Gavare & Ulrich
[2024] FedCFamC2F 275
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gavare & Ulrich [2024] FedCFamC2F 275
File number(s): MLC 305 of 2022 Judgment of: JUDGE GLASS Date of judgment: 5 March 2024 Catchwords:
FAMILY LAW – PARENTING - whether the impact on the mother’s parenting capacity of nearly four year old child spending time with his father is such that the child should spend no time with his father
Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 67ZC, 117
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 sch 1
Cases cited: Bant & Clayton (2015) 53 Fam LR 621
Bielen & Kozma (2022) FLC 94-123
Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson (2023) FLC 94-129
Champness & Hanson (2009) FLC 93-407
Darmadi & Binjori (2023) FLC 94-136
Eastley & Eastley (2022) FLC 94-094
Franklyn & Franklyn (2021) FLC 94-031
Helbig & Rowe & Ors [2016] FamCAFC 117
Isles & Nelissen (2022) FLC 94-092
Jurchenko & Foster (2014) FLC 93-598
Keane & Keane & Another (2021) 62 Fam LR 190
Lainhart & Ellinson [2023] FedCFamC1A 200
Lennon & Lennon [2011] FamCA 571
LGM & CAM & Others [2008] FamCA 185
Lim & Zong (2022) FLC 94-104
Mazorski & Albright (2007) 37 Fam LR 518
Oberlin & Infeld (2021) FLC 94-017
Peda & Feaster & Another (2019) FLC 93-890
Ramzi & Moussa [2022] FedCFamC2F 1473
Summerby & Cadogen [2011] FamCAFC 205
Division: Division 2 Family Law Number of paragraphs: 153 Date of hearing: 19-22 February 2024 Place: Melbourne Counsel for the Applicant: Mr Puckey KC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Burns Solicitor for the Respondent: TFA Legal Counsel for the Independent Children's Lawyer: Ms Wiener Solicitor for the Independent Children's Lawyer: Peter Lynch Lawyer ORDERS
MLC 305 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS GAVARE
Applicant
AND: MR ULRICH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders with respect to the child X born in 2020 be and are hereby discharged.
2.The Mother have sole parental responsibility for X.
3.The Mother notify the Father in writing via her legal representative as soon as practicable after she has made a major long-term decision in relation to X.
4.X live with the Mother.
5.X spend no time with the Father and have no communication with the Father except as is provided for herein.
6.The Father shall be at liberty to provide cards, letters, gifts and photographs on no more than four occasions per year to X, care of the Mother's legal representative.
7.The Mother provide the Father with photographs of X four times per year by way of her legal representative.
8.The Mother notify the Father as soon as is practicable by way of her legal representative in the event of any serious medical emergency involving X or if X is diagnosed with a permanent medical condition.
9.The Mother be permitted by this Order to apply, pursuant to section 11 of the Australian Passports Act2005 (Cth) for the renewal and / or issue of an Australian passport for X without requiring the consent or signature of the Father, and the Mother shall be at liberty to provide a copy of these Orders to the Department of Foreign Affairs and Trade and / or the Australian Passports Office.
10.The Mother be permitted by this Order to apply for the issue and / or renewal of a United Kingdom Passport for X without requiring the consent or signature of the Father, and the Mother shall be at liberty to provide a copy of these Orders to the UK HM Passport Office.
11.The Mother retain possession of X's passport(s) at all times.
12.The Mother be permitted to travel overseas and / or interstate with X and obtain any necessary travel visas / permits on any occasion that she deems appropriate without requiring the consent of the Father.
13.Paragraphs 14 to 16 of the Orders of 9 February 2023 be and are hereby discharged AND IT IS REQUESTED that the Australian Federal Police do all things as required to remove X's name from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia forthwith.
14.The Mother be at liberty to provide a copy of these Orders to X's kindergarten, school, his treating medical or allied health practitioners and the Mother's treating medical or allied health practitioners.
15.The Father pay the Mother's reserved costs in respect of the interim defended hearing on 9 February 2023 fixed in the sum of $3,000.
16.The Independent Children’s Lawyer be discharged.
17.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Gavare and Mr Ulrich are the parents of X. They commenced their relationship in 2010, married and commenced cohabitation in 2014, and separated in January 2022. They commenced their relationship in Country B before moving to Sydney in early 2019.
X was born in 2020, and is now three years old. He will turn four shortly.
Since late 2021, X has lived with Ms Gavare and her parents in Victoria. Mr Ulrich continues to live in Sydney, New South Wales.
Since the parties’ separation in January 2022, X has spent professionally supervised time with Mr Ulrich and has regularly communicated with him by video call.
It is agreed that X will continue to live with Ms Gavare and that she will have sole parental responsibility for him.
The central issue arising for determination is whether X should spend time or communicate with Mr Ulrich. Mr Ulrich and the Independent Children’s Lawyer propose that, if I find there is not an unacceptable risk, X spend increasing unsupervised time with Mr Ulrich, culminating in half term holidays and two weeks of summer school holidays in 2028. In the event I find there is an unacceptable risk, they propose that X spend supervised “identity contact” with his father on six occasions each year for three hours per session. The particulars of their proposal are contained in Exhibit ICL1.
Ms Gavare proposes that X spend no time and have no direct communication with his father. The particulars of her proposal are contained in her Amended Initiating Application filed 28 November 2023, as orally amended in closing address.
Mr Ulrich relies on his Affidavit filed 5 February 2024, the Affidavits of Ms C, Mr D, Ms E and Ms F, all filed on 8 February 2024, as well as the Affidavit of Ms G filed on 9 February 2024. The other parties rely on the documents referred to in their Outlines of Case, noting that the reference in Ms Gavare’s Outline of Case to the Affidavit of Dr H filed 12 January 2024 should be 12 February 2024.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part and the principles underlying those objects.[1] X’s best interests are the paramount consideration.[2] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
PRIMARY CONSIDERATIONS
[1] Family Law Act 1975 (Cth), s 60B.
[2] Family Law Act 1975 (Cth), s 60CA.
The benefit to X of having a meaningful relationship with both of his parents
Only on Mr Ulrich’s and the Independent Children’s Lawyer’s proposal will X have the benefit of a relationship with both of his parents.
Pursuant to Orders made 10 May 2022, the parties appointed Dr J to prepare a Family Report. That report is dated 16 May 2023 and attached to an Affidavit of Dr J filed on 28 July 2023. It was agreed that the Report would be received into evidence despite the unavailability of Dr J to give evidence at the trial.
Dr J considered that “[X] is likely to benefit greatly from having a meaningful relationship with both his parents”.[3] There are a number of difficulties attributing significant weight to Dr J’s opinion.
[3] Affidavit of Dr J filed 28 July 2023, annexure H-1, page 48.
Firstly, the parties have been unable to cross-examine Dr J. Cross-examination is the testing of a witness as to the facts in issue or credit.[4] In particular, Ms Gavare has not had the opportunity to challenge Dr J’s evidence, in circumstances where she is critical of the way in which her report was prepared and has expressed significant concerns in relation to it.
[4] LGM & CAM & Others [2008] FamCA 185 at [207].
Secondly, Dr J has not been appraised of the current evidence now before the Court. She recommended Ms Gavare undergo “independent psychiatric assessment”.[5] Dr K has now conducted such an assessment. Dr J is also unaware of the extent to which Ms Gavare has continued to engage in psychiatric treatment with Dr H, who gave evidence in the proceedings. Dr J is also unaware of the extent of Ms Gavare’s ongoing psychological treatment with Mr L, who also gave evidence in the proceedings. Dr J is similarly unaware of Ms Gavare’s unchallenged evidence that she has “always been compliant with treatment plans”.[6] I am deprived of any evidence from Dr J as to how the new factual material now before the Court would influence her opinion.
[5] Affidavit of Dr J filed 28 July 2023, annexure H-1, page 47.
[6] Affidavit of Ms Gavare filed 22 January 2024, paragraph 141.
I am unable, in those circumstances, to attribute any significant weight to Dr J’s opinion. In effect, the Court is deprived of a family report in the usual sense. It is not necessarily the case that such expert evidence must always be produced before the Court determines the likely effect of certain parenting regimes.[7] None of the parties, all of whom are legally represented, sought to obtain a new family report once the unavailability of Dr J became apparent. The Court’s role is to decide the case on the basis of the evidence each party elects to tender.[8]
[7] Jurchenko & Foster (2014) FLC 93-598 at [157].
[8] Lainhart & Ellinson (2023) FedCFamC1A 200 (“Lainhart & Ellinson”) at [28] and [30], and the cases there cited.
Nevertheless, the inability to give significant weight to Dr J’s opinion that X would benefit from having a meaningful relationship with both of his parents, and the absence of a family report, do not diminish the significance of this primary statutory consideration. It is one of the “twin pillars” upon which the Act’s provisions relating to children are said to rest.[9] Further, it is a legal construct rather than a psychological one.[10]
[9] Mazorski & Albright (2007) 37 Fam LR 518 at [3].
[10] Champness & Hanson (2009) FLC 93-407 at [191].
Ms Gavare’s application for X to spend no time with his father is one of the utmost gravity. Such an outcome is “grave and serious”,[11] having the potential to be “profoundly damaging” for X’ “future development”.[12] The gravity of the proposed outcome requires the Court to feel an actual persuasion of the existence of relevant facts.[13]
[11] Peda & Feaster & Another (2019) FLC 93-890 at [48].
[12] Bielen & Kozma (2022) FLC 94-123 (“Bielen & Kozma") at [47], quoting Bant & Clayton (2015) 53 Fam LR 621 (“Bant & Clayton”) at [55].
[13] Keane & Keane & Another (2021) 62 Fam LR 190 (“Keane”) at [73], and the cases there cited.
Ms Gavare herself gave oral evidence that she would “absolutely” want X “to have a relationship with his father for everything that that brings”. She gave oral evidence that:
I’m saying that if you could remove the effect on me, and you can ensure it’s a safe environment, and – and [X] is well and happy, then of course there’s positive in him playing with him, and interacting with him, and building a relationship.
That evidence brings into stark relief the two central issues in this determination. Firstly, whether there is an unacceptable risk to X’s safety in his father’s care. Secondly, the extent of the impact on Ms Gavare of X having a relationship with his father, and whether it can be sufficiently ameliorated.
The need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
It is now agreed that X will remain living in Ms Gavare’s primary care, despite Mr Ulrich deposing on 5 February 2024 that it is “essential that the child lives with” him.[14]
[14] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 59.
When the Independent Children’s Lawyer and Mr Ulrich refer, in their proposed orders, to whether the Court finds an unacceptable risk, they are referring to the risk of Ms Gavare being unable to cope with the prospect of X spending time with his father. Ms Gavare submits that her care of X is jeopardised by her experience of family violence perpetrated by Mr Ulrich. Whilst I accept that a lack of parental capacity in Ms Gavare might ultimately leave X at risk of neglect, I consider the question of the impact on Ms Gavare of ongoing time between X and his father to be more conveniently addressed under the additional consideration relating to parental capacity.
Given the parties’ separation, and the fact that Mr Ulrich’s conduct towards Ms Gavare is now regulated by a Family Violence Intervention Order, I also consider that the historical family violence between the parties is more conveniently addressed under the relevant additional consideration.
I will here consider whether Mr Ulrich poses an unacceptable risk of harm in the relevant sense in spending time with X. Ms Gavare’s “firm conviction”, as her King’s Counsel describes it, that such a risk is posed does not establish it is so. It is for the Court to assess the level of risk posed on the whole of the evidence before it.[15]
[15] Eastley & Eastley (2022) FLC 94-094 (“Eastley”) at [33].
During supervised visits that commenced in late 2022, Ms Gavare had provided a bike helmet for X. Mr Ulrich was asked to ensure X wore a helmet whenever X was on a wheeled toy. That request was made in light of Mr M’s unchallenged evidence that Mr Ulrich told Ms Gavare during the parties’ relationship that “wearing a helmet on a bike was a joke”.[16]
[16] Affidavit of Ms Gavare filed 22 January 2024, paragraph 69(h).
Mid-2023, during a supervised visit, Mr Ulrich failed to adhere to Ms Gavare’s request. X was playing on a wheeled toy without a helmet. He fell backwards and hit the back of his head. Ms Gavare subsequently took X to hospital where a “[small] haematoma” was observed on his head.[17] He displayed concussive symptoms.
[17] Affidavit of Ms Gavare filed 22 January 2024, paragraph 94.
As Ms Gavare submits, Mr Ulrich’s failure to adhere to her request to ensure X wore the supplied helmet when on wheeled toys was neglectful. It raises concerns about what risks Mr Ulrich might take in an unsupervised setting.
In mid-2021, X threw a wooden block that hit Mr Ulrich. Ms Gavare deposes that Mr Ulrich thereafter “flew into a rage, yelling at [X]”.[18] She gave oral evidence that:
[Mr Ulrich] was furious, and he had that look in his eye that he just – it just, like – it’s like he transformed, and there’s just this look of naked rage, and murder in his face. It’s horrible. It’s just so frightening. He looked at [X] like that, and he just started shouting at him for hitting him.
[18] Affidavit of Ms Gavare filed 22 January 2024, paragraph 64.
Mr Ulrich deposes that he “calmly but firmly said ‘[X] no!”[19] He denied in cross-examination that he shouted at X. He considers that his conduct was appropriate in the circumstances. He denied there was any need for Ms Gavare to intervene thereafter, as it is common ground that she did.
[19] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 35.
I accept Ms Gavare’s unchallenged evidence in relation to the incident. The independent psychiatrist, Dr K, opines that Mr Ulrich “tended to minimise the extent and impact of his admitted behaviour”, even if that “does not necessarily mean that his account is untrue”.[20] Despite Mr Ulrich’s insistence in oral evidence that he was not trying to minimise everything, my observation was consistent with Dr K’s. He sought to explain and rationalise his behaviour and consistently minimised the impact of it on others. I am satisfied that Mr Ulrich has minimised the extent of his loss of temper when his infant son threw a wooden block at him.
[20] Affidavit of Dr K filed 30 November 2023, annexure K-1, paragraph 56.
Ms Gavare and her father, Mr M, give unchallenged evidence that when X was a baby, Mr Ulrich frequently allowed X’s head to fall backwards and violently swung him up onto his shoulders. Mr M, a health care worker, advised Mr Ulrich of the significant risk of injury in handling a baby in that way. Ms Gavare and Mr M give unchallenged evidence that Mr Ulrich did not heed this advice.
Ms Gavare also gives unchallenged evidence that Mr Ulrich was otherwise careless with X, repeatedly banging his head against hard objects, throwing him high in the air such that he would smack his head on the ceiling, and failing to secure him in his car seat. Whilst Mr Ulrich generally denied the allegations, I find no basis to reject Ms Gavare’s evidence. Having found Mr Ulrich to minimise his behaviour, I accept her evidence.
I find that Mr Ulrich has lost his temper and yelled at X and has been neglectful of his safety. However, my qualitative analysis of the evidence must be directed not just to the existence of a risk of harm but also to the magnitude of the possible harm.[21] Whilst Mr Ulrich’s absence of insight into his behaviour to some degree predicts whether there will be a repetition of his conduct,[22] I am ultimately not satisfied that the magnitude of the risk is unacceptable such that X ought spend no time with his father.
[21] Isles & Nelissen (2022) FLC 94-092 at [12]; Bant & Clayton at [171].
[22] Darmadi & Binjori (2023) FLC 94-136 at [19].
Despite that conclusion, as Ms Gavare submits, from her perspective those risks were “very real and very understandable”. Her subjective perception of them is relevant to assessing the impact on her of X having ongoing contact with his father.
ADDITIONAL CONSIDERATIONS
Any views expressed by X and any factors (such as his maturity or level of understanding) that are relevant to the weight to be given to his views
Unsurprisingly given his age, it is not suggested that X has expressed any views that should be given weight.
The nature of X’s relationships with each of his parents and other people, including any grandparent or other relative
X has lived with his mother and maternal grandparents since late 2021. It is not suggested that his relationship with them is anything other than loving and appropriate.
X has spent limited time with Mr Ulrich since the parties’ separation in January 2022. All of the face to face time spent has occurred in a supervised context. The reports from the supervisors suggest that X’s relationship with his father appears to have been developing appropriately. They have been physically affectionate with each other and interacted warmly together. They were observed to be “often smiling, laughing, and engaging in a playful manner”,[23] with Mr Ulrich allowing X the space to emotionally regulate if upset or frustrated.
[23] Affidavit of Ms F filed 8 February 2024, annexure F-02, page 12.
A number of more recent supervised visit reports raise some concern about their relationship, although I hesitate to place too much weight on their significance in the absence of relevant social science evidence. In late 2023, changeover was unable to be effected for Mr Ulrich to spend professionally supervised time with X. X was inconsolable and refused to attend the visits. Subsequent visits were able to be arranged, albeit that the first subsequent visit in late 2023 was terminated after 45 minutes, when X was apparently unable to be consoled by his father.
The extent to which each of X’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to him, to spend time with him, and to communicate with him
The same month as the parties’ separation, Ms Gavare proposed that Mr Ulrich spend supervised time with X. Mr Ulrich did not agree with the proposal with the result that he spent no time with X.
In May 2022, interim Orders were made providing for X to spend supervised time with Mr Ulrich. After the parties reached the end of the four-month wait list, X spent time with Mr Ulrich on two occasions in late 2022. Mr Ulrich thereafter travelled to Country B for two months, with the result that the parties lost their place at the contact service.
Supervised visits resumed in mid-2023. Visits were again interrupted in late 2023 when the contact service ceased facilitating X’s time with Mr Ulrich. A new service was engaged with visits re-commencing in late 2023.
Mr Ulrich’s failure to agree to supervised visits in early 2022 had the result of X not seeing him for a period of approximately eight months. His subsequent international travel had the result of X not seeing him then for a further period of seven months.
Mr Ulrich has taken the opportunity to communicate with X during ordered video calls.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain him
I accept Ms Gavare’s unchallenged and uncontradicted evidence that Mr Ulrich has been sporadic in his child support payments. Mr Ulrich blames the child support agency for his failure to pay regular child support.
The likely effect of any changes in X’s circumstances, including the likely effect on him of any separation from either of his parents, or any other child or other person, including grandparent or other relative, with whom he has been living
No party proposes any change to X’s primary living arrangements.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular basis
As has been observed, the parties live interstate from each other. Despite earlier positions adopted by Mr Ulrich in these proceedings, neither now propose any change to that situation. In the result, there are substantial practical and financial impediments to X having regular direct contact with Mr Ulrich.
The capacity of each of X’s parents and any other person, including any grandparent or other relative of X, to provide for the needs of the child, including emotional and intellectual needs
I have referred already to Mr Ulrich’s recklessness in handling X as an infant, his failure to ensure he wore a helmet, and him losing his temper with his son. All raise concerns about his capacity to provide for X’s needs.
It is common ground that Ms Gavare will remain overwhelmingly responsible for providing for all of X’s needs. She contends that her capacity to do so will be compromised by X being required to spend time and communicate with his father.
Ms Gavare’s evidence of the impact on her of the existing arrangements for X to have contact with his father was unchallenged and I accept it. Because of the gravity of the outcome for which she contends, I consider it necessary to quote at length from that accepted evidence. It provides detail of the impacts on Ms Gavare’s state of mind, her body, her capacity to function, and her capacity to provide for X’s needs.
In relation to the visits professionally supervised by the N Contact Service, she deposes as follows:
During the familiarisation visit with [N Contact Service] which occurred [in mid] 2022, I felt frightened, anxious and nauseous when the [N Contact Service] staff member […] begun discussing where [Mr Ulrich] would be with [X] in the centre and where he would arrive. I did my best to conceal my feelings from [X] by distracting him with toys, however once we returned home, [X] went to read books with his grandfather, I began to feel extremely unwell, as if I was about to vomit. I went into the bathroom and began retching and hyperventilating. I experienced a panic attack and the cycle of retching and hyperventilating continued for some time. I was unable to eat lunch that day and struggled to eat normally for about five days afterwards due to the stress response and anxiety I was experiencing.
[In late] 2022, three days prior to the first scheduled visit at [N Contact Service] I called [the service] during a five-minute break between meetings to confirm the Saturday visit. Immediately after this call I connected to a work meeting. As I began talking I had to stop mid-sentence as felt I was about to vomit - a reaction to the confirmation that the contact centre visit was going ahead the coming weekend. I had to excuse myself from the meeting and rush to the bathroom where I retched. I had stomach cramps that continued all day and next day, along with nausea. I was unable to work the remainder of the morning. I couldn’t eat lunch, ate three teaspoons of [food] for dinner and couldn’t manage more. I woke frequently throughout the night, disturbed by vivid nightmares. The following two days were public holidays so there was no work. The morning of [late] 2022 I was so stressed by the upcoming visit that I could only eat 1 tbsp porridge for breakfast and then a few crackers for lunch. I found it so hard to concentrate on basic tasks that it took me almost an hour to make [X]’s porridge for breakfast. I had stomach pain and nausea and was less patient than usual. At dinner I was able to eat less than [X]. [On the] morning of the visit, I was unable to eat any porridge without gagging. I had had vivid nightmares the nights prior. Prior to leaving home for the supervised visit I had a panic attack and my hands were trembling. My father drove [X] and I to [N Contact Service] as I felt it would be unwise for me to drive and he agreed. I broke down after [X] went through to where [Mr Ulrich] was but held it together for [X] while he could see me. After [X] left I cried and struggled to control my breathing. After exiting the centre I had a panic attack in the car, and cried. I was unable to concentrate on anything while [X] was in [N Contact Service] and just sat in the car for two hours. I was so relieved to go inside to collect [X] after the visit but still feeling nauseous and was completely drained. That evening I was able to eat less dinner than [X]. The following Monday I tried but was unable to work, finding myself unable to concentrate, completely depleted and feeling nauseous. I struggled to work productively the following [day], still feeling nauseous and depleted. It took approximately seven days after the visit for me to be able to eat normally and my normal appetite to resume.
I have, for every single visit in 2022, 2023 and 2024, experienced the same cycle of nausea, anxiety, panic attacks, lack of appetite and inability to concentrate prior to each of the supervised visits, as well as prior to the visits which were subsequently cancelled due to [X]’s sickness [in late] 2022. I experience chest and jaw pain from the stress, along with tension headaches. I have noticed that my stress levels start increasing markedly five to six days prior to the scheduled visit and I have a constant feeling of panic and of being on the edge of a panic attack. The mornings of the visits I have diarrhoea. After leaving [X] each time I have panic attacks and am unable to do anything except for sit and wait in my car for the two-hour visit to end. This is uncharacteristic as I like to be productive however I am unable to even concentrate on reading.[24]
…
On the occasion of the visit at [N Contact Service] [in mid] 2023 I had been asked to wait in the waiting room while [X] went through. In past occasions the supervisor would keep [Mr Ulrich] in the further room, which also contained the kitchen, and take [X] through to meet him there, while playing music in the waiting room so that I would not need to hear the interaction. On this occasion this protocol was not followed. [Mr Ulrich] was brought into the room next to me and I could hear [Mr Ulrich] laughing and talking to [X]. This was distressing to me and caused me to feel so physically sick that I retched in the waiting room…[25]
On the occasion of the visit [in mid] 2023 at [N Contact Service], one of the supervisors was with [X] while [Mr Ulrich] was arriving via the other entrance. [Ms F] was just seeing me out of the entrance I was allocated when I heard [Mr Ulrich]’s voice and laughter as he crossed the outdoor area into the area where [X] was. I felt so frightened and nauseated with his proximity that I began retching and hyperventilating.
When the visits took place at [N Contact Service] and were on a Saturday morning, on every occasion I was unable to work on the Friday prior to the visit, or the Monday following the visit, feeling unable to focus and think through the most basic tasks, and exhausted from the stress and after not being able to eat or sleep properly over the previous week. When I do resume work I am so distracted that I make frequent errors that I would not usually make, often needing to recall emails and redo work. Work that would usually take my five minutes takes up to 30 minutes as I struggle with slowed cognition. Around the visits I am so stressed anxious and distracted that I am forgetful, struggle to even manage one thing at once and struggle to think through even basic things such as preparing porridge when I find myself just standing in the kitchen, confused about the steps I need to follow. This happens regardless of whether I take [anxiety medication] around the visits as I have started to do recently. I typically would manage a high level of complexity and demands at work and the multiple layers of things running simultaneously, including looking after [X]. I am usually highly organised, process information rapidly and am not forgetful.
My sleep worsens considerably around the visits with an intensification of nightmares, difficultly sleeping and staying asleep. Since the visits have been supervised by [R Contact Service] and taken place on Sunday mornings I have been unable to work the Monday and Tuesday following the visit. Even when I resume work after the visits I struggle to concentrate and can’t think through anything remotely complex. This is completely at odds with how I feel outside of the visits, when I am able to manage work, while looking after [X] and enjoy meeting with friends and taking [X] on playdates. Outside of the visits I enjoy food and have a normal appetite.[26]
…
[X]’s head injury at [N Contact Service] had a very negative effect on me. It triggered memories of a past head injury I had because of [Mr Ulrich]’s carelessness, of [Mr Ulrich] banging [X] against door frames, walls and ceilings, of [Mr Ulrich] allowing [X] to fall off high play equipment when he was very small and of [Mr Ulrich] allowing [X] to walk into oncoming traffic. After the event [in mid] 2023, I was unable to work at all until the following Thursday and even then I was able to do very little (worked approx. 1 hour). I felt overwhelmed, exhausted, and was unable to concentrate to even read a basic news article. I had an appointment with my psychiatrist, [Dr H] and still really struggling, reached out to my psychologist [Mr L] to see if I could arrange an appointment but he was travelling overseas. I felt at breaking point and was unable to concentrate on basic things – for example making frequent trips from one room to another in the house as I would forget what I was doing or forget things and then need to go back again. This doesn’t usually happen to me. I had vivid nightmares, frequent night waking and was waking in the early hours of the morning, unable to get back to sleep. I struggled to work still but tried to do administrative tasks. I remained very stressed over the weekend. When I read the email [in late] 2023 stating that [N Contact Service] would no longer supervise [X]’s visits with [Mr Ulrich] I was so distressed that I was unable to even look after [X], needing to ask my father to do so. I felt numb, unable to process thought and sat motionless. My body felt as though it was made of lead and I found myself unable to react to [X]. I found this frightening – that there was indeed a breaking point at which I was not only unable to work but even unable to care for [X]in a basic sense. My parents both supported us both, ensuring [X]’s dinner was as normal as possible and helping me through. [27]
[24] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 144 to 146.
[25] Affidavit of Ms Gavare filed 22 January 2024, paragraph 148.
[26] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 149 to 151.
[27] Affidavit of Ms Gavare filed 22 January 2024, paragraph 153.
The sessions with N Contact Service ceased in mid-2023. The parties thereafter agreed to change to an alternate agency, the R Contact Service. I accept Ms Gavare’s evidence in relation to those visits:
The week commencing [late] 2023 noting that my intake interview with [R Contact Service] was [in late] 2023, I had unrelenting tensions headaches all week due to the stress of the visits beginning again. I was unable to relax and very tired.
In [late] 2023 I needed to call [Ms S] ([R Contact Service]) having received a message from her asking me to call to arrange the visit schedule. I woke that morning very stressed. I was less patient than usual and [X] noticed that I was not myself. At breakfast he kept saying “I want normal mummy” “I don’t like this mummy” “I want normal mummy” “normal mummy not sad”. When my father asked what was wrong I told him I had to call about the visit schedule and burst into tears. [X] immediately burst into tears and continued bursting into tears and crying for about 15 mins, saying “I want normal mummy” repeatedly. I was not crying but could not be cheery like normal and [X] could tell and kept bursting into tears and crying throughout his whole breakfast. He calmed down later playing with his toys with his grandpa while his grandpa had breakfast.
After speaking to [Ms G] ([R Contact Service]) confirming the visit [in late] 2023 and learning from [Ms G] that [Mr Ulrich] had changed his mind and that the visit schedule was again fortnightly I was distressed and very nauseous. I was unable to continue working despite some urgent, time-sensitive work that needed completing. I called my father but he was at work and only able to talk briefly. I reached out to [Mr L], my psychologist. [Mr L], who had a 15-minute break between appointments, spoke to me over a video call during which I had a panic attack. [Mr L] assisted me with anchoring. I found the day difficult to get through, feeling hopeless, numb and exhausted and finding it difficult to connect with [X] – something I normally have no issue with. I was unable to eat normally, gagging when I tried and had to consume meal replacement shakes. The difficulty eating and stress continued the following days with the visit taking place [in late] 2023. Uncharacteristically I even forgot [one morning] that [X] was not meant to eat breakfast as he was scheduled to have an ultrasound on the recommendation of his GP to check for anything concerning as he had been complaining of pain for several weeks. I wouldn’t normally forget something like that.
During the visit, [Ms G] rang me part way through the visit to ask about gifts. I had been informed by [N Contact Service] in the past and also by [R Contact Service] that the supervisor would only contact me during the visit if there was an emergency. Thinking that something had happened to [X] I was very distressed. I was concerned that [Ms G] was calling me rather than supervising, keeping in mind that she was the only supervisor and asked her to please concentrate on [X]. I had a panic attack as soon as I hung up. When at the conclusion of the visit I politely asked her to only contact me during the visits in case of an emergency, she snapped at me in front of [X]. I said that perhaps I could provide further context around my request over the phone during the week but she appeared uninterested and left in her car. I was unable to work the following two days after the visit.
Despite my ongoing psychological support and putting in practice the techniques taught to me (mindfulness activities, anchoring, progressive relaxation and breathing exercises), my experience of the visits between [Mr Ulrich] and [X] has not improved over time. The above is but a snapshot of the effect that the visits and have on me. It is incredibly taxing, impacts upon my work, is wearing me down considerably and is having a significantly negative impact upon my parenting capacity. I cannot continue this way indefinitely without reaching breaking point.
My level of distress and anxiety regarding supervised visits is such that I now cannot communicate directly with the supervision service and have requested that my lawyer undertake all the necessary communications on my behalf prior to each visit. Seeing emails from the supervisors in my Inbox and text messages on my phone causes me distress and anxiety and I am unable to cope with communicating directly with them.[28]
…
During my appointment with her [in late] 2023 [Dr H] recommended I take [anxiety medication] around the times of [Mr Ulrich]’s supervised visits with [X]. I began taking it [in late] 2023 and have taken it all of the weekends of the subsequent scheduled visits. I still find myself feeling extremely stressed and on the edge of panic, but numb, disconnected and drowsy. My brain feels foggy and it leaves me with headaches, slowed cognition and difficulty retaining new information (even a new word I am told repeatedly) for several days afterwards, along with rebound anxiety and tension. This further impacts on my capacity to work as it makes it difficult to process and retain information properly. My father has commented that I am like a “zombie” with it and it is difficult to engage with and respond to [X] as I usually would. Even after the [medication] is wearing off I find myself zoning out when [X] is talking to me and struggle even to concentrate on what he is saying. I am unable to think through basic games with him. The effect of the [medication] appears to be waning over time and I need to take larger doses in order to feel an effect. I do not wish to be required to take [medication] indefinitely and indeed, it is not medically recommended that I do so.
After [X]’s second visit refusal [in late] 2023, I had a panic attack after returning home. My father played with [X] until naptime. My mother was away that day and when dinner time came around and I felt incapable of even thinking through what to cook for dinner. My father took [X] and out for dinner instead. Following the attempted visit I was unable to work until Friday the following week, taking four days off work and when I did work on the Friday a colleague reached out to me after a meeting noticing that I was not my normal self.
After [X]’s visit [in early] 2024, and anticipating that I would not be able to work the following day due to the impact on me, I scheduled a fun outing with [X] to the school holiday programme offered by the local [sports] centre January 2024. I was unable to take [X] as I mentally could not cope with preparing him to leave the house and felt unable to drive safely with him.
The effect of the visits is such that it impacts on my capacity to parent [X] as I usually would. [X] and I are very close and he is a perceptive child, making him attune to the impact of the visits on me. Despite my best efforts to manage it and engagement in therapy, the acute stress caused by the visits result in me being less patient, overwhelmed and struggling to handle even basic tasks such as preparing food. [X] commented to me, shortly after his head injury at [N Contact Service] [in mid] 2023, that I hadn’t been “so kind a mummy the last few days”. [X]’s care is always at the forefront for me and I am profoundly saddened that there be any impact upon him.[29]
[28] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 154 to 159.
[29] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 161 to 164.
In relation to the impact of communication, I also accept the following unchallenged evidence of Ms Gavare:
[Mr Ulrich]’s thrice weekly video calls with [X] continue to cause distress to me as hearing [Mr Ulrich]’s voice and having to look at the screen albeit briefly to check that he is visible to [X], triggers traumatic memories, flashbacks and fear. Without fail, I wake the morning of the video calls (Monday, Wednesday, Friday) with a lump in my stomach and a sense of dread. I feel increasingly tense over the day in the lead up to the calls. I am very distressed at [Mr Ulrich] hearing me on the calls and there have been either Zoom or [P Centre] errors on several occasions resulting in [Mr Ulrich] being in the call when they told me he wasn’t.
Despite my requests for [Mr Ulrich] to cease contacting me on my work phone, he continued to do so for a long period, and has provided my number to services as my contact number without my consent. I have had to establish a separate email address and phone number to avoid seeing [Mr Ulrich]'s name on my work devices in order to avoid being triggered throughout the day. Until [P Centre’s] supervision commenced in [mid] 2023, [Mr Ulrich] also continued to address me directly during the FaceTime calls with [X] causing me a significant amount of distress.[30]
[30] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 166 and 167.
Consistent with Ms Gavare’s evidence, Mr Ulrich deposes that Ms Gavare has “mental health difficulties, reliance on [anxiety medication], inability to self-regulate and to create a consistent and stable environment for [X]”.[31] He deposes that her “reliance on [anxiety medication] surrounding the visits appears to inhibit her ability to parent [X]”.[32] He fears that “the short and long-term impact on having a primary caregiver who is so unpredictable will be extremely negative for our son”.[33] He is concerned about “[X’s] exposure to extreme depression episodes while in her care”.[34]
[31] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 26(e).
[32] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 26(d).
[33] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 26(c).
[34] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 26(f).
As the Independent Children’s Lawyer concedes, Ms Gavare is not currently coping with X spending time with his father. As has been seen, she is experiencing panic attacks, anxiety, distress, headaches, nightmares, vomiting, diarrhoea, inability to eat and loss of weight. It is having a functional impact on her capacity to attend to basic tasks. She is unable to work for days around each visit. She is emotionally unavailable to X. X has complained about his mother’s emotional state. She has been unable to attend to his physical needs. She has been reliant upon her parents to attend to basic needs. She has used almost all her annual leave days around supervised visits due to her inability to cope with the visits. Despite having been engaged in mental health treatment over a period of around two years, strategies developed with her treating mental health practitioners have been ineffective. Psychotropic medication has also been ineffective.
Dr K has diagnosed Ms Gavare with a history of Major Depressive Disorder, without relapse since 2022, and Unspecified Trauma and Stressor Related Disorder. He opined orally that faced with X spending time with Mr Ulrich, Ms Gavare’s “anticipatory fears and worries about what might happen are … sky high”. He gave oral evidence that “it’s inevitable that if [Ms Gavare] becomes highly agitated and panic stricken it’s going to be communicated to the child in some way or other, even if she doesn’t actually say anything negative to him verbally.” Ms Gavare’s evidence amply illustrates the communication of her poor mental state to X.
Dr H opines that Ms Gavare has “complex trauma from her relationship with [Mr Ulrich]”[35] and records that Ms Gavare’s mental health has deteriorated around supervised visits. She describes her anxiety around visits leaving her “struggling to function”.[36] Despite her use of appropriate pharmacotherapy and anxiety management exercises, Dr H considers her mental health around visits to be “extremely challenged”.[37] I accept Ms Gavare’s unchallenged evidence that she has complied with treatment plans, including taking anxiety medication as prescribed. She agreed with Mr Ulrich’s Counsel that the supports don’t seem to be working. Mr L has observed “significant negative psychological sequelae”[38] for Ms Gavare of X’s visits with his father.
[35] Affidavit of Dr H filed 26 July 2023, annexure H-2, page 9.
[36] Affidavit of Dr H filed 12 February 2024, annexure H-2, page 7.
[37] Affidavit of Dr H filed 12 February 2024, annexure H-2, page 7.
[38] Affidavit of Mr L filed 22 January 2024, annexure L-3, page 12.
I accept the expert evidence to which I have referred, which was effectively unchallenged.
Mr Ulrich submits that it is “not to the point where the mother is incapable of caring for the child simply because the child sees the father”. He relies on the evidence that Ms Gavare, when she is not interacting with Mr Ulrich, is asymptomatic. I reject the submission. As Dr H opines, Ms Gavare’s symptoms of anxiety and depression are triggered by supervised visits and any communication with Mr Ulrich. The central issue in the case is whether such interactions should continue, with their deleterious impact upon her parenting capacity. Dr K considers that the fact she is otherwise mentally well is a good prognostic indicator, but that does not reduce the severity of her currently compromised functioning.
Ms Gavare’s presentation in giving evidence was consistent with the high levels of agitation, anxiety and panic recorded in her affidavit and by the expert witnesses. Experienced Counsel for the Independent Children’s Lawyer submits that “in all the years I’ve been doing this, I’ve rarely seen a witness so – almost incapable of giving evidence, so clearly traumatised.” Experienced Counsel for Mr Ulrich submits that he had “never seen a witness so distraught in the witness box”. Mr Ulrich himself gave evidence that Ms Gavare “clearly appears distressed”. I agree with Dr K’s impression of Ms Gavare as being “consumed by her anxieties regarding the contact by the father with both herself or the child”.[39]
[39] Affidavit of Dr K filed 30 November 2023, annexure K-2, paragraph 39.
I am amply satisfied that X’s interactions with his father are having a significant deleterious effect on Ms Gavare. Her parenting capacity is significantly impaired. Her effective functioning as a parent is compromised. I will return to the question of whether those impacts can be ameliorated, and the attendant risk to X adequately mitigated.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of his parents, and any other relevant characteristics of X
Without contradiction, Ms Gavare deposes to X being a gentle and sensitive child. Mr Ulrich gave oral evidence that he is a kind boy, that he is smart and curious. I accept the parties’ evidence.
Mr Ulrich is from Country B. Ms Gavare is fluent in Country B language. I accept her unchallenged evidence that she exposes X to dual language books and speaks to him in Country B language in small amounts.
If X is an Aboriginal child or a Torres Strait Islander child, his right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture), and the likely impact any proposed parenting order will have on that right
X is not an Aboriginal or Torres Strait Islander child.
The attitude to X, and to the responsibilities of parenthood, demonstrated by each of his parents
Mr Ulrich’s failure to pay child support in a timely fashion, his neglectful conduct towards X, his loss of temper at him, and his exposure of X to his family violence all reflect poorly on his attitude to the responsibilities of parenthood.
Despite the significant mental health difficulties she has experienced, it is to Ms Gavare’s credit, not only that she initially proposed that X spend time and communicate with his father, but has continued to adhere to interim orders to do so. She continued to do so despite the ongoing pervasive impact upon her functioning and she participated fully in her mental health treatment. Even when the first professional supervision agency withdrew due to the impact of Ms Gavare’s emotional reactions when time was being facilitated, she agreed to move to a new supervision agency. When changeovers there became problematic, she made constructive suggestions for a visit to occur at a park where she accurately anticipated they might have more success. Her conduct is inconsistent with her seeking to undermine X’s relationship with his father.
I accept that Ms Gavare’s current proposal is one reluctantly advanced. She gave compelling oral evidence that:
My current application is not because I don’t think that there’s a benefit to [X] knowing his father. My current application is simply based on the fact that I am so worried about the effect that it’s having on me and then the – that effect on [X]. I’ve found it a really hard application to make. I grappled with it a lot. There’s a lot of guilt in knowing that [X] might not even have the supervised time because I haven’t managed to deal with it. And I have tried so hard for the last two years to deal with it. And I’m someone who believes strongly in people overcoming – sorry – who believes strongly in people overcoming and moving beyond things and quite frankly I feel stupid that I can’t because, yes, I believe that [X] would benefit from having a relationship with his father if he could be safe while doing so. And that’s why I’ve tried to make it work and I really have. Sorry. I’m talking for a long time but in short, yes, if he can be safe while he’s doing so and not have the same harms or other harms that I came to.
…
And even supervised, I don’t know what else I can do other than leave my job so I can manage it, but then I can’t meet my debts.
…
It’s very difficult in terms of medication I can take. I’m trying that with [anxiety medication]. The thing is it doesn’t – I’m not functional without it and I’m not functional with it. And even looking after [X], you know, I’m – I’m – I’m not – I’m not a low functioning individual normally. I normally manage to handle a lot of things and juggle work and juggle him and I do well at my job normally. But I – I – I can’t with the effect of the visits.
….
I feel like I’m failing miserably which just doesn’t sit well with my character, to be honest, because I’m not managing.
I reject any suggestion that Ms Gavare’s proposal is maliciously advanced. There is no expert evidence to support such a conclusion. Further, I accept her compelling oral evidence that she does not hate Mr Ulrich, isn’t angry with him, and blames herself for staying with him.
Any family violence involving X or a member of his family
Mr Ulrich admits some of the allegations of family violence made against him, but generally asserts that Ms Gavare’s evidence is exaggerated.
Mr Ulrich cross-examined Ms Gavare generally about her allegations as follows:
COUNSEL FOR [MR ULRICH]: You do understand, don’t you, a number of – digging through all the records, it has been suggested that you tend to exaggerate things that have happened to you in the relationship?
[MS GAVARE]: I haven’t exaggerated anything that has happened to me.
COUNSEL FOR [MR ULRICH]: You do understand that some people have suggested you may have? Some medicals, yes?
[MS GAVARE]: Can I ask who? Who are you referring to?
COUNSEL FOR [MR ULRICH]: I think [Dr H] even reckoned – passed on one of those, but I’m going to go through. I’m putting a point to you that you have exaggerated at times, and due to your condition at any particular time leads to a sense of distortion of the facts?
[MS GAVARE]: I disagree that I have exaggerated anything.
There was nothing about the way in which Ms Gavare gave that specific evidence, or her evidence generally, that caused me to doubt its reliability or credibility.
The basis for Mr Ulrich’s suggestions that medical professionals had formed the view that Ms Gavare had exaggerated things that had happened to her during the relationship was not specifically identified, despite Ms Gavare’s requests. It appears to be the following evidence of Dr K:
Although it is possible that [Ms Gavare] has manufactured her symptoms completely, there is not enough evidence to corroborate this suggestion. It is possible that she had mis-perceived the level of threat by the father, and had not accounted for her capacity to set enforceable limits to his behaviour. Her beliefs about the level of threat may have been shaped by her affective responses in the relationship. The father’s assault on the maternal grandfather would have greatly alarmed her, and is an indicator that the father had indeed be violent.[40]
[40] Affidavit of Dr K filed 30 November 2023, annexure K-2, paragraph 63.
Dr K confirmed in oral evidence that he had dismissed the possibility of her having manufactured her symptoms completely.
The possibility of Ms Gavare manufacturing her symptoms was put to Mr L, in re-examination. He gave evidence that:
It’s something that, of course, I’ve considered in our early engagements, although my client has given me no reason to suspect that this would be the case…. I don’t have any evidence from our engagement to suggest that that’s what has taken place, your Honour.
The same possibility was raised with Dr H in re-examination. She was asked whether she had identified or observed anything that gave her “cause to pause and consider that perhaps there was an element of manufacturing or fabrication in [Ms Gavare’s] disclosures”. She gave evidence “No, I didn’t. No, I don’t believe there was fabrication.”
Although Dr J expressed the view that Ms Gavare likely exaggerated her account of the relationship with Mr Ulrich, I am unable to place any significant weight on that opinion in light of Dr J’s unavailability to give evidence, for the reasons already given.
The expert evidence does not satisfy me that Ms Gavare has exaggerated her allegations of family violence. Although it was a possibility hypothesised by Dr K, he found there to be an insufficiency of evidence to corroborate it. He reached that opinion having psychiatrically assessed both Mr Ulrich and Ms Gavare. Neither of Ms Gavare’s treating mental health practitioners reach a different conclusion.
That Mr Ulrich considers Ms Gavare’s evidence to be exaggerated does not establish it to be so. Family violence is defined to include behaviour that causes Ms Gavare to be fearful.[41] Whilst he might consider that particular behaviour of his ought not to have caused fear, that does not deny the possibility that Ms Gavare may have experienced fear from the same behaviour. Having not specifically challenged Ms Gavare’s experience of his conduct in cross-examination, I do not accept that his claim of her evidence being exaggerated leads to a conclusion that she was not fearful of him as a result of his behaviour. Whether he intended to perpetrate family violence is irrelevant.[42]
[41] Family Law Act 1975 (Cth), s 4AB.
[42] Carter & Wilson (2023) FLC 94-129 (“Carter & Wilson”) at [80] per Bennett J.
It is important to understand the context in which the family violence is alleged.[43]
[43] Carter & Wilson at [15] per McClelland DCJ and Campton J, and at [83] per Bennett J, citing Helbig & Rowe & Ors [2016] FamCAFC 117 at [91].
The parties met at church. They initially kept their relationship secret. At a public gathering in 2010, when they were seen together, Ms Gavare deposes that she had a drink or two, and that Mr Ulrich was “absolutely furious and raged at me later that my behaviour was damaging to his reputation”.[44] That evidence was unchallenged and uncontradicted, and I accept it.
[44] Affidavit of Ms Gavare filed 22 January 2024, paragraph 12.
Whilst lengthy, it is also necessary to quote the following passages of Ms Gavare’s evidence which provide further important context to the allegations she makes:
In the months that followed, a pattern emerged in my relationship with [Mr Ulrich], and he slowly but gradually began to erode my sense of self, my confidence and my identity. [Mr Ulrich] would go through periods of lavish affection – frequent complements and encouragement – and then instantaneously and with no warning, become furious and aggressive. He would frighten me with threats, hitting things in anger and chipped away at my self-esteem through demeaning name calling. He became increasingly controlling, trying to change me into some idealized version of a “[church]” wife. This attempted transformation included the clothes that I wore, the way that I spoke, the views I could hold, who I should be friends with, where I should work, and my volunteering at [church]. [Mr Ulrich]’s constant criticism and reproaches, juxtaposed with the declarations of love, confused me and wore away at my confidence and identity. I developed a strange dependence on him – transformed from being an independent and confident young woman to feeling that I couldn’t live without him, despite the damage that he was doing to me. At this time, I had little experience of relationships and was confused as to the way I was being treated.[45]
[45] Affidavit of Ms Gavare filed 22 January 2024, paragraph 13.
…
From very early in the relationship and then on an ongoing basis, [Mr Ulrich] told me frequently that others at [church] did not approve of me, that they thought I was "crazy" and that he should not be with me. He would tell me that his love for me was therefore so pure and great – that despite me being a “chronic depressive” he was still with me. This made me feel as though I could not tell anyone what was happening in our relationship out of fear that they would not believe me. [Mr Ulrich] would often tell me that the lead pastors of [church in City Q] (who were husband and wife), felt this way about me, destroying any possibility that I would turn to them for help. Seeking clarity, I reconnected with them after our separation and found that this could not be further from the truth.
In the second half of 2011, [Mr Ulrich] was frustrated with me and threatened that if I did not "behave" that he would call emergency services and get them to lock me up in a psychiatric hospital. [Mr Ulrich] would repeat this threat if I did not comply with his demands on numerous occasions throughout our relationship until the end of 2021.[46]
[46] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 15 to 16.
….
[Mr Ulrich] set himself early in the relationship as the “saviour” who was “helping” his “weak” and “mentally ill” partner. He successfully controlled the narrative with my family and others at church this way. The distance from my parents made it impossible for them to detect what was really happening. [Mr Ulrich] constantly convinced me that I was an “oversensitive” “chronic depressive”, downplaying his abuse and threats, convincing me that I had imagined things and leaving me confused. I was very frightened when he would threaten to have me interned in a psychiatric hospital as I was away from my family, and I believed that he could.
Regardless of how much I did however, and how much I tried to please and appease [Mr Ulrich], the outbursts continued. I was frequently made to sit and listen to long lectures (approx.1-2 hours) by him including a play-by-play of everything I had said or done wrong, or in the wrong tone, after church events or after spending time with others. [Mr Ulrich] would make lists on his phone or tablet and then force me to sit and listen while he angrily listed off things that were "wrong" with me. I had to sit meekly and accept everything he said, or he would explode and begin shouting at me and hitting things near me. I was also required to apologise and detail how I would “change” in response. If I did this in slightly the wrong way or didn’t make exactly the right promise he was seeking (and I had to guess what that was) he would explode at me, which was frightening.[47]
…
Early in our relationship he began blaming me that he wouldn’t receive social invitations. He frequently reproached me for not being friends with the female partners of those he wanted to be his friends, and following most social gatherings or church meetings would criticize things that I said or the way that I said them. [Mr Ulrich] would often blame me that his “friends” were evidently avoiding seeing him.
[Mr Ulrich] frequently pressured me to leave my job and pursue employment at [the church] as he thought that would benefit his career. With the benefit of hindsight, I appreciate this was an attempt to further isolate and control me.
The volunteering requirements imposed by [Mr Ulrich] and his determinations on who was an appropriate friend left little space for my previous friendships, though I tried to maintain these. I never dared share [Mr Ulrich]’s behaviour – fearful that it would get back to him and doubtful that anyone would believe me. My previously frequent visits to the UK reduced in frequency and length – [Mr Ulrich] always wanted us to be together and increasingly complained about my family and/or the activities when we did go. It became easier to simply not go.
[Mr Ulrich] kept me isolated from my family and increasingly throughout our relationship isolated me from my friends. This was particularly so where he was not friends with the same people and he insisted that we needed to be friends with couples, together. [Mr Ulrich] was very possessive and controlling of me. On one occasion he made me cease contact with a close male friend I had met while studying as when [Mr Ulrich] met him for the first time [Mr Ulrich] did not like the way he talked to me… Prior to my relationship with [Mr Ulrich], and since I was around 16 years old, I enjoyed going [out] with friends. After [Mr Ulrich] and I began dating, he would no longer permit me to go [out] with my friends as he did not like [socialising] and did not want me [socialising] with other men.
In [mid] 2012 at [Mr Ulrich]’s parents’ house in [Country B], [Mr Ulrich] was screaming at me so loudly that his older brother [Mr D] came upstairs, hearing him shouting and concerned what he might do. [Mr Ulrich] stormed out and his brother told me that I had better keep my distance. I was trembling, crying, and frightened, as I often was when [Mr Ulrich] yelled at me. [Mr Ulrich] is much bigger than me […] He is quite tall and broadly built and physically intimidating.[48]
…
After my separation from [Mr Ulrich], I found a diary entry dated [early] 2014 in which I had written the following. “Scared to leave [Mr Ulrich] but scared to stay here. Unhappy for 3 years?”. Feel like all my energy goes into just surviving and not breaking. I want to flourish not survive. No good for me or for others just surviving. No confidence left…”. In another entry dated [early] 2014 I wrote “I live in fear of telling him [Mr Ulrich] things because I don’t know what his reaction will be – if it will be gentle or if it will be abusive or threatening. I always seem to be wrong. Scared to say my opinion in case he explodes or leaves me... I don’t feel safe.” I recall that around this time I was questioning whether or not I should continue in my relationship with [Mr Ulrich]. When he realised this, he exploded at me in anger, shouting that I had better hurry up and decide. From memory, he accorded me approximately one week to “decide”.[49]
[47] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 17 to 18.
[48] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 19 to 23.
[49] Affidavit of Ms Gavare filed 22 January 2024, paragraph 26.
In cross-examination, Mr Ulrich sought to suggest the diary entries were fabricated by Ms Gavare. He made no such suggestion in his affidavit, nor was the allegation put to Ms Gavare in cross-examination. I reject it.
Ms Gavare goes on to depose to the following after the parties’ marriage in [mid]-2014:
Following our wedding we went on a honeymoon trip […] for approximately [10] days. I became aware during this trip that my assumption that [Mr Ulrich] would change his behaviour after marriage was wrong. Even during our honeymoon, [Mr Ulrich] would explode in terrifying rages, shouting at me. He would at other times be the picture of a “smitten” groom. It was frightening, confusing and I felt alone and unsafe. What had become a pattern continued – he would convince me that it was my fault that he had been shouting abuse at me, calling me names, losing his temper. He would downplay everything he had done and said, tell me it was normal, that he was “[from Country B]”. He would lecture me at length, usually reading from a list he had noted in his phone or on a tablet, about all that was wrong with me. I would be forced to apologise and he would become “Prince Charming” again until made a slight misstep of some kind and the cycle repeated again.[50]
…
Once we were married and living together, [Mr Ulrich] had even greater control. When he was in rages, there was nowhere that I could go. [Mr Ulrich] continued to insist that we needed to be friends with couples, together. He would convince me that my family did not care about me and that they only cared for my younger sister. He increasingly sought to control the relationship with my parents. For example, after shouting abuse at me and terrifying me to the point of breaking, he would ring my father and tell him I was not doing well and that he had no idea why. I believe he did this to control the narrative of what was occurring.
Throughout our marriage, [Mr Ulrich] used our shared Christian faith to prevent me from leaving him and said that a Christian could not leave for that reason and that they had to show “grace” and stay in the marriage. This was another reason I felt forced to stay in the relationship.
Early on in our marriage, and then throughout, I experienced pain on many occasions during sexual intercourse with [Mr Ulrich]. He convinced me that any pain during sexual intercourse was because I "had a problem" and that "I had to get it fixed". He pushed me into sessions with a sex “physiotherapist” in [City Q] that were humiliating, degrading and painful. After each session he asked me for a compete run-down of what had been discussed and done which I found humiliating and shameful.
[Mr Ulrich] made threats and used anger to coerce me into increased sexual contact and intercourse. He would go into frequent rages, screaming at me and then, later, convince me that it was my fault because I was not touching or desiring him enough, or that I was not having sex with him often enough. This made me feel fearful and sick to my stomach as I felt I had no choice but to spontaneously touch [Mr Ulrich], pose for him in ways I found degrading while he masturbated and initiate sexual contact, knowing that if I did not do it frequently enough, he would begin shouting at me, belittling me, and threatening me. While sexual intercourse was frequently painful, I had to try and mask the pain and force signs of pleasure to reassure him that he was performing or risk later punishment through rages, threats and lectures. I continue to have nightmares and flashbacks as to these incidents. They are so traumatic to me that I cannot contemplate entering into another relationship, or even read or watch anything that has slight romantic content as it beings back traumatic memories of our sexual relationship.[51]
…
In [mid] 2015, whilst in [City Q], [Mr Ulrich] found out that I had renewed my British passport without changing my surname to his and without his permission, and became enraged, shouting at me that I did not respect him or love his family enough. Around this time [Mr Ulrich]’s mother asked me if I was changing my surname, and I had said that I wanted to keep my family name. When [Mr Ulrich] found out his was angry. He forbade me, even later in the marriage, from correcting his mother or other members of his family when they would call me by his surname.
I was constantly required to praise and flatter [Mr Ulrich] otherwise he would shout at me, then blame me for his rage saying it was because I did not praise him or show him enough sexual desire. [Mr Ulrich] would force me to listen to lectures of one and a half to two hours in length from him about how I should be encouraging, complementing, and touching him more. He would make lists of all of the things that were wrong with me. Whenever [Mr Ulrich] was angry, lecturing me or when we were "discussing" matters, he would barely allow me to speak. He would speak increasingly loudly, shouting over me. He would require me to nod and apologise profusely for anything he was angry at me about, and if I failed to do so (or did not apologise exactly “right”), his rage and threats would escalate. This was terrifying and I am concerned that [Mr Ulrich] will behave in exactly the same manner to [X].[52]
[50] Affidavit of Ms Gavare filed 22 January 2024, paragraph 30.
[51] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 32 to 35.
[52] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 40 to 41.
When studying in Country B in 2018, Ms Gavare deposes that:
When he came to visit he would frequently belittle me and shout at me. He would accuse me of being superior to him and not including him. He would be particularly angry if we did not have sexual intercourse when he visited and if I did not actively talk him up in front of everyone I introduced him to.[53]
[53] Affidavit of Ms Gavare filed 22 January 2024, paragraph 42.
Upon the parties both relocating from Country B to Australia and Ms Gavare falling pregnant in 2019, she deposes that:
[Mr Ulrich]’s threats, bullying, insults and uncontrollable rage worsened and increased in frequency during my pregnancy and even more so following [X]’s birth.
My mental health deteriorated during pregnancy with [Mr Ulrich] frequently exploding at me and with me having growing concerns about protecting our unborn child from his abuse and feeling vulnerable myself.
In or around the third trimester of my pregnancy [Mr Ulrich] had been shouting and insulting me. I reached out to my midwife directly asking if I could be admitted to the maternity ward at the [hospital] for the night. I recall being too scared to tell the midwife the reason why I wanted to be admitted.[54]
…
Following [X]’s birth, I had less energy and time to attend to [Mr Ulrich]’s demands and his behaviour worsened.
In or around [mid] 2020 at our home in [Suburb O], New South Wales, [Mr Ulrich] had been yelling at me and told me he "wanted to bash me up". This occurred in front of [X] who was at that stage [an infant].[55]
….
On a Saturday in [early] 2021 […] [Mr Ulrich] yelled at me in the car in front of [X] who was [8] months old at the time and [X] began crying. [Mr Ulrich] shouted at me that I was a “selfish princess”, amongst other things, as he was angry that I did not want to apply for an apartment we had visited. I was shaking, afraid of him and worried about the effect on [X]. After shouting at me for a while, [Mr Ulrich] stormed off out of the car, leaving me to wait with [X] in the car on our own and I had no idea where he had gone. [Mr Ulrich] had the car keys, and I couldn’t leave the car unlocked with [X]. I had no idea what to do, where [Mr Ulrich] had gone and when he would be back. When he returned, he sat in the front of the car, seething with rage and gave me the silent treatment for approximately 20 minutes before we were allowed to drive home.
On many more occasions [Mr Ulrich] gave me the silent treatment. On one occasion in 2021, [Mr Ulrich] ignored me and barely responded to me for more than a week, because I had not grovelled in apologies or made enough promises to change what he told me was wrong with me. I did not have the energy or time to provide the same level of constant praise, attention and sexual contact to [Mr Ulrich] that he demanded, given my caring responsibilities for [X] and this made his behaviour towards me worsen.
Even as [X] got older and was consequently more aware, [Mr Ulrich] would grab me sexually in front of him, grabbing my private areas and would become agitated if I did not act as if I enjoyed it. When this occurred, I would attempt to move away without angering him and distract [X]’s attention towards something else. At times, [Mr Ulrich] would feel me up whilst I was sleeping and grope parts of my body, waking me up.[56]
…
[Mr Ulrich] has proven to me to be very impulsive and has also taken [X] in the past to punish me when angry with me. He is extremely vindictive, and I continue to fear that he will attempt to abduct [X] in order to punish me for separating from him. In or around [early] 2021, [Mr Ulrich] was angry with me and disappeared with [X]. He would not tell me where they had gone because he was angry with me and wanted to punish me, ignoring my telephone calls. [X] was only [an infant] at the time. [Mr Ulrich] finally answered and refused to tell me where he had taken [X] and hung up the phone. He did this on several more calls, answering and then refusing to say where he had taken [X]. I almost reached the point of calling the police however [Mr Ulrich] finally told me where he had taken [X]. [X] and I had not been separated for more than one hour at that time.[57]
[54] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 47 to 49.
[55] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 53 to 54.
[56] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 58 to 60.
[57] Affidavit of Ms Gavare filed 22 January 2024, paragraph 61.
In late March 2021, Mr Ulrich screamed at Ms Gavare phrases in Country B language which she translates as you’re a “selfish fucking cunt” and “a real bitch”. Mr Ulrich accepted he had inappropriately sworn at her but asserted that he did not call her a “cunt”, asserting there is not a Country B language equivalent of the word. He claimed that the word is closer to “arsehole” or “bitch”. I prefer Ms Gavare’s evidence given the absence of challenge to it. Ms Gavare goes on to depose that afterwards:
…we were driving from our apartment to the beach and [Mr Ulrich] began yelling at me. [X] was crying loudly, very distressed, as [Mr Ulrich] screamed at me in the car. I was trembling with fear and trying to cover [X]’s ears and protect him. When we arrived, [Mr Ulrich] got out of the car, and walked off with [X]. I followed at a short distance, worried about [X] being with [Mr Ulrich] when he was in such a state. [Mr Ulrich] stopped and walked back to me a number of times to hiss the same insults at me right up in my face, from his greater height and just over [X]’s head, who he was carrying in a front baby carrier. That evening, he forced me to sit for one and a half hours, not allowing me to go to bed when I was exhausted, while he listed off everything that was wrong with me. He had spent two to three hours sitting on the couch making the list after we returned home while I took care of [X], who was also in the living room.[58]
[58] Affidavit of Ms Gavare filed 22 January 2024, paragraph 62.
On 7 September 2021, Ms Gavare deposes that:
…at our home in [Suburb O], [Mr Ulrich] was yelling at me in front of [X], following me around the apartment as I tried to move away from him. He ignored me asking him to stop, moving to within 30 cm of me so that I could not avoid him and speaking loudly in my face. [X] was crying, upset by the aggression, noise, and seeing me distressed. I felt trapped and unable to get away from [Mr Ulrich] and had a panic attack. I called my parents for help on video call to make him stop. There were many times in the months preceding this that he had done this, always in front of [X]. After this event, I had a severe reaction and I was unable to work for weeks, having ongoing anxiety attacks and nightmares attributed to his behaviour.[59]
[59] Affidavit of Ms Gavare filed 22 January 2024, paragraph 67.
More generally, Ms Gavare deposes that:
[Mr Ulrich] is extremely sensitive to criticism and explodes in anger when criticised. Whenever I attempted to carefully voice concerns about [X]’s safety when he was, for example, throwing [X] so high he would hit his head on the ceiling, [Mr Ulrich] would explode at me and begin insulting me. I eventually became too frightened to say anything at all. It was much easier to simply agree with [Mr Ulrich] outwardly. I became terrified at the thought that [Mr Ulrich] would intentionally or recklessly harm [X], but I was unable to say anything.[60]
[60] Affidavit of Ms Gavare filed 22 January 2024, paragraph 63.
Mr Ulrich deposes that he rejects the “general depiction of my character and the representation of the dynamic within our marriage made through [Ms Gavare’s] affidavit.”[61] He deposes that “I reject [Ms Gavare]’s claim that I belittled her, threatened to have her “locked up” in a psychiatric facility, called her “weak” for being depressed or her contradictory assertion that I tried to be her “saviour”.[62] He also deposes that her claim that he tried to isolate her from her family is “disingenuous”. [63] Despite that evidence, Mr Ulrich did not challenge Ms Gavare’s evidence quoted in the preceding paragraphs. There was nothing about the way in which she generally gave her evidence that caused me to doubt its veracity. Consistent with Dr K’s assessment, I found Mr Ulrich to consistently minimise not only his behaviour but its impact on others.
[61] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 50.
[62] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 44.
[63] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 45.
Ms Gavare gave oral evidence consistent with her affidavit evidence of her experience of her relationship with Mr Ulrich. She did so in a state of, at times, significant distress. She was asked whether she claimed Mr Ulrich never gave her any support when she was having depressive moments. She gave oral evidence that:
I think it was really twisted because to terrify me to the point that I was in that state and then that I would have to grovel and apologise and make him happy again and flatter him and – and then he would be on – so nice and kind and – and then it would start again. And if you call that part of being nice and kind after I’ve grovelled for the fact that he has been horrible to me, that I – I don’t – I struggle to see it as support. It was really twisted. And then it was like this thing where he – he – he – he would break me and then – and then I would be all submissive and apologise and tell him how wonderful he was and how kind and then he would be Mr kind and supportive and, [say] “Look, you know, I’m just helping you, you know. I’m telling you all these things to make you better”. And then I would believe him and then he – he would tell the same story to other people and so if that’s what you mean by supportive, looking at it now, no. I think it was really twisted. I’m sorry. I don’t know how to answer that in a clearer way and it was very confusing.
Mr Ulrich also failed to challenge Ms Gavare’s oral evidence of her experience of her relationship with Mr Ulrich. To point to instances of Mr Ulrich offering support to Ms Gavare does not impeach the general reliability or credibility of her account.
I accept Ms Gavare’s evidence about her experience of her relationship with Mr Ulrich. His behaviour and conduct caused her terror and fear.
Whilst the concept of coercive control is a technical phrase in social science literature,[64] the pattern of behaviour described by Ms Gavare appears to comprise “a course of conduct aimed at dominating and controlling another person, including a family member”.[65] It is ultimately unnecessary to determine whether or not the described behaviour amounts to coercive control because this is not determinative of whether it constitutes family violence as statutorily defined.[66] The accepted evidence provides important context to the particular incidents of physical violence to which I will now turn.
[64] Carter & Wilson at [74] per Bennett J.
[65] Ramzi & Moussa [2022] FedCFamC2F 1473 at [145], quoted in Carter & Wilson at [13] to [14] per McClelland DCJ and Campton J, and at [72] to [73] per Bennett J.
[66] Carter & Wilson at [14] to [17] per DCJ McClelland and Campton J, and at [74] to [76] per Bennett J.
In late 2011, Ms Gavare deposes that on a public street of City Q, Mr Ulrich “was frustrated with me and smacked me hard on the bottom. I was shaking with fright and told him to never hit me again”.[67] Her evidence was unchallenged. Whilst Mr Ulrich generally denies that he has ever been physically violent towards Ms Gavare, I prefer her evidence as particularised. My observations of Mr Ulrich’s evidence were consistent with Dr K’s assessment that he “tended to minimise the extent and impact of his admitted behaviour”.[68]
[67] Affidavit of Ms Gavare filed 22 January 2024, paragraph 16.
[68] Affidavit of Dr K filed 30 November 2023, annexure K-1, paragraph 56.
In mid to late 2014, Ms Gavare deposes that:
… in our apartment in [City Q], [Mr Ulrich] was in a rage, yelling at me and threw what he thought was my favourite cup onto the tiled floor causing it to smash, cutting and scarring my foot. [Mr Ulrich] had been complaining about his boss daily and in the conversation that preceded the cup throwing, and I had simply suggested he talk to another senior member of his staff, or his boss directly if he felt there was an issue. [Mr Ulrich] flew into a fury at this simple suggestion. The apartment was only [small], making it even more frightening as there was nowhere to move away from [Mr Ulrich]. I felt completely trapped.[69]
[69] Affidavit of Ms Gavare filed 22 January 2024, paragraph 36.
Mr Ulrich deposes that “in frustration, tears, and an obvious lack of maturity, I threw a mug on the ground at my feet”.[70] He accepted in cross-examination that he was angry and in a rage, although he subsequently withdrew his acceptance of the latter characterisation. Ms Gavare challenged Mr Ulrich’s evidence in cross-examination. Little turns on the factual dispute between the parties. On both their versions, Mr Ulrich lost his temper and smashed a cup on the ground, causing injury to Ms Gavare’s foot. He concedes that his behaviour would have been frightening for Ms Gavare.
[70] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 53(a).
In early 2017, Ms Gavare, Mr Ulrich and Mr M travelled to Country B. At the airport at the conclusion of the trip, Ms Gavare was upset. Mr Ulrich was frustrated that Mr M was not comforting his daughter. Mr M deposes to saying to Mr Ulrich, “…you are a very impertinent young man”.[71] Mr Ulrich deposes that Mr M called him “rude” and “uneducated”.[72] Mr Ulrich thereafter slapped or struck Mr M across the face. Mr M deposes without contradiction that his glasses were sent flying and airport staff intervened.
[71] Affidavit of Mr M filed 22 January 2024, paragraph 7.
[72] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 53(b).
Mr Ulrich sought to contextualise his behaviour by deposing to what he said were tensions during the holiday and having been recently informed that his grandmother had passed away. They appear to be attempts by him to excuse his assault of his father-in-law in a public place.
Unsurprisingly, Dr K opines that the assault “would have greatly alarmed [Ms Gavare], and is an indicator that the father had indeed been violent”.[73] I accept his evidence.
[73] Affidavit of Dr K filed 30 November 2023, annexure K-2, paragraph 63.
In around mid-2020, both parties were in their bedroom, sitting in bed, arguing. Ms Gavare deposes that:
[Mr Ulrich] shouted at me and then smashed a painting that was precious to me less than a metre from [X] who was in my arms and had started crying when [Mr Ulrich] began shouting. I was terrified and trembling. I felt very vulnerable and frightened that he would do something that would hurt [X].[74]
[74] Affidavit of Ms Gavare filed 22 January 2024, paragraph 55.
Mr Ulrich admits that he broke the painting. He explains that he did so after it falling on his head. He deposes “I broke the picture/frame, not to cause fear in [Ms Gavare], but because I was sick of it falling on my head, and because it had also fallen on or very close to our son.”.[75] I have already referred to the irrelevance of his intention as to whether an incident constitutes family violence. He seeks to minimise the impact of his behaviour by explaining that Ms Gavare thought the picture was ugly and subsequently expressed relief after it was broken. I accept Ms Gavare’s submission that he thereby sought to shift the blame for his behaviour. I also accept her evidence that she was terrified and trembling as a result of his conduct.
[75] Affidavit of Mr Ulrich filed 5 February 2024, paragraph 53(d).
I accept Dr K’s unchallenged evidence that “the overall impression was that [Ms Gavare] had found the level of conflict during the relationship with the father simply intolerable and frightening”.[76]
[76] Affidavit of Dr K filed 30 November 2023, annexure K-2, paragraph 64.
X has been exposed to his father’s violence. Ms Gavare deposes without challenge that:
At or about the time that [X] was at least 12 months old, [Mr Ulrich] did something that hurt me physically. I cannot recall the details as I have blocked many of the more traumatic incidents, but I do remember [X] looking directly at [Mr Ulrich] and screaming in what seemed like rage and acute distress. [X] then came straight to me and into my arms. I can vividly remember [X]’s reaction as it was so extreme given how young he was.[77]
I accept her evidence.
[77] Affidavit of Ms Gavare filed 22 January 2024, paragraph 66.
Further context to Mr Ulrich’s behaviour towards Ms Gavare is gleaned from his violent conduct towards others. I accept Ms Gavare’s unchallenged evidence that he struck a man with a weapon causing hospitalisation in around 2012, reached his hand into a stranger’s vehicle during a road rage incident in around 2017, and attacked strangers in the City Q public transportation system on numerous occasions, including kicking a man and beating up two different men. I also accept Ms Gavare’s unchallenged evidence that he deliberately stomped on small animals, beat them to death with an object, and threatened to kick dogs.[78]
[78] Affidavit of Ms Gavare filed 22 January 2024, paragraphs 27 to 28.
I am tolerably satisfied that throughout the parties’ relationship, Mr Ulrich perpetrated family violence.
If a family violence order applies, or has applied, to X or a member of his family, any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter
In early 2022, Ms Gavare successfully applied for an interim Intervention Order against Mr Ulrich. A final Order was made by consent without admissions for 12 months in early 2022. A further final Intervention Order was made by consent without admissions in late 2023. On the evidence before me, I do not draw any inferences from their making.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
To make orders for X to continue to have direct interaction with his father leaves his primary caregiver exposed to a significant risk of deterioration in her mental health. At its worst, it could leave her hospitalised and incapable of caring for X at all. Even if any deterioration is not to that degree of severity, should her mental health decline to the extent that she is unable to function more generally, it seems reasonably likely that further proceedings would be necessitated.
Any other relevant fact or circumstance
Not applicable.
PARENTAL RESPONSIBILITY
I am to apply a presumption that it is in X’s best interests for his parents to have equal shared parental responsibility for him.[79] The presumption does not apply given there are reasonable grounds to believe that Mr Ulrich has engaged in family violence.
[79] Family Law Act 1975 (Cth), s 61DA.
It is agreed that Ms Gavare will have sole parental responsibility for X. Whilst it is a significant step to deprive a parent of parental responsibility with which they are invested by law,[80] I agree with the parties that X’s best interests are served by that responsibility vesting solely in Ms Gavare.
[80] Lennon & Lennon [2011] FamCA 571 at [108].
The Independent Children’s Lawyer and Mr Ulrich propose that Ms Gavare consult with Mr Ulrich prior to making any long-term decision in respect of X and take into account Mr Ulrich’s reply prior to making any such decision. Ms Gavare proposes that she advise Mr Ulrich of any major long-term decision she makes in relation to X.
Ms Gavare deposes that receiving direct communications from Mr Ulrich triggers “traumatic memories and causes me severe anxiety for days, and sometimes weeks following the contact”,[81] impacts her ability to focus and sleep, causes nausea, and provokes nightmares. She deposes to hearing Mr Ulrich’s voice in her head when reading communications from him, triggering “memories of me being berated by [Mr Ulrich] for hours, being shouted at and of the frequent long lectures he would subject me to, breaking me down through exhaustion and fear”.[82] Her evidence was unchallenged and I accept it.
[81] Affidavit of Ms Gavare filed 22 January 2024, paragraph 165.
[82] Affidavit of Ms Gavare filed 22 January 2024, paragraph 165.
Mr L opines, without challenge, that direction communication between Mr Ulrich and Ms Gavare “would cause further traumatisation and exacerbate [her] current experience of anxiety and trauma symptomatology” and be “deleterious to [her] mental health should she be compelled to communicate with the father directly”, forming “a significant and ongoing barrier to her recovery from trauma”.[83]
[83] Affidavit of Mr L filed 22 January 2024, annexure L-3, page 13.
Neither the Independent Children’s Lawyer nor Mr Ulrich made any submissions in support of their position. Neither explained how it is in X’s best interests for his primary caregiver to be impacted in the way described. It is agreed that Ms Gavare will have the sole authority to make any major long-term decisions for X. I am not satisfied that giving Mr Ulrich the opportunity to have prior input to any proposed decision, with its attendant deleterious effects upon the mental health of X’s primary caregiver, is in his best interests.
I am nevertheless satisfied that Mr Ulrich should be kept appraised of major long-term decisions for X, as proposed by Ms Gavare.
CONCLUSIONS
X’s time with his father
An outcome in which X’s relationship with his father is terminated is a course of last resort.[84] Given the potential consequences of such a separation, careful consideration is required before reaching such a conclusion.[85] I must contemplate whether steps can be taken to ameliorate or mitigate relevant risks such that X can maintain a meaningful relationship with his father.[86] The possibility of X spending supervised time with his father ought be considered.[87]
[84] Bielen & Kozma at [53], quoting Summerby & Cadogen [2011] FamCAFC 205 at [95].
[85] Bielen & Kozma at [54], quoting Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [28].
[86] Keane at [84], as quoted in Bielen & Kozma at [52].
[87] Bielen & Kozma at [55], and the cases there cited.
Whilst I have found the pattern of family violence inflicted by Mr Ulrich on Ms Gavare during their relationship had a profound impact on her, I am ultimately not satisfied that the direct risk to X of exposure to family violence in his father’s care is of such a magnitude that X’s relationship with his father ought be terminated.
Whilst I consider there to be more direct risks of Mr Ulrich being verbally abusive towards and neglectful of X, I am not satisfied they are unacceptable such that their relationship ought be terminated.
However, the impact on X’s undisputed caregiver of ongoing contact between X and Mr Ulrich is profound. She alleges that she would suffer such psychological degradation as to impair her parenting capacity and deleteriously affect X.[88] Relevant authority is summarised by the Full Court in its decision of Keane & Keane & Another.[89]
[88] Franklyn & Franklyn (2021) FLC 94-031 at [40], and the line of authority there cited.
[89] (2021) 62 Fam LR 190 at [75] to [82], as cited in Lim & Zong (2022) FLC 94-104 at [32].
Ms Gavare should prove, by adducing evidence of sufficient weight, the basis for her contention.[90] Consistent with authority, she asks me to take into account her anxiety of Mr Ulrich arising from “her genuine, but not necessarily rational belief” that he presents an unacceptable risk of harm to X.[91] I am not entitled to infer that merely because she is concerned about X’s safety in his father’s care, there is an unacceptable risk her parenting capacity will be adversely impacted. Doing so risks elevating those fears to the extent of overshadowing the totality of the statutory considerations and gives Ms Gavare a right of veto over whether X should have time with Mr Ulrich.[92]
[90] Keane at [73].
[91] Blinko at [83], as quoted in Keane at [82].
[92] Keane at [80], and the case there quoted.
I have referred at length to the evidence before the Court of the current impact on Ms Gavare of X spending time with his father. I am amply satisfied that her parenting capacity is significantly degraded and deleteriously affected, particularly in the lead up to, and after, the visits.
I am required to consider what steps can be taken to ameliorate or mitigate the risk of Ms Gavare’s parenting capacity continuing to be deleteriously impacted by X having contact with his father. Dr K referred to the possibility of titrating or adjusting the regime of X’s time with his father while taking into account Ms Gavare’s ongoing reactions. Such an outcome is unavailable in the determination of the final applications now before the Court. It would be unlawful to delegate judicial decision-making authority to a mental health professional to determine the nature of future arrangements for X’s time with his father.[93]
[93] Lainhart & Ellinson at [27] and [28], and the cases there cited.
Each of the mental health experts who have given oral evidence in the proceedings agree that more regular psychotherapy would be of assistance to Ms Gavare. Mr Ulrich and the Independent Children’s Lawyer propose an order that:
The mother to follow the recommendations of [Dr K] and her treating psychiatrist and psychologist are to be provided with a copy of his report and for the purposes of same, as soon as practicable, engage with a psychologist specialising in trauma and see them on a weekly basis face to face, and to engage with a psychiatrist on a weekly basis face to face.[94]
[94] Exhibit ICL1, paragraph 11.
Such a self-standing order is not a parenting order pursuant to section 64B of the Act and is likely to be beyond power.[95] Mr Ulrich submits that it could be made under the Court’s general welfare power. He did not articulate what unique circumstances might suggest that such an order could made conformably with section 67ZC of the Act.[96]
[95] Oberlin & Infeld (2021) FLC 94-017 (“Oberlin & Infeld”) at [51] and [52], and the cases there cited; Eastley at [58].
[96] Oberlin & Infeld at [52], and the case there cited.
Even were I satisfied of the power to order Ms Gavare to undergo the recommended therapy, she gave unchallenged oral evidence that she “would see [Mr L] weekly if I could afford it”. Mr L gave evidence that Ms Gavare has access to ten annual sessions of therapy that may be bulk-billed, and any further sessions are charged at the rate of $220 per hour. The cost of weekly therapy would accordingly amount to $9,240 per annum.
No party adduced evidence in relation to the cost of weekly sessions with a psychiatrist.
Ms Gavare gives unchallenged evidence that she cannot afford to meet the costs of private rental accommodation, that all of her income is used to meet her and X’s necessary living expenses, and that she has no savings. However desirable weekly therapy might be, there is no evidentiary basis upon which I can conclude that it can be afforded. Absent satisfaction that the order sought is capable of being complied with, I decline to make it. It is impermissibly aspirational.[97]
[97] Lainhart & Ellinson at [27].
Dr K’s evidence that an order for ongoing time between X and his father may lead to a deterioration in Ms Gavare’s symptomatology in the short-term, which he anticipates to be approximately six months, was not the subject of any challenge and I accept it. He opines that Ms Gavare may have a relapse of Major Depressive Disorder. Mr L, without challenge, opines that it would be “very harmful” to Ms Gavare’s mental health should X spend unsupervised time with his father.[98] Dr H told Dr K that in the event of the Court granting increased contact between X and Mr Ulrich, Ms Gavare’s “condition was likely to be exacerbated, at least in the short term”.[99] The short term prognosis for Ms Gavare were I to make the orders sought by Mr Ulrich is accordingly poor. Despite its already very compromised state, it would further deteriorate the capacity of X’s primary care giver to provide for his needs.
[98] Affidavit of Mr L filed 22 January 2024, annexure L-3, page 13.
[99] Affidavit of Dr K filed 30 November 2023, annexure K-2, paragraph 46.
The Independent Children’s Lawyer submits that there may be some possibility of improvement thereafter. Dr K was asked whether he would anticipate an improvement after the expiration of the short-term period of approximately six months. He gave evidence:
I would hope for an improvement. I’m not quite sure that I can say I anticipate it. In most cases improvement does occur over time. It’s not invariable, but I would say it’s often enough, and I think that there’s enough therapeutic leverage in terms of room to move, in terms of increased frequency of sessions and pharmacotherapy that I think there would be at least a reasonable chance of success.
Centrally important to the conclusion that there is a reasonable chance of success is the “therapeutic leverage” he considers available in terms of an increased frequency of sessions. He opines that “frequency of sessions do matter”. For reasons already given, I cannot conclude that such sessions are available. A critical foundation for Dr K’s prognostication of a reasonable chance of success is absent. As he opines, “…were the court to grant more access to [Mr Ulrich], I think that the length of time in between sessions, if it’s too long, it would be very difficult for her to cope.”
The other foundation for Dr K’s optimistic prognostication is pharmacological. Subsequent to the release of Dr K’s report, Ms Gavare has trialled prescribed anxiety medication. She gives the following unchallenged evidence:
During my appointment with her [in late] 2023 [Dr H] recommended I take [anxiety medication] around the times of [Mr Ulrich]’s supervised visits with [X]. I began taking it [in late] 2023 and have taken it all of the weekends of the subsequent scheduled visits. I still find myself feeling extremely stressed and on the edge of panic, but numb, disconnected and drowsy. My brain feels foggy and it leaves me with headaches, slowed cognition and difficulty retaining new information (even a new word I am told repeatedly) for several days afterwards, along with rebound anxiety and tension. This further impacts on my capacity to work as it makes it difficult to process and retain information properly. My father has commented that I am like a “zombie” with it and it is difficult to engage with and respond to [X] as I usually would. Even after the [medication] is wearing off I find myself zoning out when [X] is talking to me and struggle even to concentrate on what he is saying. I am unable to think through basic games with him. The effect of the [medication] appears to be waning over time and I need to take larger doses in order to feel an effect. I do not wish to be required to take [medication] indefinitely and indeed, it is not medically recommended that I do so.[100]
[100] Affidavit of Ms Gavare filed 22 January 2024, paragraph 161.
Dr K considered that such observations were common and consistent with the account of most patients. One anxiolytic medication has accordingly been trialled and is having adverse effects on Ms Gavare’s capacity to attend to X’s needs. Whilst Dr K suggested that an alternative could be trialled, its efficacy is untested for Ms Gavare.
As the Independent Children’s Lawyer concedes, it is only a possibility that I could be satisfied that Ms Gavare will cope in the long term with X spending time with his father. It was not ultimately suggested that it is a probable or likely outcome.
Given the identified issues with the two foundations supporting Dr K’s opinion that there is “at least a reasonable chance of success”, I am not satisfied that the hope expressed by him for improvement is a future prospect that I can evaluate to be more likely than not. Put another way, I am not satisfied that with ongoing contact between X and his father, Ms Gavare’s parenting capacity will improve. In the short term, it is likely to deteriorate from an already compromised position.
Mr Ulrich and the Independent Children’s Lawyer advance an alternate position whereby X would spend time with his father six times a year on a professionally supervised basis. The proposal was first advanced in closing address.
Mr L was asked whether he had a view as to whether it might be different for Ms Gavare if visits with Mr Ulrich took place once every six weeks, or even less frequently. He gave evidence:
It has been my experience and been my opinion that less frequency appears to be more helpful for my client in terms of her symptomology, certainly.
Dr H was asked whether she thought a reduction in the frequency of visits to every six weeks would benefit Ms Gavare in terms of a reduction of symptomology. She gave evidence:
It’s hard to say. I mean, she may become more sensitised with a big gap in visits. Then again, she may find reassurance. I think that’s a discussion that has to be had with [Ms Gavare] herself.
Unfortunately, because of the timing of the proposal now being advanced, the suggestion of a continuation of supervised visits on a reduced basis was not put to Ms Gavare in cross‑examination. As suggested by Dr H, her reaction to it would have provided at least some initial insight into its likely impact upon her.
The evidence suggests that a reduced frequency of visits appears to be more helpful in terms of Ms Gavare’s symptomatology and may give her reassurance, but also may increase her sensitisation. I am without evidence as to the relative likelihood of those alternatives.
As conceded by the Independent Children’s Lawyer, due to the parties’ forensic decisions, I am bereft of social science evidence as to the advantages or disadvantages to X of the proposed “identity contact”. The fact it is ordered in other cases provides no evidentiary foundation for any conclusions to be reached in this case.
Crucially, in my determination, the evidence does not establish that the alternative proposal is likely to alleviate the deleterious impact of X spending time with his father on Ms Gavare’s mental health.
Currently, Ms Gavare’s parenting capacity is significantly debilitated by X’s contact with his father. The short-term prognosis is attended by a risk of further deterioration in her condition. The issue is unlikely to resolve in the longer term.
Whilst both Mr Ulrich and Ms Gavare might both hope for an improvement in her mental health so as to better tolerate X’s contact with his father, I must take her as I find her. I cannot make aspirational directions about how her parenting capacity might be improved in the hope of enhancing X’s familial experience.[101]
[101] Lainhart & Ellinson at [29].
I am not satisfied that there are steps that can now be taken by the Court to ameliorate the risk of Ms Gavare’s parenting capacity continuing to be debilitated by X’s continued relationship with Mr Ulrich. Regrettably, the outcome that follows is the grave and serious consequence that X will be deprived of a relationship with his father.
Other relief sought
Ms Gavare proposes that Mr Ulrich be permitted to send cards, letters, gifts and photographs to X on four occasions each year. The relief proposed by the Independent Children’s Lawyer and Mr Ulrich is restricted to him sending birthday and Christmas cards and presents to X. Absent submissions in support of their more restrictive position, I prefer the relief sought by Ms Gavare.
Ms Gavare proposes to provide photographs of X to Mr Ulrich four times per year. I find no basis to decline to make the order sought absent any submission to that effect.
Ms Gavare proposes to advise Mr Ulrich of any serious medical emergency affecting X or if he is affected by a permanent medical condition. Mr Ulrich and the Independent Children’s Lawyer propose that he be permitted to contact relevant medical practitioners. In the absence of Mr Ulrich having parental responsibility for X, I am not satisfied that the relief sought by him is in X’s best interests. It is likely to negatively impact upon Ms Gavare. I find the order sought by Ms Gavare to be in his best interests.
Absent Mr Ulrich having parental responsibility for X, I decline to grant the relief sought by him to be able to communicate with X’s school and attend upon school functions with Ms Gavare’s consent. How such consent might be procured is unexplained by the proposal, and I note the deleterious impact on Ms Gavare’s mental health of receiving communications from Mr Ulrich.
Given X will not spend time with his father, no evidentiary foundation is articulated to support the making of an order restraining the parties from denigrating the other or discussing the proceedings in X’s presence, or physically disciplining him. I decline to grant the relief to that effect sought by Mr Ulrich and the Independent Children’s Lawyer.
Ms Gavare seeks that she be permitted to apply for passports for X and travel internationally with him. Neither Mr Ulrich nor the Independent Children’s Lawyer made any submissions on topic. The relief sought is ancillary to the agreed Order that Ms Gavare have sole parental responsibility for X. I am satisfied that X’s best interests are served by having the opportunity to travel internationally with his mother. In order to facilitate that outcome, it is appropriate to discharge earlier orders restraining the parties from removing X from the Commonwealth of Australia.
Ms Gavare seeks to be permitted to provide a copy of the Orders to relevant educational and medical practitioners. No opposition to the relief sought was advanced by the other parties. I find it to be in X’s best interests to ensure that those professionals are appraised of the Court’s determination to the extent it is relevant to them.
Ms Gavare seeks her reserved costs of an interim hearing on 9 February 2023. Mr Ulrich made no submissions about the issue. Pursuant to section 117 of the Act, each party is to bear their own costs of proceedings under the Act. Nevertheless, the Court retains a discretion to make such order as to costs as it considers just and if there are circumstances that justify doing so.
Ms Gavare submits, without contradiction, that the hearing on 9 February 2023 was adjourned as a result of circumstances of Mr Ulrich’s making, namely the unavailability of a family report and supervision report due to his absence from the country. I find the circumstances of Mr Ulrich’s absence from the country, leading to the necessity for the interim hearing being adjourned, to justify an order for costs.
Mr Ulrich also did not dispute the quantum of costs sought, being $3,000. Having regard to the Court’s Scale of Costs, I am satisfied that the sum sought is appropriate.[102] I will accordingly grant the relief sought by Ms Gavare.
[102] Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, schedule 1.
It was apparently agreed by the parents during the hearing that they would equally share in the cost of Dr K giving evidence at the hearing. I am not satisfied that a formal order to that effect is required, as was suggested orally by the Independent Children’s Lawyer in closing address.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 5 March 2024
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