Heron & Heron
[2024] FedCFamC1F 465
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Heron & Heron [2024] FedCFamC1F 465
File number: SYC 8248 of 2021 Judgment of: HARPER J Date of judgment: 11 July 2024 Catchwords: FAMILY LAW – PARENTING – Final orders – Where the eldest child does not wish to spend time with the father – Where it was accepted that no orders should be made with respect of eldest child, aged 13 – Orders made by consent for the mother to have sole parental responsibility – Where until August 2023 the youngest child, aged seven, was spending supervised by the father – Where the child has spent no time with the father after August 2023 – Where father concedes that he perpetrated family violence against the mother – Where it is accepted that the children should live with the mother – Where the father seeks a short period of supervised time progressing to significant unsupervised time with the younger child – Where mother seeks orders for no time – Where Independent Children’s Lawyer seeks interim orders to allow for the child to obtain an assessment for ADHD or Autism Spectrum Disorder and for the matter to be relisted in mid-2025 – Where the child has struggled with severe emotional dysregulation – Where the child’s presentation is likely multi-factorial but one factor is past trauma and the child’s response to the father – Where the child’s emotional regulation and ability to attend school significantly improved following the suspension of supervised time with the father – Where there are significant long term risks to the child if his emotional regulation regresses as a result of a reintroduction of time with the father – Where father lacks insight into the impact of his own behaviours and does not take responsibility for his past actions – Where the father is a contributing factor to the child’s dysregulation – Consideration of risk of harm – Held child is at risk of unacceptable harm that cannot be ameliorated by supervision – Where orders are made for the father to spend time with the eldest time in accordance with her wishes – Where orders are made for the father to spend no time with the youngest child. Legislation: Evidence Act 1995 (Cth) s 58
Family Law Act 1975 (Cth) Pt VII, ss 4B, 60CA, 60CC, 61DA, 65D(1), 65D(2), 65DAAA, 65DAB, 117(1)
Family Law Amendment Act2023 (Cth) s 25(1)
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
DL & W (2012) FLC 93-496; [2012] FamCAFC 5
Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209; [2016] FCA 1034
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jollie & Dysart [2014] FamCAFC 149
Jones v Sutherland Shire Council [1979] 2 NSWLR 206
Lang v The Queen [2023] HCA 29; (2023) 97 ALJR 758
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142;
Wei v Xia (No 5) (2023) 67 Fam LR 421; [2023] FedCFamC1F 679
Division: Division 1 First Instance Number of paragraphs: 174 Date of hearing: 15–17, 20–21 May 2024 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Mr Connor Solicitor for the Respondent: Buckley Lawyers Counsel for the Independent Children's Lawyer: Ms Tovey Solicitor for the Independent Children's Lawyer: S P Nasti & Co Solicitors ORDERS
SYC 8248 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HERON
Applicant
AND: MR HERON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS THAT:
1.X and Y (“the children”) live with the Applicant Mother (“the mother”).
2.X spend time with the Respondent Father (“the father”) in accordance with her wishes.
3.Y spend no time with the father.
4.The mother is restrained from changing the children’s names.
5.Regarding travel documents for the children:
(a)The mother is at liberty to do all acts and sign all documents as is necessary, pursuant to s 11(b) of the Australian Passports Act 2005 (Cth) to procure a valid Australian travel document for the children, X born 2011 and Y born 2017, without the signature or consent of the father;
(b)The mother is authorised to sign all necessary document on behalf of the father;
(c)Any requirement for the signature or consent of the father be dispensed with; and
(d)The children’s passports are to be retained by the mother.
6.The father is restrained:
(a)From approaching or communicating with the children’s school and/or the children’s treating health professionals;
(b)From approaching the mother’s residence and/or workplace.
7.The mother take all necessary steps to direct the children’s school to provide access to the father at all times to any applicable school Portal and to facilitate the father receiving school information/news/updates/reports relating to the children.
8.The father create an email account to which the mother can provide information relating to the children at her discretion.
9.The father be permitted to send the children cards/letters on special occasions in writing to the mother either by post or via the email address nominated at order 9 herein.
10.That the mother and father each pay one half of the costs of the Independent Children’s Lawyers appointed for the purposes of these proceedings, as assessed by Legal Aid NSW.
11.Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
12.All outstanding applications be otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Heron & Heron have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These are proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) for final parenting orders between the applicant mother, Ms Heron (“the mother”) and the respondent father, Mr Heron (“the father”), in relation to the children of the relationship, X and Y (“collectively the children”).
BACKGROUND & PROCEDURAL HISTORY
The father was born in 1971 and is presently 53 and the mother was born in 1976 and is presently 47.
The parties commenced cohabitation in either 2005 or 2006, were married in 2010 and separated on 13 July 2021. The parties were divorced in 2022.
X was born in 2011 and is presently 13 years old. Y was born in 2017 and is presently seven years old.
The mother commenced property and parenting proceedings in November 2021 in the Federal Circuit Court of Australia (as it then was).
The children spent no time with the father between July 2021 and December 2021. Interim parenting orders were made by consent in December 2021 which provided that the children live with the mother and spend supervised time with the father at a professional supervision centre.
It was an accepted position that X attempted the first few scheduled supervised visits, however she then refused to attend and the visits proceeded with only Y and the father.
The property proceedings were settled by consent in May 2022.
The Court made further interim orders on 31 March 2023 which allowed the father to spend time with Y every Sunday for four hours a week for one month and for six hours each week thereafter. This time was to be supervised by Mr B or Mr C, who are friends of the father.
The orders of 31 March 2023, by consent, also discharged previous orders which provided for the father to spend time with X. No further orders were made regarding his time with her. Orders were made by consent permitting the father to send cards, letters and photographs to X via her treating psychologist.
Following a review hearing, Judge Howe in the Federal Circuit and Family Court of Australia (Division 2) (as the Federal Circuit Court became) delivered reasons and orders on 11 August 2023 suspending the orders of 31 March 2023 and suspended any time and electronic communication between the father and Y. Y has not spent any time with the father since the last supervised visit on 18 June 2023.
The proceedings were transferred to this Court, the Federal Circuit and Family Court of Australia (Division 1), on 25 August 2023.
Orders were made by me on 11 September 2023 listing the matter for final hearing commencing on 15 May 2024 with an estimate of five days.
CURRENT CIRCUMSTANCES
So in summary, the children live with the mother and have been spending no time with the father since June 2023.
PROPOSALS AND ISSUES IN DISPUTE
It was uncontroversial that there should be no order compelling X to spend time with the father other than in accordance with her wishes. A final order allocating sole parental responsibility to the mother was made during the hearing by consent. The central difficulty lay in what orders should be made regarding Y. As will be explained, this is a particularly difficult problem.
In her proposed Minute of Orders dated 21 May 2024, the mother seeks, in broad terms, that the children live with her and spend no time with the father. The mother seeks various injunctive orders that would prevent the father from approaching or communicating with the children’s schools or treating professionals. She proposes that the father be provided access to the school portal so that he may receive school information, news and reports relating to both children. She further sought orders that would require the father to set up a specific email account to which she can then provide information relating to the children. The full orders sought by the mother are set out in Annexure “A” at the conclusion of these reasons.
In his Further Amended Response filed on 14 May 2024, the father initially sought orders which would result in a recommencement of time with Y starting with six weeks of supervised time and progressing thereafter to fortnightly overnight and unsupervised time.
The father revised his position and ultimately sought orders as set out in his Proposed Minute of Orders dated 21 May 2024, which are set out in Annexure “B” at the conclusion of these reasons. The father sought orders, in summary, that:
(1)He spend time with Y, commencing the first week of November 2024, on a supervised basis with Q Contact Centre once a fortnight, for a period of two months;
(2)Thereafter, he spend time with Y once a fortnight to be supervised by either Mr B or Mr C for a period of six months;
(3)Then until his ninth birthday, Y spend unsupervised time with the father every Wednesday for three hours and from 9.00 am to 4.00 pm every second Sunday;
(4)Thereafter, the Y spend fortnightly time with the father from the conclusion of school on Friday until the commencement of school on Monday; and
(5)Y attend upon a paediatric psychiatrist.
(6)The father continue treatment with Dr D, his treating psychiatrist.
The ICL advanced two alternate positions in their Proposed Minute of Orders dated 21 May 2024, set out in detail at Annexure “C” to these reasons. The primary position was that the Court make a final order allocating sole parental responsibility to the mother but interim orders for Y to spend supervised time with the father, together with therapeutic intervention, including ongoing treatment for the father with Dr D, and have the matter relisted in May 2025.
The proposed interim orders are, in summary, that the father’s time with Y would remain suspended until November 2024. Prior to November Y would attend upon a paediatric psychiatrist for the purpose of obtaining an attention deficit hyperactivity disorder (“ADHD”) or autism spectrum disorder (“ASD”) diagnosis. From November 2024, Y would spend supervised time with the father once per month for no more than two hours for a period of six months. The proceedings would then be relisted with a prospect of making final orders.
As the secondary position the ICL proposes that final orders be made that from November 2024, the father spend time with Y with a supervised contact agency six times per year for a period of two hours per visit. Upon reaching the age of 12, Y would then spend time with the father in accordance with his wishes.
The father embraced the ICL’s position regarding interim orders in the event that Court was minded to take such an approach rather than embrace his proposal. However, he pressed his orders if the Court were to make orders on a final basis.
Accordingly, what remains to be determined is the following:
(a)Whether Y spends any time with the father and if so the nature and progression of that time;
(b)Whether there is utility in Y receiving an ADHD and ASD assessment prior to time recommencing with the father, in the event such time is to occur; and
(c)Whether, in relation to Y, the Court should make interim or final orders.
EXPERT EVIDENCE
Dr E was appointed pursuant to Court orders made on 9 December 2021 to prepare a Family Report. Interviews took place on 12 and 13 December 2022 and Dr E prepared a Family Report dated 1 February 2023 (“the First Family Report”). The First Family Report was released to the parties on 7 February 2023.
Orders were made by McClelland DCJ on 25 August 2023 requiring the parties to attend upon Dr E on 23 and 24 October to facilitate the preparation of an updated Family Report. F Family Services, the practice of Dr E, advised the parties on 27 August 2023 that the interview dates on 23 and 24 October would be vacated due to issues relating to payment. The parties were offered interview dates on 11 and 12 February or dates in April 2024. However by 7 February 2024, when the matter came before me for final hearing, the earliest dates that Dr E had available to conduct updating interviews were 2 and 3 December 2024.
I made consent orders on 7 February 2024 requiring the parties to attend upon Dr G on 5 April 2024 for the purposes or preparing an Addendum Family Report in relation to the ongoing parenting arrangements for Y. Dr G also worked at F Family Services and the 7 February 2024 orders included that he be provided with the First Family Report, the notes taken by Dr E in preparation of that report and be permitted to communicate with Dr E in relation to her report.
Dr G conducted interviews with the mother, the father, X and Y. He further undertook an observation of Y, X and the mother, however did not observe the father with the children in light of the orders of 11 August 2023. Dr G also noted that the interview with Y occurred with the mother in the room.
Dr G’s Family Report dated 7 May 2024 (“the Second Family Report”) was prepared with reference to the clinical interviews outlined above, material filed by the parties up until 8 April 2024, Court orders, the First Family Report, Judge Howe’s judgment dated 11 August 2023, and some documents produced to the Court in response to subpoenas. His report was released to the parties on 7 May 2024.
Dr G did not correspond with the child’s school or treating psychologist, Ms J, in the course of preparing his report.
Both Dr E and Dr G were cross-examined by the parties. Both experts were provided with some updating material prior to their cross-examination. Orders were made on the first day of the final hearing requesting that Dr E and Dr G contact Y’s school and treating psychologist prior to attending Court on the third day of the final hearing. Neither Dr E nor Dr G were able to contact the school or Ms J prior to giving their oral evidence.
I will refer to the content of the First Family Report and the Second Family Report as necessary during the course of these reasons.
The material otherwise read or tendered by the parties is set out in Schedule 1 at the conclusion of these reasons.
FAMILY REPORT RECOMMENDATIONS
Neither expert gave entirely clear recommendations in their reports. However, after taking account of their oral evidence, they appear to be as follows.
Dr E’s preliminary recommendation, as set out in the First Family Report, was that Y’s time with the father should continue on a supervised basis, however it could progress to private supervision, if an appropriate family member or neutral adult was willing to undertake that role. She expressed that she did not believe family therapy would be beneficial in the circumstances.
Following the release of the First Family Report, orders were made in March that upon the father completing two sessions of the Men’s Behavioural Change course, the father’s time with Y would be supervised by the nominated private supervisors. This was to occur for the first time on 30 July 2023, however Y refused to attend this visit. As discussed above, the father’s time with Y on was subsequently suspended by Judge Howe in August 2023.
In her oral evidence and following a review of the updating material, Dr E moved away from her earlier recommendations regarding supervised time. As will be discussed further below, Dr E concluded that a reintroduction of time between Y and the father would be too great a risk to Y at this time. But if time were to occur, she expressed a tentative view that there should be a break of a substantial amount of time, and that any subsequent time would need to be supervised.
In her oral evidence, Dr E opined:
I think that I would be in agreement of a period of time where [Y] can focus on the important developmental tasks, psychological tasks of behavioural regulation and social skills and all the sorts of things I was talking about earlier. It would be very important for him. In terms of sort of what, if any, contact he ought to have with his father going forward, you know, in part my response is it depends on the father’s behaviour and attitude to [Y] at those times. So a child can actually be – if there’s a sort of identity-based contact which is what we’re talking about, which occurs infrequently enough that the child sort of still goes about their daily life – if that is a traumatic event for [Y], because, say – and I’m not saying this would happen – but if the father was so angry and determined to at that one session every six months or something, you know, blame [Y] or make it really – then that could really seriously undermine months and months, if you like, of therapeutic intervention. So it would depend on the father’s willingness – preparedness to do that. A supervised setting would assist. I would say in addition to that, that ensuring that [Y] had contact with paternal family members would be very important, because that can really ameliorate the risks of, you know, “I don’t belong to this family”, and some of the features we see in children who’ve truly they’ve been alienated from a side of their family. They no longer have any opportunities to have those broader family relationships. I think that would be very important. And probably I think, also, for the father to receive information about [Y] – how he’s doing at school – you know, important things – so that in time, if the father is able to improve some of those indicators we were talking about earlier, and [Y] is in a position to have their relationship recover, then the father has a chance to tell [Y] in due course that he has always kept an interest in him and that he has kept up with every detail of his life and he has never stopped loving him and caring about him. I think that they’re important things, too.
(Transcript 17 May 2024, p.17 lines 3–28)
Dr G expressed his recommendations in the Second Family Report at paragraph 186:
iv)If the Court was minded reinstating [the father’s] contact with [Y], then it is necessary for these contacts to be supervised in the first instance. This will afford [Y] the opportunity to safely explore his readiness to re-engage whilst allowing observation of the potential impact on him.
ii) It is for the Court to decide whether the currently endorsed supervisors, namely [Mr B] and [Mr C], are sufficiently impartial to fulfil their supervisory role as representatives of the Court.
iii)I am of the opinion that highly structured and pre-determined parenting arrangements in relation to [Y] will be necessary to ensure clarity of the arrangement for both [the mother] and [the father], but more importantly for [Y]. His ambivalence regarding [the father] will be worsened in the absence of these.
iv) [The mother] and [the father] may benefit from additional assistance to regulate and support their communication regarding parenting arrangements if the Court determined [the father] should have contact with [Y].
Both experts adverted to a benefit in Y receiving an assessment for ADHD or ASD.
I will return to question of what weight should be attributed to the evidence recommendations of the experts later in these reasons.
The children
X is currently 13 years of age. Y is currently seven years of age.
X is presently in Year 7 at H School and Y is in Year 1 at H Primary School.
X has been diagnosed with ADHD, and other medical conditions. Despite reported difficulties in the past, X has concluded her treatment with her former treating psychologist and, according to the mother, is progressing well.
Y has manifested severe behavioural problems since beginning primary school in 2023. He has been treated by Ms J, a clinical psychologist. I will return to the evidence about Y and his behavioural dysregulation below.
LEGISLATIVE FRAMEWORK
On 6 May 2024, substantial amendments to the parenting provisions of the Act commenced operation. There was no dispute the amendments applied to these proceedings (s 25(1) of the Family Law Amendment Act2023 (Cth)). These parenting proceedings are to be determined under the amended provisions of the Act.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to s 65DAB (which is not presently relevant).
Section 60B provides that the objects of Pt VII of the Act are to ensure that the best interests of the children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act.
BEST INTERESTS OF THE CHILDREN
Section 60CC provides:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
Neither child is an Aboriginal or Torres Strait Islander child. The matters specified in s 60CC(2) are:
(a)What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)The child; and
(ii)Each person who has care of the child (whether or not a personal had parental responsibility for the child);
(b)Any views expressed by the child;
(c)The developmental, psychological, emotional and cultural needs of the child;
(d)The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)Anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) further provides:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
As was the position under the previous version of s 60CC, the Court must consider each statutory matters, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). I will discuss the matters to the extent necessary, although they have all been considered.
(a) What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) The child; and
(ii) Each person who has care of the child (whether or not a personal had parental responsibility for the child);
This subparagraph concentrates attention upon orders which promote the safety of a child and any carer of a child. In this case, the focus is on the safety of the children and the mother.
The mother presented as a strong and stable parent. In his trial affidavit, the father made some allegations that she was emotionally abusive and coercive in her control of finances. However, these played no part in his ultimate submissions, and in light of the consensual position that the mother should have sole parental responsibility, and that the children should live with her, they appeared to be gratuitous and, if not unfounded, of no great importance. Orders allocating sole parental responsibility to her and for the children to live with her plainly promote their safety and, to a relevant extent, her safety. I am satisfied she has been willing to promote a relationship between the children and the father in the past but by the time of the trial she argued no time with the father was the arrangement which best promoted the safety of the children. I am satisfied that the mother, in coming to her proposal for no time, has understood the potential value for the children of a relationship with the father if it can be maintained safely and would otherwise be in their best interests.
But the mother gave evidence of behaviour by the father during the relationship which constituted family violence to which the children were exposed. She gave examples of incidents which demonstrated ongoing problems with the father’s mental health. In summary the mother recounts numerous instances of the father losing his temper, shouting at her and the children with verbal abuse which could continue for lengthy periods. She also gave evidence of the father being physically violent towards herself, the children and third parties. She maintained he constituted an ongoing risk of psychological harm to the children. I will refer to these events as necessary and by way of example in these reasons.
The father in cross-examination agreed his mental health was a risk to the children in late 2017 and 2018 which he called “my worst time”. He did not accept his mental health was a risk for them after 2018 but agreed he had mental health problems from 2018 until separation in 2021. He gave evidence that he currently receives treatment from a psychologist, Ms K, and a Psychiatrist Dr D. He attends upon Ms K approximately monthly and Dr D approximately every three months. He called evidence from these treaters to demonstrate he has made progress in addressing his mental health problems.
In late 2023, he completed a 20-week men’s behaviour change program, totalling 40 hours over six months. He claimed that he realised his behaviour amounted to family violence by undertaking this course. In addition, he annexed certificates demonstrating completion of the following courses, which he claimed have had a positive impact on his parenting:
(a)Circle of Security;
(b)Keeping Kids in Mind;
(c)123 Magic & Emotional Coaching;
(d)Emotion Coaching; and
(e)Bringing Up Great Kids.
In cross-examination, he agreed that he had been a perpetrator of family violence and agreed the children had been exposed to the aftermath. By this concession I understood he accepted his conduct fell within the definition in s 4B of the Act. He several times expressed remorse.
When asked to be specific about occasions when he had perpetrated violence he nominated an incident in July 2021, discussed further below, and more generally the use of abusive language used towards the mother during the marriage. He denied ever abusing the children, either verbally or physically. He also denied that the children had been present during other incidents of family violence.
The question of whether orders can be made which promote the safety of Y if he spends time with the father is to be answered by examination first of the reports of supervised time up to June 2023.
Supervised time
The supervision reports are dated from 24 December 2021 to 18 June 2023. They record positive interactions between Y and the father but negative responses by X from the start. Several examples are sufficient to demonstrate this.
In the report dated 24 December 2021 the supervisor recorded:
[X] informed me, “I don’t want to go see Dad. I will only go because I want to make sure [Y] was safe.” I reassured her I was there for their safety. She continued, “He is not a very nice man, he used to shout at us and hurt us.” [Y] said, “Dad used to smack me.” We talked about what to do if they felt uncomfortable and agreed that if they wanted to talk to the Mother they could ask me.
(Exhibit 3, p.268)
The report continues noting that X declined to see her father, while Y and the father interacted positively (Exhibit 3, p.268–271). Y sat on his father’s shoulders. X became distraught and repeatedly said “I want mummy”. At the end of the visit Y was comfortable to hug his father. Later reports recorded that on a number of occasions the father said to Y “I love you” but no response is recorded from Y. On 29 January 2022, while Y sat on his lap, the father read him a book called “My Daddy is Awesome” but Y looked tired (Exhibit 6, p.811). The reports show that often the father was demonstrative towards Y, whose responses seemed reserved, as well as excited to see him. On other occasions Y said “I love you too”.
The reports generally show a consistent pattern of positive interactions between the father and Y.
At the last supervised visit, which took place in June 2023, the supervisor reported:
At 9:57am, we met the Father at the agreed location. [Y] hopped on the Father and hugged him affectionately. The Father exclaimed, “Oh, [Y], big hug, I love you and miss you so much!” [Y] said, “I love you more! Do you know why I’m faster (referring to the run with me)? It’s because I play [sport]!” The Father responded appropriately and commented on [Y’s] new pair of jeans.
(Exhibit 6, p.654 paragraph 4) (emphasis in original)
The report continues with observations of the father and Y interacting in a respectful and loving way. Y hugged his father on occasion during rides. At the end of the visit the supervisor observed:
22.[Y] continued to play the games at the games booth. The Father chuckled and praised him when [Y] won the toys. The Father asked, “You had fun?” [Y] said, “Yes, one more please!” The Father jokingly said, “Next time… my bank account is empty now.” [Y] appeared upset and pretended to be angry.
23.The Father prompted [Y] to hug [Mr C] and [Ms L]. [Y] hugged them and asked [Mr C] if he could continue to play. The Father hugged [Y] and said, “No more time today. We can play again next time.” [Y] hugged the Father affectionately.
(Exhibit 6, p.656) (emphasis in original)
The private supervisors both gave evidence. Mr B swore an affidavit on 24 March 2023, which included observations prior to any supervision by him. Mr C swore an affidavit on 1 May 2024 in which he gave evidence consistent with the paid supervisor about the visit on 18 June 2023:
Pursuant to the March orders, I was afforded the opportunity to attend paid supervision with [Y], [X] and [the father], [Ms L] and myself. We attended approximately 5 and we all had a lot of fun, [Y] enjoyed seeing both [Ms L] and myself. [Y] gave [Ms L] and I hugs when we left the visits. The last supervised visit we attended was [in] June 2023 […].
(paragraph 27)
The mother gave the following evidence:
105. For a period, [Y] was happy enough to attend the supervised visits as he got to go somewhere fun and received toys from his father at the end. [Y] would state that he was “being friendly so as not to upset dad in front of the supervisor”. [Y] also thought his father was being nice because he wanted to date the supervisors, stating “Dad keeps smiling and winking at the supervisors.”
106. As time progressed, [Y] showed increasing reluctance to attend the supervised visits, requiring much more prompting before each visit started.
(Affidavit of the mother filed 3 April 2024) (Emphasis in original)
While the supervision reports support the view that for the most part the father behaved in an appropriate and loving manner towards Y, and Y responded, they also record that the father used the opportunity to promote a narrative that the mother had alienated X, and exposed Y to this aspect of parental conflict, for example by stating to the supervisor, in front of Y, that the mother had “turned [X] against him” (Exhibit 3, p.275).
There was no dispute that X holds fear of the father. He accepted this was true in cross‑examination. As mentioned, he sought no orders for her to spend time with him. There will be no order for her to spend time with the father unless she wishes to. This addresses any risk to X directly. There remains a question about the impact on her of Y spending time with the father. I will return to this below.
The position regarding Y’s perceptions of and responses to the father is more complicated.
The complication is starkly illustrated by the difficulty in reconciling the evidence of supervision reports, just described, with other evidence showing Y’s dysregulated behaviour at home and school and that he holds fear of his father.
Y's Behaviour
As mentioned, Y commenced primary school at the start of 2023. The mother gave extensive evidence of Y’s behaviour at school in her trial affidavit, which was consistent with subpoenaed notes from H School, tendered in what was marked Exhibit 3. I accept the mother’s account to be an accurate representation of Y’s behaviour at school.
The mother was called to meetings at the school to discuss a range of concerning behaviour which was displayed by him beginning in early 2023. Y was observed to scratch pencils into his legs. He sat away from his peers and stared out the window and refused to participate in school activities. He betrayed attachment issues and separation anxiety, poor emotional regulation, and a refusal to following instructions. He locked himself in school bathrooms, was overly sensitive to stern voices, feared sirens and lights driving past, and responded only to one-on-one time with teachers. The mother gave evidence that it took her up to an hour to settle Y at school daily in 2023. At other times, the school was required to remove X from her class to assist with settling Y in the middle of the school day. His oppositional behaviour caused him to isolate and withdraw from teachers and schoolwork. There was no dispute that this behaviour was having severe detrimental effects on Y and put his long term development at risk.
By March 2023, Y also exhibited dysregulated and resistant behaviour at supervised visits with the father. The supervision report dated 12 March 2023 records the following:
(f) … The Mother and [X] said a friendly hello and wished [Y] a fun time. [Y] was full of energy and wouldn’t listen to the Mother. [Y] picked up a large [object] and would not put it down. The Mother said, “You are not listening, [Y]. Should we cancel the visit? I think no sugar today.” [Y] ran to the car and said, “Okay, let’s go. I don’t care.” [X] moved the [object] out of the way for the pedestrians to walk past. I thanked [X]. The Mother got down to [Y’s] level and asked [Y] to make eye contact. In a kind, yet firm tone, the Mother asked [Y] to listen and behave.
…
4. The Father asked [Y] to get a map. [Y] grabbed several maps. The Father said, “We only need one map. Please return the others. Think of the trees.” [Y] placed the maps in the garden. The Father explained this was inappropriate and supported [Y] to return the maps. The Father said, “1f you don’t return the maps, we cannot go to the gift store today.” …
(Exhibit 3, p.298) (Emphasis in original)
10. The […] staff kindly asked [Y] to hop down from the […] statue. [Y] would not oblige. The Father nicely asked [Y] to hop down. The […] staff insisted as [Y] continued to sit on the [statue]. The father and the […] staff continued to talk to [Y] until he got down. The Father carried [Y] […].
11. [Y] demanded jelly. The Father asked [Y] to use his manners and not run off [Y] constantly ran and climbed on monuments, fences and posts. The Father encouraged [Y] to stop and slow down. [Y] did not listen and continued to run along the low fence around other guests.
13. The Father suggested visiting the […] park to let his energy out. [Y] ran and climbed on [another] statue. All of a sudden, [Y] ran off. The Father called out. [Y] was nowhere to be seen. The Father and I quickly looked around. I spotted [Y] and informed the Father. [Y] saw me and ran off again. The Father and I quickly went after him.
(Exhibit 3, p.299)
The report dated 18 March 2023 records:
1.... The Mother and [Y] arrived at 8:26am. I greeted the Mother and [Y] as they hopped out of the car. [Y] said, “I don’t want to go!” The Mother encouraged [Y], “You will have lots of fun with Dad! Maybe you can have breakfast together.”
(Exhibit 3, p.302)
In mid-2023 the mother had a meeting with school staff who told the mother the school trauma expert had not seen a child “so deeply affected by trauma” (mother’s affidavit filed 3 April 2024, paragraph 155). At that time in 2023, Y had a severe tantrum in class and the whole class had to be removed to allow the mother to enter the classroom to collect him. She had to sit with him and caress him until he calmed down and was able to leave. The school implemented strategies but expressed the view that as at mid-2023 they had “not even remotely had the desired effect” (Exhibit 3, p.373). A short time later the mother was told by an education officer that she believed Y was in “constant survivor mode” in a “hypervigilant state” and in a “constant state of fear” (mother’s affidavit filed 3 April 2024, paragraph 157). Y was suspended from primary school at the end of mid-2023 for a period of two weeks because of his extreme behaviour.
The “Parent Communication Notes” dated mid-2023 record Y telling a school counsellor he gets “butterfly feelings every day” and she notes:
... within 2-3 minutes [Y] spoke to “Daddy hurt me when I was little, I don’t have a dad anymore but I ok because Mummy keeps me safe .”; I’m a stranger for him to share this so quickly, he appears to have been ruminating on it a long time; not feeling safe: needs close proximity to mum; observed for an hour and a half, [Y] trying to soothe himself...under the table...etc ...
(Exhibit 3, p.365)
The father agreed this was awful and brought him to tears. He said in his oral evidence that at this time Y appeared “okay” with him at supervised visits (Transcript 16 May 2024, p.50 lines 16–19). When asked by me whether he thought Y “might have been responding to you in supervised visits in the way that he thought you wanted him to?”, the father accepted “[h]e could be” (Transcript 16 May 2024, p.51 lines 7–8).
After mid-2023, Y began sessions with Ms J, a child psychologist and specialist in the school system, who advised the mother that it is necessary “to remove all triggers and start moving [Y] away from his hypervigilant state before working on him cognitively” (Affidavit of the mother filed 3 April 2024, paragraph 166). In July 2023, Y told his mother that he did not want to go to the scheduled supervised visit with the father. He refused to leave the mother’s car at changeover, and pressed the car horn. After 20 minutes the parties agreed the visit should not proceed. The mother said he took three days to calm down after this incident.
At about this time, as a result of Y’s presentation, the mother raised the possibility that he should be assessed for ADHD or ASD. Y's General Practitioner took the view that Y’s symptoms were likely the result of trauma, which should be addressed before any formal assessment for ADHD or ASD.
Y did not see his father after mid-2023. By August 2023 Y appeared calmer and more settled going to school. By November 2023 he was attending school full time. Between November 2023 and February 2024 he received two school awards. By March 2024 teachers reported to the mother that Y was far more engaged, made positive choices even in the face of peer pressure, and was completing a full day’s work.
The mother tendered letters and notes from Ms J, who did not give evidence on affidavit. The father’s counsel objected to this material because there was no affidavit from Ms J. However, the application of the provisions of Div 12A of Pt VII of the Act meant that the evidence was not inadmissible. Rather hearsay evidence once admitted is subject to its weight and rational persuasive power (Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 219; Fair Work Ombudsman v Grouped Property Services Pty Ltd (2016) 152 ALD 209 at [226]; Wei v Xia (No 5) (2023) 67 Fam LR 421 at [206]–[207]). The father sought to undermine the weight of the material from Ms J by pointing out that the mother was present at all or most sessions with Y. However, I do not accept this is a persuasive reason to limit the weight of this evidence. The father did not press a case of alienation by the mother. I am able to draw inferences from the documents themselves produced by Ms J (s 58 of the Evidence Act1995 (Cth)). Those documents support the inference that Ms J conducted sessions with Y in a professional manner without any undue influence by the mother.
The letters and notes from Ms J record expressions of fear by Y about his father from August 2023. In a session in October 2023, Y told Ms J that he felt unsafe at school, and when asked why by the mother he said “I’m afraid dad will jump over the fence” (Exhibit 3, p.337).
In cross-examination the father accepted Y had spoken in this way. He also accepted that Y had done so as a result of his memories of the father. When asked if he accepted that he was responsible for Y’s response, he answered “if I caused it” (Transcript 16 May 2024, p.44 line 19). This led to the father explaining that he believed Y behaviour, and his negative comments about the father, were multi-factorial, and could be the result of ADHD or ASD (Transcript 16 May 2024, p.44 lines 21–24). But the father said he no longer thought himself to be a risk to Y “anymore” (Transcript 16 May 2024, p.60 lines 18–19). In a session in December 2023, Y spoke of “putting down the ‘heavy stone’ (dad) – not letting him effect him – takes time” (Exhibit 3, p.339). The father agreed this showed Y’s fear of him (Transcript 16 May 2024, p.45 lines 25–26).
Dr E
In the First Family Report Dr E recorded that:
144. [Y] said his favourite things about his mother are that she cuddles him and looks after him. He said his favourite thing about his father is that “he takes me to fun places” and they do activities together. He was able to tell me that [X] doesn’t see their father because “he hurt my mummy”.
She observed positive interactions between Y and the father:
145. After I had individually interviewed [Y], [the father] had arrived, and I took [Y] to his father. [Y] ran to his father and appeared to be very excited to see him, cuddled him and had an affectionate reunion.
146. Throughout the play and observation session [the father] was kind, attentive, and appropriate with [Y]. He encouraged [Y’s] social skills, such as asking [Y] to face me when he was answering questions. At times, he appropriately managed [Y’s] behaviour such as when he was jumping on the lounge, gently reminding him to play on the floor.
147. At the start of the observation session, [Y] was very animated and physically excited, and played with numerous toys, puzzles, and games. [The father] played appropriately with [Y] … [The father] helped [Y] when he needed assistance [i.e., putting on dress up costumes and solving puzzles]. He appeared to be cognisant of [Y’s] frustration at times and helped [Y] with difficult tasks. He otherwise allowed [Y] to lead the play and participated fully. Overall, the interactions were very positive, affectionate, and loving, and [Y] appeared to enjoy the session.
148. When it was time to conclude the observation session, [the father] was able to manage [Y’s] transition out of his care. He warned [Y] that their time was coming to an end, cuddled him and said goodbye. He reminded [Y] that they would see one another soon, and asked [Y] for some suggestions of activities he might like to do [the movies and [a theme park]]. [Y] cuddled his father, said goodbye, and was able to transition to the care of his mother [who was waiting in some separate rooms].
Dr E conducted interviews and prepared her report before Y’s behavioural problems at school had manifested. However, she noted that the mother reported Y experienced significant separation anxiety at day care and preschool (First Family Report, paragraphs 50–51). The mother claimed this became exacerbated following exposure to episodes of family violence. Dr E noted that “records from [Y’s] childcare indicate that at times when he was likely exposed to family violence, [Y] exhibited very regressive behaviours, including aggression towards others, withdrawal, and a failure to self-regulate” (First Family Report, paragraph 180).
In her oral evidence Dr E agreed the emotional and behavioural dysregulation exhibited by Y was likely multi-factorial, possibly caused by genetic vulnerabilities, ADHD, ASD or trauma in some combination. She concluded:
So there could be a genetic propensity, plus exposure to trauma, plus some learning challenges in there, with a very bright, capable boy, that’s evident – that has produced these kind of behaviours – is probably my best estimation.
(Transcript 17 May 2024, p.11 lines 5–8)
Dr E was clear in her oral evidence that Y’s dysregulation was extreme and well outside the normal range.
She expressed the view that while Y may have genetic disposition to behavioural problems, dysregulation was a key indicator of trauma. She pointed out that trauma has a neurobiological impact, and the earlier the exposure to trauma the more likely it is to cause life long damage. However, she was clear that in her view the priority for Y is to develop self-regulation, remaining at school, developing friendships and remaining stable. Developing self-regulation will be critical for Y over the next three years.
Dr E agreed that it was difficult to reconcile her observations of Y with the father at interview and the positive reports of Y’s interactions with the father at supervised visits, with his behaviour at school and expressions of fear about the father. However, she pointed out that this seemingly discordant behaviour is not uncommon in children that have experienced family violence, and further explained:
Children behave very differently in different contexts – is the first sort of thing I would say. And when – if the father is the source of a traumatic reaction in [Y], child victims of family violence are often very loving and appear to be – have a joyous sort of relationship with the alleged perpetrator. Sometimes that’s a survival thing, but often – and this is usually the case whether you’re a child or an adult – the relationship is complicated. It’s not simply, “I’m fearful of this person and I want to avoid them”. It’s usually a very strong mix of love, desire, affection and fear. And so behaviours can be kind of misinterpreted and quite unusual. So it could be the case that – I think it’s very likely the case that [Y] loves his father, seeks his attention and thoroughly enjoys the times they have together when it’s very good, and that he has a strong need for that, but it could also be true that he’s very fearful and wary about his father and feels angry and distressed about some of the interactions he has seen his father engage in. It could also be true that he is very angry that he has more limited contact – you know, that all of this has happened – that the adults – things have happened in his world and he doesn’t have access to his parents like most other kids in his class. So it’s a complex – it’s very comIon. I would – this is the sort of behaviour I would expect from a child with this history, because humans are complex and they have sort of multiple feelings towards their parents. But the manifestation of the behavioural and educational and social problems at school are a key indicator of a child who has had trauma or some other sort of dysfunction.
(Transcript 17 May 2024, p.11 line 45 to p.12 line 18)
When asked about the possibility of risk if Y was reintroduced to the father, she said that there could be risks but it was not possible to be definitive. She was clear however that supervision would be essential. When asked whether supervision could go some way to mitigate the potential risks to Y Dr E opined:
I can only offer supervision as a way of mitigating risk, but still that is not without risk. And I would say that the level of behavioural dysregulation that I have read about in those documents that you turned my attention to, and some of the other things I read in the updated affidavits, would cause me to sort of advise the court, if I might, that the priority really needs to be given to – for [Y’s] safety and psychological health moving forward – needs to be given to behavioural regulation – fixing that as the most important thing. Because if a reintroduction to time with the father occurs, but it destabilises his behaviour, then he is at risk of a lot of other things. So the relationship with the father, in my view, is sort of secondary to that at this point in time.
(Transcript 17 May 2024, p.13 lines 28–38)
Dr E emphasised that managing and stabilising the level of behavioural dysregulation was the priority, and Y’s relationship with the father was secondary. She said in her oral evidence:
The priority has to be [Y] developing enough self-regulation to engage in the developmental tasks that are important for him right now, and that is being at school, staying at school, developing friendships, developing relationships with teachers and other positive adults, and being able to keep him on track so that he has sort of success. I don’t mean academic success, but I mean success as a human being to be able to do the things that are going to be predictive of his positive mental health throughout childhood and adolescence. It’s really critical that, for the next two or three years, a priority is given to helping him in that with self-regulation, because that is the key to, you know, his future relationships with both his father and his mother and other – and his sister and other important people in his life. If this goes wrong now, none of those things will matter because he won’t be able to have positive relationships with anyone and he will be on a very different sort of trajectory. I’m sort of worried about the conduct disorder aspect of his behaviour and how that may manifest if this isn’t prioritised. In answer to the specific question about sort of what – so I think that I’m in agreement with what I ascertained from some of the professionals – he needs to have – whether it’s help with the trauma – but I would say it doesn’t matter what it’s called – he needs help with behavioural regulation. That’s the top priority … And I should also say – sorry to inundate the court – but I also had – back when I assessed them, I also had some concerns about sort of, you know – there are other things that need to be addressed here with respect to learning and some of the things you were asking me about earlier with ADHD. I do think he needs to have a sort of comprehensive psychometric evaluation to have a look at what’s going on with his learning.
(Transcript 17 May 2024, p.12 line 23 to p.13 line 9) (Emphasis added)
However, Dr E was clear that if a resumption of time were to occur between the father and Y it would need to be predicated on Y having a sufficient level of behavioural regulation and emotional resilience to be able to handle that time and for the father to have sufficient insight and take “ownership” of his past conduct. Dr E in her oral evidence stated that:
The problem that I don’t have the answer for is that, if the father has been the source of trauma to [Y] – and there’s a very specific sort of path of recovery from that, which includes both [Y], having self-regulation and enough cognitive capacity to be able to cope with and understand what has happened to him, but it would also require a huge effort on the behalf of the father to fully acknowledge the effect of his behaviour on [Y], even if [Y] was very young. And I don’t have enough confidence that the father has that requisite ability, nor do I have the confidence actually, that [Y] is right – is self-regulated enough to be able to cope with that. So until those conditions are established, I think it would be very difficult for [Y] to be relieved of some of the factors that might be contributing to this behaviour.
(Transcript 17 May 2024, p.12 line 40 to p.13 line 4)
Dr E also pointed out that there also existed risks for Y if he spent no time with the father, especially if there was a genetic basis to his behavioural presentation. She identified the risk of Y feeling abandoned, and a risk he would project against the mother, because a one parent household is not ideal.
Dr E expressed the view that family therapy may have a place in helping to rehabilitate the relationship between the father and Y, however, she doubted its utility unless the father could take responsibility for and fully admit the effect of his behaviour. Under questioning by counsel for the ICL she stressed that the father must take “ownership” of his conduct, and in describing the impact on Y of a failure by the father to take responsibility observed:
I think that would be devastating for [Y] because it would undermine his – I mean, [Y] was very young when he – in my view – when he was exposed to the incidents that he was exposed to, so his sort of explicit memory of them might be quite different. But memory and trauma is a whole other topic. I think that he would – [Y] would find it very difficult to reconcile what he has felt and experienced in his emotions with either denial or minimisation or blaming someone else. And his reactions to that could be anger, volatility, more dysregulation, so I think it sort of puts him back on that trajectory of being a very confused and undermined person – is the broad answer.
(Transcript 17 May 2024, p.13 line 46 to p.14 line 7)
Dr E agreed that on balance, in her view, there was too much of a risk to allow reintroduction of time with the father at this point in time, but if it happened there should first be a substantial break in time with the father to allow Y to continue to settle and work on his regulation.
Dr G
As noted Dr G provided an Addendum Report. Under questioning by counsel for the mother he agreed that he had been instructed to undertake a risk assessment of Y spending time with the father. However, he failed to contact both Y’s school and Ms J to inform his views. He agreed that both were important sources of information, particularly the daily school log about Y in 2023. He accepted this was a significant gap in his report and meant he had failed to carry out his appointed task. These concessions lead me to treat his evidence with some caution.
Dr G undertook a psychiatric assessment of the parents. He observed the children interact with the mother, but saw no interactions with the father. Dr G observed Y with the mother:
160. [Y’s] mental state examination was significant for a few reasons. Firstly, he could not separate from [the mother] to participate in one-to-one discussion with me. Secondly, he could not directly speak with me unless engaged in another activity. Thirdly, he demonstrated regressed behaviour, presumably as a result of his level of anxiety, by suckling on [the mother’s] coat. Lastly, although he did not present with outward features of distress or anxiety, he was anxious enough to need [the mother’s] presence during the interview.
(Second Family Report)
He accepted the father and Y had a loving relationship and concluded that “then it is reasonable to also accept that a disruption in their relationship would have [serious and adverse consequences] on his emotional and psychological wellbeing, and his development” (Second Family Report, paragraph 176(iii)). Dr G noted that since the cessation of time with the father Y’s “emotional and behavioural difficulties appear to have stabilised” but could not speculate on other factors which may have caused those difficulties (Second Family Report, paragraph 176(iv)). Dr G however concluded that “[o]verall, I concluded that [Y] presented with maturity typically observed in males of his chronological and developmental age” (Second Family Report, paragraph 178(iv)). He also concluded that “[i]t was psychologically interesting and significant, in my opinion, that [Y] did not mention [the father] during our interview except on one (1) occasion” (Second Family Report, paragraph 183(vi) and “[Y] was ambivalent about his relationship with [the father] at this point in time” (Second Family Report, paragraph 183(ix)).
Dr G expressed the following views about the father’s capacity to parent:
(ii) [The father], in my opinion, has the requisite capacity to provide for [Y’s] physical and intellectual needs. I do note that [the father] is not in full-time employment at the present time, which might hamper his financial capacity to provide in [Y’s] needs. However, it is important to acknowledge that such matters are beyond my scope of expertise and not for me to speculate on.
(iii) In my opinion, [the father], demonstrated an increasing (or developing) capacity to provide in [Y’s] emotional needs as a direct result of the in-depth psychological work, psychiatric treatment, and parenting skills educational activities he has undertaken.
(Second Family Report, paragraph 177)
At paragraph 179 of the Second Family Report Dr G then expressed the following views:
(vi) It is challenging to accurately assess the potential risk of psychological, physical or other harm [the father] poses to the children in the absence of an up-to-date parent-child observation.
(vii) In the absence of (vi) above, I relied on [the mother’s] account, [the father’s] account, [Y’s] interview, the parent-child observation involving [the mother] and [Y], and subpoenaed materials provided, to formulate a position regarding the risk [the father] posed of physical or psychological harm to the children.
(viii) I concluded that the risk [the father] potentially posed of physical or psychological harm to the children was neither absent nor extreme.
(ix) [The father] has undertaken extensive psychological work and parenting skills training to assist his reflective capacity pertaining to the children’s physical and psychological well-being, their experience, and their perception of prior traumatic events within the family unit.
(x) It is my view that this increased reflective capacity, self-awareness, and recognition of the position of the other, will mitigate the potential risk [the father] might pose to the children.
Dr G did express the view that “the likely impact of any abusive, violent or otherwise inappropriate behaviour on [Y] would be psychologically damaging and developmentally disruptive” (Second Family Report, paragraph 180(iv)).
The foregoing discussion shows the report of Dr G is compromised by a number of problems. The concessions he made in cross-examination are recorded above at [99]. In my view, Dr G did not clearly expose his reasoning to the conclusions set out above at [102] and [103], or explain how his expertise informed them (Lang v The Queen (2023) 97 ALJR 758 at [15]), particularly where he did not observe Y and the father together. His description of the risk to Y of psychological harm as “neither absent nor extreme” was unhelpfully equivocal. Although his report was otherwise admissible, and was admitted into evidence, these deficiencies diminished its value.
Under questioning by counsel for the ICL Dr G expressed the view that the warm and affectionate behaviour of Y towards the father observed in supervision reports was “as a result of the existing positive, favourable attachment and relationship that he had developed with [the father] up until that point in time” (Transcript 17 May 2024, p.37 lines 36–38). He agreed that it was possible for Y to act differently in different contexts. He was clear that it was difficult for him to express a conclusive view of “any meaning or value” about the causes of Y’s dysregulation (Transcript 17 May 2024, p.42 lines 4–5). He opined:
So it’s possible that as a direct result of the cessation of contact with [the father], the behavioural dysregulation and emotional dysregulation fully settled and resolved. It’s also possible that there are other factors such as the presence of an undiagnosed psychiatric condition, possibly, and the recognition around that and the management strategies being employed within the school environment that might be assisting in the reduction certainly of that behavioural dysregulation.
(Transcript 17 May 2024, p.42 lines 34–40)
He agreed that the objective evidence showed a theme of fear held by Y and “the absolute priority for this little boy at the moment is that he is left in peace to engage in, embed in and enjoy primary school” (Transcript 17 May 2024, p.49 lines 39–40). He also agreed with Dr E that if reintroduction to the father caused destabilisation of his behaviour Y would be at risk of devastating consequences to his mental health.
Dr G accepted that before exposing Y to such a risk, it was essential that the Court be satisfied that the father had developed insight and took responsibility for his own behaviours. He agreed that if Y’s dysregulation was related to fear of the father, the fact that the father’s mental health problems had abated was not very important in assessing the risk to Y posed by a reintroduction of time. He also agreed that the longevity of Y’s exposure to the father’s aggressive and abusive was a further factor militating against any recommendation for reintroduced time.
I have taken Dr G’s evidence into account, but found it less persuasive than the evidence of Dr E to the extent it differed. I note that Dr E read his report and said in her oral evidence that it did not change any of the views she expressed orally.
Insight of the father.
As recorded above, the evidence of Dr E and Dr G directed attention to the importance of the father gaining sufficient insight about, and taking responsibility for, his past conduct.
It was the father’s evidence that while he concedes he was a perpetrator of family violence he has undertaken numerous steps as outlined above at [57] which have allowed him to understand the impact on others of his past behaviour and afforded him a level of insight he did not previously have.
Dr E engaged with this question in her report:
98. I asked [the father] to reflect on what the children may have experienced in relation to family violence and any effect on them. He said the children may have heard him raise his voice from time to time. However, he said that many or most of the other instances portrayed in the mother’s affidavit are inaccurate or untrue. In fact, he then told me that it was the mother who had been subjecting the children to considerable abuse by saying things such as “your father doesn’t love you”. He said that from August 2020, [the mother] started exposing the children, and particularly [X], to marital conflict, by saying things such as “your father has abused you”, which he said “incensed me” …
99. I asked [the father] to focus on what the children would have experienced of the episodes. He acknowledged that the children have been “exposed to domestic violence”. He said that they could possibly have developed a perception that that that “dad is a bad guy because the police have come around to the house and their father has been arrested”. He acknowledged that these experiences would have been “frightening” and “unsettling” and “destabilising” for the children. However, he said this has been made difficult because nothing has been explained to them in an impartial way. He said that if the circumstances of these episodes were properly explained to the children it would be less confusing.
…
189. … I also regarded [the father] as dismissing and minimising the children’s experiences, particularly of family violence. He was instead focused on providing explanations for his own behaviour, and suggested that the children had minimally seen or witnessed episodes, and that it was only because of the mother’s influences that they have developed any kind of aversion to him. The father appears to have a lack of insight or understanding into children’s perspectives of parental conflict, which are generally that children find these situations to be terrifying and that children need to be comforted and soothed as a response, Instead the father is overly focused on the children knowing “the truth” of these episodes.
It is important to note that the interview with Dr E for the First Family Report took place prior to the father having completed the men’s behavioural change program in December 2023.
Dr G opined that:
ix) [The father] has undertaken extensive psychological work and parenting skills training to assist his reflective capacity pertaining to the children’s physical and psychological well-being, their experience, and their perception of prior traumatic events within the family unit
(Second Family Report, p.28 paragraph 179)
In Ms J’s session notes from an appointment between herself and the father, dated April 2024, she recorded the father stating “that [Y] wasn’t showing fear of Dad. Disclosed concern about what [Y] was being told” (Exhibit 3, p.341).
There remained a consistent and troubling pattern in the father’s oral evidence of qualifying, minimising or even denying aspects of his past behaviour and its consequences, which he had appeared to concede in his affidavit evidence, and in his final submissions, of resiling from concessions he made in cross-examination.
At the commencement of his oral evidence the father “rejected that [Y] is fearful” of him and rejected that the dysregulation displayed by Y at school could be a result of trauma he experienced as a result of any family violence perpetrated by the father (Transcript 16 May 2024, p.35 line 43 to p.36 line 6). After counsel for the mother directed the father to a number of clinical notes prepared by Ms J which recorded Y expressing fear of his father, the father accepted that Y was scared of him (Transcript 16 May 2024, p.42 line 1). As already mentioned, in cross-examination, although the father accepted Y feared him, he did not accept he posed a risk to Y any longer. Despite the father’s concessions, in his final submissions, counsel for the father argued that the evidence of Ms J should be given little or no weight in large part due to the presence of the mother in the sessions. This was not a persuasive submission
When asked by counsel for the mother whether he accepted that Y’s fear of him has come from his lived experience the father replied “it could come from many things” (Transcript 16 May 2024 p.42 lines 3–4). When asked where else it could have come from, he replied, “I think [Y] has said a few things that family members have said to him” (Transcript 16 May 2024, p.42 line 7–8). When asked who he was referring to the father indicated that he believed his brother and the mother and X have told Y things that have made him scared of the father.
The father accepted at the conclusion of his cross-examination by counsel for the mother that the material he had been taken to had disclosed a level of fear held by Y which had been expressed to third parties and of which he was previously not aware. I note that the father conceded that he had previously read the clinical notes of Ms J, had spoken to Ms J, read some of the subpoena material produced by Y’s school, read the First Family Report several times and had had two conversations with representatives of Y’s school in December 2023. This was much of the material to which counsel for the mother took the father to during the course of the cross-examination and which clearly disclosed evidence of Y’s fear.
Having ultimately conceded that Y has expressed a level of fear to third parties, the following exchange took place:
[HIS HONOUR]: …[Mr Heron], in your evidence after lunch, as I understood it, you accepted, after the material Ms Kennedy took you to, that [Y] feels fear of you, and you find that very upsetting, that’s correct, isn’t it?
[THE FATHER]: That’s correct, your Honour.
[HIS HONOUR]: And am I right in thinking that he has – the level of fear he has expressed to third parties, this came as some surprise to you? From reading that material today?
[THE FATHER]: Yes, your Honour. I ...
[HIS HONOUR]: So that disclosed a state of mind in [Y] which you were previously not aware of, is that correct?
[THE FATHER]: That is correct, your Honour.
[HIS HONOUR]: And if that is his state of mind, can you explain to me how you would envisage it being possible for him to spend unsupervised time with you?
[THE FATHER]: I would like to be able to repair my relationship with him, perhaps, maybe using his therapist.
[HIS HONOUR]: What do you mean by that?
[THE FATHER]: Having some form of family therapy, where [Y] could – we could both heal together and – and – and rebuild our relationship.
[HIS HONOUR]: Do you think it’s likely that even if it was ordered for him to spend unsupervised time with you, that that would cause him to be anxious?
[THE FATHER]: I don’t know, your Honour. I just love my son dearly. And I want to repair my relationship with him.
(Transcript 16 May 2024, p.79 lines 45 to p.80 lines 1–20).
The father made the concession on several occasions that he had perpetrated family violence towards the mother for which he was remorseful, as discussed above at [58]. While it is not necessary to traverse in detail the allegations of family violence or make specific findings as to discrete events in light of this concession, I will explore some of the incidents in greater detail in so far as they go to the issue of the father’s level of insight as to his past behaviour and his understanding as to the impact they may have had on the children.
Insight into violence perpetrated against the mother and others
The insight of the father into his past behaviours and willingness to take responsibility were matters of significance identified by Dr E. She observed in the First Family Report that:
200. The father’s history and the material in the subpoenaed documents indicate that the father has had volatile interpersonal relationships which have, at times, resulted in physical and verbal episodes of violence. The father asserts that for each incident raised there was a contextual explanation, or the event did not occur as reported. My concern, in evaluating the likelihood of future episodes of aggression or poor impulse control, is that in each explanation given, the father expresses the view that the other person was the aggressor [e.g., the gardener, his brother], or that when injury occurred it was accidental [e.g., pushing the table towards his father accidently causing the injuries; throwing the [toy] accidentally hitting the mother], that the event did not occur [e.g., [the] hotel incident] or that others [neighbours or [the mother]] have malicious intentions and have falsely reported incidents.
…
202. In aggregate the father has accepted no responsibility for a pattern of behaviour which has caused injury, distress, and relationship breakdown. He has also demonstrated very little insight into how others [and especially the children] have perceived him during these episodes. In these circumstances, despite a resolution to the father’s mental health symptoms, there is in my view an ongoing risk of future episodes of aggression, interpersonal relationship dispute and verbal or physical violence.
After hearing the oral evidence of the father, I formed the view that these observations of Dr E remained apt at trial, despite evidence pointing to the contrary given by the father in his trial affidavit. The father displayed a similar pattern of minimisation and avoidance of responsibility observed by Dr E and his continued behaviour after Dr E’s report indicates the father is not, or at least not wholly, repentant about his behaviours and continues to exhibit a lack of insight into the potential impact of his actions on the mother and the children.
It was uncontentious that there was an Apprehended Domestic Violence Order (“ADVO”) in place protecting the mother and children from the father from mid- 2021. There is in place an ADVO protecting the mother which expires in late 2024. One week prior to the commencement of the final hearing, the father was convicted of a breach of this ADVO. He gave evidence that he lodged an appeal from that decision on the same day. It was also accepted that the father pleaded guilty to an offence against the mother which occurred at separation and for which he received a conditional release order in late 2022. I will discuss the incident for which the father was charged in greater detail below at [132]–[133].
The father conceded that upon the mother’s address being inadvertently disclosed to him in medical documents during the proceedings he undertook a title search of the property. He claimed the purpose of this was to determine whether any of the proceeds of his father’s estate had been used to complete the purchase. Counsel for the mother pointed out that at the date of purchase, no distribution of the estate had yet been made. I found the father’s explanation to be implausible, and I do not accept it.
On the one hand, the father broadly accepted that he had used “inappropriate language and behaviour” when having arguments with the mother. But on the other, when X’s version of a particular incident was put to him, where she had recounted witnessing the father yelling at the mother, he initially conceded that this account was accurate only to resile from that position and claim that “I wasn’t yelling, I was having a conversation about loyalty and friends” (Transcript 16 May 2024, p.16 lines 40–41).
When various events of alleged family violence or aggression towards the mother or third parties were put to the father, he dismissed them as being lies, the fault of others or regrettable accidents. The father, in his oral evidence, expressed that he thinks “[the mother] has problems about telling the truth, to be blatantly obvious” (Transcript 16 May 2024, p.26 lines 1–2).
Insight into the children’s lived experience
It was not contentious that in mid-2018 the father caused the paternal grandfather to fall from a chair and as a result, he sustained injuries. The parties dispute the exact circumstances of this incident, namely whether or not X witnessed this event and the level of physical aggression perpetrated by the father.
At the time of trial, the father had the benefit of Dr E’s report. Dr E in the first family records that X conveyed to her that:
131.[X] said that in the past she thought she was close to her father. She said that when she was “a little kid he used to tell me I was his favourite”. She said when her father did “scary things”, like get really angry, she would be scared but then would become close to her father again because she “thought he had gotten better”. However, she said that “it kept happening again and again”. She described many of the “scary” incidents, including the time “he [hurt] my [grandfather] in front of me when I was five”. She spoke about this incident in detail and said she can recall it very well. She said she heard her grandfather screaming and then saw him on the floor. She remembered a fight between her parents and her father saying “I’m going to take the kids away”. She said she remembered that her father and grandfather were fighting about “something to do with the will”. She said it was horrible seeing her grandfather on the ground, screaming.
Dr E continued:
177. Unfortunately, [X’s] relationship with her father post separation has also been characterised by conflict. It appears to me that [the father] has attempted to persuade [X] that her version of events is incorrect, inaccurate or has been influenced by her mother, and that this has resulted in [X] and [the father] arguing. Unfortunately, the father has failed to understand that rather than trying to “convince” [X] that her views are inaccurate, she firstly needs an acknowledgement that she was exposed to terrible situations for which she was not emotionally equipped, which caused her a great deal of distress. The father needs to truly accept responsibility for his behaviours and actions, and fully describe the effects on his children, in order for [X] to even begin the process of trusting her father again.
178. Further, the father needs to accept that [X] is at a stage of preadolescent development where she is highly influenced by emotions and emotional responses rather than rationality and reason. His approach to [X] post separation has simply aggrieved her further and entrenched her views that he is not only dangerous, but that he has minimised and dismissed her experiences.
Counsel for the mother questioned the father about his version of the incident with his father. He adamantly maintained that X had not witnessed the event:
[COUNSEL]: Now, as I understand your evidence, [Mr Heron], you say [X] wasn’t there when it happened?
[THE FATHER]: She was inside the house, yes, Ms Kennedy.
[COUNSEL]: Is it your evidence that she saw nothing, heard nothing?
[THE FATHER]: She witnessed the aftermath of the incident, unfortunately.
[COUNSEL]: So where she tells [Dr E] scary incidents, including the time he [injured] my [grandfather] in front of me, when I was five, does [X] have that wrong?
[THE FATHER]: She didn’t witness the incident, Ms Kennedy, so the answer’s no.
[COUNSEL] So the answer is that that’s [X’s] incorrect remembering? Are you saying that –
[THE FATHER] what I’m telling you is [X] wasn’t there. She did not witness the … The only two people that were there during that incident were my father and myself.
[COUNSEL]: Are you telling his Honour that where [X] has told [Dr E] she saw her father [injure] her [grandfather], that [X] has misremembered that?
[THE FATHER]: No. I’m saying to you that [X] wasn’t there.
[COUNSEL]: Well, she saw it, is what she said?
[THE FAHTER]: Well, she wasn’t there, so how can she see something if she wasn’t there?
[COUNSEL]: Yes. She heard her grandfather screaming and then saw him on the floor?... She – after … She would have seen that, wouldn’t she?
[THE FATHER]: After the incident came out – [the mother] came out. And when [the mother] came out, [X] then came out and
[COUNSEL]: And saw her grandfather on the floor screaming?
[THE FAHTER]: Unfortunately, yes. He was – he was in pain. And I was extremely remorseful for what happened and
[COUNSEL]: Sure. How many [injuries] did he have?
[THE FATHER]: I’m not too sure.
[COUNSEL]: Was it – do you think it was [a few]?
[THE FATHER]: I have no idea, Ms Kennedy. And I don’t know
[COUNSEL]: You acknowledge that he has [had injuries] as a result of your attack?
[THE FATHER] --- I – Ms Kennedy, I don’t know. Right.
[COUNSEL] You’ve chosen not to inform yourself about the extent of injuries your father sustained after your violent attack. Is that your evidence?
[THE FATHER]: No, that’s what you’re saying.
[COUNSEL]: Why don’t you know how many [injuries] your father had after you attacked him?
[THE FATHER] Look, I – I don’t know, Ms Kennedy.
(Transcript 16 May 2024, p.14 line 2 to p.15 line 2)
Dr E also recorded that:
130. With respect to her father, [X] said it is quite complicated because “he is a mean person but also nice”. She described her father as being “like two different people”. She said that it is confusing because it is “like someone who is nice for two seconds and then becomes a mean person”. She described her father as “going into a rage” over things that were so tiny, such as if there was a tiny bit of dirt.
...
135. [X] said she remembered her parents fighting all the time, and she would take [Y] upstairs and stay away from it. However, she said that the worst time was a time when her father was cleaning the toy room and her parents were both fighting. She said her mother told them to go upstairs, and so she took [Y] upstairs, but this time she recalled being a bit different. She said she came downstairs because she felt that “something was really wrong” because of the way her parents were soundingand she “needed to check on mum”. She recalled her father throwing a large [toy] “at mum who was standing in front of us”. [X] acted this out, demonstrating her mother apparently standing in front of her and [Y] protecting them. She said that it was awful watching the [toy] hit her mother’s face with “blood dripping down mum’s head”. She said she can remember her breathing being very fast and her father walking towards her. She remembered her mother saying she was calling the police and her father yelling. She also remembered that [Y] became very upset. She said this was an awful night, and that they stayed up very late and later “barricaded the door and slept with mum”. She said thinking back about it, she wished she could have done something to stop it.
(First Family Report)
Counsel for the mother questioned the father on his version of the incident involving the toy, having taken the father to X’s account as set out in the First Family Report and excerpted above:
[COUNSEL] And [X] goes on to act that out. She records her mother – blood dripping down her mum’s head. She said that it was awful watching the [toy] hit her mother’s face. Firstly, that’s what X would have seen on the day, wasn’t it?
[THE FATHER] No.
[COUNSEL]: It’s certainly what you did, you hurled a toy […] at [the mother] and cut her head?
[THE FATHER]: I threw it from behind, as I’ve deposed. I threw it from behind while I was cleaning up, and it hit [the mother] in the head. And [X] was upstairs and [Y] was asleep on the couch. I’m not exonerating my behaviour, but that’s exactly how it happened. And I will take ownership for that in those circumstances.
(Transcript 16 May 2024, p.17 lines 16–25)
…
[COUNSEL]: Because where [X’s] describing this to Dr E, she seems to be reasonably clear about her witnessing of it, isn’t she? She’s describing it and acting it out as if she were there, Sir, isn’t she?
[THE FATHER]: That – well, I can’t explain that. I’m – I’m – I’m telling you the truth of what happened, and I will take ownership of that. And I’m not using – doing that to obfuscate or confuse anything. I will take ownership for the context that they have happened.
(Transcript 16 May 2024, p.18 lines 1–6)
When questioned by counsel for the ICL about what the skills the father claims to have developed following the men’s behavioural change course:
[COUNSEL] And what perspective has it given you of the children’s?
[THE FATHER]: Well, I think that the mother’s state of being is transferred to the children. I think that’s got to be, you know, [the mother] is the primary carer of the children, and that flows through to the children.
[COUNSEL]: What about their independent perspectives of what has occurred? Independent of the mother and what you believe she may or may not project upon them. What do you think that, what insight and understanding have you got of their perspective?
[THE FATHER]: Well, I certainly wouldn’t challenge it, I would listen to it and that’s their perspective. And I think somewhere along the line, I tried, at the very – at the beginning of the interim proceedings to try and seek family therapy and engage with [Dr P], and – and – and do those things, and I think if – that would be very helpful if we could have something like that to sort of, heal as a family.
[COUNSEL]: Okay. You said that you wouldn’t challenge their perspective, but you have, insofar as not recognising, for example, [X’s] recount of events. What do you say to that?
[THE FATHER]: Well, with the incident with the toy throwing, it was – look, I was standing behind and I threw that out from behind. That’s – that’s the way it happened. I mean, [X] says that I was – she was standing behind the mum and I threw it straight at her face. And, you know, she was there and that’s not the case. But, look, that doesn’t mean that [X] hasn’t been affected greatly by it. Her mum has been hurt as a result of that, and that’s a fearful event for any child growing up.
(Transcript 16 May 2024, p.84 lines 7–28)
…
[THE FATHER]: Yep. So in the area of growing is being able to understand someone else’s perspective. You know, it doesn’t mean that you’re right the whole time, it doesn’t mean they’re wrong, but that’s their perspective and how they perceive you. And that’s very important, from a child’s point of view, and having that understanding of it.
[COUNSEL]: Okay. So just in taking that into account, I’m just wondering why when the propositions were put to you by Ms Kennedy of things that [X] had said or recalled, that you essentially denied them to be true, rather than what you’ve just said, as being her perspective. Can you explain that?
[THE FATHER]: Yeah. Yeah. Sure. Well, look, I didn’t want to go through the process of admitting things that didn’t happen in an affidavit. And that’s, you know, I mean, that’s what you’ve got to understand. That’s what my feeling is, is that you’ve got to tell the truth of those events. I understand [X’s] perspective and, you know, I wouldn’t challenge that. Does that - - -
[COUNSEL]: I think I understand what you’re saying?
[THE FATHER] Yeah
[HIS HONOUR]: Well, I don’t. Because, [Mr Heron], the question that Ms Toovey put to you was that you didn’t accept [X’s] version, even in the witness box. Isn’t that true?
[THE FATHER] Yes, your Honour. But the version is, is that I threw the toy directly at the mother and the children were behind. That’s not the case. I mean, I accept the mother got hurt, and I suppose, no one likes being blamed for something that wasn’t, you know, it – [the mother] got hurt. You know, it’s – there’s no - - -There’s no excusing the fact of that.
(Transcript 16 May 2024, p.85 lines 7–34)
The recording
The mother in her affidavit filed 9 June 2023 prior to the review application heard by Judge Howe deposed that:
38. [In late] 2020 [X] did not follow one of [the father’s] instructions. He yelled at [X] calling her “a fuckin disaster” and then he turned to me and said “She is disabled she has been labelled disabled honestly what fuck is wrong with that kid”. I asked him to “stop, keep your voice down”. [X] was upstairs and could hear everything he said. He continued, “She is disabled DIS-ABLED a spastic.” I responded “[Mr Heron] what is wrong with you she is listening to every word you say”. He then continued and said “She ([X]) just sits there she doesn’t know what the fuck she is doing, she can’t take instructions, she can’t learn from school. Every time I pick her up from School you can just see, I am fucking fed up with her and they’re fed up with her.”
(Exhibit 5)
The father in his affidavit in response filed 14 July 2023 disputed this version of the exchange and deposed that:
129. [In late] 2020, I received an email from [X’s] school with a subject line “Personal Planning for Students with Disabilities”. After receipt of that email, [in late] 2020 [the mother] and I had a conversation to the following effect:
[The father]: “Did you see that email? What was that about? It’s so inappropriate to label any children disabled. They don’t use spastic or disabled anymore because its derogatory”
[The mother]: “Be quiet because [X] is upstairs. She has a problem with her working memory and may require ADHD medication”
[The father]: “The school had a very high academic standard and grading [X] in relation to these children is not an accurate assessment”
[The father]: “There are times that I have given her instructions and she has forgotten but that is children and we all learn at different levels. [X] is confident, outgoing, makes friends easily and really enjoys sports. Her academic side will come along in time”
(Exhibit 5)
A recording of that exchange was played in Court during the hearing before Judge Howe. The father conceded during cross-examination before me, that the version given by the mother in her affidavit (above at [135]) is an accurate transcript of what was on the recording, thereby conceding that the version in his affidavit filed on 14 July 2023 was almost completely wrong.
In his trial affidavit, following the judgment of Judge Howe, the father claimed that he was mistaken and that the conversation he deposed to having in his affidavit of 14 July 2023 in fact occurred in late 2020 and that the parties had had two separate conversations. He conceded that:
186. In the midst of my incredulity over receiving an email from the school labelling [X] as disabled, I regrettably used inappropriate language to [the mother] to the effect, “she’s disabled or spastic” and she’s been labelled disabled”. This remark stemmed from my disbelief that the school would categorize her as such due to her academic struggles and my above mentioned frustrations. I admit my words I said to [the mother] regarding [X] and the context surrounding this were unacceptable …
He maintained, however, that he did not believe that the mother was genuinely fearful of him during this exchange, rather he claimed “[i]t was my sincere belief that her actions, including her secret recording, were orchestrated to provoke a reaction and to set me up” (Affidavit of the father filed 15 March 2024, paragraph 187). Counsel for the mother put to the father that he only corrected his affidavit because there was a recording, and that what he had said was not “a mistake” but “an outright lie” (Transcript 16 May 2024, p.34 lines 10–17). The father denied this was the case and maintained it was simply a mistake. I do not accept the father’s evidence in this regard. I formed the view that the version given by the father in his affidavit (above at [136]) was a calculated attempt to sanitise his behaviour, which the mother had accurately deposed to, and his evidence in cross-examination was opportunistic and designed to exculpate himself in circumstances where he had been exposed as manipulating the truth and giving misleading evidence.
Conclusion
I conclude that despite the father’s assertions that he has gained a deeper insight and understanding as to the children’s lived experiences, his oral evidence indicates that. In doing so, he demonstrates that he has limited insight into how the children have perceived and remembered events. The father continues to demonstrate a reluctance or inability to accept responsibility for his actions and an inability to understand or accept the way the children have perceived and remembered events. I find that the father is unable to shake his belief that he has been unfairly dealt with or depicted by the mother, his family members and even third parties such as Ms J.
I am satisfied that both children have developed fear of their father by reason of witnessing and experiencing his behaviour prior to separation and both continue to hold a sense of fear. He remains unable to accept the evidence of the children’s stated experience where that differs from the more sanitized account he seeks to impose on the past events. This is obviously particularly important in relation to Y. I am satisfied that despite his protestations, the father retains a strong predisposition to minimise or deny his violent behaviour, towards the mother and other family members, which has been, partly at least, responsible for the children’s views and states of mind concerning him. I find that the father lacks insight into the impact of his violent or aggressive behaviour. I find that the father’s protestations of remorse and understanding about his past behaviour cannot be taken at face value. I find that the father is more likely than not to use any resumption of time with Y to either denigrate the mother or seek to undermine Y’s relationship with her and use the opportunity to promote a narrative about himself to counter what he perceives as the unfairness in the image Y holds of him.
I am unable to determine precisely what factors have caused the dysregulated behaviour of Y, but nonetheless I find that it is likely that the father’s behaviour and the negative aspects of Y’s response to time with him are a causal or exacerbating factor in Y’s dysregulated and damaging presentation. For example, as recorded above at [78], it appears in the school context where Y has exhibited dysregulated behaviour he has also expressed fear of his father, and similar fears to Ms J as the father accepted (at 84], [85] above). I find that a regression in Y’s behaviour to dysregulation is more likely than not to cause him serious long term harm.
(b) Any views held by the child:
I have already set out the evidence illuminating the views of the children. No further comment is required concerning X. In relation to Y, as discussed I am satisfied he holds fear of his father, but when he has been in his father’s company he has expressed warm and positive responses. I accept he is likely to hold conflicting views depending on the context. I have considered his views subject to these limitations (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35]).
(c) The developmental, psychological, emotional and cultural needs of the child;
The mother highlighted this subparagraph as of particular significance. I have already discussed at some length above under s 60CC(2)(a) the psychological and emotional problems and needs of Y. It is unnecessary to repeat this discussion. I find that Y is a child with a fragile psychology who has been driven to highly detrimental dysregulated behaviours by, at least in part, the circumstances of parental conflict in which he was placed and the impact of the father’s behaviours.
It was ultimately uncontentious that in the period of time from August 2023, by which point in time Y’s time with the father had ceased, and the date of the trial, some nine months later, Y has experienced a vast improvement in his emotional regulation and his capacity to attend and participate at school.
I noted Dr E’s serious caution above at [94] and accept that the recommendation of both experts regarding the need to prioritise Y’s dysregulation over a relationship with the father, to ameliorate or remove the risk that Y may experience devastating life long-consequences. I do not find that Y’s improvement over the last nine months lessens the force of the caution.
As the ICL submitted it is appropriate to take account of X’s reaction to any regime for Y to spend time with the father, even if she does not. X has made it clear she has strong attitudes and feelings about any time spent with the father, by Y. X displayed a very strong and protective attitude towards Y, and distress at the possibility of Y spending time with the father.
(d) The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
It was agreed the mother should have sole parental responsibility allocated to her, and her capacity to provide for the children’s developmental, psychological, emotional and cultural needs was not in doubt.
It should be observed here that subparagraph (d) refers to a person “who as or is proposed to have parental responsibility”. It seems to me that this expression may embrace not just the person to whom parental responsibility is allocated by Court order, but also a person who has the limited parental responsibilities which may exist when a child spends any time with a parent, including privately supervised time, such preparing meals, bathing them, being emotionally available and supportive, and promoting activities which address a child’s cultural needs in light of their background.
In this regard, I take account of the likelihood that the father may lack capacity, because he lacks insight into his own behaviour and has sought to deny or minimise it. I am satisfied that there exists a real risk he would use the opportunity of any time with Y to criticise the mother and seek to rehabilitate himself in Y’s eyes.
(e) The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
There is no doubt the children will continue to benefit from a relationship with the mother. In light of the agreed position regarding X it is unnecessary to discuss the question of any benefit to her of a relationship with the father.
I accept that Dr E gave evidence that Y may benefit from a relationship with the father. I have already touched on the risks to Y from no time with the father. To recap:
(a)Y may feel abandoned by his father which could cause him to feel angry towards his father or to identify with his father and project against his mother;
(b)Living in a single parent household increases the risk of a child experiencing behavioural dysregulation;
(c)He may have a fractured sense of identity and develop a belief that he wasn’t enough to keep his father interested;
(d)He may blame his mother and or his sister for his lack of relationship with the father.
Dr E identified that Y having contact with paternal family members would be very important and could assist in ameliorating some of the risks to Y’s sense of self and sense of belonging, if he were to spend no time with the father (above at [37]). I note here that the mother has actively sought to maintain relationships with the paternal uncle and his family, with whom the children have a close relationship. I also observe here that the paternal uncle gave evidence in support of the mother at the final hearing.
Anything else that is relevant to the particular circumstances of the child.
I have nothing to add here.
LIVE WITH
It was an accepted position that the children live with the mother. I am satisfied this is in the best interests of the children.
TIME WITH THE FATHER
This case presents particular difficulty regarding the question of Y’s time with the father. The Court is not bound by the proposals of the parties, but according to those proposals, the options are final orders for no time with the father, or supervised time progressing to overnight time after a substantial break on the one hand, or interim orders combining an assessment of Y with supervised time after a substantial break on the other hand. This is not a case where the evidence inclines the Court to diverge to any material extent from the proposals put forward by the parties and the ICL.
The initial question is whether the Court should adopt a regime of interim orders regarding Y, as proposed by the ICL, in a context where the mother has been allocated sole parental responsibility, and orders will be made for both children to live with her, by consent on a final basis. One virtue of interim orders is that they allow more flexibility before restrictions upon changing final orders come into force. Interim orders can be discharged and replaced by final orders at any later final hearing. It is of course open for a parent to apply to have final parenting orders reconsidered pursuant to s 65D(2) of the Act, because parenting orders are never truly final. But s 65DAAA requires the applicant seeking reconsideration to satisfy the Court that there has been a significant change of circumstances since the final parenting order was made and it is in the best interests of the child for such reconsideration to take place. This section was introduced by the amendments which came into operation on 6 May 2024 (see above at [45]). The section appears to constitute a statutory articulation of the principles long established in this Court by the decision in Rice & Asplund (1979) FLC 90-725 regarding the alteration of final parenting orders. In any event, the point is that reconsideration of final parenting orders is more difficult than a reconsideration of interim parenting orders. This is one factor which can militate in favour of interim orders, where the evidence available to the Court at one point in time is equivocal or uncertain about a very important aspect of a child’s presentation. The ICL argues that this is the position in the present case, because the Court has no clear evidence about the factors underlying Y’s dysregulated presentation.
However, there is also great benefit in bringing parenting litigation to an end so far as possible, which interim orders will not. In CDJ v VAJ (1998) 197 CLR 172 at [118] (McHugh, Gummow and Callinan JJ.) (“CDJ v VAJ”) the High Court stressed the extent to which the interests of children are ill-served by “the uncertainty of prolonged and repetitive proceedings”. It has long been recognised that ongoing, seemingly endless and inconclusive litigation has a debilitating effect on parents as well as children (Freeman and Freeman (1987) FLC 91-857 at 76,470–71; DL & W (2012) FLC 93-496 at [65]).
It is also not clear exactly what the ICL’s proposed interim orders would really achieve. If it be assumed that Y’s dysregulation was caused by a combination of trauma and fear of his father together with ADHD or ASD or both, the important point is that an assessment which demonstrated this to be true would simply confirm a possibility that all parties, the experts and the Court currently acknowledge. A diagnosis of ADHD or ASD or both does not exclude Y’s trauma and fear of his father as a factor. For the purposes of deciding whether interim or final orders should be made, I accept that there is a strong possibility that Y is afflicted by ADHD or ASD or both. But I also accept that trauma and fear of his father is more likely than not to be a factor, and this much did not seem to be truly in dispute, despite the father’s attempts to minimise or diminish the impact of his behaviour in cross-examination. I am live to the possibility the Y’s dysregulation was exacerbated or magnified by his fear of the father acting in concert with ADHD or ASD, and therapy for the latter could attenuate the former. But neither the father nor the ICL argued for such a possibility and on the evidence I am unable to form any conclusion that this likely. Therefore, I am not persuaded that interim orders are indicated for the purpose of allowing time for Y to be assessed for ADHD or ASD.
The more difficult question is whether, assuming Y likely does suffer from ADHD or ASD, interim orders should be made to allow time for the relationship between the father and Y to be rehabilitated through supervised time after a substantial break until November 2024, which even the father ultimately proposed. Such a break would allow a period during which Y, his mother and health professionals can work on his important developmental, psychological tasks of behavioural regulation and social skills. It would enable consolidation of the progress already made by Y in regulating his dysregulation, and settling into stable learning pattern at school, since supervised time with the father ceased in July 2023.
However, a serious difficulty remains in that if interim orders were made to allow this to happen, Y would continue to be subject to litigation, and there would remain unresolved and unknown what would happen when Y is faced with the prospect of a further time with the father on a supervised basis. I observe in passing that the same difficulty inheres in the father’s proposed final orders. Neither expert was asked about a regime of interim orders. It is obvious that interim orders will mean a further final hearing, and a further family report would likely be essential requiring further interviews for Y, as the mother submitted.
The evidence satisfies me that supervised time has already been tried, and it is likely that it either caused or contributed to the severe dysregulation suffered by Y. If the substantial break in time with the father continues until November 2024 it is possible Y will have developed sufficient resilience to enjoy and benefit from a resumption of time with the father, if supervised. The likelihood of this possibility of a diminishment or removal of risk becoming a probability cannot be determined by me on the evidence.
But the question is whether there remains the possibility of risk of harm to Y in orders for time with the father, especially by a regression to destabilised and dysregulated behaviour. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ at [151]), but are instead postulated from known historical facts and present circumstances (Isles & Nelissen (2022) FLC 94-092 (“Isles”). In Bant v Clayton (2015) 53 Fam LR 621 at [99] the Full Court pointed out “in assessing whether there is a risk that something may happen, ‘possibilities’ are a legitimate basis for finding that there is such a risk (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 [(“Malec”)]), as long as there is a proper basis for those ‘possibilities’”. In Isles at [50] the Full Court, citing Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) and Malec, confirmed a court decides facts on the balance of probabilities, “but not when hypothesising about future possibilities”. Where a risk of harm is slight on the probabilities but the harm resulting from the risk being realised is great, the Court is obliged to react to such risk with orders to ameliorate or avoid the harm, because “in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not” (Austin J in Fitzwater at [142] citing Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28]; Isles at [86]).
This discussion leads back to the mother’s proposal for no time. An order for no time with one parent is a very serious step for the Court to take. It cannot be ordered lightly. It would result in Y losing, or substantially losing, his relationship with his father. I also accept there is risk for Y in losing this relationship. But as Dr E opined, the damage to Y from a return to his former dysregulation would be very serious and substantial. In my view, the risk of this happening is not “comparatively small”, in other words, there exists a significant risk of really serious harm to Y by a return to supervised time with the father, even if, or even because, his earlier dysregulation was contributed to by other factors. In my view this conclusion dictates orders which avoid the risk being realised. A return to any time with the father is too much of a gamble with Y’s current stability and future development. On the evidence before me, the risk to Y in losing a relationship with his father does not outweigh the risk to Y of returning to severe dysregulation which undermines his present stability putting in jeopardy his developmental trajectory at a critical time in his life.
I am reinforced in this view by two other matters. The first is my conclusion that the father does not in truth take, or fully take, responsibility for his past behaviour, and continues to nurse a sense of denial about the impact of his conduct and his children’s fear of him, as well as a predisposition to blame the mother and others for such fear. I do not doubt the father loves Y but this affection of itself does remove or ameliorate the risk to Y. I have found the father betrays an inclination to-self justification and capacity to manipulate his evidence. I have found that there is a risk he would use any time with Y to either denigrate the mother or attempt to undermine Y’s relationship with her. I cannot rule out the possibility that such conduct by the father or Y’s responses to spending time with him would raise the risk of Y regressing in his positive progress.
The second is the likely deleterious impact upon X of Y spending time with the father, where Y’s relationship with X is an important emotional support for him, and where the Court must also consider X’s best interests as a child the subject of the proceedings.
There is no obviously good option presented in this case. It comes down to a choice between options all of which have clear deficiencies. The discussion at [156]–[165], and especially the dire consequences to Y of a return to severe dysregulation satisfies me that on balance the proposal of the mother serves the best interests of Y. After much careful and difficult reflection upon the consequences for Y, I have come to the view that it is the least bad outcome for him. I will make orders as the mother proposes for no time with the father.
OTHER ORDERS
The mother seeks orders that the father be restrained by injunction from approaching or communicating with the children’s school and or the children’s treating health professionals. The mother further sought orders that the father be restrained from approaching her residence or workplace.
The mother deposed to several incidents where the father communicated with the children’s school or treating medical professionals in an inappropriate manner. The father conceded in cross-examination that at times his communication may have been disproportionate, but it reflected his disappointment with the situation (Transcript 16 May 2024, p.48 lines 7–11). The mother also gave evidence which I accept that the father engaged in conduct, some of which is already mentioned above, which demonstrated an unhealthy desire to track the mother.
The mother sought additional orders that would permit the father to receive school reports and updates and allow the father to send the children cards and letters on special occasions. This will allow the children to maintain some contact with the father. The mother further sought orders that the father establish an email account to which the mother could provide information relating to the children at her discretion.
I am satisfied these orders proposed by the mother are proportionate and in the best interests of the children.
COSTS
This is a difficult matter which has had no clear answer. It is probably apt for the application of s 117(1) of the Act, with each party to pay their own costs. However, I will make provision for any application for costs to be filed within 28 days, in default of which there will be no order as to costs.
The ICL sought an order that the parties pay half of his and the previous ICL’s costs as assessed by Legal Aid. He made a submission to this effect. Neither parent made any submission in response. I consider such an order to be appropriate in circumstances where the Court received considerable assistance from the ICL. I will make the order sought by the ICL.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 11 July 2024
ANNEXURE A: MINUTE OF ORDERS SOUGHT BY THE MOTHER
FINAL ORDERS SOUGHT BY THE APPLICANT MOTHER
1.That the Mother have sole parental responsibility for the children, [X] born […] 2011 and [Y] born […] 2017 (“the children”).
2. That the mother not change the children’s names.
3.The responsibility given to the mother by order 1 extends to having the sole authority to apply for and hold a passport for the child.
4. The children live with the Mother.
5. The children spend no time with the Father.
6.The Father be and is hereby restrained by injunction from approaching or communicating with the children’s school and/or the children’s treating health professionals.
7.The Father be and is hereby restrained by injunction from approaching the Mother’s residence and/or workplace.
8.That the Mother direct the children’s school to provide access to the Father at all times to the school Portal and to facilitate the Father receiving school information/news/updates/reports relating to the children.
9.That the Father create a GMAIL account to which the Mother can provide information relating to the children at her discretion.
10.That the Father be permitted to send the children cards/letters on special occasions in writing to the Mother either by post or via the email address nominated at order 9 herein.
ANNEXURE B: MINUTE OF ORDERS SOUGHT BY THE FATHER
Proposed minute of Orders
1. That the Respondent Father have time spent with [Y] commencing on the first week of November 2024.
2.That for two months thereafter the commencement of the Respondent Father’s spend time with [Y] in the foregoing Order, the Father have time spent with [Y] on a supervised basis with [Q Contact Centre] once every fortnight and the costs of the supervision be shared equally between the Applicant Mother and the Respondent Father.
3.Thereafter and for a period six months, the Father have time spent with [Y] on a supervised basis with either [Mr B] or [Mr C] once every fortnight.
4.Thereafter, the Father have time spent with [Y] on an unsupervised basis as follows:
On a fortnightly cycle until [Y’s] 9th birthday:
4.1.Each Wednesday from the conclusion of school or 3:00pm on a non‑school day until 6:00pm;
4.2. Every second Sunday from 9:00am until 4:00pm.
From [Y’s] 9th birthday on a fortnightly cycle:
4.3.In each alternate week, from the conclusion of school on Friday or 3:00pm on a non-school day until the commencement of school on Monday or 9:00am on a non-school day.
5.That the Father continue to attend treatment with his psychiatrist, [Dr D], as advised by [Dr D].
6. That [Y] attend a paediatric psychiatrist.
ANNEXURE C: MINUTE OF ORDERS SOUGHT BY THE ICL
ICL PROPOSED MINUTE OF ORDER
1. The mother have sole parental responsibility of [X] (DOB […] 2011) and [Y] (DOB […] 2017) (“the Children”).
2. The Children live with the mother.
3. [X] spend time with her father in accordance with her wishes.
INTERIM ORDERS (primary position):
4. The father’s time with [Y] remain suspended until October 2024.
5. Prior to November 2024:
a. the Mother have [Y] attend upon a paediatrician for the purposes of an ADHD/ASD diagnosis prior to time recommencing and to provide the parties with a copy of the report.
b. the Mother provide monthly report’s from [Y’s] school and therapist.
6. Starting in November 2024, the Father spend time with [Y] with a supervised contact agency on the basis of once per month for a period of 6 months for no more than 2 hours per visit.
7. The Father is directed to continue all mental health therapy as directed by practitioners including but not limited to [Dr D] and his psychiatrist and provide a copy of all such reports to the other parties.
8. The matter be listed before the Court in May 2024.
9. Leave is granted to the ICL to restore the matter back to court on 7 days notice.
FINAL ORDERS (Secondary position)
1. Starting in November 2024, the Father spend time with [Y] with a supervised contact agency on the basis of six times per year for a period of 2 hours per visit.
2.When [Y] attains the age of 12, he spend time with his Father in accordance with his wishes.
3.The Father be provided with all major medical information and reports, school reports and therapy reports in relation to the Children.
4.The Father provide an undertaking to continue mental health therapy as directed by practitioners.
5.That the applicant and respond and shall each pay the Legal Aid Commission half of the ICL’s Costs.
SCHEDULE 1: MATERIAL RELIED UPON BY THE PARTIES
Material read and relied upon by the mother:
(1)Amended Initiating Application filed 22 April 2024;
(2)Affidavit of the mother filed 3 April 2024;
(3)Affidavit of Mr N filed 5 April 2024; and
(4)Affidavit of Ms M filed 3 April 2024.
Material read and relied upon by the father
(1)Further Amended Response filed 15 May 2024;
(2)Affidavit of the father filed 15 March 2024;
(3)Affidavit in Reply of the father filed 1 May 2024;
(4)Affidavit of Mr B filed 24 March 2024;
(5)Affidavit of Mr C filed 1 May 2024;
(6)Affidavit of Dr D filed 21 March 2023; and
(7)Report of Dr D filed 3 March 2024.
Material tendered and relied upon by the parties:
Exhibit Label Document Tendered by 1 Objections of the father to the affidavits relied upon by the mother RF 2 Annexures to the father’s affidavit filed 15 March 2024 RF 3 Mother’s tender bundle AM 4 Affidavit of the father filed in late 2023 in the equity division of the Supreme Court of NSW AM 5 Extracts from the parent’s affidavits. AM 6 Father’s tender bundle RF 7 Email from Ms J, limited to the paragraph advising that O Psychology does not do reports for the court AM
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