Kirsch & Pelzer
[2025] FedCFamC2F 283
•6 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kirsch & Pelzer [2025] FedCFamC2F 283
File number(s): PAC 6257 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 6 March 2025 Catchwords: FAMILY LAW – PARENTING – Best interests of child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D Cases cited: Banks & Banks (2015) FLC 93-637
Jollie & Dysart [2014] FamCAFC 149
LC & TC (1998) FLC 92-803
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 203 Date of hearing: 24 – 27 February 2025 Place: Parramatta Counsel for the Applicant: Ms Giacomo Solicitor for the Applicant: Shelly Legal Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Sharah & Associates Solicitors and Conveyancers Counsel for the Independent Children's Lawyer: Mr Gabrial Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 6257 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KIRSCH
Applicant
AND: MR PELZER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
6 MARCH 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The child X, born in 2019 (“the child”) spend no time with the father.
2.The child have no communication with the father, subject to Orders 3 to 5 below.
3.The father shall be permitted to send the child cards and gifts on the child’s birthday and at Christmas each year.
4.For the purposes of Order 3 above, the mother shall within 14 days of these Orders, provide an address including any PO Box for the father to send any cards and gifts.
5.For the purposes of Order 3 above, the mother shall provide to the child any cards and gifts sent by the father, however she shall be permitted to review any cards and gifts from the father and not provide them to the child if she considers them to be inappropriate in any way.
6.The mother is permitted to apply for an Australian passport for the child under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005.
7.The mother shall be permitted by these Orders to do all acts and things and sign all documents necessary to apply for a passport for the child pursuant to Order 6 herein and including any subsequent renewal of a passport for the child and the father's consent to the issue of the said passport be dispensed with.
8.Pursuant to s 65Y(2), the mother be permitted to travel with the child out of the Commonwealth of Australia without the knowledge and consent of the father.
9.The mother forthwith do all things and sign all documents necessary to cause a change of the surname or family name of the child from "X Pelzer" to "X Kirsch" and otherwise do all things to ensure that the child use that new family/surname both formally and informally.
10.The mother be permitted to complete and submit the form titled "Application to register a change of name for a child (under 18)" as sole applicant and the father's consent to the change of name is dispensed with and that the Mother be authorised to apply to the Registrar Births, Deaths and Marriages that the child registered as X PELZER, born in 2019 now be registered as X KIRSCH, born in 2019.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This final hearing relates to the child, X, born in 2019 (“the child”). The child is 6 years old.
Both parties appeared legally represented.
The respondent father was born in 1965 in Country B. The applicant mother was born in 1984.
The parties met in Country C in early 2010. In November 2010, the parties commenced cohabitating in Country C.
The parties separated on 27 October 2019. The child has resided with the mother since separation.
The child last spent time with the father in March 2021.
The mother commenced proceedings on 18 November 2021.
Since the commencement of these proceedings, no orders have been made facilitating time between the child and the father.
On 6 August 2024, orders were made by consent providing for the mother to hold sole parental responsibility for major long-term decisions relating to the child, and for the child to live with the mother. Thus the primary issue for determination at this final hearing was the nature and extent of any time and communication between the father and the child.
PROPOSALS
The mother seeks orders as set out in her Initiating Application filed 18 November 2021 that the child spend no time with the father, that she be permitted to change the child’s name to “X Kirsch”, and that she be permitted to travel internationally with the child. She further sought a restraint preventing the father from removing the child from Australia, to be given effect by placing the child’s name on the Family Law Watchlist (which would seem to be inconsistent with an order permitting the mother to travel internationally with the child), and a restraint preventing the father from applying for a passport or other travel or identity document in the name of the child. These latter two orders were not pressed.
The father gave oral evidence as to the orders he sought, which is outlined below. Ultimately, however, he sought orders as set out in his Amended Response filed 5 August 2024 that he spend supervised time with the child at a contact centre for two hours each alternate Sunday until the child turns 12, and thereafter unsupervised time in a public location for two hours each alternate Thursday evening.
The Independent Children’s Lawyer (“the ICL”) seeks orders as set out in her Minute of Order, that the child spend no time and have no communication with the father, but that the father be permitted to send cards and gifts to the child on special occasions, with the mother to confirm receipt of same in writing and provide them to the child unless she considers any correspondence contained therein to be inappropriate.
MATERIAL RELIED UPON
The mother relied upon:
(a)Initiating Application filed 18 November 2021;
(b)Her affidavit filed 28 January 2025;
(c)Notice of Risk filed 18 November 2021;
(d)Affidavit of Mr D filed 28 January 2025;
(e)Family Report of Ms E dated 3 April 2024;
(f)Child Impact Report of Mr F dated 2 September 2022;
(g)Narrow Issues Report of Dr G dated 6 November 2023;
(h)Case Outline filed 17 February 2025.
The father relied upon:
(a)Amended Response filed 5 August 2024;
(b)His affidavit filed 10 February 2025;
(c)Affidavit of Mr H filed 19 February 2025;
(d)Affidavit of Ms J filed 19 February 2025;
(e)Case Outline filed 19 February 2025.
The ICL relied upon:
(a)Child Impact Report of Mr F dated 2 September 2022;
(b)Narrow Issues Report of Dr G dated 6 November 2023;
(c)Family Report of Ms E dated 3 April 2024;
(d)Case Outline filed 21 February 2025.
The following documents became exhibits:
(a)Exhibit A: Photograph of the parties and child;
(b)Exhibit B: Pages 270 to 271 of ICL and mother joint tender bundle;
(c)Exhibit C: ERISP interview at page 310 to 326 of the ICL and mother joint tender bundle;
(d)Exhibit D: Pages 327 to 339 of the ICL and mother joint tender bundle;
(e)Exhibit E: Pages 253 to 254 of the ICL and mother joint tender bundle;
(f)Exhibit F: COPS entry on page 293 of the ICL and mother joint tender bundle;
(g)Exhibit G: Exhibits/annexures to the mother’s affidavit filed 28 January 2025;
(h)Exhibit H: COPS Entry on page 278 of the ICL and mother joint tender bundle;
(i)Exhibit I: Page 276 of the ICL and mother joint tender bundle;
(j)Exhibit J: Pages 341 to 345 of the ICL and mother joint tender bundle;
(k)Exhibit K: Page 358 of the ICL and mother joint tender bundle;
(l)Exhibit L: Page 392 to 393 of the ICL and mother joint tender bundle;
(m)Exhibit M: Page 290 of the ICL and mother joint tender bundle;
(n)Exhibit N: Page 347 to 348 of the ICL and mother joint tender bundle;
(o)Exhibit O: Pages 272 to 273 of the ICL and mother joint tender bundle;
(p)Exhibit P: Pages 374 to 376 of the ICL and mother joint tender bundle
(q)Exhibit Q: Page 288 of the ICL and mother joint tender bundle;
(r)Exhibit R: Page 266 to 267 of the ICL and mother joint tender bundle;
(s)Exhibit S: Pages 259 to 261 of the ICL and mother joint tender bundle;
(t)Exhibit T: Pages 551 to 552 of the ICL and mother joint tender bundle – K Medical Centre mental health note;
(u)Exhibit U: Pages 414 to 417 of the ICL and mother joint tender bundle together with a pathology result dated 11 February 2025;
(v)Exhibit V: Family Report of Ms E dated 3 April 2024;
(w)Exhibit W: Annexures to the father’s affidavit filed 10 February 2025;
(x)Exhibit X: Trial plans;
(y)Exhibit Y: Certificates of the father;
(z)Exhibit Z: Narrow Issues Report of Dr G dated 6 November 2023;
(aa)Exhibit AA: Criminal history of the father, pages 243 to 251 of ICL and mother joint tender bundle;
(bb)Exhibit BB: Child Impact Report of Mr F dated 2 September 2022.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact, the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that she had facilitated time between the child and the father post separation because she felt obligated and pressurised by the father. She stated that she felt she had to do it. She stated she felt scared. She stated she agreed to facilitate such time in public places.
The mother stated that the father was not physically violent to her during her pregnancy and she felt he had changed. She was not scared when the father came to the hospital for the child’s birth in 2019.
The mother stated that from when the child was about two months of age to when she was about nine months of age, the father had provided very little assistance to the mother for the care of the child. The mother agreed that the father was not physically violent to the child during this period. She stated that during this period there were some positive visits between the child and the father and when no arguments occurred between the parties.
The mother stated that during the period of the parties’ separation the father was able to contact her on her phone. She stated the father did not know of her address in November 2020 because she had begun living in a new apartment.
The mother stated the father wasn’t physically violent towards her during the period from October 2019 to March 2021.
The mother was asked whether the child had some understanding of who the father was in about February 2021, with the mother stating that she was not sure because the child was not seeing the father regularly. The mother stated she probably had told the child that the man she was going to see was her father, and she stated that she thought the child recognised the father as a familiar person (at about this time). She stated that the child never ran towards the father and said, “This is my daddy”.
It was put to the mother that she did nothing to help the father with his mental health problems, to which the mother responded that during their relationship she did a lot for the father including having never asked him to get a job. She stated that post separation she did do anything to help him in this regard because she was caring for the child and her own mental health.
The mother stated she has not told the child who the father is and stated that her counsellors had told her that they thought the child should raise the question herself. The mother stated that it would depend upon what the child asked her as to what her response would be. She stated that her counsellors had advised her that she should tell the child that the father is not a safe person. She further stated that she would have concerns about telling the child that the father was not safe because the Court might still order contact, and because she would not want the child to feel that there was something wrong with her by saying this to her.
The mother stated that she has been in contact with the child’s half-brother Mr H. She stated that the last face time conversation she had with him he was not interested in the child and himself getting together. She stated that Mr H has been to certain events in the past with the child and the mother. She stated that Mr H and the child had seen each other face to face in 2024. She stated the between 2021 and 2024 Mr H the child had seen each other about five or six times.
The mother stated that her belief was that the father’s motivation in wanting to see the child was to abuse the mother. The mother confirmed that she was seeking a no time order because the father wanted to abuse herself and the child. She stated that she has known the father for a long time. She stated that she saw the father in public places post-separation and nothing had changed. She stated that she did not believe the father had the capacity to care for the child.
The mother was reminded that the father’s parenting proposal was that until the child reach 12 years, the child would spend supervised time with the father for two hours fortnightly. The mother was asked whether under those circumstances the father would have the capacity to have a relationship with the child, and the mother stated that she did not believe that could occur. She explained that she held this belief because of the emotional abuse that the father could do, even if time were supervised. She stated that she is worried that the father would perpetrate emotional abuse upon the child, and she stated that she would not be there to protect the child.
The mother clarified paragraph 11 of the Family Report. She stated that it was not her lawyer who told her that the father had threatened to kill the mediator but that it was the police who told her. The police had come to her residence in early 2021 to see if the mother and the child were okay.
The mother was asked about whether the father had any qualities that he could offer the child. She stated, inter alia, that the father could be motivating, and he spoke Country C language. She disagreed that the father could offer the child positive things.
The mother stated that she did not believe the father has changed. She stated that he had become involved in a church and did volunteer work for these proceedings. She stated there was nothing the cross-examiner could do to convince her that the father was safe. She then stated that possibly if the father did very long therapy for many years that he might change; she stated that it takes a long time to get better when you have mental health issues.
The mother stated that she still sees a counsellor.
The mother was asked whether the father’s statement to the family report writer that he had ceased alcohol consumption gave her any confidence. The mother responded in the negative. The mother stated that she did not recall the father ever looking drunk and stated that it might be that the father has a high tolerance to alcohol.
The mother was asked whether the letter from the father’s counsellor Ms J caused her any concern. The mother stated, inter alia, her belief that counsellors, if they are told that the patient has done exercises, will believe them.
The mother was asked whether she had any opposition to the father sending the child gifts and cards. The mother answered in the affirmative stating her belief that the father would always put something in a letter (giving an example, “I am your one and only father”) which would affect the child’s relationship with her. As to the father sending the child a gift, the mother stated her belief that he would give inappropriate gifts, and that he would try to “get to” the mother and punish her and get his revenge.
The mother was cross-examined as to her family violence allegations against the father, with the mother maintaining her allegations.
The mother stated that her friend Ms L lives in Country M and she did not think of asking her to provide an affidavit.
The mother was asked whether she had sought medical assistance in relation to an alleged physical assault upon her in about early 2015. The mother responded in the negative stating that she did not seek medical assistance as she was scared and she was protecting the father. She stated that she knew that if she went to a doctor or called the police the father would be in trouble. She stated that she knew that if she called the police it would be the last time and clarified that she had called the police in October 2019 and had left the relationship because of her daughter. She stated that she was very scared in relation to the incident at the time of separation in October 2019 and she had called the police from a different street whilst holding the child. She later stated that she had not told the police of having been allegedly kicked hard in her thigh by the father (when the child was a baby) in October 2019 when she saw the police because she was still protecting the father at that time and she was scared the father might get into more trouble.
The mother stated that she did not previously know that she could seek to extend an ADVO previously made against the father.
The mother was questioned as to paragraph 128 of her trial affidavit, relating to meeting the father in September 2020 with the child. The mother stated, inter alia, that she thought she would be able to somehow manage the visit if she supervised contact. She stated that at the beginning she did not realise that she was getting abused even though it was occurring in public places and it was not physical abuse. She stated that the more she got abused and screamed at she wrote notes. She asked some friends to be with her to help with the contact visits without success. She stated that when she started mediation she was also worried the father would threaten her with legal action. She stated she was trying to please the father and felt she had to. She stated that she feared physical harm from the father if she met him in private.
The mother was questioned as to what PTSD symptoms she was suffering from between October 2019 in March 2021. The mother stated she experienced nightmares, sleeping difficulties, and flashbacks of previous physical violence. She stated that in about November 2019 she had an appointment with a person at N Centre who raised the issue of PTSD.
The mother was asked how a Court order that the child spent supervised time with the father might affect her and her parenting. The mother stated that she did not know if she was going to cope with such a decision, and stated that it might impact her parenting.
The mother was questioned about her statement to the family report writer, in paragraph 13 of the family report, that she had tried to facilitate a relationship between the child and the father but now realises that this would never be successful. The mother stated that the father was not genuinely interested in the child and her well-being, and the father would try to manipulate the child against the mother and her new partner.
The mother stated she was 25 when she first met the father and that the abuse she experienced was so severe that she does not know if she will ever recover. In this context, she stated that she has been in therapy for the last five years and she will need a lot more years to feel okay again.
The father’s evidence
The Court does not propose to set out the entirety of the father’s evidence.
The father was questioned as to the final parenting orders he sought. He stated that he sought initial supervised time for a couple of hours per week and then to see if the child wanted to extend or reduce it, being her choice. In this context, he stated that the child, at age 6, was old enough to determine this issue. He later clarified that he sought supervised time for one hour on Sundays supervised by a Mr O at a church and stated that such supervision could occur for three months. After three months, the father stated that the child, the mother and himself, and the mother’s new partner, could decide what further time should occur. If there was no agreement, he stated that he was not sure if the parties should return to court.
The father stated that he had discussed the mother’s affidavit with his son Mr H. He stated that he had discussed with Mr H things that the mother had written in her affidavit regarding his mother Ms P.
The father stated that he and his former partner Ms P separated when the child Mr H was about three years of age. The father saw Mr H until he was four years of age, but then he did not see him until he turned 18 years. The father stated that Mr H has had times when his mental health was very poor and he has been hospitalised. In this regard the father stated that Mr H had been diagnosed with depression and a mental health condition for which he was now medicated. He later stated that Mr H also had been diagnosed with another mental health condition, ADHD and autism. He agreed that Mr H was quite a vulnerable young man.
The father denied choking Mr H in relation to an incident at his home when Mr H was about 19 years of age. He admitted striking him to the back of the head, grabbing him by the rear of his neck and pushing his head towards a plate of food to make him eat the food. The father agreed that Mr H was scared at this time. He stated that his conduct was abusive and regrettable. He agreed that he had not told the Family Report writer about this incident and its legal repercussions.
The father stated that he was not presently ingesting any antidepressant medication. He stated he conducted some research on the side effects of antidepressants including suicidal tendencies.
The father stated he was last prescribed anti-depressants about three years ago through a GP at Q Medical Centre. He presently sees a GP who attends his church.
The father stated the last time he saw a psychiatrist was in 2021 or 2022.
The father stated that in about September 2015 he was drinking a third to a half a bottle of vodka each day.
The father stated that as at October 2019 he had been prescribed antidepressants.
As to the diagnoses of Dr G, clinical neuropsychologist, the husband stated that he agreed with the anxiety disorder and/or panic disorder diagnosis and PTSD diagnosis.
The father was asked whether during the course of these proceedings he had had poor insight into his mental health, to which he answered in the affirmative. He was asked whether at any time during his relationship with the mother he had had poor insight into (the effects of) his behaviour on others, to which he answered in the affirmative.
The father was asked whether he accepted that the mother was frightened of him having seen the mother give her evidence yesterday, to which the father answered in the affirmative. He agreed that the mother was worried that he might harm the child. Notwithstanding, the father maintained that there would be no problem at all in having a meeting with the mother, her partner and the child at the end of three months of supervised time with the child.
The father stated he has been seeing the counselling psychologist Ms J over the last two and half years.
The father stated that no one had prescribed him antidepressants since June 2023 to date. He confirmed that he had conducted research on the side effects of antidepressants and referred to antidepressant suicide, headaches, nausea and mixing such medication with alcohol. The father stated that antidepressants were a reason he was (previously) suicidal. He stated that the combination of alcohol and antidepressants caused him to have side effects. He stated that he tried ingesting antidepressants without consuming alcohol in 2003 and it didn’t work out; he stated he was getting panic attacks and putting on weight. He confirmed that he will not take antidepressants, stating they were not for every person.
The father stated he ceased drinking alcohol in about September 2022.
The father agreed that during the relationship with the mother he was consuming alcohol heavily and the effect on the mother was domestic violence. When the father was asked whether there were one or more incidents of domestic violence, the father stated that there were so many, and he knows he was very angry and frustrated with a lot of things around his life. When asked about the effects of his alcohol consumption upon the mother, the father stated that the mother’s refusal to come to his psychologist and her lack of support made him angry and frustrated. In this regard he stated that he felt betrayed by the mother as he had put his hand out for help (from the mother) and did not get it.
The father was asked what other incidents there were where alcohol resulted in domestic violence, to which the father replied, “every one”, albeit that he could not be specific as he had memory loss.
The father stated he had completed a Men’s Behaviour Change program through R Services in 2022 or 2023. He stated this program lasted between 3 and 4 months and involved three sessions per week. In this context, the father stated that previously the biggest trigger in his reactions were mixing alcohol and antidepressants.
The father stated he was alcoholic when he had his first breakdown in October 2019. He stated he was now a 100 per cent reformed alcoholic.
The father stated that he still has feelings for the mother. He stated that he could not recognise the mother yesterday in court.
Child Impact Report dated 2 September 2022
The author of the Child Impact Report was Mr F, Court Child Expert. He held interviews and spoke with the parents in late August and early September 2022. Relevantly, Mr F stated, inter alia, the following:
14.[Mr Pelzer] identified differences in approach to life and parenting between him and [Ms Kirsch] that he ascribed to their different cultures of origin and differences in age. He said that these differences resulted in arguments between him and [Ms Kirsch]. Initially [Mr Pelzer] reported no family violence in his relationship with [Ms Kirsch], but subsequently identified an occasion when he had pushed her. He said that he did not think that [Ms Kirsch] had been scared of him. [Mr Pelzer] said that [Ms Kirsch] was using limiting his relationship with [X] as a means of hurting him in revenge for his ending their relationship and telling her he no longer loved her. He said that [Ms Kirsch] had abducted [X] and that her behaviour in this regard should be illegal and that he had contacted the police a number of times in relation to his concerns, but has concluded that he has no rights in relation to [X].
…
24.The key issue in this matter arises from the different accounts of family violence provided by each parent. This issue is likely to require Judicial determination. If [Ms Kirsch]’s account is found to have veracity, then [Mr Pelzer]’s denial of such behaviour suggests that he has very limited capacity to take responsibility for and change his family violence behaviour and that [X] is likely to require ongoing protection from him.
Family Report
The author of the Family Report dated 3 April 2024 was Ms E, Court Child Expert. She interviewed the family on 26 and 27 February 2024.
The Court does not propose to set out the entirety of the Family Report.
The Family Report writer interviewed the mother. At paragraph 11 she stated:
11.She said that [X] last saw [Mr Pelzer] in March 2021 and described feeling obliged to facilitate contact between [X] and her father. [Ms Kirsch] was strongly of the opinion that [Mr Pelzer] wanted to see [X] so that he could see her ([Ms Kirsch]). She said that, after she commenced domestic violence counselling she was advised to write about events in a diary, and she realised that [Mr Pelzer] was continuing to abuse her even though they were meeting in a public place. [Ms Kirsch] said that, at that time, she did not understand that abuse can be more than physical, and that [Mr Pelzer] would yell at her in front of [X].
At paragraph 31 the Family Report writer stated:
31.[Ms Kirsch] expressed concern that [Mr Pelzer] would abduct [X]. She said that she contacted the mother of [Mr Pelzer]’s son after separation, and that she told him about the violence he perpetrated such that he took their son and did not bring him back as agreed. [Ms Kirsch] said that [Mr Pelzer] told her “really bad things” about his ex-wife, but that she is less certain of the veracity of these now. She stated her belief that [Mr Pelzer] would just not bring [X] back on time, and would then tell her that she was being a “drama queen”.
The father told the Family Report writer that he no longer drinks, and discovered that he was an alcoholic after completing a test on the internet. He said that he has been sober for two years, although had one drink on New Year’s Eve.
Under the heading “Parental understanding of the child’s needs”, the Family Report writer stated:
43.[Mr Pelzer], while professing a great love for [X] and a desire to be a father to her, tended to minimise the effects that his drinking and mental health difficulties may have had on [X] and also on [Ms Kirsch]. He seemed to disregard the possible effects of a reappearance in [Ms Kirsch]’s life if he is to be involved with [X], and merely stated that he is sure that he will be able to convince [Ms Kirsch] that he is again “a good person”. Generally, [Mr Pelzer] appeared to believe that it is his right to spend time with [X], and that the benefits for [X] may be secondary to this.
Under the heading “Discussion of proposals”, the Family Report writer stated:
44.Both parents’ proposals aligned with their perceptions of the situation with [X]. [Ms Kirsch] does not wish to re-enter into any form of relationship with [Mr Pelzer], and feels that any contact [X] has with [Mr Pelzer] will involve her to a greater or lesser extent in a co-parenting relationship. She repeatedly stressed her fear of [Mr Pelzer] and her desire that he does not re-enter her life in any way.
The father told the Family Report writer that he wants the child to know that her father is fighting to see her, and he claimed that he has “come to the other side” after taking three years to recover from alcohol.
Under the heading “Evaluation”, the Family Report writer stated, inter alia:
54.The relationship between the parents is characterised by fear and mistrust on the part of [Ms Kirsch], and by [Mr Pelzer]’s confidence that he will somehow be able to ameliorate this fear and mistrust. If [Ms Kirsch]’s account of their relationship has substance, [Mr Pelzer] has consistently minimised the part his violence and mental health difficulties played in their relationship, and he seems to indicate a conviction that a new relationship could be forged. This appears directly antithetical to [Ms Kirsch]’s position that she has nothing more to do with [Mr Pelzer], and that she fears a resumption of [Mr Pelzer]’s presence in her life. [Mr Pelzer] was at some pains to point out that, through his connection with ‘[S Program]’, he has experienced a revelation in regard to his relationship with [Ms Kirsch], and that his previous behaviour was the result of alcohol use combined with psychotropic medication. He therefore expressed confidence that he would be able to convince [Ms Kirsch] that he is again “a good person”. While [Mr Pelzer] may believe this to be the case, [Ms Kirsch]’s presentation during interviews did not support this interpretation. While [Mr Pelzer] expressed some remorse for previous behaviour, his understanding of the effects of this on [Ms Kirsch] appeared minimal, and will possibly be a real impediment to any future co-parenting relationship.
55.The parents give differing accounts of family violence in their relationship. [Ms Kirsch] described being both physically and emotionally assaulted by [Mr Pelzer], which rendered her fearful of him. [Mr Pelzer], while acknowledging some violence on his part, denied threatening [Ms Kirsch], and took responsibility for only one incident to which police were called. He also sought to excuse his behaviour by citing his use of alcohol and medication, and, while this may have played a part in any violence, [Mr Pelzer] nevertheless exhibited an inability to take real responsibility for his behaviour. Of particular concern are [Ms Kirsch]’s allegations that [Mr Pelzer] choked her on a number of occasions due to the potential lethality associated with this behaviour and the indications for future violence.
56.…It is known that exposure to violence can affect the development of the parent child bond – something which is crucial for children’s sense of wellbeing and stability, and [X] may have experienced her mother being upset and possibly fearful. This is not ideal for a child’s development. [X] would also be at risk from the effects of parenting by a perpetrator of violence, in that she would be more likely to experience denigration of [Ms Kirsch] as well as an increased risk of abuse and manipulation.
…
58.The issue of [Mr Pelzer]’s mental health and its effects on his relationship with [Ms Kirsch], as well as his parenting of [X], appears to be a major issue in this case. [Mr Pelzer] seemed to believe that he is now on a better track in his life, as indicated by his volunteering and possible job prospects. It is noted that he consistently denied or minimised his long history of mental health problems, and he tended to blame what he considered to be [Ms Kirsch]’s lack of concern and support for him as a catalyst for these difficulties. He displayed a lack of insight into the effects his behaviour may have had on other people, and he appeared to see himself as a victim of circumstance, rather than in having any active involvement in his own difficulties. It is acknowledged that [Mr Pelzer] appears to have ceased drinking alcohol, and this is a positive step in regard to his mental health, however, his lack of adherence to any medication regimen may be of some concern. It is noted that, in the past, hospital admissions have been associated with poor medication compliance, and [Ms Kirsch] mentioned that [Mr Pelzer]’s problems sometimes seemed to be caused by him ceasing medication use. It is unclear whether [Mr Pelzer] has an ongoing relationship with a psychiatrist, and he was clear that he is not taking any medication. Whether medication is, in fact, unhelpful, or whether [Mr Pelzer] lacks insight to recognise that it may be necessary is not entirely obvious, however, adherence to medication is often regarded as an indication that an individual accepts that this is necessary, and that he or she is prepared to ensure that their medication continues. It could also be the case that [Mr Pelzer]’s condition does not require medication; however, it is noted, in the limited issues report, that his depressive symptoms remain. It is further noted that [Mr Pelzer] tends to express suicidal ideation at times of crisis.
…
60.As previously mentioned, [Ms Kirsch]’s obvious fear of [Mr Pelzer] and her anxiety about [X] having a relationship with him, will make it extremely difficult for her to facilitate contact between [X] and [Mr Pelzer]. For [X], there are risks associated with spending time with a parent of whom the other parent is fearful. Children tend to internalise adult emotions, however, lack the capacity to rationalise these, so that she will likely associate [Mr Pelzer] with feelings of anxiety and distress, even if [Ms Kirsch] attempts to minimise [X]’s exposure to her feelings. [Mr Pelzer]’s proposal that supervised contact be instituted, while possibly alleviating some of [Ms Kirsch]’s anxieties, can only be seen as a short-term measure. Long-term supervised contact between a parent and child is neither possible from a practical point of view, nor desirable from an emotional or psychological perspective. If [X] were to see [Mr Pelzer] under supervision, she may form the view that he cannot be trusted and is only a safe person within the bounds of supervision. This, combined with [X]’s likely discernment of [Ms Kirsch]’s feelings, is likely to lead to fears and negative perceptions on [X]’s part, which may undermine her resilience and ability to form healthy, robust relationships.
…
62.[Ms Kirsch] proposes that [X] spend no time with [Mr Pelzer], while [Mr Pelzer] proposes supervised time. As mentioned above, supervised time can only be seen as a temporary measure, and the intention is that this will lead to unsupervised time. It is in this light that the proposals are considered. The advantages for [X] of spending time with [Mr Pelzer] would be her knowledge of her biological father and background, as well as her experience of the undoubted love [Mr Pelzer] feels towards her. Disadvantages would include her experience of [Ms Kirsch]’s anxiety in relation to her spending time with [Mr Pelzer], the possibility that [Mr Pelzer]’s mental health may impact his parenting, and the possible parenting deficits associated with a perpetrator of family violence. On balance, it may be in [X]’s best interest to spend no time with [Mr Pelzer]. It is recognised that this also carries risks for [X]. These would include the grief associated with losing a parent, particularly the eventual perception of loss that she grew up without her biological father, and the possible over- idealisation of [Mr Pelzer] when she is older. However, it appears that the risks to [X] of the re-entry of [Mr Pelzer] in her life possibly outweigh the benefits. In this instance if would be recommended that [Mr Pelzer] be permitted to send cards and gifts to [X] at important times such as Christmas and birthdays.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Family Report writer gave this evidence in relation to the likelihood of the child experiencing emotional or psychological harm if the father was to spend monthly supervised time with the child:
MR GABRIAL: I want you to accept that if this court allows the father to spend supervised monthly time with [X], firstly, in your opinion, is that likely to cause [X] emotional harm?
WITNESS:It could, depending largely on how [Ms Kirsch] manages and copes with this. Certainly, you know, I think I’ve mentioned that children tend to internalise our feelings as parents, no matter how we try to cover them up, in a sense, and it is, I think, highly likely that – that [X] would discern [Ms Kirsch]’s feelings in this regard.
MR GABRIAL: And a similar question, if this court allows the father to spend monthly supervised time with [X], is this likely to cause [X] psychological harm?
WITNESS:As I said before, really, it – it would be having to go to someone for whom the mother is – of – of whom the mother is fearful, and discerning her feelings, I think that could cause her psychological harm.
The Family Report writer stated that it was not necessarily important that the child has a link to the father via cards and presents, however she did think it was important that the child was aware of who the father was; in this regard, she stated that the mother should get some initial advice and then have a short and simple discussion with the child and allow the child to ask the mother questions as they come up.
The Family Report writer stated, in relation to the balancing exercise that she conducted between the benefit to the child of introducing a relationship with the father, as against the risks that were posed by the introduction, that she had a real concern about the father’s mental health difficulties and the alleged violence in parties’ relationship.
The Family Report writer gave this evidence in relation to the father’s evidence relating to his management of his mental health:
MS GIACOMO: Can I indicate some of the evidence that the father gave about the current mental health issues. So he gave evidence that he doesn’t currently take antidepressants. He stopped them a few years ago. His evidence in relation to a question that I asked was that he had done some research with some members of his church, some of whom are nurses, and he came to the conclusion – sorry, about the bad side effects of antidepressants, and he doesn’t believe that they have assisted him. He hasn’t seen any psychiatrist or clinical psychologist or clinical neuropsychologist, or someone with the professional expertise of [Dr G] since her report was prepared. He has been seeing a counsellor. She gave some evidence this morning, and her evidence was as follows, that she’s not qualified to prescribe medication?
WITNESS:No, that’s right.
MS GIACOMO: She’s not qualified to diagnose in the way that a psychiatrist could diagnose. Her evidence was that she has recommended to the father to see a doctor to discuss antidepressants as recently as the last two sessions that she had with the father, and the last two sessions were last week and two weeks prior to that. Would that indicate – would that give you confidence that the father is managing his mental health at the present time?
WITNESS:No. It wouldn’t give me confidence.
The Family Report writer stated that she would have a concern that the father was not managing his mental health, in view of Dr G’s recommendation that the best option for the father was for him to comply with taking his antidepressant medication, and in view of some encouragement from his counsellor that he at least talk to his GP about that recommendation which advice the father had not acted upon.
The Family Report writer gave this evidence as to the nature of Dialectical Behaviour Therapy which she stated was the best treatment for personality disorders:
WITNESS:It’s – it’s a skills-based. It’s more of an education, and it’s skills-based. So a feature of these sorts of personality disorders is poor emotional self-regulation and that tends to invade every aspect of an individual’s life, especially when they’re stressed. So a lot of dialectical behaviour therapy consists of giving them and practising with them skills that they can use when they feel these overwhelming feelings that often result in explosions or violence or whatever. It’s – there are facilities, usually, to be able to call someone when you’re feeling very bad. So it is – you know, it is a fairly intensive sort of treatment, and it’s lengthy and requires a lot of commitment from the person who’s being treated.
MS GIACOMO: So in relation to ---?
WITNESS:And it’s still not – there’s – there’s no magic answer, but it’s the best treatment we have.
The Family Report writer gave this evidence in relation to the father’s insight into his mental health:
MS GIACOMO: The counsellor’s evidence was that she hasn’t been doing DBT per se with the father, but has been doing some aspects of it. Would that give you confidence that the father has not only read [Dr G]’s recommendation, but is taking it on board?
WITNESS:No, it wouldn’t give me confidence. No.
MS GIACOMO: The fact that the father disagrees with some of [Dr G]’s diagnoses and hasn’t seen anybody else for a second opinion, it appears, hasn’t taken on board her very strong recommendation that he continues taking his antidepressant medication, and doesn’t appear to have taken on board with gusto that he needs to do DBT, that would continue to raise in your mind, wouldn’t it, concerns about the father’s insight into his own mental health?
WITNESS:Yes. It would give me concern.
The family report writer gave this evidence in relation to the mother’s evidence that she did not know whether she would be able to cope with an order for supervised time between the child and the father:
MS GIACOMO: The mother gave the following evidence. She gave evidence that she has no confidence that the father is dealing with his mental health issues. She said the following:
I was 25 when I met him. The abuse I suffered I will not recover from. The emotional abuse is worse than the physical abuse.
She went on to say that she had been in therapy for five years:
I’ve been in therapy for five years. I have a long way to go before I will feel okay again.
She was then asked about how she would cope if an order was made for supervised time, and she said:
I don’t know if I will be able to cope with that decision.
And she said it might impact on her ability to parent [X]. She gave evidence that she didn’t believe that the father was interested in [X], and she believes that he will do things, if he sees [X], to turn [X] against her and her partner, and she was firmly of the view that he would use the opportunity to write gifts and send – sorry – to send gifts and cards in an inappropriate way that is damaging to her, that is, the mother herself. Now, none of that is new, is it?
WITNESS: No.
MS GIACOMO: That was how the mother presented to you ---?
WITNESS: Yes.
MS GIACOMO: --- at the time?
WITNESS: Yes. Yes.
MS GIACOMO: And it was your view, wasn’t it, that she appeared to be quite genuine in the way that she felt?
WITNESS:Yes. Yes.
MS GIACOMO: And if the mother’s allegations about family violence are true, it’s unsurprising that she would have those feelings ---?
WITNESS:Yes.
MS GIACOMO: --- that she holds?
WITNESS: Yes.
The Family Report writer confirmed that she did form the impression that presently it was not in the best interests of the child to have unsupervised time with the father.
The Family Report writer stated, in relation to her recommendation that the father be permitted to send cards and gifts to the child, and that she was not married to this recommendation, and it would have to be balanced against the mother’s anxieties in this regard. She gave this further evidence:
WITNESS:The reason I – I recommended it, it is – it’s a – a relatively benign way of a child understanding that although they might not be seeing their father, that their father is still thinking about them, and the reason I do that is because children tend to blame themselves if – if they – a parent is not there. They think, “What’s wrong with me?” So it’s a – a relatively benign way of reminding a child that they have a – a parent who – who does care about them.
MR JACKSON: You accept when I read paragraph 67 that there didn’t appear to be any hesitation in that recommendation in the context of the mother’s anxiety, did there?
WITNESS:I – I didn’t, but I – I suppose that would be something I would – would put as a – a – a slight footnote to it, but, you know, if it’s – if it’s going to create great stress and anxiety, then I would be less – less married to the idea, I suppose.
The Family Report writer stated that she was not given some degree of confidence in relation to the father’s mental health, having read the report of the father’s counsellor Ms J dated 18 February 2025 (the counsellor had stated the father was making progress in relation to his mental health), because she was aware from Dr G’s report that in the past the father had had a great deal of treatment and quite a lot of intensive intervention.
The Family Report writer stated that she thought the father took very limited responsibility for his part in the parties’ relationship ending and that he wasn’t seeing the child. She stated that the father gave her the impression that he recognised he had been out of control but he had blamed it on external factors and not himself.
The Family Report writer stated that the proviso to the father trying to make progress with his mental health was that there is a pattern that whenever there is a stressful event in the father’s life his mental health deteriorates.
The Family Report writer stated, in relation to the father having completed a Men’s Behaviour Change course before she interviewed the father, that an indicator of a person’s ability to make use of the course is the acceptance of responsibility for their behaviour. She stated if the person does not do that, then the course is fairly pointless, and that when she spoke with the father he was not taking responsibility for his behaviour.
The Court accepts the evidence of the Family Report writer, subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
Ms J, the father’s counselling psychologist
Ms J’s affidavit was filed 19 February 2025. Annexed to her affidavit was her letter dated 18 February 2025 in respect to the father, addressed “to whom it may concern”. This letter stated, inter alia:
This is to confirm that [Mr Pelzer] is currently attending counselling sessions with me. He has been a client of mine since September 2022. I have been assisting him
•To work through resolving some personal concerns (including giving up alcohol and cigarettes).
•To process the effect of the recent Bondi Junction stabbing event on his mental wellbeing.
•To discuss and work through not having contact with his daughter ([X]).
What has been covered in sessions includes:
•Ceasing completely his use of alcohol and drugs (marijuana to assist him to sleep).
•Using medication for mental health.
•Not having contact with his daughter (the effect of this on his daughter and on him).
•The effect of the Bondi Junction incident on him, including how this triggers thoughts about his daughter.
•Managing overwhelming emotions.
Progress made includes:
•Completely ceased using alcohol and drugs.
•Managing symptoms of depression and anxiety through exercise, vitamin and mineral supplements and a healthy diet.
•Understanding of his part in his past life, including his regrets, guilt and remorse.
•Working at the church and being involved in the church community.
He has followed the suggestions given and taken the therapy sessions seriously. He mentioned that he attends sessions 'to learn'. He would like to continue with sessions.
My professional opinion is that he should continue with sessions to maintain his progress and well being. This can be done on the basis of one session a month. As he has workcover sessions approved, following the Bondi Junction incident, this will fund the sessions. I recommend that he continue sessions on a monthly basis and that these sessions indicate a motivation to maintain his wellness so that he can live a full life that will increase his well being.
I also recommend that he continues to use the skills learnt during sessions, outside of sessions, as well as continue with his own self development tasks and courses that he chooses to do.
Ms J gave oral evidence. The Court does not propose to set out the entirety of that oral evidence.
Ms J stated she had never met the child, the mother, the father’s son Mr H, nor the father’s former partner Ms P.
Ms J stated that she had not been provided with any court documents in these proceedings although she had been (previously) allowed to read the Family Report briefly.
Ms J stated that she did not recall being made aware of the clinical neuropsychologist report of Dr G. She agreed that had such a report providing diagnoses for the father dealt with the father’s mental health and how it might be impacting on his day-to-day life, it would have been important for her to have such report for her treatment of the father. She agreed that if the report had made some recommendations for treatment that would have been important for her own treatment of the father.
Ms J could not recall ever being provided with independent evidence of the father’s mental health history, such as from a hospital.
As to the father’s historical compliance with mental health treatment, the witness stated she had not spoken to the father’s GP. She stated she had been told by the father that he had in the past been ingesting antidepressants. She stated that he was not taking such medication now.
Ms J stated she was not aware of the father’s criminal history, albeit she was aware the father had himself been assaulted and she was aware of domestic violence allegations. She stated she was aware of the father’s former partner’s allegations against him. She stated that generally she goes with what the patient presents in the consultation room.
In relation to the topic of, “Using medication for mental health”, as referred to in Ms J’s letter, she stated that in some sessions with the father there were discussions about the usefulness of medication. She stated that if a person has depression, at a level that needs to be medicated, she might say the patient should see their GP to discuss medication, and she had discussed this with the father. Ms J was specifically asked whether she had suggested that the father see his GP, to which the witness stated that she had indicated to the father that that could be necessary and that they looked at it a few times. She stated that she had told the father that medication was always something he could look at. She stated that the father told her that antidepressant medication did not help him and that he was now managing (his depression) through, inter alia, diet and exercise. A short time later she stated that medication was something that should be considered over and above a healthy lifestyle. She stated that in the last few sessions with the father she would have mentioned that. She was asked why she had mentioned that in the last few sessions and responded, inter alia, that although the father’s depression was well-controlled now, usually with depression a little bit of help from medication is useful.
Questioned in relation to the content of information provided to her regarding domestic violence, the witness stated that she could not recall the detail, but she recalled something about shouting.
Psychological and cognitive assessment of the father by Dr G, clinical neuropsychologist
On 14 September 2022, by consent, the court ordered that pursuant to Division 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Dr G, Clinical Neuropsychologist (“the Expert”) be appointed to enquire into and report upon matters relating to the welfare of the child in so far as a Narrow Issues Assessment of the Father’s acquired brain injury and mental health, in addition to Cognitive Testing Assessment.
The Expert’s above assessment of the father was set out in her report dated 6 November 2023. Her assessment of the father was carried out on 21 to 22 and 27 June 2023 covering a total period of about 9 to 10 hours.
The Expert stated from line 331:
I note on interview with me in June 2023, [Mr Pelzer] stated that he was not taking his anti-depressant medication (see page 33); I also note a documented long-standing history of poor/fluctuating compliance with his mental health medication (e.g., see pages 12-13, 14, 16-17, & 24 of this report).
The Expert referred to subpoenaed records from T Medical Centre. She stated at line 873 that the father reportedly indicated to medical staff that his partner does not understand him and she causes him to get rough with her and he does not like this person that he is forced to turn into. The Expert referred to an entry dated 11 July 2016 indicating the father stated he was getting better at not losing his temper except with his son, and referred to the father and his psychologist discussing some parenting skills the father could use with their son and to help him manage his anger and frustration.
The Expert referred to an entry on 31 May 2016 (T Medical Centre) as follows:
An entry dated 31 May 2016 refers to [Mr Pelzer] playing catch up with his son (after not seeing him a long period of time) and it was explained to him that he "has to earn his [son's] trust and respect and this does not work by losing your temper or hitting him". [Mr Pelzer] was said to use his depression as an excuse and to not take responsibility when parenting his child. [Ms U] said she discussed parenting skills with [Mr Pelzer].
The Expert stated in relation to the assessment of the father, inter alia:
[Mr Pelzer] seemed egocentric and also seemed to lack insight into the impact of his mental ill-health or dysregulated behaviours and emotions on others, including his young daughter [X], his son [Mr H], as well as [Ms Kirsch] (see detailsfrom the interview below).
…
He said he was not sure why there were concerns about his spending time with [X], and stated "I am not sure why, [as] I have never been violent to [X] ". When prompted to think of any possible reason(s) for concern about him spending time with [X], [Mr Pelzer] went on to say that he had "had a meltdown" and pushed [Ms Kirsch] on one occasion, and so had a "domestic violence record". He remarked that he "worked through that" for a year. He denied any other family violence incident. He did not see any impact on [X] of his behaviour or his mental ill-health.
…
He said he took medication for his mood disorder intermittently. He remarked that he did not really like "putting chemicals" into his body. He said he was not taking anti-depressant medication at the time of my interview, and reported stopping his anti-depressant medication in March 2023. He stated "I'm doing very well. I get a bit depressed, but I know my patterns. I call friends, go for a walk. I never believe[d] in chemicals and the ... what do you call it? ... side effects.. [are] very scary". He said he spoke to his Psychologist around the time of ceasing his anti-depressant medication as his goal was to stop the anti-depressant medication.
…
On direct questioning, he reported ongoing symptoms of depression, such as low mood, feelings of worthlessness, diminished pleasure and motivation, but he emphasised that he was doing a lot better than he had been in the past in terms of managing his depressive symptoms.
Under the heading “Case Formulation and Opinion”, the Expert stated, inter alia:
[Mr Pelzer] has a long-standing history of mental ill-health, spanning more than a decade, requiring multiple hospitalisations. His mental health difficulties include suicidal ideation and suicidal threats, previously diagnosed Maj Depressive Disorder, with recurring episodes, reported symptoms of anxiety and panic attacks, and alcohol misuse.
…
[Mr Pelzer] also has a long-standing history of unemployment, housing issues and supported housing, as well as relationship difficulties, and antisocial behaviours. He has criminal charges and there are collateral accounts of family violence, both towards intimate partners and towards his adult son, [Mr H], as well as threats and reported assaults towards members of the public.
[Mr Pelzer]’s mental health conditions are chronic, and had persisted despite extensive psychological and other mental health interventions, including multiple hospitalisations, psychiatric consultation and recommended pharmacological treatment. He is inconsistent in his use of antidepressant medication, as he does not like to put chemicals in his body, he says.
…
My mental health evaluation suggests ongoing and complex mental health issues for [Mr Pelzer], outlined in detail starting on page 42, below.
Based on collateral accounts and on my evaluation, [Mr Pelzer] fails to take full responsibility for his mental health and his behaviours, and he displays a lack of insight into his antisocial behaviours, often normalising his behaviours and having idiosyncratic self-justification is of these.
[Mr Pelzer]’s mental health difficulties mean he is more prone to emotional dysregulation, impulsivity, feeling easily overwhelmed and to experiencing poor coping, especially at times of stress. Moreover, he places unrealistic expectations on intimate partners to fulfil his needs, and his needs are extensive given his chronic and complex psychological diagnoses (see below).
[Mr Pelzer]’s chronic and substantial mental health difficulties, coupled with his lack of insight will greatly affect his parenting and I greatly affecting his adaptive capabilities, including his interpersonal relations.
…
Based on my full evaluation of [Mr Pelzer], he meets DSM-5-TR diagnostic criteria for the following mental health diagnoses:
•Persistent Depressive Disorder with anxious distress and with persistent major depressive episodes.
[Mr Pelzer] displays a history of depressed mood for most of the day, for many days, spanning more than 2 years, and, indeed, spanning across many years… His depressive symptoms remain in the clinical range, and are having a major and ongoing impact functionally.
•Alcohol Use Disorder – Moderate to Severe
Based on [Mr Pelzer]’s history and based on his accounts, he displays signs and symptoms that are consistent with alcohol use disorder, with a problematic pattern of alcohol use, exacerbated during times of major stress, including drinking large amounts of alcohol and for longer periods than intended, with this impacting on his home, social and possibly work functioning, and despite this further exacerbating his mental and physical health issues. He reportedly displayed alcohol withdrawal symptoms in the past (e.g., during hospital admission in 2015), and he appears to have built up a high tolerance to alcohol. He presently reports drinking two glasses of wine per day.
[Mr Pelzer] is also at risk of poor response to treatment and ongoing alcohol use disorder following treatment based on the above mental health history/diagnoses and based on his personality characteristics/features (reported immediately below), especially family law litigation does not go his way.
•Personality Disorder with Cluster B (antisocial, borderline and narcissistic) features.
As mentioned, [Mr Pelzer] was not particularly forthcoming in relation to his criminal history. [Mr Pelzer] admitted to a small number of these acts, albeit attributing ideocratic self-justifications of these. This may have been due to lack of insight on his behalf and/or a desire to paint himself in a positive light, or a combination of the two. Of concern, if found to be accurate, he also denied being the perpetrator of intimate partner or family violence, both in his relationship with [Ms Kirsch] and in relation to former intimate partners, despite collateral accounts of his alleged controlling and coercive behaviours and alleged physical, financial and emotional abuse, including physical family violence towards his son [Mr H]. He also seemed to downplay any acts of family violence/violence towards intimate partners, his son, and others on his recounts with me and with others such as the Police, and, he did not take responsibility for his actions (based on collateral accounts from health professionals, and my evaluation, as summarised above).
Based on collateral accounts, and based on my evaluation, [Mr Pelzer] shows a pervasive history of instability in his interpersonal relationships, both with intimate partners, as well as friends and acquaintances, and he displays marked impulsivity and affective instability, as well as a sense of entitlement, and transient paranoid ideation when stressed. His relationships have been unstable and intense, later switching between idealising and devaluing these partners, with an expectation that his partners will be there to meet his needs on demand. [Mr Pelzer], at least based on allegations, quickly shifts his views of others and becomes punitive as a reflection of his disillusionment with a partner whose rejection or abandonment is expected, as well as having features of righteous anger of perceived past mistreatment. Affective instability reflects periods of anger, irritability, panic, enduring resentment/bitterness and despair and extreme reactivity to interpersonal stresses. He has a history of recurrent suicidal threats, especially when under stress, impulsivity, apparent unstable self-image, as well as failure to conform to social norms with respect to lawful behaviours, repeated alleged physical fights/assaults, and an apparent lack of remorse.
Based on my evaluation, [Mr Pelzer] meets DSM-5-TR diagnostic criteria for a Personality Disorder with Cluster B (antisocial, borderline and narcissistic) features. I note other professionals have also indicated Cluster B personality traits present in [Mr Pelzer] (e.g., see pages 13 and 14 of my report).
Under the subheading “The prognosis for any mental health condition or impairment”, the Expert stated:
Given [Mr Pelzer]’s limited past response to long-term, intensive psychological (and psychiatric) treatment of his mental health condition(s), alongside his poor insight and his Cluster B personality features, his prognosis is poor. He is likely to have ongoing mental health difficulties and relapses requiring ongoing hospitalisations.
If the outcome of the family law proceedings are not according to his expectations and wishes, then this is likely to further compromise his mental health and destabilise him.
Under the subheading “The nature, intensity and impact of the problem and in particular the impact, if any, upon the Father’s current functioning and parenting capacity”, the Expert stated:
[Mr Pelzer]’s mental health difficulties are chronic, complex and multifaceted, as described above. His mental health conditions are having a major impact on his interpersonal relationships and his adaptive functioning, including his capacity to obtain employment; they are also likely to have a major impact on his parenting capacity and any unsupervised time with [X] would pose an unacceptable risk of harm. This would include psychological harm as well as potential physical harm.
[Mr Pelzer] sees [X] as an extension of himself, and is likely to see [X] as a means to fulfilling his own needs. He has poor insight into the impact of his mental health and behaviours on others, including [X] and has an egotistical view of the world and in his relationships with others, with unrealistic expectations on others (e.g. friends, intimate partners) to fulfil his personal needs. This pattern of behaviour is highly likely to extend to [X].
Under the subheading “What treatment or services are recommended to address any problem”, the expert stated:
[Mr Pelzer] has had ongoing psychological treatment and multiple hospitalisations for his mental health difficulties. He has been prescribed antidepressant medication for many years to assist with his persistent depressive disorder, but he only takes his prescribed medication intermittently, and he has a history of poor compliance with taking his prescribed antidepressant medication. He has access to appropriate services, such as [V Services], to assist with his high risk of homelessness and to enhance community engagement, which is pleasing.
Aside from drug and alcohol counselling for his alcohol misuse, and possibly Dialectical Behaviour Therapy to his personality dysfunction, there are no other treatments I can recommend for [Mr Pelzer] to further assist with his mental health difficulties; I note that aside from psychological and other expensive treatments for his mood disorder and his anxiety, he has received Cognitive Behaviour Therapy (including exposure therapy), to address symptoms of PTSD and anxiety, as well as therapy to address his poor insight, based on the subpoenaed material. I also note other professionals have acknowledged [Mr Pelzer]’s poor commitment to psychological therapy at times, and any benefit of hospitalisations or therapy seem to be short lived and there are collateral accounts that [Mr Pelzer] does not take responsibility for improving his mental health and behaviour. The best option for [Mr Pelzer] is to comply with taking his antidepressant medication, but this is hampered by his lack of insight and his personality vulnerabilities. He has had long-standing therapy to assist with the shortcomings already, seemingly to no or little gain.
The chronic nature of his mental health and antisocial and undesirable behaviour difficulties, his apparent lack of insight into the extent of his mental ill-health and his undesirable behaviours, his apparent failure to take personal responsibility for his mental health and his Cluster B features suggest a poor response is likely to any ongoing mental health treatments. Given this and his mental health history, relapses and further hospitalisations for his mental health seem highly likely, even with any ongoing treatment.
Under the subheading “The willingness of the Father to address any problem”, the Expert stated:
There is a long-standing history, based on collateral accounts, and summarised in detail in this report that suggest poor insight, poor commitment to addressing and taking responsibility for his mental health and behaviour difficulties and, at this late stage, as indicated, his mental health difficulties are likely to persist, even with extensive, ongoing interventions.
Under the subheading “The capacity of the Father to provide for the needs of the child including physical, emotional and intellectual needs”, the Expert stated:
For reasons outlined above, [Mr Pelzer] lacks capacity to understand and provide for the needs of [X], including her physical, emotional and intellectual needs. He is not at a stage where he is able to meet many of his own needs, so he cannot be expected to be able to adequately care for [X] water keep are free from risk of harm, including psychological and physical harm.
Under the subheading “The attitude of the father and the responsibility and duties of parenthood”, the Expert stated:
[Mr Pelzer] no doubt loves his daughter [X], but he lacks insight into parental responsibilities and requirements and the duties of a parent, impacted by his complex and multifaceted mental health conditions.
The Expert gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Expert was asked whether the father’s current interventions of diet, exercise, and a healthy lifestyle, while speaking to a psychologist, equate to managing his mental health, and the Expert stated:
I think it would go some way. Obviously, I haven’t seen [Mr Pelzer] for – I think it’s a bit over a year, so I’m not sure of his current mental health status, but those things will certainly help; but they’re not the strongest evidence-based treatments for the diagnoses that I’ve provided.
A short time later the Expert was asked to clarify the above evidence and she stated:
WITNESS:So there is some emerging evidence – it’s slow – that particularly exercise can reduce anxiety, but it’s nowhere near as effective as medication; cognitive behaviour therapy. So I would be recommending those things, because they will be of some help, and even in combination with other more evidence-based or strong evidence-based treatments. The combination – if, for example, you have pharmacological treatment, if that’s combined with healthy diet (and) exercise, then it’s going to be a greater impact – or a greater improvement than just one of those things on their own.
MS GIACOMO: And if it’s the case, assuming that [Ms J] has discussed with the father during the course of her therapy – sorry, that [Ms J] has recommended during the course of her therapy that the father see GP to discuss antidepressants, so she didn’t give a recommendation with a view to taking them, but to discuss them. If the father hadn’t taken that on board, would that give you some concern that those things that you had identified about his insight into his mental health and what might improve it, do some of those features still remain?
WITNESS:Yes, I would say so.
MS GIACOMO: And also the evidence about doing his own research with some members of the church, some of whom happened to be nurses, about the side effects of antidepressants, that would also give you some concern – assuming that’s true, that would also give you some concern, wouldn’t it, about, again, his insight into his mental health and how it should be treated?
WITNESS:Yes, and into who should be treating, and who has the expertise to provide advice.
The Expert stated that her suggestion would be that the father would at least consult with a psychiatrist about his currently not taking his antidepressant medication, stating that while she was not a psychiatrist one of the strongest evidence-based treatments (for depression) would be medication.
Having been apprised of certain oral evidence given by the father and his counsellor, the Expert stated that she still thought the prognosis for the father remained the same, namely still reasonably poor.
The Expert stated that, the father having significant needs of his own presently, it would be difficult for the father to take into account or care for the child’s psychological needs.
The Expert stated that the father should undertake Dialectical Behavioural Therapy (DBT) for a minimum of one year. In this context, the Expert stated that this should also take into account the father’s treating psychologist’s recommendations, in terms of length and frequency. The expert stated that the father required intensive DBT for him to gain stability into his personality dysfunction and further insight into some of those behaviours, and into his own self.
As to the father’s decision not to take antidepressant medication, this evidence was given by the Expert:
MR GABRIAL: Would it be likely, in your opinion, Professor, that given the non-compliance of the father in taking your recommendation, specifically antidepressant use, that he will have likely ongoing hospitalisations in the future?
WITNESS:I think that that is a definite possibility, and it may well have been, even if he was taking medications; if he wasn’t fully compliant with those, and/or depending on how effective they are for him, which can vary for different people. But as mentioned, if you go on and off antidepressants, the efficacy of them can change, and even if you stay on them over time, they can become less effective.
The Expert confirmed that if the father does not accept that he has a personality disorder, or that there are features of his personality that he needs assistance with, it was unlikely that DBT was going to be successful.
The Expert stated that the father’s diet, his exercise, and reducing if not ceasing his alcohol intake, were not sufficient to treat a personality disorder.
The Expert gave this evidence in relation to the father maintaining sobriety in relation to his alcohol use disorder:
MS GIACOMO: And in relation to alcohol use, assuming that he has ceased alcohol, you would agree, wouldn’t you, that in order to maintain sobriety, he’s probably going to need quite a bit of assistance in the upcoming years, particularly around times – events that he finds stressful?
WITNESS:Yes, absolutely. One identified trigger, which I believe [Mr Pelzer] identified himself, was when things were stressful he would turn to alcohol. So that would definitely be a time where he would be most vulnerable, would be when he was under stress.
The Expert was asked questions in relation to the content of the father’s treating counsellor’s letter dated 18 February 2025 and this evidence was given:
MR JACKSON: And that letter – there’s a reference, I think, that the father has been seeing her for three and a half years; he sees her monthly. And there’s a reference in that letter to him managing his symptoms; that he’s making some progress. Does that give you some confidence that the father is taking some responsibilities for his mental health?
WITNESS:As I say, I’m probably not the best person to ask. It’s about whether he’s engaging in therapy; following through on recommendations. It’s good that he’s going to therapy, and I’m sure that these proceedings would be a big motivating factor as well for him to get his mental health on track. But it’s difficult for me to know how much he’s actually engaging; but he’s turning up, and it seems like is not turning up late, as I believe was in the past – was an issue, which hasn’t been mentioned here. So they’re all positives.
The Expert was questioned in relation to the comments in her report that the father sees the child as an extension of himself, that he has likely seen the child as a means of fulfilling his own needs, and he has poor insight into the impact of his mental health and behaviour on others, and the following evidence was given:
MR JACKSON: And my instructions are that what he said to you during the course of the interview was that he said, words to the effect, “Being apart from [X] was like having his arm chopped off.” Do you remember him saying something like that?
WITNESS:Yes, I think I recall that.
MR JACKSON: Is that how you interpret, then, that statement as meaning that he saw [X] as an extension of himself?
WITNESS:No. So it’s more about that he will mainly see his needs over and above [X]’s needs, and I guess it’s about the egocentrism and that sort of thing, not about the – you know, he was expressing that he was feeling pain in relation to not seeing his daughter, which is just a way of expressing that, which would be a normal…
MR JACKSON: And you accept that those words were an expression of anguish by him?
WITNESS:Yes, absolutely. So that’s not what that comment relates to.
The Court accepts the evidence of the Expert subject to any view of the Court to the contrary, whether express or implied, as discussed below in relation to s 60CC.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act which are to ensure that the best interests of a child are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
The Court must have regard to the factors outlined in section 60CC of the Act before determining what is in the child’s best interests. The matters to consider are set out in subsection (2) of section 60CC and, if the child is an Aboriginal or Torres Strait Islander child, the Court must have regard to the matters set out in subsection (3).
The Court, or any other person cannot require the child to express his or her views in relation to any matter: section 60CE. Although, the Court can have regard to any views that are expressed by a child where such views are contained in a report given to the court: section 60CD(2)(a).
When making a parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child the Court may provide for joint or sole decision-making in relation to all or specified major long-term issues: section 61D(3).
The Court has to consider each statutory matter in section 60CC, even if express discussion is not necessary (Jollie & Dysart [2014] FamCAFC 149 at [49]; Banks & Banks (2015) FLC 93-637 at [49]; Tibb v Sheean (2018) 58 Fam LR 351 at [83]–[85]). Accordingly, the Court will discuss each factor to the extent necessary, having regard to all considerations.
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The Court will consider the above considerations together.
Family violence and conflict
The mother makes allegations against the father of family violence during their relationship including coercive and controlling family violence. The father significantly denies many of these allegations (see for example, paragraph 58 of his affidavit filed 10 February 2025), albeit admitting certain instances of family violence. Again, the parties had a relationship of about nine years from 2010 to about October 2019. The mother has been the child’s primary carer her whole life. The child has been solely living with and cared for by the mother since October 2019.
On the balance of probabilities, the Court accepts the mother’s allegations of family violence, including coercive and controlling family violence, made against the father. In relation to this finding, the Court takes into account the following matters:
(a)The mother presented as a convincing and honest witness who was not shaken in cross-examination as to her allegations of family violence against the father. Her affidavit evidence relating to family violence assertions was detailed and usually provided relevant particularisation;
(b)The father, in cross-examination, presented as a poor historian; he had a poor memory for many specific past events.
(c)The father admitted to the Family Report writer (paragraph 29) that he had abused the mother and had been violent towards her; in this context, the father had referred to an incident in October 2019 when he had lost control, become angry and screamed at the mother, had grabbed her by the arms and shook her “so that she would understand what he was saying”. Further in this context, the father had told the Family Report writer that he should never have taken antidepressants and mixed them with alcohol (and in relation to alcohol he stated that he was drinking a bottle of vodka a day).
(d)In the father’s trial affidavit, he stated that:
(i)During his relationship with the mother, she didn’t seem to understand or empathise with his depression, and he felt like she did not offer him any meaningful emotional support and this made him feel resentful towards her.
(ii)From time to time, he and the mother fought. He stated that these fights were mostly about the mother not providing him with any emotional support and not appreciating all the things he did for her.
(iii)That he is from Country B and can be quite fiery and passionate, whereas the mother was quite reserved and not very expressive.
(iv)When things got really tense between himself and the mother, he would leave the house and sometimes stay away for a few days to give the parties both time to cool down.
(v)On a few occasions he reacted by throwing items, and he admitted that he broke the mother’s laptop twice, once in City W, and once during an argument in October 2019. He also broke her mobile phone during an argument in early 2015.
(vi)In about October 2019 he started to struggle with his mental health again. He stated he tried to talk to the mother about this, but she could not seem to show sympathy or acknowledge his grief or depression or even look him in the eye.
(vii)In October 2019 during an argument the father thought it best if the mother would leave the apartment with the child so that they could both calm down. He grabbed the pram and pushed it towards the mother. He stated that he likely pushed the mother to indicate to her that she should leave, and as a result the mother fell back over a pot plant and scraped her elbow.
(viii)Two days later the father threw the mother’s laptop across the room after the mother did not respond to his apology for his behaviour two days earlier. When the police arrived, the father had a knife next to him because he was contemplating suicide. The police took him to hospital where he stayed for about four weeks, with the latter two weeks being on a voluntary basis.
(ix)In about mid-2020 in the Local Court, in relation to the events of October 2019, the offence of destroy or damage property was amended to destroy or damage property (DV) and under the Mental Health Act NSW he was discharged into care conditionally. Similarly, in relation to the charge of assault occasioning actual bodily harm he was discharged into care conditionally. A final ADVO was made on this date for the protection of the mother.
(x)The parties often argued when he was spending time with the child and the mother post-separation. He stated that if they went to a café or a restaurant he would always pay for the mother and the child and he sometimes got in a bad mood because of the financial strain it caused him. He stated that it also felt like the mother was controlling him and preventing him from having a chance for a proper relationship with the child.
(xi)Because of his anxiety disorder, if the mother was out with friends or doing the shopping and didn’t return his call, he would start to worry that something terrible had happened to her. He stated that he would get so worried that when he finally did speak to the mother or see the mother, he would be angry with the mother causing him such worry.
(e)In 1996, police records refer to the father having grabbed his former partner Ms P’s hair and slapped her head and face a number of times. During the incident the father’s former partner was holding their baby. The father was interviewed by the police and made admissions that he grabbed his former partner’s hair and slapped her on the back of the head. The father was convicted of an offence against Ms P and was fined, and an AVO was made for her protection.
(f)In 1999, the father’s former partner Ms P reported to police that throughout their relationship there were incidents of abuse and violence where the father, inter alia, kicked her, and subjected her to emotional and verbal abuse. She related to the police that in late 1999, the father had attended her house to see their son Mr H, and the father was angry and upset and during an incident the father kicked her leg. She related that the father had pulled her hair.
(g)In mid-2015, police records refer to the father having been arrested and charged with criminal offences. The police facts sheet refers to an incident on this day arising out of a phone call that a third party made to the father requesting that the father move his car. The father is recorded as having become very aggressive and having verbally threatened the third party. A short time later the father confronted the third party and threatened him with physical violence. At one point the father lunged forward towards the third party. The third party asked the father to leave. The father then threatened to stab the third party and produced a knife from his right back pocket and held a knife out and brandished it in front of him. The third party felt scared and intimidated. A witness called 000. The third party observed the father to scratch the bonnet of his car with the knife. A short time later police arrived and contacted the father on his mobile. The father stated he was depressed and was going to self-harm. The father was arrested and when asked where the knife was the father stated that he threw it away, apologised saying he knew he was wrong, and stated he was just so depressed.
The ambulance report for that day refers, inter alia, to the father stating that he had had an emotional week, with the death of a family member and “has had a brain snap today”. The father stated that he was being abused by someone and got a knife and there had been an altercation. The father had then stated he was having suicidal thoughts. The father stated he had been on antidepressants and was taken off these antidepressants about three months ago. The father stated that he woke up feeling down this morning and took two antidepressants and three half glasses of vodka.
(h)In late 2015, police records indicate that the police attended the father’s residence following the father making a phone call to medical services stating that he wanted to end his life. The mother told police that she had received phone calls from the father throughout the day expressing how depressed he was and continuing to apologise to her about his behaviour. The father was admitted to hospital the same day and discharged three days later; the discharge summary/referral refers, inter alia, to the father seeing a psychologist Ms U in Suburb Y since 2007, the father being unemployed and seeking help for low mood and feeling overwhelmed by psychosocial stressors on a background of depression for which he sees a psychologist monthly and is unmedicated. The summary refers to the father showing some alcohol withdrawal symptoms with the father stating he had been drinking to help him sleep.
(i)In early 2016, police records refer to the father’s son Mr H informing police that at 7.00pm on this day the father, at the dinner table, had attempted to choke him with his hands around his throat and had hit him over the back of his head after a verbal argument. He had told the police he was scared. The father participated in an ERISP and admitted having a verbal argument with Mr H over eating dinner and had smacked him over the back of the head, before pulling his hair backwards and then pushing his head forwards causing Mr H to fall forwards while seated at the table. The ERISP records the father telling police, inter alia, that he had lost control and had grabbed his son by the hair and hit him in the back of the head. The father stated that he remembers grabbing his son’s neck from the back and he thought he squeezed it. The father stated he just grabbed his son by the neck and pushed it forward to the food. The police had applied for an interim AVO against the father for the protection of Mr H which was issued the following day. A final ADVO was made in late 2016. The father was convicted of assaulting Mr H and he was placed on a bond.
(j)The mother states at paragraph 75 of her affidavit filed 28 January 2025 that in early 2018 the father physically assaulted her. She states that the father went missing for two days after the incident during this period they exchanged text messages. The text messages are Exhibit F to her affidavit and which state, inter alia:
MOTHER:I am sorry you see it this way… it’s not about money… but about NO violence… i am sorry… but i can’t get past that… and don’t understand how you can think that it is ok.
FATHER:I asking you for help…u don’t help me… and u talk about money… and then the violence comes in that order…u frustrating me…because u show me money is important that me all my life… Simple.
(k)A police record from early 2021 records the father attending a real estate agent’s office in an aggressive manner after the father had been informed by the agency that his rental agreement has been terminated. The father had expressed a desire to kill himself. The police had scheduled the father and he was voluntarily conveyed by ambulance to hospital. In oral evidence, the father admitted that he had had an argument with someone at the real estate agency on that day.
(l)A police record from early 2021 records the father was verbally aggressive with his welfare service caller after the latter had advised the father he would not be able to visit the child today. The father admitted to the police that he was angry after this conversation.
(m)In early 2022, the father’s former partner Ms P is recorded as having told the police that their son Mr H no longer wanted contact with the father “who has been the cause of many of his psychological breakdowns due to historic domestic violence incidents.”
Further, and importantly in this case, the Court finds that should the Court order that the child spend supervised time with the father the mother’s parenting capacity will be adversely impacted by such order. In particular, the mother will likely experience significant anxiety to which the child will be exposed with resultant negative affects upon the child. The mother’s own personal experience of experiencing significant anxiety will likely adversely impact her ability to remain attentive to the child’s needs, in particular the child’s emotional needs. And further, the mother’s significant anxiety will militate against her being able to facilitate any order for supervision. The mother’s anxiety will arise by reason of her fear of the father and her related concerns that the child, herself and her partner will be harmed by the father. Accordingly, the Court is of the view that such adverse impact upon the mother’s parenting capacity will result in the child being exposed to an unacceptable risk of harm. The Court now sets out its reasons in this regard.
The Family Report writer was questioned as to the implications on the mother’s parenting capacity if the court permits the father to spend monthly supervised time with the child and this evidence was given:
MR GABRIAL: If the court allows the father to spend monthly supervised time with [X], in your opinion, [Ms E], what are the implications on the mother’s parenting capacity which could occur in that circumstance?
WITNESS:Well, the – the – probably the main one is the heightened anxiety that is likely to occur, and it’s likely to occur month to month. So as the – as the time progresses towards the next one, it’s likely that the mother will become more anxious. Now, I – I recognise that supervised contact is a safe space, but I think I mentioned in my report, that can’t go on forever, and then you – then you have the – the very real difficulties of handling (sic handing) over a child.
…
MR GABRIAL: And a similar question, [Ms E], in your opinion, is a contact centre a safe space to protect [X] from psychological harm?
WITNESS:As far as is possible, but it still won’t protect her from her mother’s anxieties.
The Court assesses that there are real risks that the child will suffer emotional harm if spending supervised time with the father because, inter alia, she will be exposed to the mother’s fears and related anxieties of the father. In this context the Family Report writer had stated in the Family Report:
60.For [X], there are risks associated with spending time with a parent of whom the other parent is fearful. Children tend to internalise adult emotions, however, lack the capacity to rationalise these, so that she will likely associate [Mr Pelzer] with feelings of anxiety and distress, even if [Ms Kirsch] attempts to minimise [X]’s exposure to her feelings. [Mr Pelzer]’s proposal that supervised contact be instituted, while possibly alleviating some of [Ms Kirsch]’s anxieties, can only be seen as a short-term measure. Long-term supervised contact between a parent and child is neither possible from a practical point of view, nor desirable from an emotional or psychological perspective. If [X] were to see [Mr Pelzer] under supervision, she may form the view that he cannot be trusted and is only a safe person within the bounds of supervision. This, combined with [X]’s likely discernment of [Ms Kirsch]’s feelings, is likely to lead to fears and negative perceptions on [X]’s part, which may undermine her resilience and ability to form healthy, robust relationships.
The Court accepts the mother’s evidence that she remains fearful of the father; inter alia, she has concerns for her safety arising from the father’s mental health and perpetration of family violence, she is terrified that the father will discover where she lives and will take steps to stalk her, the child or her partner, and that she is terrified that the father will take the opportunity to harm either the child, her partner or herself if he discovers where they live.
The Court refers to the evidence of the Family Report writer that the mother’s obvious fear of the father and her anxiety about the child having a relationship with him will make it extremely difficult for her to facilitate contact between the child and the father. Again, the Family Report writer had stated that if supervised time was ordered on a monthly basis the mother would experience heightened anxiety month-to-month and that as time progresses towards the next supervised visit it was likely that the mother would become more anxious. The Family Report writer stated that whilst a contact centre was a safe space to protect the child from psychological harm “as far as is possible”, it still would not protect the child from the mother’s anxieties. The Family Report writer, in this context of the mother’s anxieties, was asked whether she agreed that the mother would need support if the Court was to order supervised contact, to which she replied, “Very definitely, yes.”
The mother is firmly of the of the view that the father is not a safe person for the child to spend time with, including if spending time with the child supervised at a contact centre. Whilst the father’s behaviour may well be able to be monitored and managed appropriately within the confines of supervision at a contact centre, the Court nevertheless considers that the mother’s concerns relating to the child spending even supervised time with the father are genuinely held by her and rationally based having regard to the perpetration of family violence and other adverse behaviour by the father towards her both during and after the cessation of their relationship, together with her experience and knowledge of the father’s adverse behaviour against others.
In oral evidence, the mother stated that she did not believe that the father would have the capacity to have a relationship with the child through spending supervised time with him for two hours fortnightly until she reached 12 years. She explained that she held this belief because of the emotional abuse that the father could do, even if time was supervised. She stated that she is worried that the father would perpetrate emotional abuse upon the child, and she stated that she would not be there to protect the child.
The mother does not believe that the father’s asserted treatment for his mental health and alcohol issue has removed the risks of harm she believes he poses to the child and her family.
For example, in oral evidence, the mother stated that she did not believe the father has changed. She stated that possibly if the father did very long therapy for many years (he might change); she stated that it takes a long time to get better when you have mental health issues.
Further in oral evidence, the mother was asked whether the father’s statement to the Family Report writer that he had ceased alcohol consumption gave her any confidence. The mother responded in the negative. The mother stated that she did not recall the father ever looking drunk and stated that it might be that the father has a high tolerance to alcohol.
Further, in oral evidence, the mother was asked whether the letter from the father’s counsellor Ms J caused her any concern. The mother stated, inter alia, her belief that counsellors, if they are told that the patient has done exercises, will believe them.
The Court accepts the mother’s evidence that she has been seriously negatively impacted by the father’s family violence and other adverse conduct over a significant period of time, and has experienced significant emotional harm. The Court accepts the mother’s evidence relating to her mental health as set out in her affidavit filed 28 January 2025 (see, in particular, paragraphs 193 to 205 of her affidavit filed 28 January 2025); for example, the mother gave this evidence at paragraphs 200, 201, 204, 205 of her affidavit:
200.I have had recurring nightmares that the Respondent would kidnap [X] in a range of different scenarios. I have found myself disassociating when there are triggers. I believe that if the Court determines that the Orders I am seeking should be made, then my mental health issues will de-escalate. I am worried that my mental health will significantly decline if the Court order time between the Respondent and [X].
201. When I consider the possibility that the Court may order time between [X] and the Respondent, even supervised time, I become incredibly anxious that the Respondent will have the opportunity to harm [X] ….I have found myself at times, feeling hypervigilant and worried to the point that I cannot sleep when I consider the prospect of [X] and the Respondent spending time together.
…
204. If the Court order time, even supervised time, between [X] and the Respondent, I would find it incredibly difficult to comply with the order. I am very fearful of the Respondent. I am fearful for [X] safety, my safety and [Mr D]’s safety if the Respondent was to spend time, even supervised time with [X].
205. I am worried that I would not have the mental fortitude and capacity to accompany [X] to contact with the Respondent as I would be terrified that the Respondent would harm me or stalk me after the time concludes.
The Court accepts the mother’s evidence, inter alia, that post separation she has experienced nightmares, sleeping difficulties, and flashbacks of previous physical violence. As to the mother’s nightmares, the Court refers to the supporting evidence of her partner, Mr D, which it accepts, wherein he refers to the mother explaining her nightmares (“He is in my nightmares taking [X]. He is kidnapping her, and I am helpless and I can’t stop him”).
The Court accepts the mother’s evidence that she was 25 when she first met the father and that the abuse she experienced from the father was so severe that she does not know if she will ever recover. The Court accepts that the mother has been in therapy for the last five years. The Court accepts the mother’s evidence that she believes that she will “need a lot more years to feel okay again.”
The Court accepts the mother’s evidence that she does not know if she will cope with a decision of the Court ordering supervised time and that such an order might impact her parenting.
Should the Court order supervised time as proposed by the father, the Court would assess that there is a real risk that the mother’s post-separation adverse symptomatology, described above, such as nightmares, sleeping difficulties, and flashbacks of previous physical violence will continue and not abate with resultant impact upon her parenting capacity.
The father submitted that the mother’s asserted fears, anxieties and concerns in relation to the father are diminished when one considers that post separation the mother made the child available to see the father, albeit in the mother’s presence. This submission is not accepted because the Court accepts the mother’s evidence, inter alia, that she continued to facilitate the child seeing the father post separation even though she felt frightened of him; the Court accepts the mother’s evidence that she was under the mistaken belief that she had to allow the father to see the child as he was the child’s father even as she had fears about doing so. In this context, the Court refers to the mother’s affidavit evidence relating to the father’s family violence and other adverse conduct perpetrated against her post-separation. Further, the Court refers to the mother’s oral evidence relating to meeting the father in September 2020 with the child; the mother had stated, inter alia, that she thought she would be able to somehow manage the visit if she supervised contact. She stated that at the beginning she did not realise that she was being abused even though it was occurring in public places and it was not physical abuse. She stated that the more she got abused and screamed at she wrote notes. She asked some friends to be with her to help with the contact visits without success. She had told the author of the Child Impact Report that she had become increasingly aware of the extent of the father’s emotional and psychological abuse of her after the end of their relationship.
The Court recognises that the making of a no time order in this case is a very serious matter because it deprives the child of developing a relationship with the father. The Court refers to the evidence of the Family Report writer in this context, including her evidence that the advantages for the child spending time with the father would be her knowledge of her biological father and background, as well as her experience of the undoubted love the father feels towards her. Such advantages would also include the lessening of the possibility that the child might develop negative views of the father if spending no time with him. The Court has not overlooked the evidence of the Family Report writer that a no time order may carry risks for the child, such as the experience of later grief in losing a parent.
However, unfortunately this is a case where the disadvantages affecting the child, if a supervised time order is made, significantly outweigh the advantages to the child of such an order. The disadvantages include the child being exposed to the mother’s significant fears of the father including her stress and anxiety in relation to the child spending supervised time with the father, the mother’s parenting capacity for the child being adversely affected through her experiencing such stress and anxiety, and the child developing a view of the father that he is unsafe because her time with the father is spent at a contact centre and by reason of exposure to the mother’s fears of the father. These disadvantages carry the real risk that the child will experience emotional harm. Again, the Court refers to the evidence of the Family Report writer which are consistent with these views of the Court.
Cards and gifts
The Family Report writer had recommended, having stated that the child spend no time with the father, that the father be permitted to send cards and gifts at Christmas and on the child’s birthday via a postal address designated by the mother, but that the mother be permitted to review any correspondence and not provide it to the child if she considers it to be inappropriate in any way. In oral evidence, the Family Report writer stated, having made this recommendation in her Family Report, she was not necessarily wedded to the idea of such gifts and cards. She recognised that the mother, unsurprisingly, held a view that the father would use the opportunity to write cards and send gifts in an inappropriate way that was damaging to her.
Not without some hesitation, by reason of the likely anxiety the mother will experience in dealing with any cards or gifts the father might send for the child, in the view of the Court, the father should be permitted to send such cards and gifts but only twice each year, at Christmas and on the child’s birthday. The Court recognises that the child’s receipt of such cards and gifts may assist in the child in appreciating that she does have a biological father who loves her, and experiencing some connection with her paternal heritage.
(2)(b) any views expressed by the child;
The child is too young to express a relevant view.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the evidence of the Family Report writer in this context.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
As to the mother, she has such capacities. She has been parenting the child most satisfactorily. She has been having counselling for her mental health which she has found to be extremely helpful for her.
As to the father, he lacks such capacities and the Court refers to its above discussions under the s 60CC safety consideration.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
The child has a meaningful relationship with the mother. The child will benefit from a continuance of that relationship.
As to the father, the child has no present relationship with him. The child last spent time with the father, supervised by the mother, in March 2021, some four years ago.
The Court refers to its above discussions under the s 60CC safety consideration. It is possible that the child may benefit from developing a relationship with the father if the father was to at least develop adequate insight into the family violence perpetrated by him against the mother and its adverse effect upon the mother and indirectly the child, and if he was to adequately acknowledge and address his serious mental health issues.
(2)(f) anything else that is relevant to the particular circumstances of the child.
It is appropriate to deal with the mother’s proposed orders for change of name of the child. This is opposed by the father. The mother seeks to change the child’s name from “X Pelzer” to “X Kirsch”. The Court accepts the mother’s evidence relating to change of name as set out in her Affidavit filed 28 January 2025. Inter alia, the Court accepts the mother’s evidence that the child has been saying that her name was “X Kirsch” for a significant period of time, the child only recognises her last name to be “Kirsch”, and the child is known as “X Kirsch” in her extracurricular schools. The mother’s proposed change of name for the child will also be in the child’s best interest because the child has no relationship with the father and will not spend time with him, whereas the child lives with the mother who has been the child’s primary carer from birth to date, and the mother has sole parental responsibility for the child.
The mother’s proposed international travel orders relating to the child will be in the best interests of the child because the child is living with the mother and the mother holds sole parental responsibility for her, and the child has no relationship with the father and will not spend time with him. The mother’s extended family live in Country M and she wishes to again take the child with her to that country to visit her family there. The child already has a strong relationship with the mother’s family with whom she speaks regularly.
Evaluating the above discussed considerations under s 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following final parenting orders:
1.The child X Kirsch, born in 2019 (“the child”) spend no time with the father.
2.The child have no communication with the father, subject to Orders 3 to 5 below.
3.The father shall be permitted to send the child cards and gifts on the child’s birthday and at Christmas each year.
4.For the purposes of Order 3 above, the mother shall within 14 days of these Orders, provide an address including any PO Box for the father to send any cards and gifts.
5.For the purposes of Order 3 above, the mother shall provide to the child any cards and gifts sent by the father, however she shall be permitted to review any cards and gifts from the father and not provide them to the child if she considers them to be inappropriate in any way.
6.The mother is permitted to apply for an Australian passport for the child under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005.
7.The mother shall be permitted by these Orders to do all acts and things and sign all documents necessary to apply for a passport for the child pursuant to Order 6 herein and including any subsequent renewal of a passport for the child and the father's consent to the issue of the said passport be dispensed with.
8.Pursuant to s 65Y(2), the mother be permitted to travel with the child out of the Commonwealth of Australia without the knowledge and consent of the father.
9.The mother forthwith do all things and sign all documents necessary to cause a change of the surname or family name of the child from "X Pelzer " to "X Kirsch" and otherwise do all things to ensure that the child use that new family/surname both formally and informally.
10.The mother be permitted to complete and submit the form titled "Application to register a change of name for a child (under 18)" as sole applicant and the father's consent to the change of name is dispensed with and that the Mother be authorised to apply to the Registrar Births, Deaths and Marriages that the child registered as X PELZER, born in 2019 now be registered as X KIRSCH, born in 2019.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 6 March 2025
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