Heijman & D’Onofrio
[2024] FedCFamC1F 551
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Heijman & D’Onofrio [2024] FedCFamC1F 551
File number(s): BRC 15969 of 2022 Judgment of: JARRETT J Date of judgment: 21 August 2024 Catchwords: FAMILY LAW – PARENTING – Consideration of s 60CC(2)(a) – History of family violence perpetrated by respondent – Where safety of child and applicant suggests an order for no time – Where child may benefit from a relationship with respondent – Balancing countervailing considerations – Child to spend no time with respondent Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CG, 117, 117(2A)
Family Law Act Amendment Act 2021 (Cth))
Cases cited: Bant & Clayton (Costs) (2016) 56 Fam LR 31
Beach & Semmler (1979) FLC 90
Chapman & Palmer (1978) 4 Fam LR 462
Isles v Nelissen [2022] FedCFamC1A 97
Slater & Light (2013) 48 Fam LR 573
Division: Division 1 First Instance Number of paragraphs: 164 Date of hearing: 22 - 25 July 2024 Place: Brisbane Counsel for the Applicant: Ms Pendergast Solicitor for the Applicant: Barton Family Lawyers Counsel for the Respondent: Mr Garlick Solicitor for the Respondent: Pat Law & Associates Pty Ltd Counsel for the Independent Children’s Lawyer: Mr North Solicitor for the Independent Children’s Lawyer: Parry Coates Family Law ORDERS
BRC 15969 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HEIJMAN
Applicant
AND: MR D’ONOFRIO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.All previous parenting orders relating to X, born 2020 are discharged.
2.The applicant have sole authority to make decisions in relation to day to day issues and major long-term issues for X.
3.Where the applicant makes decisions in relation to a major long-term issue impacting the child, she will inform the respondent of the decision made within forty-eight (48) hours of making that decision, and for that purpose, the respondent is to ensure the applicant is aware of a current WhatsApp number he uses or accesses on a regular basis.
4.X shall live with the applicant.
5.The applicant is permitted to remove the child from the Commonwealth of Australia to New Zealand and will advise the respondent with sixty (60) days of having done so.
6.Unless otherwise agreed between the parties in writing, X shall spend no time with the respondent.
7.Within seven (7) days of the date of these orders the respondent shall provide to the applicant’s solicitors a postal address or post office box at which he can receive mail from X.
8.Within fourteen (14) days of her return to New Zealand, the applicant shall organise a postal address or post office box at which she can receive mail for X (cards, letters, photographs or gifts) and instruct her solicitors to provide that address to the respondent.
9.For the purposes of orders 7 and 8 herein, either party is entitled to nominate a postal box or the home of a trusted third party as the address at which they can receive mail.
10.For the purpose of order 8 herein, the respondent is permitted to send to X cards, letters, photographs or gifts on the following occasions, ensuring he posts the same to the applicant no less than twenty-one (21)-days prior to the event:
(a)Christmas each year;
(b)Easter each year; and
(c)X’s birthday each year.
11.The applicant will review all such mail prior to giving it to X and, if she determines that it is not appropriate, she is entitled not to give it to him.
12.The applicant is at liberty to send to the respondent updates in relation to X’s education and milestones and photographs of him from time to time.
13.Both parties will, within seven (7) days of any change, inform the other by WhatsApp if their nominated mailing address changes.
14.The respondent and the applicant shall keep the other informed at all times of their WhatsApp contact details.
15.The applicant will inform the respondent within forty-eight (48) hours of any serious medical condition or significant health issue or illness suffered by X.
16.The applicant is prohibited, and an injunction hereby issues restraining the applicant from changing X’s name and will ensure he is known and registered with organisations as X.
17.The respondent is prohibited, and an injunction hereby issues restraining the respondent from:
(a)seeking, or directing another person to seek any information relating to the applicant or X’s location;
(b)contacting the applicant (unless otherwise agreed between the parents in writing); or
(c)contacting X other than as provided in these orders.
18.By this order, the applicant is authorised to sign all necessary documents as and when required to ensure X has a current Australian Passport, with the costs of the same borne by her.
19.Pursuant to s 11 (l)(a) of the Australian Passport Act 2005 (Cth) and these orders, the parents’ consent to the child X born 2020 travelling outside the Commonwealth of Australia and having a current Australian passport.
20.Upon moving to New Zealand, the applicant shall take all steps necessary to register these orders in a court of competent jurisdiction in New Zealand.
21.The respondent pay the applicant’s costs of and incidental to the subpoena filed on 24 June 2024 and associated objection fixed in the sum of $653.60.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
Afeared for her safety and that of the parties’ child, X (now aged 4 years), in late December 2021 the applicant left Australia with X and travelled to her country of origin, New Zealand. She did that without the knowledge or consent of the respondent, X’s father. However, in obedience to an order of the Family Court New Zealand made in late 2022 the applicant, in company with X, returned to live in Australia in early 2023.
This case is about the parenting arrangements for X. Presently X lives with his mother Ms Heijman, the applicant in these proceedings. They live in Brisbane. Pursuant to an interim order made on 19 October 2023, X spends supervised time with his father, Mr D’Onofrio, the respondent.
At the outset of the trial, the applicant proposed orders whereby she would have sole parental responsibility for X, he would live with her in New Zealand and he would have limited supervised time with the respondent. The practical effect of the orders she proposed for time between X and the respondent meant that the maximum number of occasions of supervised time would be 12 each year.
By the close of the trial, she had changed her position with respect to the time that X should spend with the respondent. She now seeks an order that X spend no time with the respondent. She proposes written communication three times per year between the respondent and X, with such communications to be vetted by her. She seeks an order that X’s surname be changed from D’Onofrio to D’Onofrio-Heijman.
Initially, the respondent sought an order for equal shared parental responsibility for long-term decision-making for X (notwithstanding the commencement of the Family Law Amendment Act 2023 (Cth)), although by the conclusion of the trial he accepted that an order that the applicant have sole parental responsibility for X was appropriate. In final submissions he resiled from seeking an order that X live with each of the parties “with a split of 65% of the time with Mother and 35% of time with Father during each fortnight”. Instead, he proposed an order that X live with the applicant and spend each alternate weekend from 9.30am Friday until 5.00pm Sunday with him (becoming from after school on Friday once X commences school). He seeks that the applicant remain living in Australia with X and other orders dealing with X’s time with both parents over school holidays and on special occasions.
X and I have the benefit of an experienced independent children’s lawyer. At the commencement of the hearing she proposed orders that would vest sole decision-making responsibility in the applicant, that X live with the applicant in New Zealand and that X spend no time with the respondent. Her position did not change at the conclusion of the trial. The orders she seeks are very similar to the orders sought by the applicant. However, she opposes the orders for a change to X’s surname.
THE APPLICANT
The applicant was born in 1985 and is currently 38 years of age. She lives in Brisbane in a home where she rents one bedroom which she and X share. The cost of this is $250 per week including bills.
The applicant is an educator by occupation. She presently works part-time four days a week as an educator. Her taxable income for the 2023-24 financial year to the date of her trial affidavit was $52,926.
The applicant’s written evidence was detailed and particular. I found that the applicant gave her evidence in a forthright manner. She answered the questions put to her in cross-examination directly and generally without prevarication. I was impressed by her capacity to remember and describe some plainly frightening events. Cross-examination enhanced, rather than detracted from her evidence-in-chief. I have no hesitation in accepting her evidence, even if her evidence is not corroborated by other evidence.
Many aspects of her evidence were, however, also corroborated by contemporaneous documents or by the evidence of Ms B, a witness called in her case. This too, enhanced her credibility.
THE RESPONDENT
The respondent was born in 1981 and is currently 43 years of age. He was born in New Zealand and has spent much of his life in Australia. He most recently came to Australia to live in 2016. He has lived here ever since.
The respondent gives evidence of being the victim of childhood sexual abuse at the hands of a family friend. When he was old enough and in an effort to escape his past, the respondent changed his name. In fact, he has changed his name on at least three occasions. According to his evidence, each time was for the purpose of a “fresh start”.
I found the respondent to be an unreliable witness. The respondent’s written evidence was prepared by him and it claims to have been settled by his solicitor. However, it reads like a novel rather than affidavit of evidence-in-chief. Whilst there are some facts deposed to in the affidavit, largely it is a discursive collection of assertion, argument, submission, speculation, unqualified opinion and conclusion. Given the form and content of the affidavit, it is difficult to accept that it has indeed been settled by a legal practitioner. Its content suggests that it was prepared for an earlier hearing, perhaps the proceedings in New Zealand, but it is difficult to tell.
The respondent was a difficult witness. Many questions were answered with the answer “possibly” or “I believe so, possibly” or some formulation to similar effect. He often gave answers in a way that suggested he was just providing an answer to appease counsel, rather the providing a proper answer to the question. When challenged about his inability to remember things that were put to him, he claimed that he had two conditions that impacted upon his ability to remember things. The first was that he was dyslexic. It was not explained how that would impact upon his memory. The second was that he had some unspecified neurological condition for which he was hospitalised “last year”. In re-examination, the respondent tendered a Discharge Summary from C Hospital. The discharge summary described the respondent as presenting with neurological symptoms. The summary notes record a suspected medical condition. The nature of that condition was not explained and the respondent did not call any evidence from a medical expert to explain it. In particular, there was no evidence to establish either that the condition would affect his memory, or that it would be recurrent and still be affecting him as at the date of the trial, despite his discharge from hospital.
There is no evidence before me about the respondent’s mental health. In cross-examination he said that he had attempted to take his own life after the applicant took X to New Zealand in late 2022. Clearly, the attempt failed. He said that he spent two days in hospital afterwards and saw a psychiatrist in “the ward”. However, not one jot of evidence about this event or its sequalae appears in his evidence.
He says that he was diagnosed with post-traumatic stress disorder “a couple of months after [Ms Heijman] left”. On 4 August 2022 the respondent swore an affidavit for use in proceedings commenced by the Central Authority in New Zealand. In that affidavit he swears that he was diagnosed with PTSD in early 2022. The only evidence I have about this is the respondent’s own report:
186. I have been distraught and have missed [X] incredibly. It has been a hugely stressful period for me, having to go through this lengthy legal process, respond to [Ms Heijman] and her friends’ accusations about me and hold down a full-time job. I was diagnosed with PTSD in [early] 2022, brought on by the situational crisis of [X] being wrongfully removed and where I was denied any knowledge of his whereabouts and had no contact with him for over 7 weeks. I have managed this well and have a good network of friends, my family continue to support me. I am especially close to my mother who is a qualified [support worker] and to my sister who also gives me great emotional support. I have secure employment in a role where I thrive….
In cross-examination, however, the respondent suggested that he had been diagnosed with PTSD in 2009 “as a result of my childhood trauma”. But there is no evidence about this before me. Nor was there any before the court in New Zealand.
The respondent’s evidence concerning violence towards the applicant also demonstrated his unreliability. Save for one incident where he slashed the tyres on the applicant’s bicycle, the respondent swears that he has never perpetrated domestic violence or been controlling towards the applicant. Further, he swears:
11. I have obtained a National Police Certificate, which shows that I have no criminal history in Australia. When I applied for this check, I also disclosed my previous legal names. Attached to this affidavit and marked “[MD]-02” is a copy of the National Police Certificate, dated [early] 2022.
Exhibit MD-02 does not refer to the respondent by any name other than the one he uses in these proceedings. Exhibits 12, 13 and 14 demonstrate this paragraph of his affidavit to be false. Exhibits 12, 13 and 14 demonstrate a significant criminal history, or interest from the police. The offences, sometime ago now, include many of dishonesty.
There were many instances where the respondent’s evidence in cross-examination was inconsistent with his own evidence, or otherwise inexplicable. One such example was his evidence about “[Mr D]”.
The applicant deposes to finding a Visa Debit card in the respondent’s wallet on 25 November 2021. The card was in the name “[Mr D]” and was valid through to September 2023. A photo of the card dated 25 November 2021 was tendered in the course of the proceedings. The applicant deposes to finding the card along with a driver’s licence with the name Mr E and the respondent’s picture, a Commonwealth Bank of Australia bank card in the name of Mr E, and a New South Wales learner’s licence from 2016 in the name of Mr D’Onofrio. The respondent admitted that these other names were his aliases.
The respondent, however, denied that Mr D was one of his aliases. He denied that the Visa Debit card had been in his wallet. He did not offer an explanation for how the applicant found it. In messages between the applicant and respondent tendered in the course of the proceedings, the applicant asked the respondent who Mr D was and why he would have someone else’s card in his wallet. The respondent replied with “It’s my past I told you for the last time …!!!”. When the applicant persisted and asked “Is he on your Facebook does he exist ?” the respondent replied with an emoticon of a crying laughing face. The respondent was cross-examined on these messages and could not offer an adequate explanation of his messages to the applicant. As pointed out by counsel for the applicant, the respondent’s reaction to being asked about the bank card was not to deny that it was in his wallet, but to say it was his past. The respondent’s reaction admits, I find, to having a connection to the name Mr D. His denial in cross‑examination that the card was ever in his wallet was inconsistent with his own messages to the applicant.
I accept the applicant’s evidence that she found the bank card in the respondent’s wallet. I find that the respondent was lying about the bank card not being in his wallet. I also find that the respondent was lying that Mr D was not a past alias of his. The alternative explanation, that he had someone else’s bank card in his wallet, is perhaps even more damaging for the respondent.
The respondent describes himself in his affidavit as a “[trade] worker” but gives no evidence about his employment. The applicant’s evidence was that she understood the respondent works a ‘week on, week off’ arrangement rotating between night shifts and day shifts, however he had not provided any other details to her of his employment.
The respondent had previously told the applicant he held a tertiary qualification. Indeed, when they first met he told her he was a professional. Both of these things proved to be lies, as he admitted in cross-examination.
As of 7 October 2023, the respondent is assessed by the child support agency to pay $9.45 in child support with a taxable income of $0. As of 12 March 2024, the respondent owed $354.90 in arrears to child support. On 13 June 2024, the respondent paid $196.95 in child support payments, and is now $55.50 in arrears to child support.
THE PARTIES’ HISTORY
The parties commenced their relationship in 2019 when they met in City G. The applicant was working full-time as an educator. It is not clear what the respondent was doing in City G, but I accept the applicant’s evidence that he told her he was working as a professional and that he had lived in another country for 10 years.
Initially, things progressed smoothly. But the applicant’s case is that soon after the parties commenced their relationship, the respondent began to exhibit behaviours that she now sees as “red flags” and submits were controlling of her, or attempts to control her. I accept her evidence that not long after they commenced their relationship the respondent began to make her feel guilty and only wanted her to go out with him on social occasions. I accept her evidence that he would:
(a)tell her not to go to fitness classes in “our time”;
(b)said to her that her female friends were either “hitting on him”, or “rolling their eyes” and calling her “crazy” and “high maintenance” behind her back. He said they were not her “real friends”;
(c)that a bar across from where she lived was “full of swingers” and if she wanted to be a “swinger” she should go, but if she wanted to be with him she should not go to that bar; and
(d)became angry at her for staying for a drink with her workmates after an event.
I accept the applicant’s evidence that a few months after the commencement of their relationship in 2019 the respondent told her that his father had offered both the applicant and the respondent roles in his company. He said that they could live in his parent’s house in Sydney or at the beach. He said that he had put $80,000 into his father’s company.
This led to some odd behaviour on the part of the respondent. The applicant asked him (by text message) for the name of his father’s company, but the respondent reacted in a very odd way. He refused to tell her. The text messages about this subject show the respondent to be reactive and avoidant. His response to the applicant’s seemingly innocent enquiry was not adequately explained by him in his evidence.
The applicant had contact with the respondent’s mother and that seemed to confirm the respondent’s information. Encouraged by the respondent, the applicant undertook a qualification to prepare for the new job. She quit her education job. The respondent and his mother arranged for the applicant’s vehicle, with her belongings packed inside, to be transported to Sydney. The applicant and the respondent made plans to drive from City G to Sydney in the respondent’s car with his belongings.
I accept the applicant’s evidence, over the respondent’s denials, about the following events:
Late 2019
In late 2019, and before leaving for Sydney, the applicant went on a holiday overseas with a friend. Before she did so, the respondent hid her bikini bottoms. He told her that they were “too cheeky” and he did not want men looking at her “ass”. He told her that he did not want her to drink (alcohol presumably) or even do a surf lesson in case men were looking at her. While she was overseas the respondent called the applicant regularly. She assured him that she was not drinking or wearing any “g string bikinis” which he suggested to her she owned.
Late 2019
In late 2019 when travelling from City G enroute to Sydney, the parties stopped at a pub for refreshments. When the parties alighted their vehicle, the respondent said to the applicant, “men are looking at you”, “why the fuck are you dressed like that” and “you are asking for it”. He suggested that the applicant “could be kidnapped and taken out into the desert and no one would find you”. The applicant says that the respondent said words to the effect of “you can use the bathroom, but we can’t get anything to eat or drink because men are looking at you”. The parties did not have anything to eat or drink, got back into the car and left.
Late 2019
When enroute to Sydney from City G the parties stopped at Town H. They were there for longer than was initially anticipated. On one occasion the applicant attended a class at a local health club with a friend. She was given a lift to the health club by a woman called Ms J. After the applicant left the club, the respondent sent her text messages that insinuated that the applicant had in some way been involved in something she should not have been with Ms J.
When the applicant arrived home in the early evening, she says that the respondent was slurring his words, she saw him drinking vodka and she could smell it on him. She thought he was intoxicated. There was a chair in the lounge room and the respondent put his hands on her shoulders and forcefully shoved her down onto it. When she tried to stand up, he put his hands on her shoulders and pushed her forcefully back down at least six times.
The applicant says that the respondent was clearly agitated and he yelled at her. He said, “Remember I know people here, they saw you flaunting yourself in your [activewear]”. He said, “My friend saw you, she rang me to tell me you were throwing yourself at men”, “If you want to be single fuck off then”, “Come on [Ms Heijman] admit it, admit it, you were flirting with guys at the [health club] you know exactly what I’m talking about, you know exactly what I’m talking about” and “Sneering idiot, retard, you just want everyone looking at you, fucking cunt”.
The applicant says that she tried to walk into different rooms to get away from the respondent, but he followed her each time and continued to yell at her about going to the health club. She looked for her mobile telephone and her laptop, but she could not find them. The respondent told her he had thrown them over the fence. She looked for them, but could not find them in the dark. The respondent followed her and continued to yell at her. She felt unsafe outside and went back inside the house. Much later that night, after her ordeal was over, she found her mobile telephone and laptop hidden under leaves outdoors.
She took possession of the respondent’s mobile telephone and she locked herself in the bathroom. The respondent tried to force his way into the bathroom but could not do so. He was yelling at her, “open the fucking door” and “get the fuck out”. The applicant swears that she was scared and she used the respondent’s phone to call his mother, Ms K. The applicant says that she screamed for help. I accept that Ms K responded with words to the effect of, “I will call the police or a friend to come and help” and “Give the phone to [Mr D’Onofrio]”. The applicant told her that she did not want to open the door, but the applicant’s mother insisted. The applicant reiterated that she was too scared to open the door. Ultimately, no help arrived and she thought that the battery on the mobile telephone was running low. She decided to give the phone back to the respondent so he could talk with his family. She opened the bathroom door and gave the telephone to the respondent. The respondent terminated the call and followed her around the house yelling at her that she should not have called his family. He followed her from room to room.
She went into a bedroom. She tried to scream for help. When she did, the respondent put his hand over her mouth and nose such that she could not breathe. She says that she was trying to pull his hands off her mouth. She was panicking and felt lightheaded. She began to feel dizzy and she thought that she was going to die. She does not know how long her ordeal lasted.
She swears that when he stopped, he appeared upset and told her, “I’m going to kill myself” and “you will never forgive me”. She says that the respondent went and got an object and started making self-harm attempts. She took the object from him and he went and obtained another object from another room.
The following morning, the respondent told the applicant that he had taken “pills” that night. She inferred that he was referring to the illicit drugs that he had, because his behaviour was so violent and aggressive. She thought that maybe it was the combination of an illicit substance and alcohol that caused him to behave in that way. The respondent was very apologetic.
The applicant says that shortly after this incident she learned that she was pregnant with X.
Suburb L
The parties never made it to Sydney. The applicant says, and I accept, that she was told that the respondent’s parents were having marital difficulties and that the respondent’s father’s business had encountered difficulties.
The parties moved from Town H to Suburb L in late 2019. I accept that the respondent told the applicant that he had land in City M. However, he said to her, “All of my money is tied up so you will need to pay for the move” and “I promise I will pay you back”. She spent around $10,000 on the move. Further, I accept that the respondent insisted that the rent and bills were put in the applicant’s name, notwithstanding that she was unemployed. The respondent told her that he was blacklisted from applying for rentals and that she had to have the rental under her name. The respondent paid money for rent, however he often did so late, and only after the applicant had asked him, often more than once.
The applicant retrieved her car and belongings from Sydney in late 2019.
The applicant swears that between late 2019 and mid-2021, while they were in Suburb L, the respondent:
(a)consumed marijuana, which she saw him smoke every night;
(b)consumed sleeping tablets on a nightly basis;
(c)on an occasion, asked the applicant to inject him with non-prescription substances;
(d)consumed prescription medication for his back pain; and
(e)increased his alcohol consumption just before the parties moved to City N.
I accept the applicant’s evidence that the parties would argue and that the respondent would frequently deprive her of sleep until she agreed or apologised with whatever he was stating about the applicant. She reiterated these things in her cross-examination. He would follow the applicant around and not allow her to go to sleep in any other room but the parties’ bedroom. He would say things like “come on [Ms Heijman] just admit it” about whatever allegation or suggestion he was putting to the applicant, “you wish you were with someone who had [a specific physical characteristic]”, “you wish you were in New Zealand”, “you wish you were single” and “You want everyone to think you’re a solo mother”. This behaviour is consistent with the respondent’s behaviour in Town H described by the applicant.
The applicant swears that on several occasions she tried to sleep on the floor in X’s room so that she could get away from the respondent. The respondent would tell her to, “get the fuck out of his [X’s] room”.
The applicant had no income of her own. She was not eligible for social security benefits in Australia. She had limited savings. She tried to secure employment as an educator, but when she told the respondent about that, he told her he did not want her to work.
I accept the applicant’s evidence that the respondent:
(a)when the applicant wanted to go the gym, told her that she just wanted to look at men;
(b)told her that he did not like it when she talked to her friends about her pregnancy or the parties’ relationship;
(c)told her on 4 February 2020 that he did not want her seeing a counsellor anymore because it hurt him that she confided in people other than him; and
(d)asked her on 30 March 2020 to delete men from her Facebook friend list;
In early 2020 the parties discussed and agreed, I find, that they would move back to New Zealand. I accept that in anticipation of this move, the applicant:
(a)applied for a midwife to manage X’s impending birth in New Zealand;
(b)sought details of moving costs and the cost to send the parties’ vehicles to New Zealand from Australia; and
(c)gave the address of the respondent’s sister as a New Zealand address, because the respondent said he had arranged for them to reside there until “we got on our feet”.
However, soon afterwards, the respondent changed his mind. The applicant had already given notice to quit their tenancy at Suburb L, but she was able to withdraw it.
I accept the applicant’s evidence that in March 2020 the respondent began taking her mobile telephone and reading her text messages without her permission. He went through her Facebook friends list and made her delete any men that he did not approve. There were messages from a male personal trainer that made the respondent angry and he made the applicant delete his contact details. The applicant gives evidence of the text messages passing between she and the respondent about this issue. The respondent’s attitude, reflected in those messages is one of control over and derision of the applicant.
X was born in 2020. Following his birth, the applicant suffered from pain and infection. She saw a male doctor who prescribed her medication. Both the respondent and his mother counselled the applicant to ignore the doctor’s advice and not take the medication he had prescribed. The respondent remonstrated with the applicant about choosing to see a male doctor. I accept that the respondent yelled at the applicant, while she was holding their new born, and said words to the effect of “You should not see a male doctor!” and called the doctor a “creep” who just wanted to look at her. The respondent insisted that the applicant change to seeing a female doctor. The applicant did so, even though she was comfortable with her existing male doctor.
I accept the applicant’s evidence that when X was around three-months old, she wanted to take him to visit a friend. The respondent yelled at me, “you can fuck off but you’re not taking my son” and because X was breastfeeding, she could not go. She was holding X at the time. She cancelled her catch-up with her friend.
I accept that in late 2020 the applicant withdrew X from a baby group because the respondent said she was overstimulating X and “You would rather hang out with your mum groups than me”. This was, no doubt, designed to make the applicant feel guilty about not spending all of her available time with the respondent.
The parties decided in mid-2021 to move to City N where the respondent could get work. The move was delayed because the respondent failed a cannabis drug test, but he was able to move the following month. The applicant and X followed after she packed up and cleaned their Suburb L accommodation. Her entry into Western Australia was delayed by border refusals (because of the COVID-19 pandemic), but she and X arrived in mid-2021.
The respondent began depositing his income into the applicant’s personal account. She had a credit card and the respondent had access to and used this credit card.
The applicant says, and I accept, that at this time the respondent decreased his use of cannabis (for work related reasons) but his consumption of alcohol increased.
The applicant secured a part-time educator position in a nearby town. This seemed to irritate the respondent. I accept that when she came home from work, the respondent would say derogatory things to the applicant while she was breast feeding X such as, “Who hit on you today”, “You think you are so cool now you work”, “You are different now you are working. You think your shit don’t stink”. The respondent’s drinking increased.
The respondent’s attempts to control the applicant continued. I accept her evidence and find that in late 2021, the applicant and the respondent took X to a swimming lesson. After the lesson, the respondent told the applicant that they could not go back as the pool was full of “creeps” and that whilst she could flaunt herself in her bikini if she wished to, she could not take “his son” to do it. Shortly thereafter, the partes went at the respondent’s request, to shop for a one-piece swimsuit for the applicant. The respondent had to approve it before it was purchased. The respondent told the applicant that she could take X swimming only if she wore that swimsuit.
Subsequently, the respondent signed X up for a private swimming school and the class was attended mostly by other mothers. I accept that the respondent did not care what swimsuit the applicant wore to this swimming school.
To assist X with his development, the applicant organised to take him to various activities such as ‘story and song time’ at the local library, ‘babynastics’, and a playcentre. The respondent, however, saw this as unnecessary, told the applicant that she was “dragging [X] around” and said words to the effect of “Why can’t you just stay home”.
Late 2021
I accept the applicant’s evidence that in late 2021, after the respondent consumed about one litre of wine, he began to taunt her and say derogatory thigs about her. I accept that he said to her that she had done nothing for X, that she was “an unfit mother” and that he would get a lawyer and take X away from her. I accept that he followed her around the house, and she locked herself in the bathroom to get away from him. However, the respondent succeeded in prising open the door open with a butter knife. The applicant used her mobile telephone to record some of what the respondent was saying but he saw her and she stopped. The respondent kept following the applicant around. He would not let her go to sleep. After midnight she messaged the respondent’s sister to see if she could get the respondent to desist. She got no assistance from the respondent’s sister.
Soon after the event in late 2021 the applicant asked the respondent about the name Mr O. Her sister had sent her a news article from New Zealand which reported that Mr O had committed crimes. I am satisfied that the respondent said to her, “That was my cousin and he actually committed suicide”. However, it is now uncontroversial that Mr O is the respondent in this case and that was his birth name. The news story related to him.
I accept the applicant’s evidence that sometime after this, she saw the respondent standing behind the parties’ bedroom door with her mobile telephone in his hand. It appeared to her that he was looking for something on her phone. He looked up and saw her standing there and then pushed the door to slam it closed. He jammed her left forearm in between the door frame and the door as she was trying to reach in to take her mobile telephone. He continued to push the door on her arm until she yelled at him to stop.
Late 2021
The applicant says that in late 2021 she was unpacking boxes at home and found a wallet containing:
(a)a driver’s licence with the name Mr E and the respondent’s picture;
(b)a Commonwealth Bank of Australia bank card in the name of Mr E;
(c)a bank card in the name of Mr D;
(d)a New South Wales learner’s license from 2016 in the name of Mr D’Onofrio.
When she confronted the respondent about these things, I accept that he said to her that he had fake ID’s from when he involved with illicit drugs in New Zealand.
I have set out above the evidence and my findings about the card in the name of Mr D found by the applicant on this occasion.
Towards the end of 2021 the applicant observed that the respondent was looking at her mobile telephone almost every day. She began deleting all messages on her phone and told her friends to only contact her if she called them first, as she did not want to upset the respondent.
Concerned about the respondent’s behaviour, in late 2021 the applicant attended P Services. A domestic violence counsellor was arranged for her. The applicant swears that speaking with a counsellor about the domestic violence made her feel more confident to tell the respondent that his behaviour was not okay. She communicated with the respondent about her concerns but the text messages in evidence show that he did not take her concerns seriously.
According to the applicant’s evidence, which I accept, the respondent’s behaviour did not improve. He remonstrated with her on 8 December 2021 for staying too long at a Christmas party with X.
The applicant applied for a position – somewhere she could work part-time and take X with her. The respondent remonstrated with her about putting on make-up for the interview for the position. When she was offered the position, she told the respondent about it and he openly denigrated her by saying, “well don’t you just fall on your fucking feet” and that he was working in a “shit job in a shithole” and that she gets offered whatever she wants.
The applicant purchased a push bike for herself that day as an early Christmas present. The respondent collected it for her from the seller.
Late 2021
The applicant says that in late 2021 she saw the respondent drinking red wine and whiskey beginning around 5.00pm. She says that at 6.32pm, she sent a text to the supervisor at her new employer about her “working with children check”. The supervisor was male. The respondent saw her and said to the applicant, “how did you get that job so fast”, “are you fucking him [Ms Heijman]” and “come on [Ms Heijman], who are you sleeping with”.
The respondent kept drinking and taunting the applicant.
She tried to get away from the respondent by moving from room to room, but he followed her. When she went outside he followed her where he stood over her and said with gritted teeth, “get the fuck back inside”. She did.
The applicant swears that X’s bedroom was next to the kitchen, and he woke up at least five times that night due to the respondent yelling at her. She continued to try to move away from the respondent by moving from room to room.
At one point she heard the respondent call out from the kitchen, “you have done this to yourself”. She says that his tone was different than usual and more threatening. She felt scared. She ran into the kitchen to see the respondent leaning against the kitchen bench with a knife on the bench next to him. She was alarmed and asked the respondent “what are you doing?”. She says that she picked up the knife, washed it and put it back in the knife block. She says that she checked that all the knives were away.
She then went into X’s room and closed the door. She settled X who had woken up again. After some time she went back out in the kitchen and a knife was no longer in the knife block. The respondent was outside. The applicant went out and asked him for the location of the knife, but she did not get a sensible answer.
She went back into X’s room and closed the door. She heard the respondent yell “why the fuck are you takin so long” and “get the fuck out of [X’s] room”. The respondent opened the door and told the applicant to leave the room.
The applicant sent a text to her friend, Ms B for help. Ms B said that she was going to call the police. The text message exchange between the applicant and Ms B is in evidence. It demonstrates the fear that the applicant was experiencing.
She did not leave the room as the respondent had told her to do, she says, because she was scared that the respondent was going to kill her or X.
At around 9.35pm, two police officers arrived at the property. The applicant was still in X’s room, and when she heard the police, she ran to the front door. The police officers brought the respondent out into the courtyard while she collected her personal belongings, including passports, and those of X and left the property.
I accept the applicant’s evidence about this incident. Her answers in cross-examination about this incident underscored the plausibility of her account.
The applicant and X went to stay with Ms B. The respondent was given a 72-hour protection order by the local police.
A few days later a temporary protection order was granted by a local court in favour of the applicant against the respondent. She subsequently collected a few things from the parties’ former joint residence under police escort.
The applicant could not access government income assistance and had no family support, income or home. She says, and I accept, that the local senior sergeant in charge of the family violence unit at the City N Police strongly recommended that she leave Australia and go to New Zealand as he thought that the respondent was violent and unpredictable.
She did so, and arrived in New Zealand in late 2021. She had her solicitor inform the respondent of the move in early 2022.
In New Zealand she was able to access social security (by way of a full parenting payment) and she was able to obtain a rental property in which she and X could live. She secured a two‑bedroom unit within walking distance from her sister’s home. Her father also lived in the local area. The applicant’s father was able to look after X while she attended counselling and group therapy sessions.
The applicant engaged with the New Zealand police when she returned. They provided her with information about the respondent and his aliases. There was an outstanding arrest warrant for the respondent in relation to property charges. It is not clear if this warrant remains outstanding, but the respondent gave evidence that he had a lawyer in New Zealand who was “sorting this out”. I have no other corroborative evidence about that.
I am satisfied that in the meantime the respondent had set about selling the applicant’s possessions left in City N and those used by X. What was not sold was sent to the local op shop.
The applicant facilitated the flow of information about X to the respondent. I accept that she gave him information about X’s health and his activities. She facilitated communication between X and the respondent twice per week from as early as February, 2022.
It was not until mid-2022 that proceedings were commenced in New Zealand for the return of X to Australia. Those proceedings were finalised in late 2022. The court ordered the return of X to Australia.
In the meantime, the applicant continued to facilitate electronic communication between the respondent and X by way of telephone. I accept her evidence that between 7 June 2022 and 15 February 2023 (when the telephone calls were made daily), the respondent missed 74 calls. The applicant was only responsible for one missed call.
THE PRESENT PROCEEDINGS
The applicant commenced these proceedings on 19 December 2022.
In the lead up to an interim hearing that took place on 19 October 2023 the independent children’s lawyer sought for the respondent to undergo a CDT test and a hair follicle test. The reason for the test is obvious given the applicant’s allegations. However, not only did the respondent not undertake the test until June 2024, he sought that the applicant undertake the same tests. There was, and remains no basis in any evidence of the applicant or the respondent for such a request.
Interim orders made on 19 October 2023 (which remain extant) provide that:
(a)X spends supervised time at a contact centre with the respondent for one hour per fortnight on five consecutive visits, increasing to two hours per fortnight thereafter; and
(b)the Contact Centre was to be as agreed, and failing agreement at the Q Contact Centre in Suburb R.
The applicant took X to Q Contact Centre for familiarisation visits in November 2023. His first supervised visit took place in November 2023. A visit scheduled for late November 2023 was cancelled by the contact centre and rescheduled to early December 2023.
At Christmas, the applicant passed on a gift to X from the respondent. The exchange took place via the applicant’s solicitors. The applicant facilitated an additional telephone call between the respondent and X on Christmas Day. The applicant gave X the respondent’s gift so X could open the gift while on the video call with the respondent.
The respondent cancelled the visit scheduled in January 2024. This visit was not rescheduled.
The respondent grew dissatisfied with Q Contact Centre and on 4 December 2023 the respondent’s solicitors sent an email to the applicant’s solicitors outlining these concerns. The email was in quite unprofessional terms and asserted:
(a)“Our client isn’t allowed to bring [X] a snack or a drink unless [Ms Heijman] agrees”;
(b)“Our client brought [X] a very small gift the first time and on Saturday – something they can both play with together while there and then [X] can take it home – The Principal advised [Mr D’Onofrio] that [Ms Heijman] hasn’t authorised it and it can’t happen again. It was our distinct recollection that the Court made the Orders re the Contact Centre, the Centre was not authorised by [Ms Heijman]”;
(c)“[The supervisor] gets to “permit” if [Mr D’Onofrio] is allowed to take a photo of his own son”;
(d)“… what happens is that once the Principal feels there is too much mess (e.g. matchbox cars on the floor) the Principal stops their game and asks [X] to tidy it up before they go onto the next game, then it happens all over again in their limited 1-hour time space”;
(e)“…where does it say in the Orders of the 19th October 2023 that during the visits that [Ms Heijman] can dictate to the Principal of the Contact centre, what proper food or drink is our client allowed to share with [X], and or the taking of a picture, kindly confirm where it states that in the Orders [Ms Heijman] is permitted to usurp the authority of the Court”;
(f)“Again we will be seeking what if any emails have originated from [Ms Heijman]”;
(g)“Presently we are instructed that the Principal’s conduct is not conducive to the best interests of [X] and also the Principal has confirmed that she is not impartial and cannot provide a Report to the ICL as obviously the Principal is taking instructions from [Ms Heijman]. We find this most concerning and note that the ICL should ensure that the Principal is aware of her obligations to the FCFCOA and not [Ms Heijman]”
On the same day, the applicant's solicitors replied and, noting the respondent's concerns, suggested S Contact Centre as an alternative. One more session of contact occurred at Q Contact Centre (in late January 2024) and then counsel for the respondent replied on 31 January 2024 saying the respondent was agreeable to the change of contact centre.
Ms T supervised the time between X and the respondent at S Contact Centre. She was called to give evidence under subpoena and provided a “summary of evidence” dated 19 June 2024 that was tendered as an exhibit.
Ms T observed that X was excited and enthusiastic to see the respondent. He clearly enjoyed the contact sessions and the respondent interacted with him appropriately. Ms T’s evidence about these things was not challenged.
When the applicant was in New Zealand, in June 2022 she consulted Dr U, a consultant psychiatrist. He diagnosed the applicant with post-traumatic stress disorder and provided an affidavit in these proceedings. He was not available for cross-examination.
Dr U opined that if the applicant were to return to Australia and be isolated, there would be a high risk of deterioration of her emotional health, which would in turn impact her ability to care for X.
The nature of the degradation of the applicant’s emotional health, and how it might be affected by certain events (for example, X spending supervised time with the respondent in New Zealand, the respondent moving to New Zealand or becoming aware of her address) was not explored by Dr U. In that sense, I do not have robust medical evidence about the risks to the applicant’s emotional safety if I make any particular set of orders. However, I have no trouble accepting that the applicant is genuinely terrified of the respondent. So much was clear from her presentation in the witness box and description of genuinely terrifying events. Whilst I cannot quantify the risk to the applicant’s emotional health and safety, I am satisfied that it would be significantly compromised if the respondent were to find out where the applicant lived or move to New Zealand. I am satisfied that X spending supervised time with the respondent, whilst not to the same degree, would also create risks for the applicant’s emotional health. I am also satisfied that those matters would impact upon and compromise the applicant’s ability to provide proper care and support for X.
The family report writer
Before moving to some conclusions about the factual circumstances of the case, it is necessary to make some observations about the report prepared pursuant to s 62G of the Act by Ms V.
The parties were interviewed by Ms V, psychologist, on 31 March 2023. A report, dated 3 October 2023, is annexed to an affidavit of Ms V filed 10 October 2023.
Ms V was not an impressive witness. It quickly became clear in cross-examination that she had made her own determination of the contested facts and accepted almost all of the applicant’s evidence and rejected almost all of the respondent’s evidence. This placed Ms V in a position more akin to an advocate for the applicant rather than an objective and independent expert. Most worryingly, when Ms V was asked in cross-examination whether her opinion would change if she accepted all of the respondent’s evidence (that he was a good father actively involved in X’s life, and that the domestic violence alleged by the applicant was fabricated) and rejected all of the applicant’s evidence, Ms V said her recommendations would remain the same. Such a position was inexplicable and untenable.
For that reason, I have determined to place no weight on the overall recommendations reached by Ms V. I do, however, think there is value in two facets of her evidence.
First, Ms V commented that if the applicant’s account of the respondent was accurate (as I have found it to be), that would suggest potentially significant personality issues in the constellation of high narcissistic, borderline and antisocial personality traits. These traits were said to spillover to virtually every aspect of his life and be relatively impervious to change. Ms V observed that the respondent presented with a narcissistic demeanour as he was keen to highlight his achievements, was glib at times, superficial and displayed a sense of entitlement. I agree with the independent children’s lawyer’s submissions that this mirrored his presentation in the witness box.
I accept Ms V’s assessment of the respondent’s personality traits and her opinion about the likelihood they will change.
The risks posed to X by the respondent’s personality traits were said to be both physical and emotional harm. The nature of the physical risks is obvious given the facts I have found about the respondent’s conduct towards the applicant. The emotional risk was said to stem from the risk that the respondent might convey a negative attitude and/or narrative about the applicant to X. There is no evidence that he has done so, but having regard to his affidavit of evidence‑in‑chief and the affidavit that he used in the New Zealand proceedings, it is clear that the respondent has a poor opinion of the applicant and is not shy about sharing it.
The respondent did not object to Ms V’s evidence, but in cross-examination asked whether the traits she observed could also have been caused by the respondent’s neurological condition. Ms V was unable to give a proper answer to that question. Nor can I be satisfied, on the state of the evidence before me, that that is so.
Relatedly, the second facet of Ms V’s evidence I consider to be important was what she said in cross-examination about supervised time. Ms V was of the view that a contact centre supervisor would be able to mitigate against both the emotional and physical risks. In particular, Ms V believed that a supervisor would be able to stop the respondent saying inappropriate things to X. She persisted with this view despite challenge from both counsel for the independent children’s lawyer and counsel for the applicant. If such an instance occurred more than once, Ms V would support time being terminated.
Whether or not a contact supervisor would be able to prevent such inappropriate conversations taking place was a matter which might have been, but was not, raised with Ms T. In any event, whilst I take note of Ms V’s evidence, I also heed the submissions of the independent children’s lawyer that a contact centre supervisor may not know enough particulars about the matter to understand the purport of what is being said and prevent such conversations. Given that I cannot be entirely satisfied that a contact centre supervisor would be able to prevent those discussions, some risk of emotional harm to X does remain if he spends supervised time with the respondent.
FACTUAL CONCLUSIONS
I am satisfied on the balance of probabilities that, by and large, the allegations made by the applicant against the respondent concerning his conduct towards her throughout their relationship are true. I have set out my specific findings above. That behaviour tends to indicate that the respondent presented a risk of physical harm to the applicant. He assaulted her more than once and on one occasion she was in fear of her life. He also presented a risk of psychological harm to her such that her experiences led her to develop post-traumatic stress disorder.
There is no direct evidence of the respondent perpetrating harm, physical or otherwise, upon X although he was present during some for the applicant’s experiences (albeit very young).
The respondent displayed no insight into his behaviour. Save for “popping” the tyres on the applicant’s newly purchased bicycle, he admits to very little else. He displayed no real insight into the effects of his conduct upon the applicant or X. He took no responsibility for his actions. Until his counsel’s final submissions, he argued for orders that were plainly not in X’s best interests.
CONSIDERATION
Contextualised for the present case, s 60CC(2)(a) directs the court’s attention to the arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X, and any person who has care of X. Relevantly in this case, that includes the applicant and the applicant’s father (who, on the applicant’s case, will assist her in caring for X if she is permitted to relocate with X to New Zealand). However, no evidence was led about what risk might be posed to the applicant’s father.
Counsel for the independent children’s lawyer made submissions on the present form of s 60CC(2)(a) and how it differed from the previous iteration of s 60CC(2)(b) of the Act. In particular, counsel for the independent children’s lawyer submitted that the new provision requiring consideration of “what arrangements would promote the safety…” was broader and more forward-thinking than the old provision that required recognition of “the need to protect the child from harm”. I disagree.
The old s 60CC(2)(b) was the subject of a long line of authority (perhaps the latest of which is Isles v Nelissen [2022] FedCFamC1A 97). In summary, a consideration of the need to protect the child from harm involved an assessment of risk posed to the child of harm, an assessment of the likelihood of that harm, and an assessment of any orders that might be made to ameliorate the risk of harm. If the risk was unacceptable and could not be ameliorated by appropriate orders, then a child would not spend time with the parent or person the source of the risk.
The new s 60CC(2)(a) talks instead of arrangements that promote safety. Safety is not defined in the Act. The Macquarie Dictionary defines safety as:
(1)the state of being safe; freedom from injury or danger;
(2)the quality of insuring against hurt, injury, danger, or risk.
The concept of safety cannot be understood except in the context of a nominated risk posed, its gravity, likelihood, and anything which might ameliorate it. In that sense, the process set out in the jurisprudence is still relevant to the new provision. If anything, the current text of s 60CC(2)(a) provides more discretion when it comes to formulating orders. That is because whilst “the need to protect the child from harm” is quite prescriptive, a consideration of “what arrangements would promote the safety…” might be considered to be broader. There may be many different orders which all promote safety to different degrees, and there is discretion to consider which of those arrangements might be most appropriate. That discretion is, of course, informed by the characteristics of the risk.
The text of s 60CC(2)(a) is broader in one obvious respect in that it also takes into account the safety of each person who has care of the child. That has particular importance in cases such as this one, where family violence is involved.
I accept the independent children’s lawyer’s submissions that s 60CC(2)(a) includes safety from psychological harm, and in that sense overlaps with s 60CC(2)(e) about the benefit to X of being able to have a relationship with his parents (where it is safe to do so), because deprivation of a parental relationship can itself be a source of psychological harm.
The risks to X from the respondent are both physical (in the sense of being exposed to and witnessing family violence) and emotional (by being exposed to a negative narrative about the applicant). Notwithstanding that the respondent has, so far, conducted himself appropriately in the course of supervised time, I consider there to be a high likelihood that if time was unsupervised he would expose X to emotional harm. I consider that to be so due to the history of family violence perpetrated by him against the applicant, the nature of his personality traits as opined by Ms V, the unlikelihood of any change in them and his lack of both remorse and insight. The respondent’s presentation both in the way he framed his evidence-in-chief and in cross-examination was completely lacking in either remorse or insight into his actions towards the applicant. He frequently tried to portray the applicant in a negative light.
The respondent’s counsel repeatedly made the point that people can change and he should not be punished for his past actions (whilst simultaneously advancing no evidence that he had in fact changed). These submissions highlighted his lack of remorse and insight.
The risks to X in this case immediately render the respondent’s proposal inappropriate. If X was to spend non-supervised time with the respondent, he would be likely to be exposed to a negative narrative of the applicant. I so find. There would also be a significant risk of X being exposed to family violence between the respondent and the applicant at any changeover. Without an understanding of the nature of his behaviour ad the possible effects of it upon X, as he gets older, X is likely to experience the same types of behaviours from the respondent as has the applicant.
If X were to spend supervised time with the respondent, the physical risks to X’s safety may be minimised. I have discussed above the emotional risks and whether a contact centre supervisor would be able to prevent them. Those risks too, are likely to be minimised.
There is also perhaps a risk posed by the respondent’s excessive alcohol consumption, which in closing submissions he admitted due to Exhibit 17 noting a past history of related disease. This risk was not explored in submissions or in any detail in the evidence, and I have not placed any weight on it.
The graver risks are those posed by the respondent against the applicant. I have set out above the effects upon her emotional health thus far by reason of the respondent’s behaviour towards her. I accept that the applicant is genuinely afraid of the respondent and what he might do if he finds out where she lives or moves to in New Zealand. The respondent gave evidence that he will move to New Zealand if the applicant is permitted to live there with X.
The orders proposed by the applicant and the independent children’s lawyer have the benefit of protecting X from the risks I have identified above. The orders proposed by the respondent will not do so.
Additionally, s 60CG(1)(b) requires me, to the extent it is possible to do so consistent with X’s best interests, to ensure that any order does not expose the applicant to an unacceptable risk of family violence. I do not consider that the applicant would be exposed to an unacceptable risk of family violence should I order that X live with her in New Zealand and spend no time, or only supervised time, with the respondent. The orders proposed by the respondent have the real potential to expose the applicant to family violence from him.
I do not consider that the evidence permits of a finding that the applicant presents any risk of harm to X. In particular, I am impressed that despite the applicant’s genuine fear of the respondent she has managed to encourage and facilitate supervised time between X and the respondent. I accept the independent children’s lawyer’s submission that the relationship X currently has with the respondent would not be possible if the applicant was not supportive of that relationship. I do not think the applicant poses any risk to X’s emotional or psychological wellbeing by acting to deprive him of a relationship with the respondent or otherwise instilling a negative narrative about the respondent.
No evidence was led about developmental, psychological, emotional and cultural needs specific to X. I consider that the applicant has the capacity to provide for those needs. However I consider, and I find that it is likely that given the applicant’s palpable fear of the respondent, her capacity to provide optimal parenting to X is likely to be impaired if X is to spend time with the respondent, either supervised or unsupervised.
I do not consider that the respondent has the capacity to provide for X’s emotional or psychological needs, largely due to his personality traits as identified, his demonstrated behaviours towards the applicant and his lack of insight and remorse discussed earlier.
Whichever proposal I order, X will have the benefit of a meaningful and safe relationship with the applicant. If I order X to live with the applicant in New Zealand, he will have an additional benefit of a closer relationship with his maternal family in New Zealand. He will lose some benefit of closeness to his paternal family in Australia.
X has a good relationship with the respondent. X clearly enjoys the time and is excited to see his father. The observations of Ms T bears that out. I expect that X will derive a benefit from a relationship with the respondent. But, at this stage at least, such a relationship is not safe for X. I consider that the benefits to X from a relationship with the respondent will be outweighed by the detriments that will accrue through that relationship.
CONCLUSION
Balancing the benefit to a child of a relationship with one of the child’s parents against the risk posed by that parent is a feature of most, if not all, parenting cases and one which has persisted through multiple iterations of Part VII of the Act. This case involves a difficult balancing between the benefit X might derive from a relationship with his father against the risks posed by his father to the wellbeing of both X and his mother. The former benefit is plagued by uncertainty as to the development of that relationship and how meaningful it might be if time is only ever supervised. The latter risks are also not easily quantifiable.
In this case, I have determined that there should be no order for X to spend time with the respondent either supervised or unsupervised. That arrangement is the one which will best promote X and the applicant’s safety. I have come to that conclusion for two reasons. First, whilst the lack of a relationship with the respondent may be a source of psychological harm for X in itself, the impact on the applicant of continued time between X and the respondent, supervised or unsupervised, is likely to impact upon her such that it will impair her ability to provide care for X as his primary carer. Second, I can comfortably conclude from the applicant’s conduct that if circumstances change (whether through X’s maturity or that of the respondent) and she believes it is in X’s best interests that he spend time with the respondent, she will facilitate that time. That leaves the door open for a potential relationship between X and the respondent in future if some risks are able to be ameliorated.
Whilst supervised time was not a feature of the proposals of either party or the independent children’s lawyer at the conclusion of the trial, as can be seen from the preceding discussion, I have turned my mind to that possibility as a means of ensuring that X retains a relationship with the respondent. However, notwithstanding my findings about the unsuitability of supervised time between X and the respondent, there is another reason that an order for supervised time is not appropriate.
Any order for supervised time would not be limited in time. There is nothing in the evidence to suggest that the respondent will undergo treatment of any type that might militate against the risks I have identified above. Whilst it is not right to say that an open-ended order for supervised time will never be made, such an order is rarely made. In Slater & Light (2013) 48 Fam LR 573, the Full Court of the Family Court of Australia said:
[38] While the making of orders for supervised time is an exercise of discretion, statements from the Full court of this court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period. In Moose & Moose (2008) FLC 93-375, the Full court (May, Boland and O’Reilly JJ) agreed that an appeal against orders for indefinite supervised time should be allowed.
[39] May J considered the specific issue of ensuring sufficient reasons for such orders and noted the difficulties faced in future review:
8.Should the father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).
…
10.In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence … his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant …
[40] Boland J commented on the general undesirability of long term supervised contact and similarly expressed May J’s concern about orders providing for their own review:
119.The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family court of Australia and the Federal Magistrates court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised … ”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235; (2005) 34 Fam LR 129 at para 114).
120.His Honour’s reasons omit consideration of the family consultant’s oral evidence, the recommendations of the ICL, or discussion of the practical long term effects on the children of an indefinite order for supervised contact in a children’s contact centre, nor do the orders reflect his Honour’s findings that the children should spend more and more time with the father as “they get older”. Thus, I am satisfied this complaint has merit.
[41] Though not raised specifically as a ground of appeal, it is apparent from ground 3 that a claim of inadequacy of reasons for the indefinite supervision order is agitated on behalf of the father. The appellate principles relating to adequacy of reasons are well settled and were expressed by the Full court in Bennett and Bennett (1991) FLC 92-191 and need not be repeated here other than one small Pt (at 78,267):
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge’s line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
I do not consider that there are cogent reasons here for a long-term supervised time order. Should the respondent take steps to address the issues identified in these reasons, it may be that a further application for time orders might succeed. But that is in his hands.
It is not contentions that the applicant should have sole parental responsibility for X.
For the reasons expressed above, I am satisfied that it is in X’s best interests for him to reside with the applicant in New Zealand.
I am satisfied that the orders proposed by the applicant and the independent children’s lawyer concerning communication by way of cards, letters, photographs or gifts are appropriate and in X’s best interests. The respondent will be at liberty to send cards, letters, photographs or gifts to X. The respondent will be restrained from seeking information about the applicant.
The applicant will be permitted to obtain a passport for X.
I agree with the independent children’s lawyer’s submissions that the applicant should be directed to register the orders consequent upon these reasons in New Zealand.
NAME CHANGE
The applicant sought an order that she be permitted to change X’s surname (currently D’Onofrio) to include her own surname, either D’Onofrio-Heijman or Heijman-D’Onofrio. In submissions, her counsel suggested that such a change will serve to reinforce the applicant’s identity as X’s mother and assist her in travelling overseas. She submitted that given X is only four years old, and he will be having no time with his father, the change of name will not have any negative effect. The applicant referred me to two decisions: Beach & Semmler (1979) FLC 90-692 and Chapman & Palmer (1978) 4 Fam LR 462. Both decisions reiterate that, like any other order affecting children, a change of name is subject to best interests considerations.
As to the first point, there was no real suggestion that X might have difficulty identifying with the applicant as his mother. The applicant has been his primary attachment figure for his whole life and will continue to be so.
As to the second point, there was no real evidence that X’s surname might cause the applicant difficulties in travelling with him. In cross-examination, the applicant suggested that some friends had told her about their own difficulties in similar circumstances, but there was no evidence tendered about, say, the laws of particular foreign countries or airlines. I am not persuaded that the applicant will have any difficulty travelling with X.
I agree with submissions made by counsel for the independent children’s lawyer that the advantages of the proposed name change are of very little moment. I agree with submissions made by counsel for the independent children’s lawyer that in these circumstances, where there will be no order for X to spend time with his father, that it is important for him to retain his surname as an aspect of his paternal identity. Even though the applicant’s proposal is for X to retain the respondent’s surname but hyphenated, I consider that the change may well impact on X’s connection to his paternal identity. There will be no order permitting the applicant to change X’s name. Given that there will be an order for the applicant to have sole parental responsibility for X, a restraint upon her preventing her from changing his name is appropriate.
SUBPOENA COSTS
On 24 June 2024, the respondent filed a subpoena directed to the applicant to produce documents. The applicant objected to that subpoena via a Notice of Objection filed on 3 July 2024. On 4 July 2024 the matter was listed for an objection hearing to 12 July 2024, but the respondent subsequently withdrew his request for a subpoena prior to the hearing.
Notwithstanding that parties to proceedings under the Act generally bear their own costs (s 117(1)), the applicant submitted that the respondent should pay her costs of and incidental to objecting to the subpoena. Her counsel submitted that this was because she had been entirely successful in resisting the subpoena. However, this misstates the law as s 117(2A)(e) places emphasis on the unsuccessful party being wholly unsuccessful rather than on the successful party being wholly successful. The difference is important.
In Bant & Clayton (Costs) (2016) 56 Fam LR 31, the Full Court noted at [22] that s 117(2A)(e) was designed for cases where an application is heard and determined. Here, the request for a subpoena was withdrawn. The orders of the Judicial Registrar on 10 July 2024 do not indicate that the subpoena was dismissed. There was no hearing and determination of the application. Hence, it cannot be said that the respondent was wholly unsuccessful with respect to the subpoena.
However, I am of the view that the respondent’s conduct in requesting the subpoena and then not pressing it justifies an order for costs (s 117(2A)(c)). The subpoena itself is a matter of court record. It requests the applicant to produce the following documents:
1. A copy of this subpoena
2. All emails, correspondent written or typed and any hand notes, from the 1st July 2021 up to and including the 8 February 2023, sent to the Department of Immigration NZ, the NZ Police Department, including any telephone/mobile calls, any SMS messages to the NZ Police and the [Queensland] Police.
3. The Fifteen (15) Affidavits filed in the Matter of [D’Onofrio] -v- [Heijman] […] nzfc […] heard [in late] 2022 including the Affidavit of the Applicant sworn on the 12th July 2022.
The respondent offered no submissions on why these documents might have been relevant. The request for documents under point 2 is very broad. The documents in point 3 are documents that are otherwise within the respondent’s possession given he was the applicant in those proceedings.
Instead, the respondent said that I should not give the applicant her costs in objecting to the subpoena because, after it became clear that her affidavit of evidence-in-chief filed 1 July 2024 contained annexures that were illegible, the applicant filed an additional affidavit on 16 July 2024 containing corrected versions of these annexures. Counsel for the respondent gave some evidence from the bar table (which I have ignored) about the additional costs incurred as a result of this further affidavit. Leaving that aside, I do not consider it appropriate to “set off” costs against each other in such a way. If the respondent wishes to pursue costs he incurred as a result of the further affidavit, it should be done in the proper way by application and affidavit.
I consider it appropriate that the respondent pay the applicant’s costs of and incidental to the subpoena objection. Those costs will be fixed in the sum of $653.60 as set out in Exhibit 15.
DISPOSITION
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 21 August 2024