that this timeline around the child's schooling is relevant, given that it is during this period, that the father says the mother coached the child to make false disclosures against him, considered later.
Current proceedings
The current court proceedings were commenced in April 2022. The child continues to live with the father. It is common ground that, pursuant to section 65DAAA, there has been a significant change of circumstance since the final parenting order was made and the parties have agreed, pursuant to subsection (3), to the Court reconsidering these orders. I note that I am independently satisfied that in all the circumstances and taking into account the facts identified in the section, it is in the best interest of the child for the final parenting orders to be reconsidered, as they are being.
Current arrangements
The current circumstances and arrangements are as follows.
The child and the father live with the paternal grandfather, Mr O, born in 1946, at the paternal grandfather's home in Town P, New South Wales. The child's paternal cousin, H born in 2013, aged 11, also lives with them. H came to live with the father in 2022, at about the same time as the child, through DCJ, as it appears H's parents were unable to care for him due to substance misuse, but there are no orders. The father says he has been subjected to various capacity assessments and ongoing contact with caseworkers to ensure H's placement is appropriate and that DCJ have expressed no concerns.
The father cares for the paternal grandfather, the child and H. The father worked in a manual role but has not worked since about the time the child and H came to live with him. He receives government support.
The father has a partner, Ms D, born in 1977, aged about 47. The father and Ms D have been in a relationship since 2018. They have never cohabited. Ms D lives in Town C. She has four children: Mr Q, aged 22, Mr R, aged 20, U, aged 17, and T, aged 16. Ms D is involved in the child's life through the father and said she has strong bond with the child. The father spends some weekends with Ms D, including overnight time, and it was said that the child had his own bed at Ms D's house. Ms D has also been involved in changeovers.
I note the father has one child from a prior relationship, Ms W, now aged 21. The father says there were court orders in regard to Ms W for regular time and he has a good relationship with her. She plays no part in these proceedings.
The mother says she is not currently re-partnered. The child has two elder maternal half-siblings, who I have referred to: M born in 2012, now aged 12, and S born in 2013, aged 10, who both live with the mother. M and S both have mental health diagnoses said by the mother to be of ASD. Importantly, which I will consider in more detail, M has a history of significant aggressive behaviour towards the mother and his siblings and S also appears to have some of these behaviours.
The child also has a younger maternal half-sibling, V born in 2023, aged 1 and living with the mother. V has a different father to the older maternal siblings, but V's father's identity is not known, according to the mother. None of these half-siblings spend time with their fathers.
Based on interim consent orders of 9 December 2022, the child currently spends unsupervised time with the mother every alternate Saturday and Sunday, from 9.00 am to 5.00 pm, with no overnight time.
The mother has experienced poor mental health and significant housing instability, although in relation to housing, she recently obtained government-funded social housing in Town C in 2023, where she now lives with M, S and V. This is less than an hour from the father's house. The maternal grandmother lives nearby her with Mr G, the maternal uncle.
PROCEDURAL HISTORY
Procedurally, the father commenced proceedings on 12 April 2022.
On 11 May 2022, a Child Impact Report was ordered.
On 6 June 2022, interim consent orders were made for the child to live with the father and spending certain time with the mother at Y Contact Centre.
On 31 August 2022, an ICL was appointed, and a request was made for DCJ to intervene. The Child Impact Report, being the first report of Ms B, dated 29 August 2022, was released. As I have said, DCJ has declined to intervene.
Interim orders were made on 30 September 2022 for the mother to spend time with the child, supervised by the maternal grandmother each Saturday and thereafter, for six hours.
Further interim consent orders were made on 9 December 2022 for the mother to spend time with the child each alternate weekend from 9.00 am to 5.00 pm, Saturday and Sunday.
On 14 February 2023, orders were made for the preparation of a Family Report which was released by order dated 28 March 2023. A further request for DCJ to intervene was made, which was declined.
On 28 April 2023, there were orders made by consent for the father to undergo random urinalysis and the matter was transferred to Division 1.
On 11 May 2023, a Family Report Addendum was requested, which was released on 29 September 2023.
On 14 March 2024, the matter was set down for final hearing, commencing 15 July 2024.
Trial and evidence
The trial commenced on Monday, 15 July 2024, for five days in the Town Z Registry. All parties, including the ICL, were represented by counsel.
The applicant father provided a court book (MFI 1) and relied upon:
(1)Amended Initiating Application sealed 17 June 2024;
(2)Notice of Child Abuse, Family Violence or Risk dated 12 April 2022;
(3)Trial affidavit of the father filed 20 May 2024;
(4)Affidavit of father’s partner, Ms D filed 22 May 2024;
(5)Affidavit of the paternal grandfather, Mr O, filed 22 May 2024;
(6)Submissions Bundle, including a minute of orders sought and written submissions, (MFI 10).
He also supplied a tender bundle (MFI 2) from which various documents were tendered which will be referred to if relevant.
The respondent mother provided a court book (MFI 3) and relied upon:
(1)Further Amended Response filed 22 May 2024;
(2)Trial affidavit of the mother filed 22 May 2024;
(3)Submissions Bundle filed 9 July 2024, including updated minute of orders sought and written submissions (MFI 11).
She also provided a series of tender bundles (MFI’s 4, 5 and 6) of potential documents. She also provided six social media videos made by Ms D and posted to her online account, which I will discuss later.
The ICL filed a court book (MFI 7) and relied upon the following documents:
(1)Child Impact Report of Ms B, dated 29 August 2022 (ICL 1);
(2)Family Report dated 17 March 2023 (ICL 2);
(3)Family Report Addendum dated 28 September 2023 (ICL 3);
(4)Submissions Bundle filed 10 July 2024 (MFI 12).
Virtually the whole first day of the trial was spent by the parties in negotiation. The parties then jointly proposed final consent orders, which were MFI 13.
Those orders proposed, amongst other things, that the child live primarily with the father and that there would be joint decision-making, with time to be spent with the mother each alternate weekend from 5.00 pm Friday until 7.00 pm Sunday and for half school holidays.
Exercising my obligation to the child, having read all the material, including the troubling material in the Family Reports which raised significant concerns in both households, but also, having noted what was said by the child in the first report, and significantly, having reviewed one of Ms D' social media videos, which was, in effect, her audio-visual diary, in which she claimed long-term ongoing family violence by the father, who she described as a narcissist, and in which she described, in some distress, her attempts to remove herself from that family violence situation, I declined to make the orders without hearing the evidence and testing the allegations of risk in the father's and the mother's household on the basis that whilst the proposed orders might yet be made, if I was satisfied they were appropriate, it seemed to me that this was a case that required a hearing before orders could be made, as sometimes occurs in this jurisdiction.
The father, Ms D, the paternal grandfather and the mother gave oral evidence, but the trial did not conclude and was stood over part heard for one day to 16 August 2024, last Friday, for the oral evidence of the expert and closing submissions.
Ms D and the father had both been cross-examined at length about an incident which Ms D had alleged to police occurred in 2021, but the substance of which both Ms D and the father had been asked about and had denied during their oral evidence. During the adjournment, the DVEC recording, Domestic Violence Evidence in Chief recording of Ms D to the police was requested by the ICL and produced to the Court and provided to the parties.
In the short adjournment, the father and Ms D allegedly separated because of the unhealthy nature of their relationship, the father said. The father provided a further affidavit filed 12 August 2024, which was read. The father was cross-examined on the affidavit. Ms D was recalled and further cross-examined. The Court Child Expert, Ms B, then gave oral evidence and oral submissions concluded.
The father, Ms D, and the mother were all largely unreliable witnesses. And I place little, if any, weight upon their evidence. They were all happy to lie at will, even in the face of overwhelming evidence that what they were saying was clearly untrue. The only difference between them was that, sometimes, the mother made concessions in the face of overwhelming documentary evidence. The paternal grandfather's evidence did not assist on any of the relevant issues.
Given the unreliable nature of the father, Ms D, and the mother's evidence, I place most of my weight in my assessment of risk in relation to both the father's and mother's households on such objective documentary evidence as available and on the expert's written and oral evidence, and on my assessment of certain likelihoods. I note that there was documentary evidence, including Ms D' six social media videos, many text messages and the DVEC recording, which were extremely persuasive. Also, there was the father's criminal history.
DOES THE FATHER’S HOUSEHOLD POSE RISKS TO THE CHILD
Does the father pose a risk of family violence to the child?
I will start with the father's household and the question of whether the father's household poses risks to the child.
The mother alleges the father engaged in coercive controlling family violence during their relationship. She said this was the primary reason the relationship ended. She said the father mainly used verbal abuse, intimidation, coercion and control. She said she often agreed to his requests to "keep the peace". The father denied any family violence within their relationship.
In relation to that relationship, I note that the mother's hospital records in 2026 gave a contemporaneous history that the father “… has not hurt her but is frightened of him. She states he knows about this pregnancy and is aware of her home address” and it continued that “[Ms Vitale] states that he has threatened to "get her kicked out of [her] house" & "to have his cousin come and hurt her”. [Ms Vitale] is wanting to remain completely uninvolved with this man.” I give particular weight to this contemporary declaration outside of any court or police proceedings given to a health professional.
In 2016, the mother again told the hospital she was frightened of the father.
In 2019, the mother says there was an assault at a handover of the child, pursuant to court orders, which she said both Ms D and the child saw. The mother reported that assault to police. On her solicitor's advice, the mother reported this to her GP Dr BB in 2019. Dr BB's notes detail the history of an assault when trying to get the child out of the father's car, with the father assaulting the mother. Significantly, Dr BB noted on examination injuries present to the mother’s body. Whilst made in the context of proceedings, I give weight to the visible injuries observed by an independent medical practitioner and consider this as weight to the mother's claim. The mother reported this event to DCJ in 2019.
The mother says that the father has been, and on her case, she believes continues to be, a significant user of cannabis. The father's oral evidence was that he used marijuana in his younger days, he said 12 to 13 years ago, and then on the one and only occasion when he went to City DD, used marijuana at an event in 2021, and was unlucky enough to be roadside drug‑tested.
The mother also alleged a history of family violence by the father against Ms D. The father and Ms D both vehemently denied that the father has ever perpetrated any family violence against Ms D, neither any physical assault, threats, verbal abuse or intimidation. Ms D denied she had reported any family violence by the father to the mother as the mother alleged.
The father and Ms D said that they have had arguments which would be considered normal relationship disputes and denied any family violence. They explained that the ADVO relating to the events in 2021 was a result of police overreacting and denied any assault. Significantly, they also denied that the child was present at the time, contrary to the police record. The father and Ms D's denials to the experts and in their material was maintained in their oral evidence.
The father told the expert (Family Report at [31]) he:
31. … strongly denied all allegations he has ever used coercive control tactics, or that he has ever physically assaulted the mother, the step-mother or any other person, or that he has ever made threats to do so.
The father also denied ever assaulting the child. The expert noted that the child had indicated that family violence was still occurring between the father and Ms D during one of the interviews. The expert highlighted that Ms D refuted all allegations that the father had ever perpetrated family violence towards her. The expert noted there were a number of indicators that the father did have a history of perpetrating family violence, but this was a matter for the Court.
In his oral evidence, the father repeatedly denied ever assaulting the mother, and ever assaulting Ms D or any other person, until taken to specific documents, which proved the contrary.
In particular, he said that he had never assaulted Ms D's second son, Mr R, and that he had not attacked the child, although he said he had threatened to assault the child with an object.
In forming my view of the father as a high and ongoing risk of family violence to the child, I take into account the totality of the evidence, including the specific matters I will refer to.
Father’s criminal history and drug use
The father accepted in oral evidence that the report produced on subpoena by New South Wales Police was accurate and I rely upon that record (Ex Q).
The father accepted he had in fact been convicted of assault but said it was a long time ago.
I note that the father had denied ever assaulting anyone, both to the expert and in oral evidence, until taken to this criminal history.
I will not go through all of it, but he was convicted in relation to events in 2004 with assault for which he was fined. The police recorded that he had driven to a retailer, parked outside, exited the vehicle and yelled, "Where’s your fucking boss" before walking into the retailer and saying, "I want to see your fucking boss." Then assaulted the victim before running out the door and driving off.
In oral evidence, the father did not substantially dispute this matter, for which he was convicted and fined. But rather than showing, at this much later date 20 years later as sometimes occurs, contrition and recognition of this as entirely unacceptable behaviour, the father was evasive. He sought to minimise, and even went so far, despite being convicted, as seeking to justify his conduct in assaulting someone in this way by saying that he was "being harassed" and they would not let him in and indeed, "surrounded him."
As I have said, the fact that this was 20 years ago, when he was a much younger man, is of no comfort, given the father's decision to depict himself in court, as in effect the victim, and any absence of any insight or contrition for an assault.
It is consistent with the totality of the evidence, in particular, the evidence in respect of Ms D, although not from Ms D, but the evidence given by Ms D on six video diaries where she describes the father's behaviours, and on the DVEC, where she describes the father's behaviours, that he is a person who continues to believe that he is entitled to use verbal and physical violence and coercion and control when it suits him, and who chooses to display himself as the victim, despite being the perpetrator.
In 2005, two very concerning events occurred.
The father was convicted for offences in 2005 of assault with a term of imprisonment, suspended on entry into a bond and directions from probation and parole, and at the same time, was convicted for contravene ADVO in respect of events in 2005 in respect of his former partner, the mother of his first child, and was also sentenced to a bond and supervision to include behavioural change.
The police events record that in 2005, the father saw the victim and the victim's girlfriend. Their identities are not known as they were deleted in the documents produced. The father, in oral evidence, denied the victim's girlfriend was his ex-partner, Ms CC, who he was convicted for breaching an ADVO. It is not clear, then, why the father committed these violent offences.
For reasons which are not stated nor explained by the father in this trial, the father began to assault the victim until the victim pushed the father's hands aside, after which the father continued trying to assault the victim. Police were called and the father absconded (Ex Q). In oral evidence, the father denied any significant recollection of this event, despite it being a serious assault, but conceded the conviction. His denial of recollection was not persuasive.
The police event records an ADVO was served on the father in 2005 for the protection of his former partner. After the assault on the victim and the unknown girlfriend, who the father denies was Ms CC, the father went to his ex-partner's home, and when she heard an object smash against the front of the house and saw the father standing down the road, she contacted police. There was a smashed bottle of alcohol on the ground. She says the father called her a "dog cunt." Police attended saw the glass, saw the father and followed the father, finding him hiding. Police say that he said to them, "[y]ou cunts have the wrong guy" and adopted a fighting stance before being physically restrained. The father was, they said, well affected by alcohol due to his slurred speech. They said he was verbally aggressive and threatened them (Ex ICL 6).
In oral evidence, the father accepted he was present but said it was 19 years ago, his memory was vague, said he had been drinking, but was “not legless”, he dropped the bottle but did not smash it. He denied calling his former partner a dog cunt. He said, although he thought it was not a good idea to attend her house, given the ADVO, at the time they were both "bending the rules." He said this event was part of the reason he does not drink any more.
The father completed a domestic violence program in 2006 as part of the conditions of his sentence. He included that certificate in his affidavit to show he was aware of family violence issues and to suggest he had learned to control his behaviours.
In 2010, the father was convicted for drug posession and fined (Ex Q). He admitted to having cannabis. There were trace amounts of an illicit substance which he said were in the bag. The substance does not appear to be an issue in the trial, but cannabis use certainly does.
In 2010, the father was convicted of assault and given a bond with orders for alcohol counselling and drug counselling as directed by probation and parole. While walking along the street, the father urinated on private property. When the owners complained, he yelled at them, "[y]our a dog, your a cunt." The police were called. The father then returned, walked up the driveway to the victim, yelling, "[c]ome on, have a go" and then, attempted to assault the victim, missing as the victim ducked and moved backwards. The father ran away, and the police found him, by using a police dog (Ex Q). In oral evidence, the father said he had no recollection of the incident, even at the time, and had to have the dog marks, which apparently the police dog had inflicted, explained to him.
In 2012, two years later, the father was convicted of assault and another offence. He was fined and ordered to pay compensation. In oral evidence, the father said he was having a drink and suggested that he, in fact, was the victim and he, in fact, was the person who had been assaulted, even though he had pleaded guilty. Again, even in the face of evidence of a conviction for assault, the father took the opportunity to try and deny liability, deny responsibility and go further and to suggest he was the victim.
In respect of events in 2014, he was convicted of assault and given a bond. In oral evidence, the father said that a neighbour, who was intoxicated, ran at him, he pushed them away and then, when he came at him a second time, he assaulted him. In oral evidence, the father sought to portray himself as the victim again and said, "apparently, I should not have hit him", seeking to suggest that it was wrong that he had been convicted of assault.
Again, it is part of a pattern, not only of behaviour, but of presentation in the witness box of a person who was entirely unwilling to accept any responsibility for his own behaviours and to play the victim.
The father, as I said, denied that he had used cannabis for 12 or 13 years, so back to about 2011, 2012, except for the one occasion when he was roadside tested. It turning out to be a terribly unfortunate coincidence that on the one and only occasion in which he happened to use marijuana in 12 years, he was tested.
But in 2018, during the course of the first proceedings, he attended N Hospital complaining of generalised cramps and twitches. The clinical notes recorded (Ex ICL 6):
Binge drinking monthly or every couple of weeks when goes out – Nil recent EtoH Initially denied illicit drugs but then admitted to smoking [marijuana in] the last month – Didn’t have any for the last 4 days
The diagnosis was “drug withdrawal”.
In oral evidence, the father denied he had given this history and denied there was a basis for the diagnosis, although he accepted that he was told at the time this was the diagnosis. He was not able to offer a reason why, having not said that he had used drugs, that he was given this diagnosis, or why the hospital would record that history. He said perhaps they confused his smoking cigarettes with marijuana, except of course, the notes recorded smoker “[…] cig/day. Marijuana almost daily."
It is clear that the medical practitioner has distinguished the father's cigarette smoking from his marijuana use for the last month.
While mistakes sometimes occur in hospital records and one must be cautious in interpreting them, I do not accept, particularly given all the other evidence around the father's drug use, some of which I have covered and much of which I will come to, that this was an error. I note that this decision to go cold turkey occurred during the course of the first proceedings. The father's evidence in regard to this was entirely fanciful.
In 2019, there was an event which I will come to in a bit more detail later when discussing Ms D, where Ms D texted the mother (Ex P) that the father was " a drug addict" who "[assaulted] my kid drug fucked idiot." The kid being her son, Mr R, who was 15 years old. She also text the mother, "[h]e on too much pot paranoid sckitzaphrenic [sic] u need to protect ur kid”.
Ms D accepts she sent this, although she denied in evidence, in fact, that what was in it was true. She denied that the father had assaulted her, had assaulted Mr R, or indeed, was using drugs. But agreed on the day, that is what she said.
In 2021, the father tested positive for cannabis. But as I have said, he said he was just extremely unfortunate that on the one occasion he used cannabis in more than a decade, it happened to be the one time he was tested.
Interestingly, the father was recorded as telling DCJ in 2022 that he "does occasionally use marijuana." Of course, he denied having told DCJ that in oral evidence. It is not clear why DCJ would have lied about that or made that mistake.
Having been taken through much of the evidence about past violence and convictions, and before coming to the issue of family of violence with Ms D, the father said he did acknowledge his past, but as to why he had told the expert and the Court that he had not had any history of violence, he said he "did not realise" he was going to be asked about going "back to early childhood”. When it was pointed out he was not being taken back to childhood, but to his adult life, he, again, was evasive and deflected and said he did not realise we were interested in his "younger years, earlier life, old life”.
Despite the evidence of having attended at a hospital, giving a history of marijuana use each day for the last month, and the diagnosis of going cold turkey, he maintained persistently his denial that he had used cannabis, except once, for 12-13 years.
That evidence was entirely fanciful and unbelievable and the father showed his willingness to lie with great determination and earnestness, even in the face of overwhelming evidence to the contrary.
That willingness to calmly lie continued in terms of the evidence about Ms D and her social media account and the events in 2021.
Ms D and domestic violence
I come now to Ms D and the father, and the clear evidence that theirs is a relationship marred by extensive family violence, in particular abusive and intimidatory conduct by the father, and coercive and controlling behaviour with occasional physical events, much like the mother described.
I note that the father and Ms D both vehemently denied any family violence by the father.
In terms of Ms D, the denials were very troubling.
But having said that, having been shown the social media videos (Ex A-F) and having been provided with a DVEC (Ex ICL 7), the father and Ms D both agreed that they did, in fact, have an unhealthy relationship sufficient for them to separate in the adjournment, although not being willing even then to admit any of the facts upon which one might find there was an unhealthy relationship.
Now, as I said, in 2019, there was an event. The police recorded that the father and Ms D had gone to Region F with the child and some of Ms D's children. An argument occurred. The police recorded (Ex ICL 6) Ms D, "called Police stated that the respondent made threats towards her and the children." She called again while driving back to the accommodation. The police arrived. The parties were arguing about property. The father had keys to the property and that was sorted out.
As I have said, Ms D texted the mother in 2019 saying (Ex P):
You should really think twice about letting your son go with his drug addict father. Ive had to call police
She advised that:
He [assaulted] my kid drug fucked idiot
Identifying her second son, Mr R, 15. She texted the mother that the child was "with him confused as shit with the cops he calling me a putrid cunt." Confirming the child did, indeed, see what happened and again, stating:
He on too much pot paranoid sckitzaphrenic u need to protect ur kid
(As per the original)
And, concluding:
If u ever need any back up let me know. He doesnt deserve him smoking drinking fighting around him
The New South Wales Police recorded (Ex ICL 6) the event in 2020, that there was an argument between the parties after they returned home.
As I said, in oral evidence, both the father and Ms D denied the drug use, or that he ever assaulted Mr R.
The father was taken through the extensive vulgar text messages, which I will not read onto the record, in which he called Ms D derogatory names and did not deny them but nor admit their effect.
Now, we then come to the six videos which Ms D had posted on a social media platform. In her oral evidence, Ms D did not deny that they were hers. She did not deny she was speaking about the father. She said she thought her account was private and not for the whole world. That may well be the case, but the documents were obtained and were tendered.
The videos were given names based on their content such as "[…]" (Ex D) noting that in it Ms D refers to the father as a narcissist. Another one was, "[…]" (Ex A) which speaks for itself, and other similar titles.
The videos show a distressed woman in a long-term toxic relationship struggling to leave.
They make distressing and depressing viewing, as I have said, particularly when Ms D then insisted on denying the substance of the videos and indeed, going out of her way to be angry and aggressive in evidence to try and do everything in her power to lie on behalf of the father.
In oral evidence, the father said he was aware of the social media videos which had been served but had not seen them or been shown them. Before being shown the video, the father gave evidence he had never called Ms D abusive names such as "menace cunt", which evidence he had to later accept was not correct as he clearly used such terms to her, including in text messages.
Neither Ms D nor the father were able to give any explanation why Ms D, who says there has never been any domestic violence, says things in the videos which they both say are not true, nor why she would have posted them.
Ms D eventually gave a contorted explanation that she was trying to get back at the father by lying about him because he had hurt her, but on her evidence, he had not hurt her.
Her evidence was the fanciful nonsense of a woman caught in a lie for which there was no explanation, but entirely unwilling to concede the fact that she was lying.
No one who sees these videos could have any doubt that the father has been a family violence perpetrator against Ms D, that he has caused her extreme distress, and that for whatever reasons she been caught in this toxic relationship.
While I do feel some sympathy for her, and hopefully, she was telling the truth when she says she has left the relationship now, although I doubt it, and hopefully, she will eventually manage to secure some safety for herself, but Ms D's evidence on the topic was entirely dishonest, designed to say whatever was required to support the father's case.
Ms D turned up and clearly perjured herself by lying in order to help the person who is abusing her to retain the child, who she must have been aware, and have seen, the father abuse. This is one of the reasons why under no circumstances should Ms D ever have any contact or communication with this child again, as she has been willing to lie and sacrifice the child’s well-being to maintain her toxic relationship with the father.
I note, that I gave her a s 128 certificate, given she is a stranger to the proceedings, and I am not suggesting she should be prosecuted for perjury.
We come to the events in 2021. The mother says (trial affidavit at [31]) that Ms D rang from the father's mobile phone and told her:
“I've had a fight with [Mr Fiedler], it's been going on all day. We were in the car with [X] and the argument escalated. We ended up outside the car [fighting] with the car alarm going off and [X] still in the car”.
She says she asked the father about this and that he denied it. When the mother found out about the AVO, she stopped time, as I have said.
The father's evidence was that after the mother stopped time, he sent a letter. The letter was dated 23 November 2021 (father’s affidavit annexure A), from his solicitors saying:
We are instructed in relation to the AVO, this was as a result of a verbal argument between our client and his partner in which the police were called. Our client instructs he was found not guilty of any offences in relation to the incident. We are instructed the child was not present at the time of this argument and has not been in the presence of any family violence in the father's care. Therefore, there is no risk to the child.
The police event which was tendered (Ex Q) and was created by a police officer, who Ms D confirmed she gave a statement to. The police statement said there was a DVEC, a Domestic Violence Evidence in Chief statement, which ultimately, was tendered.
Ms D, in oral evidence, noting that she gave her first set of oral evidence before the DVEC was available, effectively disputed that the police accurately recorded what had occurred, despite it being said to have been created based upon the DVEC.
In effect, what the police recorded was that they had been in a public place, had a verbal argument, the father became extremely agitated, she said she was going to walk home, he said “[g]et in the car dickhead”, she walked home, she said she got home and locked the doors, fearing that he would turn up and continue to abuse her and that her four children were present. It recorded that the father began banging on the front door. When it was not answered, he began ringing Ms D's phone, continued to bang on the front door and yelling, "[o]pen the door, open the door." She opened the door.
He said he wanted his stuff. She said she had already bagged it up. Ms D wanted her mobile phone back. She went to take her mobile phone, and it was recorded that:
At this time the accused was placing his son, [redacted] in his vehicle.
It records that Ms D took the mobile phone from the father's back pocket while he was putting the child in the car. He ran into the house and has taken her mobile phone after an argument. He then physically pushed her several times whilst in the hallway, pushing her through the front door. She got in the front seat of the father's car while trying to retrieve the phone, and he has driven off. She said that he had grabbed her by the front of her shirt and pulled her towards him across the seat in an attempt to retrieve the phone. She eventually got out of the vehicle and walked home. Police turned up because they had been called by some third party, it appears, and the DVEC was recorded.
Another thing neither the father nor Ms D could explain was why, if, as on their version of events, this was a minor dispute, where the father turned up, knocked at the door, did not bang, there was no real argument, just a little tiff, people would have bothered calling the police.
Ms D visited her GP, Dr DD, in 2021, some days later. Despite having given evidence to me that what was in the police record was wrong, she told her GP, as recorded (Ex ICL 6):
Had a major argument with ex partner [some] weeks ago - he tried to restrain her in the car physically and yellig at her - her children witnessed this - called their grandparents who rang [Ms D] - he has confiscated her phone and licence - so they called the police
He went to police the following day - had court yesterday - police charged him he has not pleaded guilty
[Ms D] had been with him [some] years - only minor disagreements . She feels she still loves him. [Mr R] misses him [EE Service] has put her in touch with a psychologist
AVO out on him
(As per the original)
As I have said, in oral evidence, the father effectively denied that there was any violence. It was just a minor argument which had been blown out of control. In terms of the question of whether he was driving in an angry fashion over the speed limit, as reported to DCJ, he denied that. Significantly, he has said that the child was not present, as he had left the child with a friend in a public place.
In oral evidence, Ms D also said that the parties had left the child with a friend in a public place and that the child was not present during any of the events. She also denied the substance of the violence, saying it was just a small dispute. She could not explain why she had lied to her own GP about the events some days later.
Ms D agreed that EE Service, who Dr DD had put her in touch with, is a domestic violence support organisation, although Ms D says that she attends the service, and they help her, despite her not being a victim of domestic violence.
It is common ground there was an ADVO. It is common ground that there were charges which were dismissed after the hearing. However, in oral evidence, Ms D said she attended the criminal trial and gave evidence, in effect, denying the substance of her contemporaneous complaint, where of course, explains why there was no finding of guilt.
As I have said, during the adjournment, the DVEC became available, and after Ms D was recalled, she was asked about it.
In the adjournment, the father had filed an affidavit saying that he and Ms D had separated to protect the child, noting it was an unhealthy relationship. He said he was going to do a men's behaviour course because, whilst he was good, he said, he was not 100 per cent.
The DVEC was shown to the father and Ms D. It shows Ms D being interviewed at her home in 2021. She was visibly distressed as she identified the father. What is in the recording is consistent with the police event record
Significantly, Ms D mentioned, as the ICL submitted casually or as an aside, that she tried to get the phone from the father's back pocket while he was strapping the child into the car seat.
There was no reason for her to lie to the police at that time. It was not clearly a significant issue.
I accept the ICL’s submission that the father and Ms D conspired in their giving of evidence to fabricate an excuse that they left the child in a public place. This is another reason why I find they are both almost entirely unreliable witnesses.
The DVEC ends with Ms D saying words to the effect of “I feel scared because he’s threatened me and the kids that if I did tell you guys what was happening, I’ve just unleashed a world of terror on my family.” She said in the car she was "scared… I have never seen him that angry before" and also, that "he is under the influence of drugs today … He is on marijuana, but he is like smoking all the time."
The father was recalled, shown the DVEC and denied the child was present in the car, and generally maintained his denials.
The DVEC and social media videos, the father's abusive and vile messages to Ms D, particularly in the context of the father's history of violence, and the evidence from some days later when Ms D saw her GP, are I find overwhelming evidence that throughout their relationship the father has engaged in verbal abuse, occasional physical assaults and has engaged in generalised coercive controlling behaviour of Ms D which may, to some extent, explain why she has taken the course she has taken in choosing to come and deny the truth of her audio-visual diaries.
Ultimately, it is confirmed to some extent by the evidence they separated as a result of the relationship being unhealthy, although they could not say why it is unhealthy, given they both deny most of the substance of what was put to them.
Taking into account that it appears that Ms D was honest in the DVEC and the social media videos, and given the father's history of violence, which was established against other people in his criminal history, I find that it is likely that what Ms D texted the mother about the father's drug use was correct, noting it is consistent with the other evidence, which also means that it is likely I find, on the balance of probabilities and noting the gravity of the finding, that the father assaulted Mr R at age 15 when drug-affected.
That is an issue which the expert considered in her oral evidence was not only concerning, but consistent with the child's disclosures that the father has assaulted him, which I will come to.
Given the totality of the evidence, in particular, Ms D's reference to his drug use and the admission for withdrawal, I find there is a high likelihood that the father continues to abuse cannabis and that this is a contributor to his persistent family violence behaviours. I note that there were urinalysis results, but given his ability to go cold turkey, as proven by his admission during the prior proceedings, I give no little or no weight to those tests. All they show is the father can abstain when he wants or needs to.
In the context of the mother's contemporaneous reports to health authorities, I accept the mother's evidence the father has also engaged in similar aggressive and controlling behaviours towards her.
I make these findings by reference to the gravity within s 140(2) of the Evidence Act 1995 (Cth).
I have these findings in mind when I come to consider whether the father has been committing acts of family violence against the child as disclosed by the child. There can be no doubt that the child has disclosed that he has seen the family violence between the father and Ms D and given my finding, it is clear that he has been.
I note that Ms D said that, if necessary, given that she says she is no longer in a relationship with the father, she would not oppose orders that she have no contact with the child if I thought it necessary, although I suspect her reasoning was that she thought it would allow the child to live with the father.
I see no benefit to the child in maintaining a relationship with Ms D, given he is not related to her. She says she is not in a relationship with the father, and she has come to court and chosen to give false evidence, although under a s 128 certificate, but still false evidence in a way which would actively undermine the child's safety and harm him. I consider her therefore to be a person who is dangerous to the child, and I will make the injunctions proposed by the ICL that the child have no contact or communication with Ms D.
DOES THE MOTHER’S HOUSEHOLD POSE RISKS TO THE CHILD
I now come to the question of the risks in the mother's household. I will consider these risks, but I will go into less detail, not because they are not almost as grave as the risks faced in the father's household, but only because it is not as necessary to go through the evidence, given that despite the mother's denials, as I understood the closing oral submissions on her behalf, her counsel effectively conceded that the risks identified by the expert, the ICL and the father exist.
The submission in the face of the overwhelming evidence, not unreasonably, was that the mother cannot really dispute these risks, though she did, but submitted, as the ICL did, that the mother has, or is developing some insight, and that on balance, the risks in the mother's household are slightly less, and are potentially amenable to correction and amelioration, and that in effect, on balance, they pose less overall risk to the child.
I note, that to the extent to which the father's submissions were that his decision to attend a men's behaviour course and to terminate the relationship with Ms D showed that he was developing insight during the trial, I give no weight to that. I consider it was purely a forensic move by the father to try and somehow avoid the consequences of the overwhelming evidence in the case against him.
The mother’s mental health
The mother's mental health is clearly a major concern.
The clinical notes from 2022 indicate she has been brought in by police for suicidal ideation. They refer to previous self-harm attempts which are denied, previous self-harm which was minimised, cannabis.
She was diagnosed with both mental health conditions and suicidal ideation. I do note that one of the issues recorded was that she was (Ex ICL 6) “… struggling for the last 7 months, especially with issues relating to biological father of her youngest kid [X]”. So that this conflict was a factor.
But a review of all the evidence indicates that the mother has significant long-term mental health issues. The really troubling thing is that as the mother told the expert at paragraph [48] of the Child Impact Report, that despite being given a mental health discharge plan in 2022, she was not following it. The expert recommended the mother should consider attending her local GP, and obtaining a mental health plan, and to engage with community mental health team for ongoing support and counselling. At trial the mother had not taken this recommendation up nor sought any ongoing support despite it clearly being required.
The mother's evidence in respect of her mental health was equally evasive as the fathers about family violence.
It gave me no confidence whatsoever that the mother is likely to now commence engaging with mental health support, despite the fact that submissions were made that she would. She clearly needs that assistance. The expert identified just how concerning this was, given her long-term history, and obviously, it is not the mental health issue itself, it is the fact that it clearly has a significant impact on her parenting capacity.
There is a long history of neglect: neglect of the children's medical needs, neglect of the children's educational needs, neglect of the children's emotional needs, neglect of the children's safety needs.
There was other medical record evidence where the maternal grandmother, after the mother's release from hospital, said she was basically sleeping all day and she, the maternal grandmother, had to step in. The mother denied that. I do not accept the mother's evidence about that.
It is unfortunately a case where both parents choose to lie, rather than acknowledge overwhelmingly probative evidence. It gives me no confidence, as I have said, the mother is going to do anything about these issues.
One of the difficult issues with mental health concerns, such as the mother has, is that the mental health problem itself may be a significant reason why the mother is not able to address her mental health. The problem is, as I raised with the mother's counsel in submissions, whilst that may mean that the moral culpability is different, compared with a person who chooses to commit family violence, a person who by reason of poor mental health cannot address their mental health may not have the same moral culpability but that lack of moral culpability does not reduce or affect the risk that the child and indeed, the other children in the mother's household, face because of it.
Mother’s relationship with maternal grandmother
I note the mother denied she had a bad relationship with the maternal grandmother. The documents, including the maternal grandmother's records of statements to hospitals, indicate that is not the case. Although the maternal grandmother does seem to step up and help the mother from time to time, they clearly have a fraught relationship. She was not called.
Neglect of children’s needs
The evidence establishes the mother has struggled for a long time to obtain and maintain appropriate medical care for the child or his siblings.
She has struggled to ensure their educational needs are met.
The mother, during the course of these proceedings, regularly failed to call the child on occasions when the orders allowed, or to spend time with him when the orders allowed. The mother's evidence was that telecommunication was difficult due to the child being distracted and the father not providing a quiet space, but the evidence she gave explanations that she missed some calls, for one call she said she was busy with the baby, that is unfortunate, but she missed another call because she was putting groceries away. Another one because she forgot.
The mother appeared to show little or no understanding of the impact of this on the child. It is not clear why she could not have delayed putting groceries away for a few minutes to at least call the child, who was waiting to speak to her, to tell him that she loved him and that she wanted to speak to him. It is not clear why she could not set a reminder on her phone so she did not forget a weekly call.
This cavalier approach to maintaining contact with the child who she wants to live with her and her evidence on this topic were extremely troubling. They speak of an overall lack of insight into the child's emotional needs and a lack of basic organisational skills and parenting capacity.
Mother’s substance use
The father says he is concerned the mother is smoking marijuana. The mother's denials of the history of marijuana use in the evidence were lies. Whilst the mother's marijuana use does not appear to be a current major issue, the possibility that, when overwhelmed, the mother will again turn to self-medication through cannabis is extremely concerning, particularly overlaid with the history of mental health problems and the history of neglect.
Mother’s housing stability
I note that an issue was the mother's housing stability where she was kicked out of the grandmother's house, was in temporary accommodation.
That has now been satisfactorily addressed with the paid housing.
Maternal uncle
The evidence overwhelmingly establishes that the mother's maternal uncle, Mr G, tried to assault the child whilst she was in the house.
The mother's denials about this, contrary to the child's disclosures, were troubling. They reflect poorly on her credit and her protective capacity.
The fact she states that if something happens to the maternal grandmother she will take Mr G in, rather than letting him be placed somewhere, shows a lack of insight into the needs and fundamental safety requirements of the child and her other children, given that again, there may be no moral culpability to Mr G, given that he suffers from these significant mental impairments and may not really understand the effects of what he is doing, but that does not mean that he is not a risk, given he is an adult who can easily harm a child because he does not understand what he is doing.
M and S
It is also clear that, as the father alleges, the child is being assaulted by his two older brothers in the mother's home.
The mother's attempts to minimise this were, again, troubling and amongst the reasons why, as I have said, I consider there to be no good option, only two bad options of which I must choose the “less worse”.
In 2023, DCJ recorded an incident in which M threatened the mother, noting he is now approaching 12, he is entering puberty and as I understand it, he is getting larger. DCJ were told he was staying with the maternal grandmother because of the threat, but it was recorded that M had then assaulted the maternal grandmother and hurt the maternal grandmother. It was reported that M would also do things, not only scream at and swear at the mother and at the other children, but having mental health issues, not understanding the consequences of what he was doing, would also attack others, which, as DCJ reported, meant that M was constantly putting himself and others at risk of significant harm.
Now, the mother was said by DCJ to be receptive to receiving help. However, it was recorded that although she was encouraged to access NDIS support, she had not followed through.
The mother denied, effectively, the 2023 incident. I find her denial was entirely false. She was clearly involved with DCJ in the reporting of it and addressing their questions.
Her denials here, again, give me no faith whatsoever that she will do anything to protect the child or the siblings, and in particular, there is a toddler who has no self-protective capacity, who could be accidentally killed by M because of M's behaviours.
The mother accepts the child was hospitalised on two occasions when in her care. It eventuated, in oral evidence, that one of these occasions was a result of M's direct conduct. The other was apparently just a normal childhood accident.
Even when the child spoke with the ICL just before the last day of trial, the child informed the ICL that when at the mother's house recently, M threw an object at S which nearly, but didn't actually hit S, and again, M went to the maternal grandmothers.
Now, the maternal grandmother was not called for whatever reason. The fact that she is there may provide some options, but the reality is M has not been permanently placed with the maternal grandmother, and I proceed on the basis that M will be in the house and living with the child and posing a real and present risk of danger of family violence to the child when the child lives there.
Apart from the denials and attempts to minimise M's behaviour, I am concerned that when asked about these issues, the mother seemed to think it was the child's responsibility to protect himself by acting more carefully around his older brothers and not upsetting them.
I do not wish anyone to think that I do not understand the mother is in an impossible position.
She does not want to abandon M. She has no one who she can place M with or who can consistently help her care for M, given that her mother is caring for Mr G. Mr G poses an even greater threat, given his age and adult size. It appears that when M went to the maternal grandmother, he assaulted her and hurt her, but her impossible position does not reduce the risks that M poses to the child, to V, to S and indeed, to herself.
The evidence about M's threat to the mother was almost enough to sway me to place him with the father, despite thinking that this might be a no-time case with the father and given everything I have said about the father.
I have spent a considerable amount of time thinking about it. As horrendous as it would be for the child to live in a house with the father, who I find has physically and verbally assaulted him and exposed him to violence in respect of Ms D, at least the father is unlikely to accidentally kill or permanently maim the child, which is a small but real risk in the mother's household, given M's behaviours.
Nevertheless, doing the best I can to weigh these two positions, as I have said. I think that the malevolence of the father's conduct and the possibility of amelioration in the mother's household mean that, to the extent to which I must make a finding, I think the mother's household holds slightly less risk.
I note that there is also evidence that S acts out and is violent, possibly due to mental health conditions, possibly as a result of the environment in which he lives. I read on to the record what the expert said in the Family Report starting (at [40]):
40. The mother explained [M] and [S] have a diagnosis of ASD, […] and they can exhibit challenging behaviours […]. The mother said this particularly applies to [S] who continues to struggle with emotional regulation and he will often [assault] [X]. The mother advised the separation of the siblings is contributing to the friction due to the fact [X] does not understand the social ques from [S], and when [S] needs time out. As a consequence [X] will often follow [S] or ‘get into his face and personal space’ and at times [S] will act out and [assault] [X]. The mother however did not report any behavioural management strategies which would ensure the siblings are not [assaulting] [X] and simply advised they required behavioural management support.
It is troubling that when speaking to the expert, the mother put the onus on the child rather than herself to ensure his protection around S.
In oral evidence, the mother said to me, words to the effect of "I can’t be at all places at once." That is true, but it merely emphasises the risks to the child in the mother's household.
Her denials and abdication of responsibility are extremely concerning.
Mother’s lack of a licence
I note there was an issue about the mother not having a driver's licence. That does not seem to have affected her parenting capacity.
Mother’s parenting capacity
In summary, the mother has limited parenting capacity, is largely overwhelmed by a combination of her poor mental health, refusal to engage with mental health services, refusal to engage with other supports offered, and frankly, the enormous workload associated with caring for two high-needs older siblings, a toddler and the child when present, with no support, and dealing with all the issues around her.
As I have said, whilst her poor mental health may be driving much of what else occurs and may be the reason she cannot or will not seek mental health treatment, that does not make the child any safer.
As I have said, if there was another option, I would consider it and placing the child with the mother is not a finding that he is safe there.
THE CHILD
In respect of the child, at the Child Impact Report interview on 23 August 2022, the child was in kindergarten, both parents described the child as being “beautifully natured”, saying he “loves school […] playing outside [and extracurricular activities]” (at [11]). No issues of concern were identified.
We then move forward to 2023, when the father says this child started to become violent towards other children at school and the child was suspended.
In the Family Report interviews, the father described the child as a naughty child, as did Ms D.
I will note that the child is Aboriginal via the father's maternal family line and descent. The father told the expert he knew (Family Report at [6]) “… little information due to being estranged from his mother for the majority of his life.” He considered it important that X identify as Aboriginal, and the father said he was “at the beginning of his journey to learn and discover information about his Aboriginal community, heritage, culture.” I have given significant weight to this as required by s 60CC(3), and I recognise that the limited time the child will spend with the father will make this very difficult, but the Act makes it clear as to the authorities that the child's safety is the primary responsibility. I note that to the extent to which the Act is new, the second reading speech commences with the Attorney-General pointing to safety being the overwhelming consideration to the amendments.
Schooling
The child's behavioural records (Ex M) provided from 2023 to 2024 indicate significant behavioural issues escalating over time. These include refusal to follow instructions, being rude to other students, curling into a ball and not responding, refusing to play well with others, telling other students, "No-one cares" over and over again, kicking and throwing things off his desk, kicking chairs, throwing a bike on the ground, kicking it, repeatedly creating disturbances in class, screaming, shouting at and making punching motions towards and scaring other students, wrapping his arms around and pinching another student, pushing and hitting other students on more than one occasion.
The child was suspended in 2023 for actual harm aggressive behaviour. The behaviours continued and escalated to the child assaulting a teacher and repeatedly shoving the teacher in 2024, resulting in a formal suspension.
Medical
The child has seen Dr L, consultant paediatrician, who also sees M and S. His reports (Ex L) starting from 2023, indicate that the child's "Connor’s Testing" at school suggested ADHD, but at home were fairly normal. He indicated the father was not keen on trialling medication, but when the child's behaviour deteriorated, medication was prescribed and the child commenced on it.
In oral evidence, the father sees reluctance to trial medication was because he thought the child may be demonstrating learned behaviours from his brother.
The father's position raises an interesting issue, which is that the child's behaviours may be a result of his experience of living in a world of constant family violence, being exposed to family violence in both the father's household and from M and S in the mother's household, and from neglect in the mother's household.
On the evidence before me, the child's statement recorded at school that, "No-one cares" is a reasonable statement of his objective position, based on the evidence available to him.
I did not wish to enter into, and not qualified to enter into an analysis of medical issues, but Dr L should be provided with a copy of this judgment in order to understand the environmental and social factors that may be contributing to the child's behaviours and also, potentially, to the behaviours of the older siblings, who Dr L also treats.
Similarly, a copy of this judgment and order should be given to any GP the child has now or in future.
Child Impact Report
I come now to the child's disclosures as made to the expert.
The child made disclosures to the expert at the Child Impact Report about being subject to ongoing physical assault by the father, Ms D, the mother and Mr G.
Father
In terms of the father, when asked if there was anything he did not like about the father, the child “quickly replied, ‘Sometimes he [assaults] me’” (at [14]).
He told the expert he had been "[assaulted]" by the father and demonstrated that to the expert, saying he had been assaulted to multiple areas of his body. The expert said at paragraph [13] that:
13. [X] spoke with the CCE for approximately 40 minutes on his own, and provided very clear contextual information about his family, his hopes, dreams and worries. [X] presented as very quietly spoken, and articulate and confident and appeared to understand all questions asked of him and answered appropriately.
The expert recorded at paragraph [16]:
16. Unprompted [X] advised the CCE that he did not want to live with [Mr Fiedler] and wanted to live full time with [Ms Vitale]. [X] said he would reside permanently with [Ms Vitale] on the condition that [Mr G] did not reside in the family home. [X] further advised that he did not want to spend any ongoing time with [Mr Fiedler] saying he was very scared of him. The CCE explored the option of supervised time for [X] to spend time with [Mr Fiedler], however [X] said ‘No. I don’t want to see dad’. [X] said he would participate in phone communication with [Mr Fiedler].
The child, when asked if he was worried about the expert telling the father what he had said, "looked to the ground and said 'yes I am very worried'". He thanks the expert when she said she would not tell the father.
The expert made a clinical decision to not tell the father at that time but, of course, the father became aware when he read the Child Impact Report on its release.
Later in that report, the child said (at [37]):
37. [X] is 6 years old and confidently and clearly articulated his concerns for his own safety and wellbeing regarding [Mr Fiedler], [Ms Vitale] and other family members. [X] is at a stage of development where he has some capacity to understand when he is at risk and who is an unsafe or safe person. This was demonstrated by [X]’s clear statements that he is unsafe with [Mr Fiedler] and consequently he does not want to live with him or spend any time with him and his statements that [Mr G] is an unsafe person. [X] also has minimal capacity to participate in any safety planning, or to escape an unsafe adult or home environment. This was demonstrated by [X]’s statements that he runs and hides behind bedroom doors and garbage bins to either escape physical assault on other people and at other times ‘[assaults]’ [Mr Fiedler] in self‑defence.
The expert noted that a child of this stage of development will attempt a safety plan as reflected in his request to live with the mother, even though discussing physical assaults by her. The child's stipulation that the maternal uncle not be present, also indicated the child, although young at the time, was conscious of risk and (at [38]):
38. … he may have chosen [Ms Vitale] as he may view her as the ‘less unsafe’ person, as opposed to [Mr Fiedler] who he likely views as the ‘more unsafe and scary parent’.
The child also told the expert he (at [18]):
18. … has seen (on many occasions) [Mr Fiedler] ‘[attacking]’ [Ms D], and [Ms D] ‘[attacking]’ [Mr Fiedler], and advised he has also heard both parties yelling and screaming at each other. During these times [X] said ‘I run and hide [sic] and my favourite hiding spot is behind the black garbage bin [sic] I know when to stop hiding because I can hear the screaming stop’.
The child also disclosed seeing the father assault H, with H said to assault the father in self‑defence. I note that H is not a subject to these proceedings, but there is no, it appears, competent adult parent involved in H's life. DCJ have placed H with the father without any awareness of the nature of the relationship between the father and Ms D, which doubtless they denied to DCJ as they denied on oath in court.
One of the orders I will make will be for DCJ to be provided with a copy of these reasons, both so they understand what is happening in the mother's household in the hope that they may be able to provide her with some support, but also, because someone should consider H's position.
As I will discuss later in her oral evidence the expert clearly expressed her opinion that she considered this initial set of disclosures about the father to be credible.
Mother
Speaking about the mother, and the child said that she also assaulted him but said he “wants to live permanently in her care”.
Maternal uncle
And the child told the expert that Mr G (at [25]):
25. … ‘Tried to [hurt] me. He [assaulted] me’.
Ms D
The child disclosed being physically assaulted and punished by Ms D (at [20]-[22]).
Expert’s opinion
The expert stated that for the child (at [39]):
39. … to thrive and achieve his expected outcomes in all areas, he needs a safe, stable and predictable home environment and to be nurtured by adults who do not used physical assaults and intimation against him.
The expert stated that the parties had no co-parenting capacity but were parallel parenting at best and that neither parent (at [40]):
40. … demonstrated any capacity to be child focused and keep [X]’s physical and emotional needs and his right to safety in the forefront. Both held a narrative of denigrating the other, and both appeared to struggle to acknowledge [X]’s experience of parental conflict, seeing and hearing violence and being subjected to physical assaults.
The expert said she (at [42]):
42. … holds concerns for [X]’s physical and emotional safety in the care of both [Mr Fiedler] and [Ms Vitale] and any possible repercussions from them if they read this report.
It was in this context that DCJ were asked to intervene but declined to do so.
Family Report
The second report, the Family Report, interviews were held with the parents and the child on 14 March 2023 and with Ms D and the father on 15 March 2023.
This interview, the expert noted in the Family Report at [9], "a notable change" in the child's overall demeanour, presenting as "very cautious, guarded, quiet and apprehensive" with long silences and appeared worried that the expert was writing down what he said.
Ms D gave evidence that she had raised the child's disclosures with the child between the first and second interview.
The father presented at the second interview in the Family Report at [18], appearing to the expert as "angry, highly agitated and irritated" and accusing:
18. … the CCE and [X] of lying during the Child Impact Report, saying ‘I don’t know what happened. But one of you is lying.’
This presentation to an expert he knew was assessing him for family violence is instructive of the limited capacity of the father for emotional regulation and control.
The expert recorded in the second interview at [58]:
58. Prior to [X]’s interview, the CCE collected [X] from the father. During this time [X] was observed to punch the father in the stomach in a playful manner a number of times. In response the father directed [X] not to punch him and said ‘you can’t do that in front of her (CCE) because of the false allegations you made about me last time.’ [X] was observed to look at the CCE and the father and giggle in what appeared to be a nervous manner.
So it is clear from the fact that the father said to the child that he could not punch him because of "the false allegations you made about me last time", that the father had already raised with the child the fact that he had made these disclosures.
It was in that context that the child, at [62], told the expert, “’Dad does not hit me anymore, dad stopped hurting me’”. The expert, again, at [96], expressed her deep concerns about the child's safety in either household.
Family Report Addendum
For the third report, the child did not speak with the expert.
Expert – Reliability of the child’s disclosures
In terms of the question of reliability of the child's disclosures concerning the father, in particular, in the first child impact report, the father's case was that the mother coached the child to make these disclosures in the period between moving to live with the father and the interview.
In 2022, the expert spoke with the parties and interviewed the child in person. At that time, she recorded (at [6]):
6. … It was common ground [X] has not seen [Ms Vitale] since […] 2022 and does not communicate with her via Phone. [Ms Vitale] alleged [Mr Fiedler] has not permitted her to spend time with or speak with [X] on the phone. [Mr Fiedler] denied this allegation, and said [Ms Vitale] has demonstrated no interest in spending time with [X] or speaking with him on the phone.
Consistent with that, the expert recorded that (at [15]):
15. [X] advised he has not seen his mother ‘for a long time’ and said ‘I don’t know why I don’t see her’ and said ‘I miss her’…
That was consistent with the history of the mother having taken the child from school in early March 2022, the father taking him back the following day, not returning him to school until late March, and the parties being in high conflict.
In oral evidence, the father tried to suggest that that contemporaneous history by both he and the mother must have been wrong, and that the child must have been wrong because he believed that the child had seen the mother the weekend before the interviews. I find that unreliable, unpersuasive, and cannot see why I would not rely upon the expert's contemporaneous recording that both parents had given, as had the child, the same history that the child had not been speaking with the mother or seen her since March.
There was no opportunity for the mother to coach the child.
Further, the expert was asked a series of questions about the reliability of the child's disclosures concerning the father during oral evidence and the simple effect of that evidence was it that the expert considered the child's presentation of the first Child Impact Report as credible, contextual and very clear, noting the child spoke unprompted about his experience at home, whereas the second Family Report interview, he was less credible and more guarded.
It is clear, and unfortunate, that having made disclosures, serious disclosures about the father, exposing him to family violence and even assaulting him, which would be entirely consistent with the nature of the father's relationship with Ms D during the same period and the child's exposure to that, after the father read the material, unfortunately, it is clear that he spoke to the child about lying about it and that the child's change of evidence in the Family Report was because he knew that having disclosed, he had gotten in trouble because the father had found out, and he remained living with the father.
So having disclosed about the perpetrator, he unfortunately remained living with the perpetrator and suffered the consequences of that disclosure.
Significantly, I note the expert's evidence was admissible on this topic, not only by reason of Division 12A of the Act, but by reason of ss 79(2) and 108C of the Evidence Act 1995 (Cth),
I am satisfied that the child's disclosures in the Child Impact Report interview concerning the father were true, given their consistency with the fact that he is committing family violence against an adult, Ms D, including on occasion physical violence, I find by attacking her child Mr R, and I find by attacking her.
It is unsurprising and entirely consistent that he would be committing acts of family violence against the child, including assaulting him.
It is in this context that, as I have said, I raise the issue in submissions as to whether there should be no time with the father.
The ICL and the mother both believe that some limited time in certain circumstances should be appropriate, given that the child did indicate he wanted to maintain a relationship with the father.
There can be advantages to a child in maintaining a relationship with a parent who has been abusive, in terms of identity, in terms of being able to continue dealing with that person, to understand the context as they grow older, and it is in that context that I am willing to accede to the proposal, to some extent, of the ICL and the mother and allow time to continue, even though I consider the father to be dangerous to the child.
I will come to it later, but the father's time will be once a month, it will be for four hours, it will be daytime only, it will be in public places. There will be injunctions in place, and if there is any evidence that the father breaches them in terms of family violence, it is expected the mother would bring an Application, and if it was found that the father had, again, committed acts of family violence, the anticipation is that all time would then cease.
As I said, the expert gave evidence about the mother's protective capacity and dealt with the issues I have talked about.
If there was a safe alternative other than the mother's home I would place the child there.
There is no such safe alternative.
DCJ has decided not to intervene, not having the full information.
So, as I said, the expert was asked, given all the issues in the mother's house, particularly from M and S and the real risk of M unintentionally doing serious harm, whether she thought perhaps the father's household was, if not ideal, better, and she said she was not in a position to compare risks between the father's and mother's households, that being a matter for the Court based on the extensive evidence I have heard, and I accept that responsibility.
In relation to whether it would be protective to spend time in both households, which ultimately was part of the father's submissions, given there were risks in each, which is sometimes an option, the expert considered it came down to the nature of the risks to be mitigated and how they could be mitigated.
I note there is a clear disadvantage to the child in having to change schools, given he seems to get some support at the school and the expert, again, said it really is one factor to be taken into account.
The grave risks of both neglect and physical and psychological harm, from the father and from siblings in both households, clearly caused the expert great concern, as they cause me great concern.
SUBMISSIONS
Independent Children’s Lawyer
In submissions, the ICL ultimately submitted that in this very difficult case, and having no other option, weighing all the risks, the risks in the father's household were greater than in the mother's household and that being said, without in any way diminishing or understating the grave risks in the mother's household.
It was submitted the father and Ms D had conspired to lie about their relationship, in particular that the child was not present for the event in 2021, and I accept that.
The ICL went through the evidence which I have discussed in great detail. I do not need to repeat it. It is clear that the evidence overwhelmingly establishes the history of family violence by the father.
As I have said, I did raise whether there should be a no-time case, but the mother and the ICL both proposed maintenance of unsupervised contact with the father, albeit daytime only for a relatively limited period of times in the absence of Ms D and also, telephone contact which can be monitored which should not be as risky.
They also note that it is for the child's benefit and possibly, H's, for the child to maintain a relationship with H, which might be able to be maintained.
As the ICL said, they acknowledge that placing the child primarily with the mother and allowing the child to spend time unsupervised with the father, was not in any way risk-free, but a proposal which sought to balance the risks.
It was on that basis that the ICL put forward the proposal MFI 18.
In effect the ICL proposed the mother have sole decision making power for long-term decisions, and to live with the mother. The suggestion was: time with the father each alternate weekend from 9.00 am till 4.00 pm on Saturday and Sunday, on Boxing Day, on Father's Day; orders for changeovers; video calls with the father each Wednesday and on certain other days; liberty for the father to attend extracurricular activities at school; orders allowing the father to have access to information, medical and educational; a series of restrictions in terms on Mr E, who I have not commented on but who is a person who it is generally agreed may be dangerous to the child; Mr G; restraints on physical discipline, exposure to family violence, illicit drug use, discussing the proceedings; restraints on Ms D, which I have already referred to; a requirement that the child attend either the current school or be immediately enrolled in a local school since it seems likely he will have to change; attend upon all recommended therapies until discharge; keep informed; and discharging undertakings made by Ms J. The mother ultimately adopted, largely, the ICL’s submissions.
Father
The father, in closing submissions, submitted that weighing up all the risks in both households and asking the Court to accept, which I do not, that the father, as a consequence of the case, is now showing some fledgling insight into family violence and recognition of the unhealthy nature of the relationship with Ms D, accepting his conduct in abusive messaging, and taking into account his decision to enrol in the Taking Responsibility course for 2025.
The father further submitted, which I do not accept, that the evidence did not substantiate a finding that he had committed family violence against the child, and submitted the risk in his shouse was not as great as alleged.
Given that I accept what the child disclosed concerning the father’s behaviours towards him in the first interview with the expert, and given the findings I have made about the relationship with Ms D, the factual basis of the father's submissions that he is not as great a risk is not made out accept.
I largely accept what the father said about the mother and the grave risks posed by M, and S, and the mother's inability to protect the child in terms of the mental health issues, neglect, lack of parenting capacity, lack of insight.
All those matters, in effect, unfortunately, I accept.
FINDINGS
The Court is left in a position of having to choose between two fundamentally unsafe households for the child.
The choice before the Court is to place the child with the father, who I find is a long-term perpetrator of violence against his current intimate partner, against the mother, and I find, on the balance of probabilities, noting the gravity of the finding, that he has not only exposed the child to the family violence with Ms D, noting it is an inherent feature of their long-term relationship, I find he was present in 2021 and in the car during that unfortunate event, I also find it is likely that the father has, in fact, attacked the child and engaged in verbal abuse and coercive and controlling behaviour towards the child, and also likely continues to have a significant substance abuse problem that contributes to his violent behaviours.
And on the other hand, there is the mother who has a history of mental health issues, suicidal ideation, will not engage with mental health services, will not accept help, does not admit the risks posed to the child by M or S, has limited parenting capacity, may use marijuana again to self-medicate, in the best circumstances is still likely to neglect the child, both educationally and medically, and as I have said, although she may not be morally culpable as her mental health issues may be why she cannot seek mental health help, none of those things makes the child any safer in her household.
DECISION
Best interests of the child
The obligation is to consider the best interests of the child under Part VII of the Act. The objects are (s 60B) (a) to ensure that the best interests of children are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989. The Convention is picked up in a particular way by the way in which the Act is structured.
Section 60CC
Section 60CC provides the outline of how to determine the child's best interests.
Starting with the general considerations, I am required to consider what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect or harm for the child in each person's care of the child.
For reasons I have discussed, I consider the child's safety is likely to be slightly greater in the mother's household than the father's household, although the mother's household could not, on any reasonable view, be described as safe, given the risks posed to him by M in particular, also by S, and the risk, if not likelihood, of ongoing neglect by the mother.
The child's views were set out in different expert reports.
I consider the child's genuine views were those expressed in the first Child Impact Report, and that having made disclosures, which he did not wish to disclose to the father, when the father was made aware of those disclosures, it is clear the child was spoken to by both Ms D and by the father in circumstances where he was living with the father and being subjected to family violence. He then changed his position because he was rightly scared of maintaining it.
It is one of the grave risks of seeking children’s views as required by the Act consistent with Article 12 of the Convention.
To the extent to which the child's views expressed to the ICL through the meeting at school prior to the last day of trial, was said to be three days with his mother and four days with his father, I find that that was also likely infected by the fact that where he had made genuine disclosures, and asked that they not be told to the father, and they were told to the father, that he has likely suffered further family violence as a result of the disclosure. No weight can be given to the genuineness of his most recently expressed view, or limited weight.
I do accept that the ICL and the mother, who would be best placed to know, do consider the child wants to maintain a relationship with the father. I have indicated that there are reasons why it can be appropriate, that this will stop the child thinking it is his fault, allow the child to understand the father better as he grows, to put context around the family violence he has experienced, to maintain a relationship with H.
And it is for those reasons that I will accept the child's view is that he does want some relationship with the father, so long as it is safe. But only so much weight can be given to the view and implementing it, given the safety issues.
I must consider the developmental, psychological, emotional and cultural needs of the child. The expert indicated what the child needs. Neither option provides a safe developmental, psychological, emotional space for the child.
For reasons I have given, the mother's household is slightly safer. I am not satisfied that having the child spend extensive time with the father, who I find is a perpetrator of family violence, ameliorates the risks in the mother's household.
In terms of the capacity of each person who is proposed to have parental responsibility, I have indicated the mother has limited capacity but more than the father, given the father's exposure of the child to family violence. The only area in which the father has shown a clear child focus is obtaining medical care for the child.
In terms of the benefit of the child of being able to have a relationship with the child's parents and other significant people, as I have said, the ICL and mother both propose that there is benefit to the child maintaining a relationship with the father so long as it is safe.
While I have serious concerns, and did consider making a no-time order because of what I believe has occurred to the child in the father's household, on balance, I am willing to accept and find that there is some benefit to the child in maintaining a relationship with the father and paternal family through him, and that the significant limitations on time I propose will be sufficiently adequate to allow the child to maintain the relationship by seeing him about once a month and by having regular telephone contact with him, which for some children across the country is all they do get, even though there is no family violence, that that will be adequate.
In terms of family violence, I have considered that in both households.
In terms of the requirement to consider the child's right as an Aboriginal Torres Strait Islander child to enjoy his culture and the likely impact of any proposed parenting order under this part, unfortunately, the impact of this proposed order is likely to limit, if not exclude, the child's capacity to explore that through his father. I do not think the mother currently has any capacity to assist. I take it into account, but my first obligation is to consider the child's fundamental safety. That is a factor to which I must give the weight, the greatest weight.
In terms of parental responsibility or joint decision-making responsibility, in this case, there is no possibility the parents could share parental responsibility or joint decision-making for major long-term issues, nor, given the father's propensity for family violence, would such an order be in the child's best interest.
It flows from my findings that the mother should have sole parental responsibility and sole responsibility for decision-making for major long-term issues.
In those circumstances, I will make and enter orders accordingly.
Those are my reasons.
I certify that the preceding three hundred and twenty-six (326) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 30 August 2024
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