Isaac & Steel - [2022] FedCFamC2F 1008

Federal Circuit and Family Court of Australia
(DIVISION 2)
Isaac & Steel [2022] FedCFamC2F 1008

File number(s): NCC 1206 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 2 August 2022

Catchwords: FAMILY LAW - PARENTING – Best interests of the eight-year-old child – Where both parties have perpetrated family violence upon each other - Where there is agreement for the mother to have sole parental responsibility and the child live with her - Whether the child should spend time with the father – How communication between the father and the child should occur and/or be facilitated – unacceptable risk of harm established and to be ameliorated by postal communication only to occur quarterly with the father – child’s wishes to be taken in account at age 14

Legislation:
Family Law Act 1975 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Blinko & Blinko [2015] FamCAFC 146

Dunst & Dunst [2016] FamCAFC 15

Gallagher & Gomez [2017] FamCA 944

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane [2020] FamCA 99

Re Andrew [1996] FamCA 43

Russell & Close [1993] FamCA 62

Sedgley and Sedgley [1995] FamCA 154

Stott & Holgar [2017] FamCAFC 152

Sweet & Sweet [2022] FedCFamC2F 676

Division: Division 2 Family Law

Number of paragraphs: 187

Date of hearing: 14-16 June 2022

Place: Newcastle

Counsel for the Applicant: Mr B Kelly

Solicitor for the Applicant: CopperTree Family Law

Counsel for the Respondent: Mr M Juhasz

Solicitor for the Respondent: Catalyst Family Lawyers

Counsel for the Independent Children's Lawyer: Mr A Gallimore

Solicitor for the Independent Children's Lawyer: Gillard Family Lawyers
ORDERS

NCC 1206 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ISAAC

Applicant

AND:
MR STEEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

2 August 2022

THE COURT ORDERS THAT:
1.All previous parenting orders for the child X born in 2014 (‘X’) are discharged.
2.The applicant, Ms Isaac (‘the mother’) shall have sole parental responsibility for X.
3.Within 14 days of doing so, the mother shall advise the father in writing by way of SMS text message of any major decision she has made in relation to X.
4.X shall live with the mother.
5.From the time that X commences year 8 of her education, should she express a desire to spend time with or communicate with the respondent Mr Steel (‘the father’) other than via the post THEN the mother shall facilitate any reasonable request by X to do so.
6.The father be permitted to communicate with X by way of letter and/or card, and may send to X a gift from himself, and a gift on behalf of the extended paternal family on the following occasions each year:
(a)Easter;
(b)The child’s birthday;
(c)Christmas; and
(d)Once during the month of October.

7.To facilitate Order 6, the mother shall ensure that such gifts and communications are provided to X.
8.In the event that X expresses to the mother a wish to communicate with the father, by post, THEN the mother is to facilitate such reasonable communication.
9.No later than 16 August 2022, the mother shall advise the father of a postal address to which the father may address the letters, cards and gifts for X and shall inform the father in a timely manner of any change to such address.
10.No later than 16 August 2022, the father shall advise the mother of a postal address to which X may send him correspondence and in a timely manner, the father shall inform the mother of any change to such address.
11.Notwithstanding the allocation of sole parental responsibility to the mother –
(a)The mother shall advise the father in writing of any decisions she makes about major long-term issues affecting X;
(b)No later than 16 August 2022, the mother and the father shall notify each other of an emergency contact telephone number and address to be used by the other as required and in a timely manner, keep each other advised of any changes to those details;
(c)The father is at liberty to obtain information about X as is ordinarily available to parents, such as school reports, school photographs and newsletters; and this order shall be sufficient authority for him to do so;
(d)The mother and the father (as may be applicable) are to advise each other, in a timely manner, if X is admitted to hospital.

12.In any communication with X, the father is restrained by injunction from discussing –
(a)past, present or future living or spending time arrangements for X; and
(b)any proposed changes to those living arrangements.

13.The mother and the father are restrained from denigrating the other, or their friends or family in the presence or hearing of X which shall include face-to-face contact, electronic and written communication with X, and shall immediately remove X from the presence or hearing of any person doing so.
14.The father is restrained by injunction from attending any premises at which the mother engages in paid employment at any time that the mother is present there for the purpose of her paid employment.
15.The application for costs sought by the Independent Children’s Lawyer is dismissed.
16.All outstanding applications are withdrawn and dismissed.

THE COURT NOTES THAT:
A.The Independent Children’s Lawyer will meet with the child to explain the effect of these orders to her.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Isaac & Steel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
Introduction

This eight year old girl has lived with her mother since she was a baby. The mother says that the father poses an unacceptable risk and no face-to-face time should be occur. The father says “the penny has dropped” and he will do anything to have a relationship with his daughter. I am asked to decide whether the girl should have any contact or communication with the father and if so, what that should look like.
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth)[1] between the Applicant, MS ISAAC (‘the mother’) and the Respondent MR STEEL (‘the father’).
[1] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
Out of respect for each person’s gender and social status, other than parties and the child, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
There is one child the subject of the dispute, namely X (‘X’) who is now eight (8) years of age.
X was independently represented by Mr Shearston as the Independent Children’s Lawyer (‘the ICL’).
Noting that there was consensus about the allocation of parental responsibility and with whom X should live with, the main issues to be determined by the Court were:-
(a)What time (if any) X should spend with the father?
(b)How communication between X and the father should occur and/or be facilitated?
For the reasons that follow and by way of summary, I will order that:
(a)The mother shall have sole parental responsibility for X;
(b)X shall live with the mother;
(c)The father can communicate in writing with X four times a year;
(d)If X expresses a wish to communicate with the father, then the mother shall facilitate postal communication;
(e)When X commences year 8 of her secondary education she shall be permitted to spend time with and communicate with the father via means (other than the post) in accordance with her wishes;
(f)Various orders to support the father having access to information about X and to otherwise protect X from exposure to parental conflict.
THE APPLICABLE LAW – Parenting Proceedings
In these proceedings, the parties invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” (s 65D) to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects (s 60B).
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and ss 60CC (2) and (3) set out the matters to which I must have regard to in doing so.
In Aldridge & Keaton [2009] FamCAFC 229 at [75], the Full Court said this –
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
• the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
• the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
• that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). I have not explored this any further because no submission was made that either party posed a risk of harm from those factors stated above.
It was common ground that both parties have been defendants to family violence orders, made pursuant to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which defines a "domestic violence offence” to have occurred when one person commits certain defined offences against another person with whom they have or had a domestic relationship. Relevantly, a “domestic violence offence” does not extend to a child being exposed to such acts, in the same manner as prescribed within s 4AB.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676, His Honour neatly summarised the issues and unacceptable risk. At [54] and [55] His Honour said this:
54.In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
55.The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
• In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
• It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996[2]; M v M at 77.
• Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148].[3]
• The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
[2][2] Referred to as ‘A v A’
[3] Referred to as ‘DFCS v the Colt Children’
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof: see Isles & Nelissen [2022] FedCFamC1A 97 at [6], [7], [46]-[51] and [81].
Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62 (‘Russell & Close’).
I was invited to consider whether the mother’s genuine subjective fear of the risk of harm posed by the father was so pervasive that if the father was to spend any time with X, the mother would be unable to cope - causing compromise to X’s welfare: see Sedgley and Sedgley [1995] FamCA 154 (‘Sedgley’) and Re Andrew [1996] FamCA 43 (‘Re Andrew’).
Helpfully for me, in Keane & Keane [2020] FamCA 99 at [82] – [93] McEvoy J considered this issue which I have summarised below –
(a)In Re Andrew the Full Court observed that the welfare of the child remains the paramount consideration and in considering such welfare, the Court must take into account any anxiety held by the primary carer concerning the child’s potential harm where such anxiety is likely to adversely impact that person’s care-giving ability. In taking account of the beliefs of the primary carer and the effects of such beliefs on that person and the consequent harm to the child, a subjective test is required.
(b)However it must be established that the belief is genuinely held and where the entirety of the evidence demonstrates that the belief is entirely irrational and baseless, the genuineness of the subjective believe will be open to doubt: Russell & Close.
(c)A decision to sever the relationship between a parent and a child is one which the Court would ordinarily make only with considerable hesitation: Sedgley
(d)It is only in cases where a conclusion is reached that there was no unacceptable risk that the Court would need to consider the separate question of the primary carer’s belief in the occurrence of events in question: Russell & Close.
(e)It is not necessary that the belief should be reasonably and objectively based, but rather whether it is genuinely held: Russell & Close.
(f)Despite no apparent expert evidence in support of the primary carer’s apprehension, the Full Court in Dunst & Dunst [2016] FamCAFC 15 at [119] did not criticise the trial judge for concluding that whilst the available evidence fell short of proving the primary carer’s capacity would deteriorate and impinge the children’s best interest (there having been a diagnosis of post-traumatic stress disorder (‘PTSD’) and expert evidence of the genuineness of the apprehension but not about such apprehension impinging capacity); the trial judge nonetheless found that the primary carer’s fear was genuine and objectively reasonable and remained a feature of the evidence favouring curtailment of the children’s interaction with the other party.
(g)The court has made a “no time” order in circumstances where the psychological evidence was that if time or communication was ordered, the mother’s already poor mental health would deteriorate further and negatively affect her parenting capacity and that further treatment would not diminish her fear: Gallagher & Gomez [2017] FamCA 944 at [142]-[157];
(h)The Court did not make a “no time” order because in that case, there was little evidence, beyond the mother’s inevitable devastation and horror, to suggest that she could not continue to successfully parent the children. Notably in that case, the trial judge observed that there was no evidence from her psychologist or counsellor, much less a psychiatrist, as to her likely being unable to continue to function effectively so as to adequately care for the children: Hollister & Gosselin [2016] FamCA 759 at [193].
(my emphasis)
Following a consideration of the case law - in Keane, McEvoy J concluded that –
93.It will be necessary to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra[4], the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
(my emphasis)
[4] Marra & Marra (unreported Full Court decision 8 September 1993, Fogarty, Baker and Butler JJ)
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). Section 61B defines “parental responsibility” as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2)). If the Court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4)). Here, the parties agreed to the allocation of sole parental responsibility and so I have only had passing regard to s65DAA.

Section 117 sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs. I say rebuttable, because if the Court is satisfied that in the circumstances of the case it would be just to do so, then a costs order against a party may be made. In the exercise of this broad discretion, the Court must take into account various considerations as set out at s 117(2A).
The discretion I exercise in the making of an order (if any) in relation to the ICL’s costs (including what proportion each party must be responsible for) must be just.[5]
[5] Section 117(3)
The father is legally aided and in those circumstances I am prohibited from making a costs order against him.
The evidence
The mother read and/or relied upon the following documents:-
(a)Affidavit of Ms Isaac filed 11 May 2022;[6]
(b)Affidavit of Ms Isaac filed 2 June 2022; [7]
(c)Affidavit of Dr B filed 30 May 2022;
(d)Affidavit of Ms C filed 2 June 2022;
(e)Notice of Risk filed 20 April 2020;
(f)The mother’s Outline of Case document filed on 10 June 2022 – marked Exhibit ‘M1’;
(g)Various other exhibits marked from ‘M2’ to ‘M5’ - with those that are relevant being referred to throughout my judgment.
[6] Referred to as ‘1’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
[7] Referred to as ‘2’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Steel filed 25 May 2022;[8]
(b)Affidavit of Ms D filed 27 May 2022;
(c)The father’s Outline of Case document filed 14 June 2022 – marked Exhibit ‘F1’;
(d)The father’s Costs Notice – marked Exhibit ‘F2’;
(e)The father’s proposed minute of order – marked Exhibit ‘F3’.
[8] Referred to as ‘NB’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
The ICL read and/or relied upon the following documents:-
(a)The ICL’s Outline of Case document filed 10 June 2022 – marked ‘Exhibit ‘ICL1’;
(b)Various other exhibits marked from ‘ICL2’ to ‘ICL7’ - with those that are relevant being referred to throughout my judgment.
In addition, all parties asked me to read the family report dated 3 May 2021 - marked Exhibit ‘A’[9]; which was prepared by family consultant Ms E (as she then was and to whom I will now refer to as ‘the child expert’).
[9] Referred to as ‘FR’ with numbered paragraphs identified in square brackets
My observation of the parties was that they both did their best to give honest and accurate accounts when giving their evidence. Where I was not satisfied that their evidence was credible or otherwise should not be preferred over another version or document, I will do so and explain the reason why.
I found the child expert to give measured and thorough evidence with the basis of her opinion clearly expressed. On that basis, unless I make a finding or express a reservation to the contrary, wherever there were inconsistencies between the evidence of a party/witness and the child expert, I preferred the evidence of the child expert.
Before setting out a chronology of the parties’ circumstances I will canvass their proposals.
PARTIES’ PROPOSALS
Taking a broad brush approach, the mother’s proposal (as articulated within Exhibit ‘M1’) was that:
(a)The mother have sole parental responsibility for X;
(b)X live with her;
(c)X communicate with the father in accordance with her wishes;
(d)The mother shall facilitate (and monitor) the father having limited written communication with X;
(e)The parties be given access to various information about X’s education;
(f)Ancillary orders to support the overall parenting orders; and
(g)A notation that specified that any time between the father and X is to be determined by the mother in the exercise of sole parental responsibility.
The father’s proposal changed as the hearing progressed, however it was clear from the outset that he agreed that the mother be allocated sole parental responsibility for X and that X should live with the mother.
Exhibit ‘F3’ is the father’s proposed minute of order which in summary sought that –
(a)The mother have sole parental responsibility for X;
(b)X live with the mother;
(c)X spend time with the father in an increasing graduating pattern starting with professionally supervised time for six (6) months, followed by unsupervised day-time each alternate Sunday with changeovers to be facilitated by an agreed nominee (on the part of the father), failing which his nominee shall be the father’s partner;
(d)Unsupervised time shall only occur once the father has –
(i)Produced a hair follicle test result that is negative for illicit substances,
(ii)Completed an anger management course as specified by the ICL, and
(iii)Completed a parenting course and other courses as specified by the ICL;
(e)The parties be given access to various information about X’s education;
(f)Restraints to ensure X’s safety is preserved when spending time with the father and to effectively quarantine X from parental conflict; and
(g)Ancillary orders to support the overall parenting orders.
Exhibit ‘ICL7’ is the ICL’s proposal for final orders and in summary seeks that –
(a)The mother have sole parental responsibility for X;
(b)X live with the mother;
(c)From the commencement of year 8 if X expresses a wish to do so, then the parties shall facilitate X spending time with the father;
(d)The mother shall facilitate the father having limited and particularised written communication with X;
(e)X communicate with the father in accordance with her wishes;
(f)The parties be given access to various information about X’s education;
(g)Restraints to ensure X’s safety is preserved and to effectively quarantine X from parental conflict; and
(h)Ancillary orders to support the overall parenting orders.
I observe that exhibit ‘ICL7’ did not accommodate the father’s proposal for the ICL to specify courses that the father should engage in, a point that was canvassed during final submissions.
In order to consider the various applications, it is necessary for me to set out a chronology of the parties’ circumstances.
Statements of facts set out below shall constitute findings of fact unless otherwise expressed.
Chronology
In 1979 the father was born and he is now aged 43 years. It is common ground that the father has two adult children.
In 1981 the mother was born and she is now aged 41 years. It is common ground that the mother has two children who live with her and X, F who is now 17 years of age and G who is now 16 years of age.
In 2012 the parties commenced co-habitation.
On 24 July 2012 a final apprehended domestic violence order was made for the protection of Ms H (‘MS H’) with the father named as the defendant (‘the Ms H ADVO’).
On 14 December 2012 the father was charged with a breach of the Ms H ADVO and was subsequently convicted in February 2013.
In 2014/2015 the mother commenced employment as a sole trader tradesperson, an occupation introduced to her by the father who was already engaged in the same profession.
In 2014 X was born and when she was about two months old, the parties separated although in cross-examination the mother said that she never really felt they had separated until the events at Suburb J. The mother explained that whilst she moved out of the house, the parties were “constantly seeing each other” and for this reason (in her mind) the relationship never seemed to be quite over.
At separation X lived with the mother and the parties had an informal arrangement for X to spend time with the father on an ad-hoc basis.
The mother’s affidavit deposed to the mother’s past relationship with the father causing her to have symptoms of anxiety and fear for which (in March 2018), she had received prescribed medication and submitted to counselling from time-to-time with her general physician, Dr B (‘DR B’).[10] The mother said she thought this medication was Loxalate and she didn’t know if the medication was an anti-depressant or to treat anxiety. In cross-examination, DR B said that the medication had a dual purpose – firstly as an anti-depressant but it also had a strong benefit in managing anxiety.
[10] 1 [129]-[133]
In June 2018 the father and mother agreed that he could visit the mother’s home to spend time with X. The mother says that the father fell asleep while watching a movie and I observed the mother to be avoidant in how she answered questions about whether she saw text messages showing on the father’s mobile phone. With some reticence the mother agreed that she saw a notification from another woman called Ms K addressed to the father (with whom she had suspected the father had been intimate despite the agreed fact that the parties had physically “separated” years ago). The notification prompted the mother to log into the father’s Facebook account using the details the father had given her previously and she then realised that the father had been secretly meeting Ms K.
It was common ground that the mother woke the father up, the pair had some sort of a scuffle and ultimately the mother says the father caused the mother’s finger to become dislocated. The father says that the mother pulled his hair and bit him on the forearm. Exactly how the mother’s finger was dislocated was contested but for reasons that follow I accept the father’s evidence of this being an accidental occurrence on his part, caused by her finger getting caught in his hair as he tried to extricate himself and before he says he managed to escape.[11] The mother said that she wasn’t in fear of her life and just wanted the father to come back and help her. As a result, the mother chased after the father - who by this time had fled the mother’s home and into the carpark to get in his car and drive away. The father said that the mother had jumped onto his bonnet.
[11] NB [17]
My overall impression of the evidence was that the mother was the instigator of the violence and was not in fear of the father but rather consumed by betrayal. This finding is based on her avoidant and illogical oral evidence and explains why she followed the father out of her home hoping he would care enough about her finger to come back and help; rather than stay and seek shelter in her home with X (if, as she says, the father was the violent perpetrator during the incident and deliberately dislocated her finger).
About the overall incident, the mother said that she did not think X was awake and that this was the first really major physical dispute between the couple.
This admission by the mother was explored further and her evidence was somewhat inconsistent insofar as she seemed to resile from that statement, asserting that what she meant to say was that this was the first time she had sustained injuries (rather than just bruising) and that the father had in fact, head-butted her prior to June 2018.
As a result of this incident, later in June 2018 a final apprehended domestic violence order was made for the protection of the father with the mother named as the defendant (‘the 2018 Isaac ADVO’).
On 16 June 2018 an incident was reported by staff from the Department of Communities & Justice (‘DCJ’) which identified concerns were held about the mother being the perpetrator of violence upon the father (including punching him to the head, causing a laceration over one eye and pulling his hair).[12] The report also identified the mother sustained injuries caused by the father and that X was aware that the father had bitten the mother. Under cross-examination the mother said that she had no choice but to take X into the emergency department at L Hospital to have her dislocated finger treated but she was careful not to disclose the father’s name in front of the child. It was unclear what impact this exposure would have had for X either in the short, medium or long-term.
[12] Exhibit ‘ICL2’
On 25 June 2019 the 2018 Isaac ADVO expired.
In 2019 the mother said that she permitted X to sleep over at the father’s house for one night and she agreed she had no evidence that X had been at risk whilst in the father’s care.
On 12 April 2020 the parties agreed to the father spending time with X (in the company of the mother). It is common ground that initially the visit went well (with a bicycle ride at the Entrance) but following the mother behaving inappropriately at Suburb M (including allegedly inserting her thumb into the father’s anus), a loud and protracted altercation occurred at the public carpark behind the beach and immediately outside the mother’s van (in which X was seated) (‘the Suburb J incident’).
Exhibit ‘M3’ was an audio-visual recording made by a bystander of the latter part of the escalating dispute between the parties. The video speaks for itself with –
·anything the father may have been saying unheard;
·the father repeatedly “leaning in” within close proximity of the mother with his hands clasped behind his back;
·the mother pushing the father away and slapping/striking him on the face when he comes closer again;
·the mother becoming increasingly hysterical and emotionally dysregulated asking the father to go away;
·X calling out “stop it” from inside the van; and
·then the father disengaging from the scene following interventions by members of the public.
In cross-examination the mother agreed that she had the keys to the van in her possession. It remained unclear to me why (in those circumstances) the mother did not attempt to de-escalate the situation by simply getting into the van and driving away (if she was sober - as she says she was, or alternatively getting into the passenger seat, locking the car doors and using her mobile phone to call for assistance).
There remained much controversy about the balance of what happened leading up to the irrefutable evidence contained within exhibit ‘M3’. I have carefully read and listened to the competing evidence and the one allegation which appears to be corroborated by an independent record is the mother’s state of intoxication (as recounted by the father). Both parties were compelling in the manner they recalled the events of that day which meant that there remained much controversy about whether the mother had assaulted the father at the beach.
As a result of events in the carpark, the Police attended and intervened. The mother refuted the exhibited Police records[13] which contemporaneously record the police officers in attendance observing the mother to be so intoxicated as to cause them to deem her unfit for interview. The observations by the Police about the mother’s intoxicated state are an independent account and may provide an explanation (at least in part) about why the mother behaved the way she did in front of X (as recorded by the video). For those reasons I reject the mother’s evidence and prefer the Police account as to the mother’s state of intoxication. It is also for that reason that I accept the father’s evidence that whilst at the beach, the mother had become intoxicated and disorientated.
[13] Exhibit ‘ICL5’
The parties properly conceded in cross-examination that X had been highly distressed about the events she witnessed on that day.
On that basis, I am satisfied that the evidence comfortably demonstrates the father perpetrated family violence against the mother during the Suburb J incident and thereby caused X to be exposed to family violence. In making those findings I have considered and rejected the father’s submissions that the father’s actions in repeatedly “leaning in” towards the mother and otherwise not simply withdrawing from the scene were motivated by the need to ensure that the mother (who he says was intoxicated and unable to legally drive) did not drive away with X in the van.
Ultimately the NSW Police intervened and the mother was arrested and removed from the location. The father was left with X and he took her back to his home that evening. There was a dispute about this whether this occasion was one of only two instances when X had stayed overnight at her father’s (as asserted by the mother) or part of a handful of occasions (as asserted by the father).
The mother was charged with assaulting the father (occasioned by her slapping him) and a provisional apprehended domestic violence order was issued for the protection of the father with the mother named as the defendant (‘the 2020 Isaac ADVO’).
After being released, it was common ground that the mother attended the father’s home in an effort to have X returned to her care. The father said in cross-examination that the mother was outside his house on the street and she had been “screaming…the whole neighbourhood heard it”. In cross-examination, the father was taken to paragraph 85 of the family report which is set out below –
85.[Mr Steel] will have been able to provide some comfort over the following days, but that does not mean that the sense of fear/confusion left [X]. Children can and do appear happy but still feel frightened. [X] was aware that her mother was outside her father’s home the following day calling her name. Since that incident [X] has been consistently saying that she does not want to see her father. X appears to understand that there was no alternative to going with her father after her mother was arrested, but the problem for her, was hearing her mother outside asking for her the following day and her father not allowing her to go. [Mr Steel] likely felt the need to protect [X], but [X] will not understand that at this stage in her development.
The father expressly rejected that X would have felt frightened and/or confused despite appearing to be happy in his care. He told the court that in retaining X he was following the advice of his solicitor and NSW Police officers. He said that he thought that at the end of the school holidays X would go back to her mother.
On 16 April 2020, the father commenced family law proceedings in the Parramatta registry and the mother via filing in the Newcastle registry on 20 April 2020. It was common ground that having heard the mother’s interlocutory application before the father’s application was heard, he discontinued his proceedings and the presiding Judge in Newcastle deemed his initiating application to be a response to the mother’s initiating application.
It was common ground that on 24 April 2020, (12 days after the Suburb J incident), X was returned to the mother via her friend who gave unchallenged evidence about this. The mother said that whilst X had no physical injuries, her demeanour was different and she was no longer the same outgoing girl.
On 14 May 2020, the father participated in an intake interview with “N”, an authorised officer of O Contact Service (a professional supervision service). The father agreed that the record of the intake session appeared to be largely accurate insofar as his conversations were concerned.[14] He described the reason why he said what he said was not because he wanted the supervisors to be on his side but that he was “just keeping it real”. He added that N had been telling him about her family problems and he thought, in that context, that he should talk about the mother in the way he did. The father denied saying in the intake interview that the mother was nasty and unmaternal but agreed he would have described her as narcissistic (in the context of the Suburb J incident).
[14] Exhibit ‘M4’
Between May 2020 and September 2020, X spent time with the father supervised by O Contact Service. The reports suggest that over time, X’s emotional engagement with the father has fluctuated and on occasions the supervisor has intervened to encourage interaction between X and the father. On one of the last occasions that X spent supervised time with the father, the contact record described the father has yelling at the supervisor and X overhearing these outbursts.[15] I accept that the father did not agree with everything written in the contact reports.
[15] 1 [60] & annex ‘F’

At one point (when being taken by the mother’s counsel through a contact note dated 22 August 2020), the father spontaneously and loudly interjected in a manner which was somewhat confronting given the relatively innocuous manner in which the questions were being put. Counsel for the ICL asked the father some questions about him raising his voice when being cross-examined by the mother’s counsel. He denied that his actions could have been perceived as aggressive but agreed he had raised his voice. The father said “I’ve been true to myself” and expressed exasperation with the trial process and/or the litigation more generally.
Given the contemporaneous and independent nature of the reports versus the father’s subjective and historical recollection, where there was a conflict, I preferred the O Contact Service records that formed part of the evidence.[16]
[16] See for example exhibit ‘ICL3’
The father rejected the proposition that he had disengaged with O Contact Service because he could not manipulate them. Having conceded that despite his concerns about the behaviour of “Ms P” (in particular), the interactions between him and X appeared to be improving, the father could not explain why he couldn’t just “push through the awkwardness” of supervision and sustain the routine visits? The father did not have a satisfactory answer and agreed that he (and not X) was the one feeling discomfort about the nature of the supervised visits.
The last time that X spent supervised time with the father was on 5 September 2020.
On 25 September 2020, interviews occurred for the preparation of a child inclusive conference memorandum during which it was recorded at paragraph 29 that –
29.The mother said she speaks to [X] about the father, but “not in a bad way.” Upon [X]’s return to the mother’s care after the order made on 23/04/2020, the mother reported that [X] was “confused” and was asking questions about what was happening. The mother said she has told [X] about her having had to go with Police and that she is going to Court “to make sure she [[X]] is safe.” The mother said the father “scares” [X] and that [X] is “terrified” that the father will take her again. Of [X] being interviewed as part of this intervention, the mother said [X] believes that she is attending the CIC “to say what she wants.”
On 15 October 2020, the Court made orders including that the previous order for supervised time be suspended and the father submit to hair testing for illicit substances within 14 days (‘the October 2020 Orders’). In doing so, the Court recorded the father’s unhappiness with the supervised time and that the Court would allocate a hearing date, in the event that the father filed a further interlocutory application for unsupervised time.
It was common ground that the father never brought an interlocutory application as envisaged within the October 2020 Orders.
It was common ground that the father failed to submit to a hair test within the allocated 14-day period.
On 25 November 2020 the father met his current partner Ms D (‘MS D’).
In April 2021, interviews and observations for the purpose of the family report occurred with the report produced on 3 May 2021 and ultimately released a week later.
The family report recorded X using the word “Mr Steel” to describe her father and that she did not feel good about seeing him, with the thought of seeing him making her feel nervous. X told the child expert that –
“he bees mean to Mum”…”we always went on the beach. I was nervous. They didn’t fight. He used to shout at Mum”…when he sees me he is happy. I don’t like it because he is always shouting.”[17]
[17] FR [60]
The father was taken to the above paragraph and said that his memory of X spending time with him was different, saying that she always wanted to spend time with him.
The father was taken to paragraph 61 of the family report which is set out below –
61.[X] talked about the incident at the beach in April 2020 that led to her mother being charged with assault of [Mr Steel]. She said, “he kept walking with his hands behind his back, walking toward her. They didn’t trust each other. Someone from the shop holded me ‘cause I was sad. I went with [Mr Steel] in Mum’s car. Drove to his car. Stayed with Dad for 11 days.” X said that she thinks that her father was cranky with her when he “took” her. Her eyes filled with tears as she described the events of that day. [X] said that she was worried about her mother. She said, “Mum came to the house. Tried to get me. Dad would not let her.” Tears began to run down her cheeks.
When the father was asked if X’s recollection of her father being cranky with her immediately following the Suburb J incident was a symptom of her increasing distress (from being withheld from the mother by him), the father said that it was hard to believe this as when she had been with him she was happy and laughing and yet at the start of the supervised visits she was “totally different”. Upon reflection the father said that if X had wanted to go home he would have taken her but when he asked, she said she didn’t want to. The father said that X’s current views are the product of her being alienated by the mother.
In response to X’s recorded recollection that the father had shouted at the supervisor, “she’s not your daughter, she’s mine”[18]; the father denied that he had done so and opined that as a young child she may have perceived his conversation with the supervisor differently.
[18] FR [62]
The child expert said that X’s expressed views were a reflection of her experience of the parties’ interactions and post-separation comments made by the mother. The child expert was asked to comment on whether the mother’s statements to X (as recorded at CIC-29) could have caused X’s apprehension. The child expert agreed but said that given the mother’s level of sophistication, it would have been very difficult for the mother to explain the Court process and that it was unlikely the mother would know how to more appropriately express herself to X. The child expert said that, in her opinion and based on both the mother’s presentation, the manner in which the mother spoke to X was not a deliberate attempt to undermine the relationship between X and her father.
Having read the various contact records from O Contact Service, when asked for an overall impression of the supervised visits, the child expert said that the reports demonstrated X’s confusion.
When invited to do so, the child expert would not recommend a resumption of supervised time without hearing from X’s “trauma therapist” about whether to do so would re-expose X to trauma. The child expert was clear to say that whilst X was recorded (at times) to be quite relaxed on the outside, internally X may have been experiencing fear responses in her mind. In closing, the child expert opined that X is hyper-vigilant to trauma. The child expert said that if the trauma therapist said that contact with the father would likely be triggering for X and impact her mental health, then such contact would not be in X’s interests. The child expert confirmed that the father’s presentation during the observation was age appropriate and child-focused.
In exploring paragraph 88 of the family report (which observed that X showed symptoms similar to PTSD in the way she presented during the observation session with the father), the child expert told the Court that these signs included –
·X’s body being tense;
·X crying and then appearing to accept the inevitability of the session occurring;
·X’s emotional reactions when remembering traumatic events, as if she was re‑living them again.
The child expert was clear to say that it was imperative that X not be exposed to any more violence or conflict and that in future she should be shielded from such incidents.
In the context of the child expert’s uncertain/gloomy (my words) outlook on the prospect of X being able to spend either supervised or unsupervised time with the father, under cross‑examination the child expert was able to consider the broader adverse implications for X in not having face-to-face contact with members of the extended paternal family.
When asked about the father’s recollection of X’s behaviour with him during the block time she spent with him in April 2020, the child expert said that as X has been raised to be respectful - the father’s lived experience of X, would be entirely consistent with the child’s upbringing without diminishing the internal trauma the child was experiencing at knowing that the father had refused to return her to the mother when the mother had visited the father’s home the day after the Suburb J incident.
Under cross-examination, the mother agreed that she had met the father during the course of the interview/observation process. She said that the meeting had been unintentional, caused by her having to take her dog “R” for a walk and not being aware of where the father had parked his car. The mother would not countenance the idea that perhaps when she saw the father she could have turned around to avoid the “chance meeting”. She agreed that having acknowledged him, the father had not said a word to her in response. Her behaviour was odd but I am not in a position to make any adverse findings against her.
The mother was taken to paragraph 14 of the family report and agreed with the admissions of physical acts engaged by her against the father. A summary of her oral evidence was that she did not instigate the violence and was merely acting defensively to protect herself.
At paragraph 93 of the family report, the child expert recommended that both parties undertake a mental health assessment by a qualified practitioner such as a psychologist. The premise for doing so was firstly because of how the parties’ presented (indicative of a personality disorder particularly in relation to borderline, histrionic and obsessive-compulsive traits) and secondly at the time of interview, there was no independent mental health assessment prepared by a qualified clinician such as a psychologist or psychiatrist. The mother said in cross-examination that she had a longstanding close and trusted professional relationship with DR B and in tandem with the high cost of engaging such an expert, she had not obtained a mental health assessment as recommended by the child expert.
The mother was clear to say that her mental health does not impinge on her parenting capacity saying –
“I can look after my children, I can run a business, I can do all the after school activities, so it’s not interfering with my life so badly that I can’t walk out the front door and provide for my family.”
The father agreed that it was possible he had presented to the child expert in the way recorded at paragraph 25 of the family report but categorically denied that he was testing boundaries. The father explained that if he had come across as loud, animated and physically acting inappropriately it was because he was just being “true” and wanting to “visually” explain what he was describing. Counsel for the ICL queried whether the father accepted that his unfettered behaviours might cause others to feel uncomfortable and he said that he is a “very passionate person”. The child expert was asked about this paragraph and said that she did not find the father’s behaviour to be intimidating or to have any malicious intent, but that other people may well have felt intimidated including a small child.
The father denied telling the child expert that he hadn’t done the hair test (as ordered as part of the October 2020 orders) because he didn’t want to jump through hoops and rejected the child expert’s conclusion that he failed to take the test because he knew it would be positive for cannabis because he had used cannabis recently.[19] The father’s response was that his attitude to taking the hair test was “if it does (test positive), it does and if it doesn’t, it doesn’t.” He denied taking cannabis on the day of his cross-examination and that he had not consumed cannabis for about 12 months (June 2021). MS D told the court that she had suggested that the father submit to a hair test but that it was his decision whether he did so or not. MS D said that to her knowledge, the last time the father had used cannabis was in January 2021 and when it was put to her that the father had used cannabis 10 or 12 months ago she said if he had, it had not been in front of her and she had no knowledge of that use.
[19] FR [22]
It was common ground that the father has submitted to three urinalysis tests which have tested positive for cannabis.
In cross-examination the father was taken to paragraph 56 of the family report and said that it may have been possible that he described the mother as a nasty narcissistic bitch.
The child expert told the Court that she could not opine as to what relationship X had with the father. In summary, the child expert said that any relationship X may have with the father (including a meaningful one) would –
(a)be heavily dependent on the mother’s support of that relationship;
(b)require a professional supervisor to navigate the complex circumstances of the family, particularly the father’s particular personality traits, X’s exposure to trauma and her dependence upon the mother for support; and
(c)the mother would have to support the process.
To support the child expert’s opinion, the Court heard that the child expert had to spend some time building trust with X before being able to engage in an interview with her.
The child expert was clear to say that if supervised time resumed, and then broke down, it would only add to the negative experience and potential damage to X’s relationship with the father.
The child expert was cross-examined about the observations recorded between the father and X. The child expert said that leading up to the observation she had had to prepare X, who had initially been crying and reluctant to participate, but then subsequently said that she would. The child expert said that despite the recorded observations, X was not happy nor comfortable (needing a plan with rules) and that she had ultimately only participated because in X’s mind it would be rude not to.
When asked about the prospect of unsupervised time being of benefit to X, the child expert said that the mother would have to agree to a period of supervised time sufficient to then be able to assess whether X was ready for unsupervised time. The child expert said that if the mother did not agree to supervision, then there would be limited chances of supervised time being a positive experience for X. In addition, and based on X’s lived experience of the father post-separation including at supervised visits, the child expert’s evidence was that the father was not well equipped to deal with X because the father could not comprehend that his behaviours (which he sees as acceptable, and include shouting), reinforce to X that something adverse might be about to happen.
At the time of the family report, the child expert said that her view was that X was fearful of the father and showed all the signs of having endured a negative experience with the father. The child expert said that these signs included X –
·expressing fear of seeing the father even in a controlled environment such as under observation by the child expert; and
·crying when talking of her lived experience of the father.
When asked, the child expert confirmed the recommendations contained within the family report which in summary were –
(a)The mother to have sole parental responsibility for X;
(b)X to live with the mother;
(c)The father to have access to X’s school reports;
(d)The father, the paternal grandmother and X’s paternal half-siblings being able to send X cards and gifts at various times during the year;
(e)X being given the choice about what time she spends with the father and her extended paternal family - once she commences her secondary education.
In exploring the parties’ various proposals - the child expert said that by the time X commenced high school she should be able to have the choice about whether to see her father or not, describing X as already being a “worldly child”. By way of explanation of this opinion, and as summarised by me, the child expert said it would send a positive message to X about the child having some agency in any future relationship she may choose to have with the father.
When asked about whether the mother should be a filter for any future communication between the father and X, the child expert was hesitant in giving a “yes” or “no” answer and ultimately said that it would be better if an independent person made that decision. The child expert saw a positive benefit to such communication occurring because it would “keep alive” the image of the father in her mind and thus mean the door was not shut on X resuming a relationship with the father into the future. The child expert also supported video or audio messages forming part of this type of communication provided that the content was appropriate.
In explaining her opinion, the child expert said that without any contact or communication with the father, there was the potential for X to fantasise about the father and if X grows up with a negative view of the father then she will likely internalise those feelings which could have an adverse impact on her developing “sense of self”. The child expert qualified her view by saying that any benefit perceived from such communication would be dependent on how it was received in X’s household. This was because of the mother’s lack of sophistication, how she presented at interview and her lived experience of the father clouding her ability to focus on the interests of X.
In cross-examination, the mother said that she came off her prescribed medication in October 2020 (following advice from DR B). This testimony was consistent with her affidavit evidence which said that as her anxiety had dissipated, the mother saw no need to continue taking the medication.[20]
[20] 1 [136]
Between 24 August 2021 and 25 February 2022, the mother ensured that (with funding from Victim Services) X attended psychological counselling with Ms S (‘Ms S).
On 8 September 2021, it was common ground that the father attended one of the mother’s worksites at T Street, Suburb U (‘T Street, Suburb U’) and interacted with the mother and X. The father disagreed with the proposition that X might have found the unexpected meeting to be confusing to her.
It was common ground that on 16 February 2022 the father had turned up at T Street, Suburb U. The father said that it was around the time of the mother’s birthday and he wanted to wish her well. The father also explained to the Court that he just wanted to say hello to X and took the opportunity to see “my daughter”. The mother gave evidence of feeling very uncomfortable with this spontaneous interaction.
On 19 March 2022 Ms S recommended that X continue trauma-focused psychotherapy to maintain her treatment progress which identified X’s treatment goals including the exploration and resolution of her grief and loss associated with her separation from the father, the development of strategies to reduce ongoing anxiety and the improvement of her coping skills. There was no evidence to suggest that X’s ongoing eligibility for further therapy was at risk.
At the start of the trial, the ICL informed the Court that having recently met with X, the child’s views were consistent with those expressed within the family report.
The father was cross-examined about his actions in failing to take every opportunity to spend time with X. In summary he blamed his lawyers and/or the behaviour/attitude of one of the professional supervisors (“Ms P”) during the visits and took no responsibility for the hiatus in the time X was spending with him between September 2020 and June 2022.

The mother deposed to remaining fearful of the father.[21]
[21] 1 [133]
In more recent times, the mother noticed that her symptoms of anxiety had been increasing and so following an appointment with DR B, the mother resumed taking Loxalate (as prescribed).[22] In cross examination the mother said that the medication worked “tremendously” in managing her symptoms which enabled her to keep working and to stay “grounded”, something she has to do “to provide for the family”. The mother’s view was that the only reason she had resumed Loxalate was because of the toxic relationship with the father and the thought that the upcoming trial may result in the father spending time with X.
[22] 1 [146]-[147]
In his affidavit, DR B includes a conversation between himself and the mother in May 2022 and the paragraph including the conversation is transcribed below –
18.Earlier this month [Ms Isaac] presented for a consultation for an unassociated issue. During the consultation [Ms Isaac] presented as anxious, much more so than what I had seen for some time. She said to me, words to the effect, “I am terrified [X] would have to spend time with [Mr Steel] again”. She said, “I am worried for [X], I don’t want her screwed up by [Mr Steel].” She reported that [X] had returned to sleeping in bed with her. [Ms Isaac]’s speech was hesitant, and she had little confidence. I observed that was a far cry from her usual self.
During cross-examination, DR B said that the mother had been the subject of a mental health care plan since 2019 which had been updated from time to time. If, hypothetically, an order was made for X to spend time with the father, DR B was asked whether he would expect that any adverse impact the mother would feel could be improved by counselling with a specialist psychologist, in addition to her current medication regime. DR B said that the mother would need extra assistance (whether psychological and/or psychiatric) but that he could not be confident of what success that would bring.
DR B described the mother as quite resilient, so much so that she has been able to manage her mental health to the point of being able to wean herself of prescribed medication which coincided with there being –
“a bit of quiet time or a quell in the proceedings….around the time that that there had been some restriction to [Mr Steel]’s visitation or he needed to be supervised…”.
DR B was asked about whether the effect of an ongoing course of prescribed medication might ease the mother’s anxiety about the father spending time with X. In reply DR B said that –
“I guess it’s all to do with degrees of coping. She would continue to work and she would continue to look after her family in a very capable manner. She would suffer significant permanent suffering and damage herself, but she would get on with it. The tablets would enable her to get on with still being a mother and still earning a living that she would always put as a top priority to care for her family. She would be definitely significantly impacted if [Mr Steel] is any way involved in her life or her family’s life.”
DR B’s evidence was conflicted about the mother’s parenting capacity being resilient (“she would get on with it”) versus whatever the phrase “significant impact” means. Overall, what I drew from DR B’s evidence is that the mother is a resilient but vulnerable person (insofar as her anxiety about the father is concerned). There was no doubt from DR B’s evidence that the mother has a genuine belief in the risk posed by the father but that when time with the father is circumscribed, she is able to respond positively to an extent where her parenting capacity is not compromised.
In cross-examination, the mother said that she works when X is at school meaning she works between 5.5 and 6 hours Monday to Friday. It was common ground that on school holidays X accompanies the mother whilst she is working at customers’ properties. The mother said that her two sons live with her and she does not impose on them to assist her in the care of X but from time-to-time they will volunteer to do so.
The father was taken to paragraph 42 of his trial affidavit and agreed that he would do “whatever it takes” to re-engage and re-develop his relationship with X. He rejected the proposition that he had done nothing about trying to spend time with X in the many months since the October 2020 Orders (other than a letter written by Mr Fuentes in April 2022 for the re-institution of supervised time).
The father said that he was a little bit wiser and now understood the process that he needs to go through and that he had no problem with supervised visits but would prefer a family member such as MS D to be the supervisor. MS D confirmed that she had never met X, had never been a supervisor before and gave an account of what steps she would take to fulfil that role in a way so as to reassure the mother and X that she was there to keep X safe because ultimately “it’s on me if something happens on the day”.
In cross-examination MS D was taken to paragraph 4 of her affidavit where (based on her observations of the father), she described the proceedings as having seriously impacted the father’s mental health. She said that she had suggested he seek professional support but that ultimately it was his decision. She did not see the father as posing a risk to herself or her daughter.
In his affidavit, the father said at paragraph 45 that –
45.Regardless of her allegations against me, I have always believed [Ms Isaac] to be a good, kind and loving parent towards X and I am prepared should the Court deem it appropriate, to agree to Orders for [Ms Isaac] to have sole parental responsibility for [X] if that would reduce her anxiety and enable [Ms Isaac] to confidently parent [X] without fear or apprehension.
This statement of the father’s historical belief about the mother is completely inconsistent with his recorded interactions with staff from O Contact Service, the child expert and his decision to hold over X after the Suburb J incident and on any those bases - I reject it entirely. I am deeply suspicious of the father’s capacity to say anything positive about the mother, including because he perceives her to be “alienating” X against him.
In his affidavit, the father said he would engage in any therapy, family therapy or other services to enable X and himself to re-engage and re-develop a health relationship.[23] In cross‑examination, the father told the court that he thought he hadn’t needed to do an anger management course and later on said he would do “whatever it takes” to resume spending time with X. Whilst counsel for the father submitted that “the penny has dropped”, the father’s conflicting evidence left me perplexed and unsatisfied that the father was genuine in accepting either that he has some deficits in his behaviours and/or that he needs to do something to improve himself in order to secure a bond with his daughter.
[23] NB [42]
The mother rejected the proposition (put by the father) of X spending supervised time with the father in anything other than a professionally supervised setting. Her view was that the father could be quite manipulative and that only a professionally qualified person would be able to resist the father’s machinations and protect X from harm. The mother also rejected the father’s proposal that X only spend unsupervised time with the father after submitting a hair test that was negative for the presence of illicit substances and otherwise completing various courses aimed at improving his parenting capacity and anger management. The mother refused to countenance the idea of having to communicate with the father in any form, citing her fear that he would use the communication to manipulate her saying words to the effect of “I can’t emotionally deal with his emotional nonsense”.
The mother described X as “shut down” and in summary, her evidence was to the effect that X internalises her feelings. The mother said that X was aware that the mother was going to court and said that X was really worried and scared of the father. I have given this evidence limited weight given the mother views the father so negatively and her assessment of her daughter is likely to have been skewed as a result.
ANALYSIS
The primary considerations
Section 60CC(2)(a)
Section 60CC(2)(a) mandates that I consider the benefit of X having a meaningful relationship with both her parents.
It is uncontested that X currently has a strong, dependent and loving relationship with the mother. It is uncontested that X currently has a fractured relationship with the father and the key question for the Court is whether X would benefit from a meaningful relationship with the father in the future. I will return to that key question later on in this judgment.
Section 60CC(2)(b)
Section 60CC(2)(b) mandates that I consider the need to protect X from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have already made findings that both parties have perpetrated family violence against each other. The mother has been the defendant in two family violence orders protecting the father, albeit one was made on a provisional basis and was subsequently withdrawn. Historically, the father was the defendant in the Ms H ADVO and has been convicted of a breach of that order.
There was no submission that either parties’ household posed a current risk of family violence. There were no submissions that either party posed a risk to X from any other factor within s 60CC(2)(b).
Additional considerations
Section 60CC(3)
I have had regard to all the additional considerations but have decided to focus only on those that I considered to be significant in my decision-making.
Section 60CC(3)(a)
X is eight years old and there is no contest that she has experienced trauma, particularly in relation to her direct experience of the parties’ parental conflict during and after the Suburb J incident. For different reasons, both parties agree that X is not the child she was before those events in April 2020 and that whatever relationship she had with the father beforehand has now been severely disrupted, not least of all because of the father’s decision to withdraw from supervised visits almost two years ago.
I have already recorded what X said to the child expert and how she managed herself before and during her interview with the child expert and observation session with the father. I accept the child expert’s opinion that whilst X may not overtly show her anxiety, internally the child remains fearful. I have done so because I accept that on a background of X having always lived with the mother and her exposure to the parties’ behaviour as recorded at exhibit ‘M3’, it was highly distressing for X to be aware that the following day her mother was outside the father’s house calling for her and the father did not return X to her mother’s care then or in the days that followed the Suburb J incident.
In addition, both the observation between father and daughter and the content of the various O Contact Service contact records highlight the internal conflict being experienced by X, who at times engages with her father and then at other times does not.
The Court accepts that X is a “worldly child” and that given her lived experience, there is merit in her having some choices in what (and when) contact or communication she has with the father, particularly given that in the past she has been the helpless bystander watching the parental conflict and in the future she will be supported by the ongoing psycho-therapy offered by Ms S.
Having heard and read the parties’ evidence, I am not satisfied that X’s views are overly informed (or coached) by some of the inappropriate messages the mother has conveyed. X’s recorded statements to the child expert and her observed symptoms (which were reported to be similar to those experienced when suffering PTSD) reinforced the child expert’s view that X was not being coached but rather represented her lived experience of the parental conflict and I accept that opinion.
X has expressed the same views to the ICL in more recent times; that is that she does not feel good about seeing her father and she wants to live with the mother.
X’s age, level of maturity, lived experience and stage of development cause me to give her views some weight but they are not the determining factor.
Section 60CC(3)(b)
I have already commented on the nature of X’s relationships with the parties. I heard nothing to suggest that X has anything other than close relationships with the mother’s sons. X has not met MS D or her daughter. The nature of X’s relationships with the extended paternal family is unknown given the length of time she has not had any contact with them in recent years.
Section 60CC(3)(c)
I am satisfied that the mother has been primarily responsible for making decisions about X, who has lived with her since she was a baby. There was some dispute about the number of overnight stays X has had with the father, but taken at it is highest, there have been a handful of occasions.
Relevantly, and despite the option being left open within the October 2020 orders, the father has not sought to resume spending time with X in any formal regularised manner until April 2022 when Mr Fuentes wrote to the mother’s solicitor. Otherwise, there have been two unilateral visits to the mother’s workplace which have served only to heighten the mother’s anxiety (and she would say, X’s fear of the father).
Ameliorating against any adverse finding about the reasoning behind why the father has not taken up the opportunity offered within the October 2020 orders, there is the reality that he has remained a party in these proceedings and has participated in the family report process and this trial.
Weighing these matters up, I am satisfied that the father has failed to take the opportunities available to him to spend time with X and (as a corollary) enhance and/or maintain any relationship he had with his daughter before the Suburb J incident occurred.
Section 60CC(3)(d)
The father proposes significant changes to X’s circumstances such that she would once again spend regularised time with him, firstly in a supervised setting and then for day-time contact only. The mother also proposes changes but on a much more limited scope via X being able to have some ‘agency’ on when she communicates with the father but otherwise to continue spending no time with the father unless she decides it is appropriate.
I heard the child expert’s view that –
(a)given X’s dependence on the mother and her exposure to parental conflict, any time spent between X and the father (unsupervised or otherwise) will only be beneficial to X if the mother and Ms S support it;
(b)once X reaches high school, she would have the requisite cognitive capacity to assess for herself whether (and on what terms) she should see the father in a manner that is protective of her emotional needs;
(c)the child expert was reluctant to rely solely on the mother as a filter for any communication the father has with X.
Broadly speaking I accept the child expert’s views because –
·It was uncontroversial that the mother is “unsophisticated” and has conveyed unhelpful messages to X about the risk posed by the father;
·X is a victim of trauma and there is a need to ensure that any exposure to what she perceives as a risk does not become a trigger causing a further decline in her emotional state and/or her already strained relationship with the father;
·X is dependent on the mother and any otherwise ‘safe’ face-to-face time with the father will be for nought if X is exposed to the mother’s displeasure and/or anxiety about the time occurring;
·X has been engaged in trauma-focused therapy which should continue so as to maintain her treatment progress which includes a treatment goal of exploring and resolving grief and loss around her current separation from the father, developing strategies to reduce ongoing anxiety and improving coping skills.
For the reasons set out above, I am satisfied that X will be adversely affected by the changes proposed by the father insofar as the resumption of him spending time with her immediately.
I am satisfied that whilst there is the potential for X to be adversely affected by her spending time with the father in the future, this risk will be ameliorated by X being given the choice to do so, at some time after she commences her secondary education. This is because, by that time –
(a)she would have had the benefit of years of trauma-focused therapy with an expectation that all her treatment goals are attained; and
(b)there would have been a reduction in her current dependence upon the mother - meaning that even if the mother continued to display anxiety/fear about X spending time with the father - X would be at a developmental stage where she could navigate whatever sort of relationship she desires from the father irrespective of what the mother’s view may be.
I accept that relying on the mother to act as a filter for communication and/or for the resumption of time may have some difficulties, given the child expert’s reticence to rely on the mother for that purpose.
Section 60CC(3)(f)
The father’s capacity to meet the emotional needs of X loomed large in the evidence. The context for why this was such a significant issue included the following circumstances -
(a)The father failing to maintain any regularised time with X since the making of the October 2020 orders which suggested he had given little to no thought, and (if he had such thoughts) little action to remedy the emotional impact upon X including her feelings of grief, the management of which is but one of her treatment goals in her work with Ms S;
(b)The father failing to satisfy me that he truly accepts that his behaviours need addressing and if so, his capacity to gain any insight should he participate in any courses aimed to improve his behaviours and or interpersonal relationships with other;
(c)The father maintaining his position that he was right to retain X for 12 days post‑the Suburb J incident which caused me significant concern about his insight into her emotional needs both then, and now. This is because despite X –
·Having always lived in with the mother;
·Having witnessed the events recorded at exhibit ‘M3’; and
·Having been present the following day when her mother was calling out for her;
the father was guided by how X appeared and her expressions to him rather than having a deeper understanding that given what she had seen (and his behaviour towards the mother), she may have been reluctant to speak up about her anxiety and distress at being taken (and kept) away from her mother who was and is clearly her primary attachment figure;
(d)The father seeing no difficulty in his behaviours during supervised time and minimalising X’s expressions about his behaviour citing that her perception came from her being a “young child”;
(e)The father not obtaining a mental health assessment (as recommended by the child expert) nor complying with the drug screen order contained within the October 2020 orders so that there was no objective evidence before the Court about the father’s current mental health status and/or his drug free status and/or importantly for me - what (if any) impacts those circumstances (as they may or may not exist) have on his parenting capacity;
(f)The father acting in a manner towards the mother[24], as a witness and during the family report interview that was intimidating, confronting and/or inappropriate. The father’s recorded actions during the Suburb J incident go without saying, he repeatedly approached the mother despite her loudly demanding that he go away and X asking him to do so as well. In fact from the recording, it was only when a bystander intervened that he chose to accede to the mother’s request. I also accept the child expert’s evidence that whilst the father did not intimidate them, it was possible that other people (including a young child) could have been. Finally, and noting my observations of the father during the mother’s cross-examination of him, the father conceded he had raised his voice but said he was being “true” or “speaking his truth”; and
(g)finally, there was little persuasive evidence to suggest other than that at least since the Suburb J incident the father has consistently maintained an intensely negative view of the mother causing me to find that the father refuses to countenance that the mother is a positive role model for X.
[24] See exhibit ‘M3’

The above findings, and particularly the father’s propensity for emotional dysregulation when exposed to something he doesn’t like (such as a positive statement about the mother) - satisfy me that in circumstances where the father was spending supervised or unsupervised time with X (which is his proposal), and she said something positive about her mother and/or the supervisor did something the father did not like, it is highly likely that X will be exposed to the father’s emotional dysregulation causing further emotional trauma for X. Sadly, in “speaking his truth” the father has and is likely to cause others to feel intimidated and fearful – even if that is not his intention.
The mother’s capacity was also explored with the mother submitting that if the father were to spend any time with X it would have a significant impact on her parenting of X.[25] In support of her contentions, her evidence was to the effect that –
·her past relationship with the father had caused symptoms of anxiety for which she had received prescribed medication and caused her to receive counselling from time-to-time with DR B;
·she remained scared of the father;
·over time her anxiety had decreased and she had stopped taking her prescribed medication;
·with the impending trial, her anxiety has returned and she has resumed taking Loxalate.
[25] See [37] of exhibit ‘M1’
The mother relied on the evidence of her treating general practitioner, DR B who gave evidence to the effect that he had some training post-degree for mental health. Those qualifications were not specified and self-evidently DR B is not a trained mental health specialist in the same category as a psychologist or psychiatrist.
Despite the contents of the family report and an affidavit submitted by DR B, no mental health assessment was produced by the mother (similar to the father). To a large degree, the evidence from DR B was consistent with the mother’s and is laid bare by the doctor’s observations of the mother during a recent appointment in May 2022 which caused him to re-commence prescribing medication for her.
In tandem, I formed a view that the mother has a genuine belief as to her anxiety about the risk of harm to the child arising from spending time with the father due to his propensity to emotionally manipulate and/or cause X to feel intimidated or fearful.
I should exercise considerable hesitation before severing a relationship between a child and a parent.[26] Having said that, even the mother says that the father should be able to have communication with the child four times a year which is not a complete severance. The mother says that to ameliorate risk (and presumably her anxiety), she should monitor the communication and solely determine any future time X has with her father.
[26] See Sedgley
When the mother’s proposals were put to the child expert, they expressed reticence and preferred that someone independent be the filter and I have already recorded my acceptance of those views.
So, do I have “very cogent evidence”[27] to support the proposals of the mother (which leave her in complete control of X’s engagement with the father)? In short, the answer is “no” and this is because –
(a)I don’t have the benefit of a formal mental health assessment about the mother, that could have explored this issue (of adverse impacts on parental capacity), despite the mother being on notice about the contents of the family report produced over a year ago;
(b)DR B’s evidence is inconsistent and/or unclear about whether the mother’s parenting capacity would be “discernibly impaired”[28] in ways that could not be accommodated for by orders such as restraints, a delayed start to any such contact or communication, any immediate communication being in the absence of any spontaneity or simply the passage of time following the end of this litigation;
(c)There was no other evidence sufficient to make a finding that a proposal (as sought by the ICL) would cause the mother’s capacity to be “discernibly impaired” as a result of the mother’s genuine belief.
[27] See Keane
[28] See Keane
The mother’s evidence is incongruent with the proposition of a complete severance of the father-child relationship[29] and it falls short of satisfying me that her proposal is the only way to ameliorate her genuine belief (which superficially only addresses her concerns around X spending time with the father). Even if I infer that her genuine belief (and the adverse impacts to her parenting that may flow) encapsulates communication as well, I am not satisfied that the evidence causes me to find that the only way to avoid the potential for the mother’s parenting capacity to be discernibly impaired is for her to become the sole decider, but it does coalesce with other findings to cause me to curtail X’s interaction with the father[30]. This is because –
(a)DR B said that psychological support was an option for the mother if her worst case came to pass, that is that X was to spend time with the father;
(b)The communication sought by the mother is only four times a year and I do not intend to order any regularised communication beyond that, but rather to leave that decision to X provided that for now, X can have postal communication with her father at her request and it will only be when she reaches 14 years of age that the communication between them (at her request) can be of a more spontaneous nature. This regime will avoid the risk of the child’s parental relationships being adversely affected either because she inappropriately fantasises about what the father’s relationship may offer and/or blames the mother for the lack of such relationship; and
(c)I do not intend to order the father spend any regularised time with X, preferring the proposal of the ICL for the same reason as set out above.
[29] As contemplated in decisions like Sedgley
[30] See Dunst
Section 60CC(3) (k)
Almost ten years ago, the father was the defendant in the Ms H ADVO, which has now expired but only after the father was convicted of breaching it. I have regard to the evidence in that respect.
More recently, the mother was the defendant in the 2018 Isaac ADVO which has now expired without incident. About two years later, the mother was the defendant in the 2020 Isaac ADVO, which was subsequently withdrawn following further investigations carried out by NSW Police. The father was the person in need of protection in both instances. I have had already made some observations about the circumstances about the two family violence orders that mean I do not need to make any further comments or findings now.
Returning then to whether X would benefit from having a meaningful relationship with the father, the answer is “no”, however by either the nature of their proposals and the evidence of the child expert, there is an agreed view that the “door should be left open” for X to explore her relationship with the father.
CONCLUSION – PARENTING PROCEEDINGS
I have made findings that both parties have perpetrated family violence upon each other. The presumption of equal shared parental responsibility is rebutted: s 61DA(2). Both parties supported the allocation of sole parental responsibility to the mother and given her ongoing role as X’s primary carer I have no hesitation in formalising that responsibility.
Both parties agreed that X should live with the mother, as did the child expert. Having considered the evidence, I am satisfied that such an order should be made in circumstances where X has always lived with the mother and there was no evidence to suggest that those arrangements were anything other than meeting all of X’s needs both from a physical, educational and emotional perspective.
Where satisfied, I am able to make a finding about ‘unacceptable risk’ on any or all matters comprising the safety, welfare and well-being of X: see A v A and DFCS v the Colt Children. In that regard, I heard submissions that the father posed an unacceptable risk of harm to X’s psychological and/or emotional harm based on (what appears to be) an accumulation of factors including -
·his inability to regulate his own emotions and behaviours towards others; and
·his lack of insight into the emotional needs of X including because of his failure to acknowledge X’s lived experiences of him have informed her feelings towards him and his lack of capacity to promote X’s relationship with the mother (upon whom X is heavily dependent).
I have had regard to the evidence which comfortably enables me to find that the father has (at times) demonstrated poor emotional dysregulation, particularly in circumstances where he is required to comprehend and/submit to the views of others and (at times) X has been a witness to that behaviour. I have formed this opinion because of the father’s behaviours including –
(a)How the father engaged with staff from O Contact Service for about three months in mid-2020 which saw an escalation in the father’s outbursts (recorded by staff as “yelling” on one occasion); with some of his behaviours having been observed by X (and subsequently reported by her to the child expert as her father “shouting”);
(b)the father spontaneously and loudly interjecting during cross-examination about the supervised visits, which I found to be unnecessary and somewhat confronting;
(c)the father behaving inappropriately towards the child expert during the family report interviews which the child expert said they did not find intimidating but others (including a small child) may have.
Whilst the father disputed some of the recorded observations about his behaviour, the general tenor of the father’s responses to questions about this issue was to say that he was a “passionate” man who was “speaking his truth”. He denied what X asserted as him shouting saying X is a young child and may have perceived his conversation with the supervisor differently. His responses did not give me cause to think that he had any insight into how others might view his behaviour, nor any intention to change. The father’s overall evidence caused me concern that the father currently has no filter about he reacts, irrespective of whether X is present or not and that absent such insight, X is at risk of further emotional harm given her current developmental stage and her emotional vulnerabilities being such that she requires assistance from Ms S.
I have considered all the proposals put before the Court and note that the father’s “trigger” for unsupervised time to commence must fail insofar as the ICL has not proffered any courses that the ICL considers appropriate for the father to complete. Practically that would mean that if I were minded to make supervised contact orders as proposed by the father, I have insufficient evidence or submissions (even on the father’s proposal) to move the time forward to unsupervised.
I am satisfied that in the immediate and medium future, should the father spend any time with X (under any circumstances) the father does pose an unacceptable risk to X arising from his incapacity to meet her emotional needs. This finding is primarily made because –
(a)even under past professional supervision the father could not regulate his emotions which X remembers; and
(b)I accept the child expert’s views that any change in X’s current lived experience of not spending time with the father will adversely impact her because her mother doesn’t support it and there is no evidence to suggest that Ms S recommends it.
However, once X reaches 14 years of age, the risk posed by the father in spending time with her will be ameliorated firstly because of the ongoing restraints I intend to make and secondly because X will be developmentally able to make her mind up about what sort of contact she wants with the father (having had the benefit of ongoing therapy in the meantime).
Other than the findings I have already made, I am unable to speculate on whether the mother’s parenting capacity will be adversely affected if and when X spends time with the father in six (6) years’ time, and am unwilling to do so. In doing so, I note DR B’s evidence about the mother’s anxiety de-escalating in the past to a point where she was able to remove herself from medication when there was “a bit of quiet time or a quell in the proceedings”.
Insofar as communication is concerned, the risk of emotional harm posed by the father is not unacceptable given the restraints I intend to impose and the evidence from the child expert that at least such written communication will keep the door open to a possible resumption of some sort of father-daughter relationship into the future. My concern about the father’s emotional dysregulation causes me to order that spontaneous communication (such as via social media, electronic or telephone) should not occur until X is developmentally ready for it.
Through the context of the mother’s submissions about the risk of adverse impacts to her parenting I note that the mother sought to maintain some form of communication with the father by way of informing him of her decisions about X’s major long-term issues and I will accede to her request, particularly because it may help him when he writes to her to have some context about X’s lived experiences. Similarly she sought that the father have access to other information about X and again, I have acceded to her requests.
The father should not see these communications as an entrée into trying to either open up the lines of communication with the mother and/or X or trying to engage in any way with X’s educational and health professionals (other than to obtain school records as ordered). To do so, will only invite more parental conflict and the risk of X’s exposure to it.
ANALYSIS AND CONCLUSION AS TO COSTS
For these proceedings, the mother is exposed to legal costs of over $80,000.[31] She is a self‑employed tradesperson with her hours of employment limited to school hours and some weekend work. The father will not have to pay any costs associated with the trial because he is legally aided.
[31] Exhibit M2
In those circumstances, to make a costs order against the mother is likely to only heighten the parental conflict for this family and potentially expose X to a reduction in the quality of her lived experience in the mother’s household (due to a reduction in available disposable income) and/or the bitterness the mother may feel at having to pay not only her costs but part of the costs of the ICL.
In those circumstances it is not just to rebut the presumption that each party pay their own costs.
For these reasons I am satisfied that the orders I make are in X’s best interests and are otherwise just.

I certify that the preceding one hundred and eighty-seven (187) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 2 August 2022

File number(s):	NCC 1206 of 2020
Judgment of:	JUDGE KEARNEY
Date of judgment:	2 August 2022
Catchwords:	FAMILY LAW - PARENTING – Best interests of the eight-year-old child – Where both parties have perpetrated family violence upon each other - Where there is agreement for the mother to have sole parental responsibility and the child live with her - Whether the child should spend time with the father – How communication between the father and the child should occur and/or be facilitated – unacceptable risk of harm established and to be ameliorated by postal communication only to occur quarterly with the father – child’s wishes to be taken in account at age 14
Legislation:	Family Law Act 1975 (Cth) Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 Blinko & Blinko [2015] FamCAFC 146 Dunst & Dunst [2016] FamCAFC 15 Gallagher & Gomez [2017] FamCA 944 Hollister & Gosselin [2016] FamCA 759 Isles & Nelissen [2022] FedCFamC1A 97 Keane & Keane [2020] FamCA 99 Re Andrew [1996] FamCA 43 Russell & Close [1993] FamCA 62 Sedgley and Sedgley [1995] FamCA 154 Stott & Holgar [2017] FamCAFC 152 Sweet & Sweet [2022] FedCFamC2F 676
Division:	Division 2 Family Law
Number of paragraphs:	187
Date of hearing:	14-16 June 2022
Place:	Newcastle
Counsel for the Applicant:	Mr B Kelly
Solicitor for the Applicant:	CopperTree Family Law
Counsel for the Respondent:	Mr M Juhasz
Solicitor for the Respondent:	Catalyst Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr A Gallimore
Solicitor for the Independent Children's Lawyer:	Gillard Family Lawyers

NCC 1206 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ISAAC Applicant
AND:	MR STEEL Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE KEARNEY
DATE OF ORDER:	2 August 2022