Morling and Cassel

FAMILY COURT OF AUSTRALIA

MORLING & CASSEL

[2017] FamCA 1101

FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where the father seeks that he spend significant and substantial time with the child, aged six – Where the father currently spends fortnightly supervised time with the child – Where the mother alleges significant family violence perpetrated on her by the father – Where the father has a history of excessive alcohol consumption – Where the mother is fearful of the child spending unsupervised time with the father – Section 60CC factors – Where the independent evidence indicates that the father and child have a strong bond – Consideration of whether the father spending time with the child would adversely impact on the mother such that it would affect her capacity to parent the child – Where the mother suffers from anxiety – Where the single expert’s opinion was that the mother would cope with the father spending increased time with the mother if certain safeguards were established – Orders made for the child to spend time with the father in a graduating arrangement commencing with supervised time and eventuating in the child spending unsupervised alternate weekends with the father and half of school holidays.

Family Law Act 1975 (Cth) ss 60CA, 60CC, s 60CG, 60B, 61DA, 65DAA

APPLICANT:

Mr Morling

RESPONDENT:

Ms Cassel

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Parramatta

FILE NUMBER:

PAC

2172

2014

DATE DELIVERED:

20 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

8, 9, 10, 11, 12 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Crowther Sim Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd

SOLICITOR FOR THE RESPONDENT:

Champion Legal

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER :

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER :

Legal Aid NSW Parramatta

Orders

The mother shall have sole parental responsibility for the child B born … 2011 (hereinafter “the child”).
Each parent shall have the day-to-day responsibility for the child whilst the child is in their care.
That the child shall live with the mother.
That the child shall spend time with the father as follows:
a.    During School terms:
i.Commencing on the first Saturday of Term 1 of 2018 and up to and including 24 March 2018, from 10.00 a.m. to 2.00 p.m. each alternate Saturday, with such time to be supervised by the M Group and the parties shall bear the cost of such supervision equally.
ii.On 31 March 2018 and each alternate Saturday thereafter from 10.00 a.m. to 2.00 p.m., with such time to be supervised by Ms D, Ms C or any other person as agreed between the parents in writing, with such time to continue for a period of three months. Prior to any supervision being undertaken by Ms D, Ms C or another person, that person is to sign the “Acknowledgment” as set out in Schedule 1 to these orders and the father is to cause a copy of same to be provided to the mother’s solicitor and the Independent Children's Lawyer prior to time commencing in accordance with this order.
iii.As and from 30 June 2018, each alternate Saturday from 10am to 4pm, such time to be supervised by either Ms D or Ms C or any other person as agreed between the parents in writing.
iv.As and from 1 November 2018, each alternate weekend from 10.00 a.m. Saturday to 4.00 p.m. Sunday, such time to be supervised by Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
v.As and from the commencement of the 2020 school year, each alternate weekend from the conclusion of school Friday to the commencement of school Monday, the first weekend to commence in the first weekend of each school term.
b.    During School holidays:
i.In the 2017 Christmas school holiday period, commencing on 6 January 2018 from 10.00 a.m. to 2.00 p.m. each alternate Saturday, with such time to be supervised by the M Group and the parties shall bear the cost of such supervision equally.
ii.Commencing in the Term 2 2018 school holidays and for each short school holiday period for 2018, for three consecutive days from 10.00 a.m. to 4.00 p.m. in the first half of each short school holiday period. The days are to be nominated by the father no later than four weeks before the commencement of each of the short holiday periods. Such time to be supervised by Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
iii.In the second half of the Term 4 school holidays in 2018 the father to have three groups of three nights, each group of nights not to run consecutively and to be as nominated by the father no later than six weeks before the school holiday period commences. Each group of nights is to commence at 5.00 p.m. on the first day and conclude at 12.00 p.m. on the fourth day. Such time to be supervised by Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
iv.Commencing in the Term 1 school holidays in 2019 and for each of the short school holidays in 2019, one period of three nights to be as nominated by the father no later than three weeks before the school holiday period commences, such time to commence at 5 pm on the first day and conclude at 12.00 p.m. on the fourth day. Such time may be supervised by either Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
v.In the Term 4 school holidays of the 2019 school year, for one week during the first half of the school holidays and for one week in the second half of the school holidays, such weeks not to run consecutively. The father is to nominate the weeks he will have with B no later than eight weeks before the school holiday period commences. Such time is to be supervised by Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
vi.Commencing in the Term 1 school holidays in 2020 and for each of the short school holidays in 2020, one period of three nights to be as nominated by the father no later than three weeks before the school holiday period commences, such time to commence at 5 pm on the first day and conclude at 12.00 p.m. on the fourth day.
vii.In the Term 4 school holidays of the 2020 school year, for one week during the first half of the school holidays and for one week in the second half of the school holidays, such weeks not to run consecutively. The father is to nominate the weeks he will have with B no later than eight weeks before the school holiday period commences.
viii.Upon B commencing the 2021 school year, for half of all school holiday periods as agreed between the parents and failing agreement with the father for the first half of all school holiday periods in years ending in an odd number and for the second half of all school holiday periods ending in an even number.
ix.During special occasions as follows:
1.In the event the child is not ordinarily spending time with the father, from 10.00 a.m. to 4.00 p.m. Father’s Day, such time to be supervised in 2018 and 2019 by Ms D and/or Ms C and/or any other person as agreed between the parents in writing .
2.Until such time as the child commences overnight time with the father, from 10.00 a.m. Christmas Day to 4.00 p.m. Christmas Day.
3.Upon overnight time commencing, from 2pm Christmas Eve to 10am Christmas Day in years ending in an odd number and from 10.00 a.m. Christmas Day until 6.00 p.m. Boxing Day in years ending in an even number.
4.From after school until 6.00 p.m. on B’s birthday if she is not otherwise with the father by operation of another order made herein from after school (or 3.00 p.m.) until 6.00 p.m. Such time to be supervised in 2018 and 2019 by Ms D and/or Ms C and/or any other person as agreed between the parents in writing.
5.That in the event that the child is not ordinarily in the care of the mother on Mother’s Day, the father’s time with the child shall conclude at 10.00 a.m. on Mother’s Day.
5.    All changeovers shall occur at B’s school unless that changeover does not coincide with the commencement or conclusion of school. Otherwise changeover shall occur as agreed between the parents and failing agreement as follows:
a.    Until such time as the child commences overnight time in the father’s household in accordance with these orders, changeovers are to be facilitated by the M Group. The cost of such changeovers is to be shared equally by the parties.
b.    Once the child commences overnight time with the father, the changeovers which do not occur at school are to take place at McDonalds Suburb E unless the parties agree to an alternate site in writing.
6.    As and from the commencement of the 2020 school year B is to have reasonable telephone contact with each parent while she is in the care of the other should she request same. Neither parent is to impose upon B an obligation to telephone them whilst in the other’s care.
7.    The father shall be and is hereby restrained from consuming alcohol for 24 hours prior to spending time with B, or during the period of spending time with B.
8.    That the father shall be and is hereby restrained from allowing B to use rope in any form of play.
9.    That both parents shall be and are hereby restrained from using, or permitting any person to use any form of physical chastisement in respect of B.
10. That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of B.
11. That in the event of B suffering a medical emergency requiring medical attention while in the care of either parent:
a.    The other parent is to be notified as soon as practicable.
b.   The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable.
c.    The medical practitioner or facility is to be advised that both parents have access to the children’s medical records and that information relating to the child or children is to be shared with the other parent upon request.
12. That the mother shall give all consents, sign all documents and do all things necessary to ensure that the Father can obtain the following from B’s pre‑school/daycare/ school(s)/ after school care(s) at his own cost:
a.    A copy of all school reports, progress reports and photo order forms.
b.   Notification for activities that he may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend.
c.    Notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events NOTING THAT this order does not require the parents to attend the same interview.
d.   In the event of the child being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.
13. Unless the mother specifically notifies the father in writing, permitting him to attend a school based activity for B, the father is not to attend any school based function for B until the commencement of the 2019 school year.
14. In the event of B requesting the mother that her father attend a particular school function or event of hers in 2018 the mother is to cause the father to be notified that he may attend that function/event.
15. Within seven days of the date of these orders, the mother shall ensure that the father is listed at the child’s school as the father of the child and contact details provided to facilitate the Father being contacted by the school in the case of emergency.
16. The mother shall keep the father informed of the following:
a.    Any specialist medical appointment or hospitalization of B and the contact details of that specialist or hospital;
b.   Any medication prescribed for B and the administration of it; and
c.    The name and address of any school attended by B and any change to those details.
17. In the event of B being hospitalised the father is permitted to visit her as the hospital authorities request or permit.
18. Each parent shall inform the other, in writing, within 7 days of these orders being made of their contact mobile telephone number, email address and residential address and shall advise one another within 48 hours in writing should there be any change to said contact details NOTING THAT this order does not authorise either parent to personally attend, or cause any other person to attend, the other parent’s place of residence unless otherwise invited by the other parent or a member of the household.
19. That the parents are to communicate in relation to matters which are necessary to facilitate these orders:
a.    For all non-urgent matters, in a communication book that is to travel with the child, with the mother to purchase the first communication book and for that book to be placed in a bag that is to travel with the child from her first visit with the father hereafter, or via an email address nominated by the parents.
b.   The communication book is restricted to communications relating to the child.
c.    For all urgent matters, being those that require a response within 48 hours, in the first instance by text message.
20.    It is a condition of the time the father spends with B from the date of these orders until the end of 2019 that the father continue to attend upon Dr P or any person recommended by Dr P to support the father in continuing to address his health in relation to alcohol abuse. The father is to authorise Dr P to report to the Independent Children's Lawyer on any occasion between the date of these orders and the end of 2019 if the father is not attending upon him at the intervals or frequencies he has recommended or fails to attend upon any practitioner Dr P has referred the father to during that period.
21.    The Independent Children's Lawyer is to cause a copy of the orders made herein to be provided to Dr P by ordinary post together with details of the contact details of the Independent Children's Lawyer.
22.    In the event of the Independent Children's Lawyer being notified by Dr P of the father’s failure to comply with the order requiring the father’s attendance upon Dr P or any practitioner to whom Dr P has referred the father the Independent Children's Lawyer at his or her discretion may inform the mother of such failure and the mother is then excused from compliance with any of the orders made herein until there is a further order of the court.
23.    The court recommends that the mother continue to consult with a psychologist or psychiatrist of her choosing to support the mother in the requirement for her to comply with the court orders.
24.    That pursuant section 68B and until the mother provides the father with written permission to the contrary, the father shall be and is hereby prohibited from:
a.    contacting the mother save as for otherwise provided for in these orders;
b.    approaching within 100 metres of the mother’s residence;
c.    stalking, molesting or harassing the mother;
d.    Causing harm, or threatening to cause harm to the Mother;
e. This is order is made for the personal protection of the mother and has attached to it a power of arrest pursuant to section 68C of the Family Law Act 1975 (Cth), so that if a police officer believes on reasonable grounds that the father has breached by the injunction by:
1.    stalking, molesting or harassing the mother, or
2.    Causing harm, or threatening to cause harm to the mother,
the Police Officer may arrest the father without a warrant.
25. In the week prior to any time the father is to spend overnight time with B during school holiday periods and until the commencement of the school year in 2020 the father is to cause CDT testing to be carried out upon himself and direct that a copy of the testing be provided to the mother by email. Should the test result be opined by the testing organization to be indicative of excessive alcohol use the mother is to advise the father by email that she will not be delivering B for such time until there is a test which does not indicate excessive use of alcohol. To the extent it be necessary the mother is relieved from complying with the relevant order for that occasion only.
26. The father may nominate any further supervisors to the Independent Children’s Lawyer who is to be able to speak to the proposed supervisor by phone. If the Independent Children’s Lawyer approves the nominee as a supervisor he or she is to advise the solicitor for the mother and also the father of that approval. Any such approved supervisor is to sign the “Acknowledgment” form (Schedule 1 to these orders) before taking on the role as supervisor and the father is to cause the document to be provided to the mother’s solicitor and to the Independent Children’s Lawyer.
27. In the event that the Independent Children’s Lawyer approves a nominated person as a supervisor as provided in the previous order AND the mother continues to object to such person, the father may apply to the court for the approval of the supervisor AND the mother is on notice that such continued objection will be at her risk as to costs on an indemnity basis or otherwise.
28. The parties may, by written agreement to be signed and dated by each of them, vary any of the provisions of the orders made herein. Where such variation occurs by consent such variation is to be binding upon each and may be enforced as if it was one of the orders contained herein.
29. The term of the appointment of the Independent Children's Lawyer is extended for a period of two years from the date hereof.
30. Each party may publish a copy of the report of Dr F to any treating psychologist or like practitioner they might engage to provide therapy for them.
31. Each party may provide to B’s school a copy of the orders made herein.
32. The father may provide to any approved supervisor engaged pursuant to these orders with a copy of the orders.
33. Once the father has had three periods of overnight time with B supervised by Ms D, he may have her attend on his behalf without him at any changeover which does not take place at B’s school. In such circumstance the mother is to cause the changeover to take place between herself and Ms D.

Schedule 1

ACKNOWLEDGEMENT OF SUPERVISOR

I, [name], hereby agree to supervise the time that [Mr Morling] (“the father”) spends with B born … 2011 (“B”), pursuant to the orders made 20 December 2017 on the following conditions and pursuant to the following requirements:

I acknowledge I have been provided and retain a copy of the orders made 20 December 2017.

I know that the orders provide that the father is not to consume alcohol AT ALL during any period of time he spends with B.

I acknowledge I am to ensure that if the father consumes alcohol at any time during the time B is in his care I am to immediately contact the mother and advise her of the circumstance and should she require I will arrange to meet with her and return B to her care.

I acknowledge I have been provided with a contact telephone number for the mother.

I am to ensure that the father otherwise complies with the orders made 20 December 2017 and should he fail to do so I am to contact the mother and advise her what has occurred and if necessary arrange to meet her and deliver B to her care.

Should the situation require I am to enlist the assistance of NSW Police to be able to fulfil my obligation set out in this acknowledgment.
Dated:
……………………………………………
Signature of supervisor

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morling & Cassel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2172/2014

Mr Morling

Applicant

And

Ms Cassel

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

Introduction

The parties in this case are Mr Morling (“the father”) and Ms Cassel (“the mother”). The parties are in dispute as to the time and the circumstances in which their daughter, B born in 2011, will spend time with her father. B is precious to both the father and the mother as their only child. Both probably have concluded they will not individually have any more children.
The mother seeks, as her primary position, that there be no contact of any type between the father and the child. Alternatively, she seeks that the current arrangement where the father spends a limited period of time on a fortnightly pattern supervised by a professional supervisor continue at the cost of the father. She does not propose any change to that regime before B turns 18 years of age.
The father seeks a graduating scale of time where B will spend time with him, loosely supervised by his partner Ms D or another accompanying person.
The determination of this case will involve an assessment of the evidence to weigh the risks to the wellbeing of B arising from:
·The possibility of the father reverting to the excessive use/abuse of alcohol;
·The possibility of the father exposing B to criticism/verbal abuse of the mother and/or the paternal grandmother;
·The possibility of the mother’s psychological health degenerating as a result of continued exposure to the father or the concerns she has about the time B spends with the father. This is particularly to be assessed in the light of possible extended overnight time for B with the father.
The mother sought the following orders at the conclusion of the hearing as her “alternate” orders to her primary position that there be no contact between the father and B:
1. That the Mother have Sole Parental Responsibility for the child [B] born … 2011 (“B”)
2. That B live with the Mother.
3. That B spend supervised time with the Father as follows:
3.1.      Each alternate Saturday from 10:00 am to 2:00 pm;
3.2.That the supervisor be appointed through [the M Group] (“Professional Supervisor”) who will provide to the Mother written reports following such visits;
3.3.The Father shall pay for the Professional Supervisor and provide all such consents for the Mother to receive the written Reports;
3.4.The Mother shall be at liberty to travel with the child to and from the time spent but shall not attend the visits;
3.5.The Father shall not consume alcohol in the 24 hours prior to spending time with B nor during any time spent with B;
3.6.The Mother shall provide a breathalyser to the Professional Supervisor and the Father shall submit to a breathalyser test at the commencement and conclusion of such time;
3.7.In the event the Father returns any alcohol reading the time spent with B shall be suspended, the Mother contacted immediately and the child returned to the Mother;
4.Neither party shall denigrate the other parent or members of the other parent’s family or household within the presence or hearing of B.
5.The Father is restrained from contacting or approaching the Mother, Maternal Grandmother and all communications will be via a communication book exchanged through the Professional Supervisor.
6.In the event B is admitted to hospital, the Mother shall cause an email to be forwarded to the Father providing details of B’s admission and all consents for the hospital to provide the Father with information regarding B’s condition and treatment.
7.The both the Mother and Father continue to consult with their treating psychologist/psychiatrist as often as advised by that professional and each will adhere to any recommendations made by their respective treating professionals.
8.That the Father be restrained from doing the following things or discussing the following topics with or within the hearing of B:-
8.1.     Suicide, hanging, nooses, self-harm;
8.2.     Monsters;
8.3.Criticise or make derogatory remarks about B directly or indirectly to B, in particular about the child’s ideas, values, religious beliefs, self-worth, personal appearance, belongings, school, activities, home life, school work and other productive works, family and friends;
8.4.Discuss topics that specifically attack B’s sense of personal safety, self-esteem or cause any feeling of disappointment in the child;
8.5.The Father examining the child’s body or refer or discuss any injuries of any nature minor or otherwise and he be restrained from engaging in play with the child that involves any such examination;
9.The Father be restrained from approaching B other that in accordance with these Orders, including but not limited to B’s schools she may attend or B’s residence;
10.The Mother shall provide the Father via communication book with a copy of B’s school reports.
The father sought the following orders:
Orders Sought by the Applicant Father
In these Orders:
“accompanying person” means [Ms D] or [Ms C]
PARENTAL RESPONSIBILITY
1. That, except as set out in these Orders, the Mother have sole parental responsibility for B born … 2011 (“B”).
2.That, notwithstanding Order 1, the Mother and the Father have equal shared parental responsibility in relation to any relocation of the residence of B which would impact adversely on the time that B spends with her Father.
3.That the Mother and the Father are each responsible for the day-to-day care of B whilst she is in their respective care.
4.That prior to making any decision which will impact on B’s long term care welfare or development, including decisions related to her education or medical issues:
4.1. The Mother must advise the Father, by email or text message, as soon as reasonably possible, of the issue and of the decision she intends to make;
4.2. The Father must respond, setting out any views he wishes to express, as promptly as the nature of the issue requires;
4.3. The Mother must consider and take into account the views of the Father in coming to her final decision; and
4.4. The Mother must advise the Father of her decision as soon as it is made.
5.        That the Mother keep the Father informed of the following:
5.1. Contact details and any change to those details for B and the Mother including their address, email addresses and telephone numbers;
5.2. Any specialist medical appointment or hospitalisation of B and the contact details of that specialist or hospital;
5.3.Any medication prescribed for B and the administration of it; and
5.4.The name and address of any school attended by B and any change to those details.
6. That the Father keep the Mother informed of his contact details and of any change to those details including his address, email address and telephone numbers.
LIVE WITH / SPEND TIME
7.        That B live with her Mother.
8.        That B spend time with her Father as follows:
8.1.From 10.00 am until 3.30 pm on Saturday 20 May 2017 and between the same hours on each alternate Saturday thereafter until Saturday 26 August 2017 from 10.00 am until 3.30 pm with the Father to be in the company of the accompanying person;
8.2.From Saturday 9 September 2017 at 2.00 pm until 3.30 pm on Sunday 10 September 2017 and at the same time and same days each alternate week thereafter until Sunday 28 January 2018;
8.3. From the conclusion of school on Friday 9 February 2018 and until the commencement of school on Monday 12 February 2018 and each alternate weekend thereafter with such time to be suspended during school holidays.
8.4. During each of the school holidays at the conclusions of Terms 1, 2 & 3 2018 for four nights as agreed or, in the absence of agreement, from 10.00 am on the second Saturday of the holiday period until 5.00 pm on the following Wednesday.
8.5. During the Christmas school holidays 2018/2019 for two blocks of four nights as agreed or, in the absence of agreement, from 10.00 am on Wednesday 3 January 2018 until 3.30 pm on Sunday 7 January 2018 and from 10.00 am on Wednesday 17 January 2018 until 3.30 pm on Sunday 21 January 2018.
8.6. During the holiday periods after Terms 1, 2 & 3 thereafter for half the holidays as agreed but, in the absence of agreement, from after school on the last day of term until 3.30 pm on the second Saturday of the holidays in odd numbered years and from 3.30 pm on the second Saturday of the holidays until 3.30 pm on the third Sunday of the holidays in even numbered years.
8.7. During the Christmas school holidays 2019/2020 and thereafter, as agreed, or in the absence of agreement, for two blocks of time:
(a) from after school on the last day of term to 2.00 pm Christmas Day (with changeover to occur outside the [Suburb J] Library facilitated by a third party) and from 10.00 am on the first Saturday after the 7^th of January until 3.30 pm on the Sunday which is eight days later in years when Christmas Day falls in an odd numbered year; and
(b) from 2.00 pm Christmas Day (with changeover to occur outside the [Suburb G] Library (with changeover to be facilitated by a third party) to 3.30 pm on 2 January and from 3.30 pm on the third Saturday of January until 3.30 pm on the Sunday which is eight days later in years when Christmas Day falls in an even numbered year.
8.8. Notwithstanding these orders, from 10.00 am until 3.30 pm on Fathers Day if B would not otherwise see her Father on that day.
9.That if the B would otherwise spend time with her Father on Mothers Day, time will cease at 10.00 am on Mothers Day.
CHANGEOVERS
10.That, where changeover does not occur at B’s school, the Father collect B from Suburb G Library at the commencement of time and the Mother collect B from Suburb J Library at the conclusion of time PROVIDED THAT during the period when the Father must be accompanied under these Orders the accompanying person will collect B from the Mother at Suburb G Library and the accompanying person will deliver B to the Mother at Suburb J Library.
COMMUNICATION
11. That the Mother facilitate a telephone call between B and her Father between 6.00 pm and 6.30 pm each Wednesday outside holiday periods.
12. That the parent having the care of B for at least seven nights during any holiday period facilitate a telephone call between B and the other parent between 6.00 pm and 6.30 pm on each Wednesday during such care.
RESTRAINTS
13. That neither parent criticise the other parent or members of their family in the presence or hearing of the child or in a manner likely to come to her attention and, for this purpose, neither parent is to criticise the other parent on social media.
14. That the Father not drink alcohol within 24 hours of B coming into his care and at any time that B is in his care.
SCHOOL & EXTRA-CURRICULAR ACTIVITIES
15. That both parents be entitled to attend school and extra-curricular activities in which B is involved and which parents normally attend PROVIDED THAT such attendance will not alter the care arrangements for which these Orders provide.
16.That, if necessary, B’s school enrolment be amended to show her Father’s contact details and her Father as an emergency contact.
The Independent Children's Lawyer recommended orders which were contained in Exhibit ICL9. The orders sought are as follows (as per original):
1. That the Mother shall have sole parental responsibility for the child [B] born … 2011 (hereinafter “the child”).
2. That each parent shall have the day to day responsibility for the child whilst the child is in their care.
3.        That the child shall live with the Mother.
4.        That the child shall spend time with the Father as follows:
a.        During School terms:
i. From 10am to 2pm each alternate Saturday, for a period of three months, with such time to be supervised by [the M Group] and that the parties shall bear the cost of such supervision jointly.
ii. Commencing at the conclusion of Order 4a(i) above, each alternate Saturday from 10am to 2pm, with such time to be supervised by [Ms D], [Ms C] or such other person as agreed between the parents in writing, with such time to continue for a period of three months.
iii. Following the conclusion of Order 4a (ii) above, each alternate Saturday from 10am to 4pm, with such time to continue for a period of three months.
iv. Following the conclusion of Order 4a (iii) above, each alternate weekend from 10 am Saturday to 4pm Sunday for a period of six months.
v. Following the conclusion of Order 4a (iv) above, each alternate weekend from the conclusion of school Friday to the commencement of school Monday.
b.        During School holidays:
i. Commencing in the June 2018 school holidays, for three nights in each short school holiday period, from the conclusion of the last day of school to 4pm on the fourth day.
ii.       Commencing in the April 2019 school holidays:
1. for one half of all short school holiday periods as agreed and failing agreement, for the first half of the short school holidays in years ending in an odd number and for the second half in years ending in an even number.
iii. In the December school holiday period commencing in 2019:
a. From the conclusion of school Wednesday 18 December to 4pm on 25 December; and
b. From 10am 8 January 2020 to 4pm 15 January 2020.
iv. In the December school holiday period commencing in 2020:
1. From 4pm 25 December 2020 to 10am 1 January 2021; and
2. From 10am 8 January 2021 to 4pm 15 January 2021.
v. Upon B commencing the 2021 school year, for half of all school holiday periods as agreed between the parents and failing agreement:
1. With the Father for the first half of school holiday periods in years ending in an odd number and for the second half of school holiday periods ending in an even number; and
2. With the Mother for the first half of school holiday periods in years ending in an even number for the second half of school holiday periods in years ending in an odd number.
c.        During special occasions as follows:
i. In the event the child is not ordinarily spending time with the Father, from 10am to 4pm Father’s Day.
ii. Until such time as the child commences overnight time with the Father, from 10am Christmas Day to 4pm Christmas Day.
iii.Until such time as the child commences December school holiday time with the Father, but upon overnight time commencing, from 2.00pm Christmas Eve to 10am Christmas Day.
5.That in the event that the child is not ordinarily in the care of the Mother on Mother’s Day, the Father’s time with the child shall conclude at 10am on Mother’s Day.
6. That in 2017, the child shall spend from 2pm Christmas Eve to 10am Christmas Day with the Mother and until such time as December school holiday time between the Father and child commences, from 10am Christmas Day to 6pm Boxing Day.
7. That for the purposes of Order 4 above, changeovers shall occur at B’s school and in the event that changeover does not coincide with the commencement or conclusion of school, changeover shall occur as agreed between the parents and failing agreement at with changeovers facilitated by [the M Group] until such time as the child commences overnight time in the Father’s household.
8. That the child shall have telephone communication with the Father each Wednesday, commencing August 2017 between 6pm and 6.30pm and upon the child commencing week long school holiday time with the Father, the Mother shall have telephone communication with the child each Friday that the child is not in her care between 6pm and 6.30pm and for the purposes of facilitating these orders:
8.1. Each parent that the child is provided with a landline telephone to initiate the call or a mobile telephone that is fully charged and in a mobile service area;
8.2. That the parent with whom the child is living is to initiate the telephone call, or facilitate an appropriate third person initiating the telephone call.
8.3.That the telephone is not to be used on speakerphone;
8.4. That the child is permitted to speak to the other parent privately in a quiet area without interference or interruption.
9. That the Father shall be and is hereby restrained from consuming alcohol for 24 hours prior to spending time with the child, or during the period of spending time with the child.
10. That the Father shall be and is hereby restrained from allowing the child to use rope in any form of play.
11.That both parents shall be and are hereby restrained from using, or permitting any person to use any form of physical chastisement in respect of the child.
12. That neither parent shall themselves denigrate, nor allow any third party to denigrate, the other parent, members of the other parent’s family in the presence or hearing of the child.
13. That in the event of the child suffering a medical emergency requiring medical attention while living with either parent:
13.1.   The other parent is to be notified as soon as practicable.
13.2.The other parent is to be provided with the full details of the practitioner or medical facility upon which the child or children has attended as soon as practicable.
13.3.The medical practitioner or facility is to be advised that both parents have access to the children’s medical records and that information relating to the child or children is to be shared with the other parent upon request.
14. That the Mother shall give all consents, sign all documents and do all things necessary to ensure that the Father can obtain the following from the child’s pre-school/ daycare/ school(s)/ after school care(s) at his own cost:
14.1. A copy of all school reports, progress reports and photo order forms.
14.2. Notification for activities that he may decide to attend, such activities being those that parents are ordinarily entitled to or invited by the school to attend.
14.3.Notification of parent/teacher nights and the school is informed that it is the desire of both parents to attend such events NOTING THAT this order does not require the parents to attend the same interview.
14.4.In the event of the child being taken from school for an emergency, remedial or correctional treatment, that both parents be informed as soon as practicable.
15.That within seven days of the date of these Orders, the Mother shall ensure that the Father is listed at the child’s school as the Father of the child and contact details provided to facilitate the Father being contacted by the school in the case of emergency.
16. That commencing June 2018, the Father shall be at liberty to attend school events for the child, being special events that parents are ordinarily invited to attend, including but not limited to sports days, assemblies, parades and in the event that the Father attends such event, the Father is restrained by injunction from approaching the Mother, unless with the Mother’s consent.
17.       That the Mother shall keep the Father informed of the following:
17.1.Any specialist medical appointment or hospitalisation of B and the contact details of that specialist or hospital;
17.2.Any medication prescribed for B and the administration of it; and
17.3.The name and address of any school attended by B and any change to those details.
15.That each parent shall inform one another within 7 days in writing of their contact mobile telephone number, email address and residential address and shall advise one another within 48 hours in writing should there be any change to said contact details NOTING THAT this order does not authorise either parent to personally attend, or cause any other person to attend, the other parent’s place of residence unless otherwise invited by the other parent or a member of the household.
16.That the parents shall communicate in relation to matters pertaining to the children’s parenting arrangements and the child’s care, welfare and development:
16.1.For all non-urgent matters, in a communication book that is to travel with the child, with the Mother to purchase the first communication book and for that book to be placed in a bag that is to travel with the child from her first visit with the father commencing 20 May 2017 or via an email address nominated by the parents; and
16.1.1That the communication book is restricted to communications relating to the child.
16.2. For all urgent matters, being those that require a response within 48 hours, in the first instance by text message.
17.That within fourteen days of the date of these orders, both parties shall do all things and sign all documents necessary to attend upon [NAME] or such other therapist as agreed between the parties, to undertake family therapy, with the parties equally bearing the cost of such therapy and it is noted that such therapy is to address:
17.1.to discuss parenting and personal vulnerabilities, which may impact on the parenting of the child;
17.2.to aid the parents in engaging positively with the child;
17.3.to assist the parents in assisting the child with transition of care arrangements;
17.4.to manage any behavioural responses which may occur in the child;
17.5.to provide a forum for the child to express any fears or worries about her experiences in either household and where adult concerns about the child’s experiences can be addressed.
18.That the therapy referred to at Order 17 above shall occur regularly, with the parents attending at separate appointments, at a frequency recommended by the therapist and with other such persons being invited to attend as deemed appropriate by the therapist, and such therapy shall continue until June 2019 , or until the therapist deems the therapy no longer necessary and in the event that therapist deems regular attendances unnecessary, appointments shall occur no less frequently than each six months.
19.That the Family Therapist has leave to read Dr F’s expert report and shall be provided with a copy of Dr F’s report prior to commencing the therapy referred to above.
20.That the Father shall continue to attend upon Dr P, or any such counsellor, psychiatrist or psychologist (“treater”), and the Father shall comply with all recommendations made by such treater and attend at all appointments as recommended to the Father by Dr P until such time as Dr P or the recommended treater advises that the father’s attendance is no longer required.
21.That the Mother shall attend upon her General Practitioner within fourteen days of the date of these Orders for the purpose of obtaining a referral to a counsellor, psychiatrist or psychologist (“treater”) to assist in the management of the Mother’s anxiety and post traumatic stress disorder, and the Mother shall comply with all recommendations made by such treater and attend at appointments as directed, until the treater forms the view that the Mother’s attendance is no longer required.
22.That the Mother’s treater has leave to read Dr F’s expert report and shall be provided with a copy of Dr F’s expert report prior to the commencement of the Mother’s treatment.
23.That pursuant section 68B, the Father shall be and is hereby prohibited from:
23.1.contacting the Mother, Michelle Cunich, save as for otherwise provided for in these orders.
23.2.approaching 100 metres of the Mother’s residence;
23.3.stalking, molesting or harassing the Mother.
23.4.Causing harm, or threatening to cause harm to the Mother.
23.5.This is order is made for the personal protection of the Mother and has attached to it a power of arrest pursuant to section 68C of the Family Law Act 1975, so that if a police officer believes on reasonable grounds that the Father has breached by the injunction by:
23.5.1.stalking, molesting or harassing the Mother.
23.5.2.Causing harm, or threatening to cause harm to the Mother.
The Police Officer may arrest the Father without warrant.
24.That for the purposes of Order 4 above, changeovers shall occur at B’s school and in the event that changeover does not coincide with the commencement or conclusion of school, changeover shall occur as agreed between the paretns and failing agreement at with changeovers facilitated by [the M Group] (with the parties to bear the cost of the [M Group] equally), until such time as the child commences overnight time in the Father’s household, at which time in the event the changeovers do not co-incide with the commencement or conclusion of school, changeovers shall occur with the parents or their nominees attending McDonald’s [Suburb E].

The orders sought by the Independent Children's Lawyer provided for the mother to have sole parental responsibility for B and B to live with the mother. The Independent Children's Lawyer then recommended supervised time with the father for a period of three months and then graduating time to alternate weekend. The Independent Children's Lawyer also seeks that B spend school holiday and special occasion time with her father. The Independent Children's Lawyer recommended orders to specify changeovers, injunctions, and communication.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father is 52 years of age and the mother 39. The father has re-partnered with Ms D who is 52 years of age.
The parties met in 2004 and commenced cohabitation in about January 2005. For most of 2005 the father was living in Europe. He returned to Australia in October 2005.
The parties married in 2009.
The mother alleges that even before marriage she had concerns about the father’s consumption of alcohol and violence. These allegations are addressed later in these reasons.
B was born in 2011.
The father alleges a concern around the mother’s alcohol use when B was very young.
The mother’s case includes allegations of domestic violence perpetrated by the father upon her, drunkenness demonstrated by the father, cruelty to her by word and deed. One aspect of the mother’s case which was a focus in the hearing was the unfortunate demise of her brother who had taken his own life. She also alleges the father made cruel statements about her mother.
The date of final separation occurred on 24 June 2013. At that time B was two years old.
On 24 June 2013 the mother complained to police that the father attempted to strangle her with her own arm and that he had said derogatory and inflammatory things to her in the presence of B. The father was served with an interim AVO at Suburb L Police Station.
Between June 2013 and November 2013 the father spent no time with B. He says that was because the mother would not permit same.
Between July 2013 and into 2015 the mother had weekly then fortnightly counselling sessions with Ms H.
In July 2013 the mother through her solicitor offered the father supervised time with B.
In August 2013 the father commenced attending upon Dr Mark P, psychiatrist.
On 11 September 2013 an AVO was made at Suburb K Local Court for a period of two years.
Between 31 October 2013 and 5 March 2014 the father attended a course with the YB Group (18 weeks) called “Taking Responsibility”.
On 11 November 2013 the father commenced spending supervised time with B each fortnight at the N Centre.
On 12 May 2014 the father commenced proceedings in this court.
In June 2014 the father met his current partner, Ms D.
On 4 October 2014 the parties were divorced.
Between October and November 2014 the father attended a “Parenting after Separation” course with the YB Group.
In November 2014 at the N Centre the father had a photo taken of he and B playing a game in which B had a rope passing around his neck. This incident gave rise to considerable cross-examination and other evidence in the hearing.
On 5 December 2014 orders were made by this Court providing for the father to spend time with B for two hours a fortnight supervised by the N Centre.
The father attended upon psychiatrist Dr P between 2013 and 2015.
On 13 January 2015 the mother made a complaint to police alleging father was sending her a message by having a photo taken of B involving a rope, which she perceived to resemble a noose.
On 27 April 2015 interim parenting orders were made. The orders provided for the father to spend supervised time with B every second Saturday as well as during the alternate week if the supervisor could facilitate same.
On 6 May 2015 the mother attended upon her general practitioner, Dr Q, with B. The mother said that during the consultation she became very emotional. She was provided with a medical certificate to cover the following three days. The mother was prescribed anti-depressant medication.
In September 2015 the parties, the maternal grandmother, Ms D and B attended upon the single expert Dr F for the preparation of his expert report.
In January and February 2016 the mother said she suffered panic attacks.
In early 2016 the mother attended upon her general practitioner seeking assistance for migraines she was suffering.
In May 2016 B was injured from a fall from a scooter at the contact centre.
Throughout 2015 and 2016 the father undertook testing required by the Independent Children's Lawyer to establish whether he was abusing alcohol.
In June 2016 the mother consulted Dr S in relation to the panic attacks she was suffering. Dr S provided reports to the Court and gave oral evidence during the hearing.
In September 2016 the father was made redundant from his employment.
On 27 November 2016 B suffered an injury to her arm resulting from a fall in the mother’s home.
On 28 November 2016 B had surgery on her arm. She had further surgery on 22 December 2016 to remove pins.
The father did not spend any more time with B at the N Centre after November 2016.
On 6 March 2017 an order was made for the father to have supervised time with B each alternate Saturday from 10.00 a.m. to 2.00 p.m. supervised by “the M Group”. The father commenced spending time with B in accordance with these orders on 11 March 2017.
Throughout the time the father has been spending supervised time with B the mother reports numerous occasions where the child has nightmares, protests about spending time with the father or states the father speaks to her about vampires or other “scary” topics.

The Issues

The parties identified the issues at the commencement of the hearing as follows:
·Parental responsibility;
·The time the father is to spend with the child and the conditions attended to that time;
·Whether the father curbed his drinking and whether his excessive use of alcohol in the presence of B likely or unlikely;
·Whether the father is a risk to the child in either a physical or psychological sense;
·Whether the father spending time with B would negatively impact on the mother such that it would affect her capacity to parent B;
·Whether the father deliberately seeking to send a message to the mother by having a photo taken of he and B playing a “horsey” game which involved the use of a rope to substitute as a pretend rein.

Evidence in the father’s case

Affidavit evidence of the father

The father relied on affidavits sworn 26 August 2016 and 21 April 2017.
In his affidavit sworn 26 August 2016, the father gave evidence of his relationship and family history. He was born in the United Kingdom and was married to his first wife, Ms T, between 1998 and 2003. There were no children of that marriage. The father denied that he denigrated Ms T to the mother and asserted that they remain friends.
The father met the mother in a bar in November 2004 when he travelled to Australia for a holiday. They spent more time together and the father eventually began spending the night at the maternal grandmother’s home in Suburb R.
The mother and father went on various holidays together and the father moved permanently to Australia in November 2006. They lived for a short time in the maternal grandmother’s property in Suburb U and then in rental accommodation in Suburb L.
The father deposed that in November 2008 they attended a party together. The mother became heavily intoxicated and insisted on driving home. The father took the keys from the mother. The mother called the maternal grandmother and said “He’s bullying me and hurt me.”
The father deposed that he and the mother drank alcohol on a daily basis and often drank excessively prior to B’s birth.
Before B’s birth, the father deposed that he believed their relationship to be very enjoyable for both him and the mother. He deposed that they had a common interest in horse racing and regularly went on holidays and social outings.
The parties married on 7 November 2009 and they moved into the former matrimonial home purchased by the mother.
The father deposed that he became worried about the mother’s behaviour when they moved into the former matrimonial home. The mother would check that she had turned the gas off six or seven times before leaving the house.
The father deposed that he cared for the mother during her pregnancy and assisted with the groceries, cooking, and sometimes the cleaning. He deposed that he continued to go out drinking with friends during the pregnancy but that the mother would stay home. When the mother was three months pregnant, she travelled to Town DD for work and the father travelled with her because she did not want to be on her own. The father drove her to the hospital and stayed with her for nine hours when she thought she might have miscarried.
The father denied waking the mother up in the middle of the night and verbally abusing her when she was seven months pregnant. The father deposed that he understood and agreed to the mother having a caesarean birth as it was the only safe option for B.
After B was born, the maternal grandmother visited the hospital for a number of hours each day. The father deposed that he stayed at the hospital most nights. He had two weeks off work following B’s birth. The maternal grandmother visited the former matrimonial home every day for four weeks, for approximately six to seven hours each day, to assist the mother.
The father deposed that he was very involved with B when not at work. He changed her nappies, bathed her, fed her when she was bottle feeding and cared for her. He deposed to doing the groceries and cooking meals for himself and the mother. He did not go to any social functions for a number of months after B’s birth. The father deposed that he visited the hospital in October 2011 each day after work when B spent ten days in hospital.
The father said he did not agree with the maternal grandmother having a key to the former matrimonial home as he thought she was visiting too frequently. When the maternal grandmother purchased a walker for B, the father told the mother it was not good for B and against NSW Health guidelines.
In December 2011 the father deposed that the mother and B had lunch with the mother’s relatives in Leichhardt. The father left to do Christmas shopping after lunch. He received a call from the mother at 5.00 p.m. asking him to “come home” and he rushed to the home. He found the door open, vomit on the floor and the mother laying on the floor moaning. B was in her stroller, crying. The father deposed that the mother smelt of alcohol and had vomit on her clothes. He helped the mother into bed and changed and cleaned B and fed her.
The father deposed to caring for B in an overseas location in September 2012 when B was 15 months old. The mother was presenting at an international conference where they stayed for four days.
The father denied that he grabbed the mother in December 2014 whilst she was washing B’s bottles. He said he had washed the bottles and the mother said “I’ll have to redo them because you’re not cleaning them properly.” The father replied “Don’t be silly. I’ll have to redo them now, you go to bed, you’re exhausted.” The father cleaned the bottles again and did not think anything more of the incident.
The mother returned to full-time employment when B was 10 months old. The mother also began dedicating time to her interest in local politics. The father deposed to caring for B and taking her to the park and playgrounds close to their home when the mother was attending to her political activities.
The father deposed that the mother would put B to sleep at 8.00 p.m. every night and she continued to sleep in the spare room after B’s birth. He stated he was upset and lonely that the mother would sleep so early after work, but accepted that was her routine.
The father said he was unhappy that the maternal grandmother would regularly let herself in to the former matrimonial home. He had an argument with the mother in relation to this and the mother said, “She likes to come around and tidy up and do the things you don’t do” and “She [the maternal grandmother] has put so much money into this house she can do what she wants.” The father became depressed and began going to a bar or pub most nights after work. He began drinking an increasing amount of alcohol, up to one bottle of wine each night or up to four beers at the pub. The father deposed that the arguments between he and the mother increased, and he accepted in his affidavit that he had said some unpleasant things about the maternal grandmother.
In December 2012 the father deposed that, during a trip to City DD to visit the mother’s cousin, Ms Z, the mother went to hospital after B scratched her eye. The father took care of B for the remaining five days of the holiday whilst the mother rested and stayed out of daylight.
On 13 March 2013 the father went grocery shopping after the mother and B had gone to sleep. He stopped at the pub on the way home and drank four glasses of cider. When he returned home he inadvertently made a loud noise that woke the mother. The mother shouted at him that he was “pissed”. The father retaliated and mentioned the incident in December 2012 when the mother vomited on the floor, and said “I never told DOCS, but I might after the way you are behaving.” The mother struck the father with her palm to his left eye, causing him pain. He was concerned the mother would hit him again and caught her hand and other arm as she moved towards him. He said to her, “This is the last time you hit me. You have hit me, pushed and bruised me too many times before. I think you need help and I will call DOCS.” The father denied that he had hurt the mother when he held her arms.
Some days after the incident on 13 March 2013 the father, mother and B took a five-day trip to Town W. The mother asked the father to write down what he believed they could do to re-establish their relationship. The father sent the mother an email on 19 March 2013 in which he outlined his three major “relationship worries” as being respect, planning for a new baby, and the maternal grandmother’s smoking and its impact on B.
While in Town W, the father deposed to an occasion at the beach where B was up to her knees in the water and the mother shouted and quickly ran over and assisted her. The father said he had turned around for a moment and believed that B was with the mother. The father deposed that when they returned from Town W the mother did not allow him to be involved in feeding, caring and bathing for B during the week, although he did care for her on the weekends.
The father deposed that after returning from Town W their relationship was more strained. However, the mother expressed her desire to have another baby with the father and would wake him up at various times during the night to have sexual intercourse when she considered herself to be most fertile. The father deposed that he was unenthusiastic about trying to conceive a second child as he did not think having another child would improve their relationship.
On 9 June 2013 the father became aware that the maternal grandmother had thrown out his food that he had imported from the United Kingdom. The father said to the mother “Your bloody mother has put it in the bin. You should get it out. She is interfering yet again.” The father deposed that he continued to denigrate the maternal grandmother. The mother called the police and they gave the father a “red card”. He followed police instructions and left the home. He walked around the neighbourhood and reflected on his actions, returning to the home later that night.
On 24 June 2013 the father attended Suburb L Police Station and was served with a provisional Apprehended Domestic Violence Order (“ADVO”). The father visited the former matrimonial home to collect a few items with the police present and deposed that he did not return to the home after that date.
On 11 September 2013 the father consented to the ADVO without admissions. The ADVO expired on 11 September 2015. The father deposed that he agreed to the ADVO as he did not want to prolong the matter. The father deposed that he acknowledged he had been emotionally and verbally abusive to the mother during their relationship and that he had consumed alcohol excessively. However, he denied that he had ever been violent to the mother.
The father denied that he prevented the mother from seeing or spending time with her friends. He deposed that the mother would often find excuses to not attend social gatherings.
From 20 June 2013 until 11 November 2013 the father did not spend time with or speak to B. The father deposed that he felt shattered during this time as he had been very involved in her life. The father deposed that B was shy on the first visit but it was clear that she remembered him. He stated that as the visits progressed, B became far more outgoing and was pleased to be spending time with him.
The father deposed to having a good time with B during their contact visits. He believes that B enjoys spending time with him. The father deposed that on B’s birthday in 2015 she asked him “Why don’t you come to my party”, and on several other occasions B has asked him “Why don’t you come home with me, Daddy?” The father deposed that he would not know why B would wet the bed after their visits, as deposed by the mother, as he has observed B to thoroughly enjoy their time together.
The father denied that he caused his new partner, Ms D, to record the mother or B outside the contact centre. He deposed that Ms D had dropped the father at the contact centre on one occasion in September 2014 and she had parked her car across the road. The father deposed that Ms D has not taken the father or collected him from the contact centre since that occasion.
On 18 April 2015 the father’s time with B at the N Centre was terminated early due to the co-ordinator believing that the father was under the influence of alcohol. The father deposed that he had a few glasses of wine the night before as he was finding it difficult to sleep. He denied being under the influence at the contact centre. The father went directly to the medical centre and had a blood test. The blood test showed a blood alcohol reading of less than 0.01.
The father deposed that he has refrained from alcohol consumption for 24 hours prior to any contact visit with B since the orders dated 27 April 2015 were made.
The father lives alone in a large two bedroom unit in Suburb J which he is renting. His partner Ms D lives in the same suburb with her three adult daughters. He lives approximately 25 minutes from B’s primary school.
The father completed a parenting course through the YB Group in 2013 to 2014. The father deposed that as a result of this course, he has been able to recognise the serious nature of family violence and now understands that many things he said to the mother constituted family violence. He deposed:
I understand that being drunk, angry, tired, stressed or frustrated are not excuses. The course gave me insights into how Michelle may have been feeling at times in our relationship and has equipped me with skills and techniques to avoid behaving in the same way.
Whilst I never directed unpleasant words to B I realise now that the fact that she was present during an argument or hearing my words would affect her, even as a baby or young child. I did not intend to cause her distress or other emotional harm and very sorry that I may have done so at that time. I have not spoken in such a way in her presence since [the mother] and I separated and will not do so again. …
…
I have gained insight into how I have dealt with stressful situations in the past. Often I would make inappropriate remarks as a coping mechanism to alleviate my uncomfortableness but which could be considered flippant. …
In 2014 the father completed a second parenting course through the YB Group. From that course he learnt the importance of a child having two parents who are committed to raising them. He learnt that the child should be put ahead of other concerns.

The father deposed that he works an average of 45 hours per week. He has the flexibility to attend to personal matters when required and can work from home.
The father deposed that B has expressed desire to show him things that she likes outside of the contact centre, and has asked him why he does not attend events at her pre-school. The father wishes to share activities, homework, meals and getting ready for school with B. He wishes for B to be able to spend time with his family and friends and to have a relationship with the paternal family.
Prior to the orders made on 11 March 2017 the father spent time with B between 1 August 2015 and 26 November 2016 for two hours each Saturday.
The mother ceased the father’s time with B after 26 November 2016 when B broke her left elbow whilst in the care of the mother.
At the time of swearing his updated affidavit on 21 April 2017, the father was spending time with B every fortnight from 10.00 a.m. to 2.00 p.m. in accordance with the orders made 11 March 2017. He was attending at a local McDonald’s restaurant and meeting with a support person employed by the M Group and B. The father underwent a breath test upon the commencement of each visit. The father deposed that B appeared to enjoy their visits.
Financial arrangements
The father deposed that from the time he and the mother lived in rental accommodation in Suburb L in January 2007 until November 2009 he paid all the rent, utilities, groceries, entertainment and holiday expenses. He also paid for the parties’ domestic and international holidays, their memberships at the race club, clothing for B, baby food, and medication. The parties did not have a joint bank account at any time during their relationship.
He and the mother entered into a Binding Financial Agreement on 18 November 2009 and, as a result, the former matrimonial home is excluded from any financial settlement.
The father deposed that occasionally, utility payments for the former matrimonial home were paid late. He said that on those occasions the mother did not give him the bills before the due date.
After the mother had spent six months on maternity leave she told the father she had no money left. The father agreed to pay her $250 in cash each week until she returned to full-time employment.
The father deposed that he paid the fees for the childcare centre that B was attending until July 2013, which were in the vicinity of over $500 per week.
The father deposed to have paid child support since receiving the initial assessment and is not in arrears.
The father has paid for half of all contact visits since 27 April 2015 pursuant to orders made on that date. To the date of his updating affidavit, the father deposed he had paid approximately $12,000 in supervision fees.
The father deposed that he was made redundant from his employment at a technology company in November 2016. The father applied for a Legal Aid grant and was unsuccessful. The father made arrangements with his family in the United Kingdom to assist him in covering his legal expenses for the hearing.

Oral evidence of the father

At the time of his cross-examination, the father was not in employment but had been interviewing extensively in search of a new job in the data and analytics area.
The father acknowledged that he had said hurtful things to the mother during the course of their relationship, he conceded he was very disrespectful of the maternal grandmother in the mother’s presence, that he was disrespectful of the mother and her physical appearance on occasion and that he had made reference to the suicide of the mother’s brother on three occasions. The father said he felt embarrassed for having said such things and apologised to the mother and the maternal grandmother.
The father agreed that he had called the mother a “fucking dimwit”, “fucking bitch”, “rude, arrogant and insensitive”. He agreed that he was critical of the paternal grandmother smoking cigarettes and had said that she was “foul” and “ill‑educated”. The father conceded that on one occasion he said, while looking at the ceiling, “Hey, son, where’s your noose? Oh, son, hang yourself. Why did you hang yourself?” to the mother, referring to her brother’s death. The father said he had been angry and had reached a point of despair in the relationship when he made those comments.
In relation to his position that there be equal shared parental responsibility for issues related to medical issues, education and religion, the father said he would prefer input in those areas but, if a consensus was not reached, he accepts that it would be better to avoid conflict and allow the mother to make a decision. The father clarified that he was seeking that the mother have sole parental responsibility in all other aspects as a mechanism to avoid conflict and distress for the mother.
The father denied that he perpetrated domestic violence against the mother during their relationship. He said he engaged in some form of domestic violence towards the end of the marriage. He agreed that he had been disrespectful of the mother, but denied that he had been disrespectful to B. He agreed that he had never said anything positive about the maternal grandmother.
The father admitted that he had, in the past, had problems with alcohol, but he said that he has changed his behaviour since he commenced attending upon Dr P. He said previously he would drink three or four ciders of an evening and sometimes half a bottle of wine, and more than 10 drinks when he would go to parties. At the time of cross-examination, the father said he follows the recommendation of his doctor to drink only on certain days of the week. He said he drinks half a bottle of wine on a weekend, and two or three small bottles of cider one to two times per week.
When asked about when he attends upon Dr P, the father said he sees Dr P generally every two to three months and “when the need arises to make sure that we’re both comfortable with the path I’m following as far as not abusing alcohol.” He said Dr P had prescribed him Temazepam to assist with insomnia.
The father denied that, on one occasion, he twisted his arm around the mother’s neck. He said that, in relation to this allegation, he did grab hold of both her arms whilst she was facing him. He said to her, “I’m sick of you pushing me around and hitting me” He then let go of her arms, walked past her and left the house.
The father was then cross-examined by counsel for the Independent Children's Lawyer.
The father agreed that he had been prescribed benzodiazepine by Dr P in December 2016 which he took for only one week. He was subsequently prescribed Circadin for his insomnia. He ceased taking Circadin some time before January 2017.
The father was cross-examined extensively by counsel in relation to his alcohol intake. He did not agree that he told Dr P in December 2016 that he was abstaining from alcohol at that time. He said he had abstained from alcohol in approximately March 2017. When asked why he had not heeded to Dr F’s recommendations and abstained from alcohol for 12 months, he said it was for social reasons, particularly when spending time with Ms D. The father’s Visa card records from December 2016 to April 2017 were produced on subpoena and tendered by the Independent Children's Lawyer (Exhibit ICL2). He said that during that period he did not purchase any further alcohol by cash.
The father was asked about the N Centre notes. He agreed that on one occasion he had said to the supervisor “pick some poisonous ones” referring to flowers that B was picking for the maternal grandmother. He said it had been a light-hearted comment made out of earshot of B and was intended as a joke. He agreed that in retrospect it was not humorous.
In relation to the time period where B had broken her arm, the father said he had received a medical certificate from the contact centre in mid-December 2016. He said the medical certificate was general and when he attempted to enquire as to the nature of B’s injury through his solicitors, he did not receive a response. He said he visited the hospital on 6 January 2017 to get some further information as to the nature of her injury and find out how she was healing. He did not tell the mother’s solicitor or the Independent Children's Lawyer that he intended on visiting the hospital. He said that was not an attempt to see B. He was not given any information by the hospital and was asked to fill out a form. He subsequently received information from the mother’s solicitors as to B’s progress.
The father was asked about the time he spent with B during supervised contact visits in March 2017. He was asked whether he thought it necessary to advise the mother of where he intended to take B as a means of alleviating the mother’s anxiety. He said, “We were using a fully accredited supervision service. I followed every instruction of the service. I didn’t believe that there would be any point in trying to say anything further…[the contact] was monitored closely by the supervisor at all times.”
The father was cross-examined about the incident that resulted in the father taking a photo with B on his shoulders holding a rope. He was asked how it was that B came to be holding a rope in those circumstances. He said that B was on his shoulders playing “horseys” and they were “trotting around” the contact centre. He said B had asked him to get the rope so she would have reins to hold. The supervisor had taken nine photographs on that occasion.
When cross-examined by the Independent Children's Lawyer, the father said the photos that were taken on that occasion were not the first that he had caused to be taken during the supervised contact visits. He said they were maybe 50 photos up to that time.
Counsel asked him whether he thought to take a photo with B on his shoulders without the rope. He said he did not think about it. He said he chose the photo with the solicitor. When asked whether he still considered the photograph to be appropriate, he said that having seen the comments that were made, he should have given it more thought, although he emphasised that he did not consider the rope to resemble a noose at all.

Affidavit of Ms D

The father relied upon an affidavit sworn by his new partner, Ms D, which was filed on 5 August 2016.
The father and Ms D met in June 2014.
Ms D has three adult daughters, the eldest aged 21 and twins aged 19. Only Ms D’s eldest daughter resides with her.
Ms D is employed in the health industry.
Ms D deposed that she and the father do not live together but spend many hours together when not at work. She deposed that they have a relationship of mutual respect, friendship, trust and love. The father has never been aggressive or abusive either verbally, physically or emotionally towards Ms D or her daughters.
Ms D deposed that she and the father have discussed the father’s previous alcohol abuse and aggressive behaviours and domestic violence in relation to the mother. She deposed that the father said to her, “I said some very cruel things to [the mother] at times and I said some unpleasant things about [the maternal grandmother].”
At the commencement of their relationship, the father said to Ms D “I drank way too much. I drank by myself a lot. I have also had depression.” Ms D deposed that this concerned her and she observed him during their relationship for signs that he was continuing to drink alone or consume alcohol in excess. Ms D deposed that she has not seen any indications of those behaviours during their relationship.
Ms D deposed that she supported the father in his continuing psychological treatment with Dr P. She deposed to seeing the father change in terms of his use of alcohol. She deposed that she is confident that the father only drinks alcohol in a social setting and that his alcohol intake has decreased since she met and formed a relationship with him. She also deposed that the father has changed the nature of the social activities that he undertakes so he is less inclined to consume alcohol.
Ms D deposed that when she spends time with the father approximately once or twice per week they share a glass of wine with dinner.
Ms D deposed that she is comfortable and willing to act as a supervisor for the father’s time with B if required by the Court. If she were to act in this capacity, she deposed that she would take appropriate action to protect B if she observed anything that posed a risk to B’s safety.

Oral evidence of Ms D

Ms D was cross-examined in relation to her affidavit sworn 4 August 2016.
She was asked about what “cruel things” the father had told her he had made about the mother and the maternal grandmother. Ms D said the father had called the maternal grandmother “a witch”. In relation to the mother he had said things about “her breasts hanging low … or something about her weight.” She was not sure whether he had said those things to or about the mother whilst intoxicated.
Ms D was aware of an altercation between the father and the mother which resulted in police intervention. She said “I believe there was a scuffle in the kitchen … he told me he was defending himself.”
In relation to the father’s drinking habits, Ms D said that on a weekly basis the father will drink “a couple of glasses of red wine together” once, or maybe twice, per week. She continued, “I’m very aware of the accusations about his drinking. I’ve been very careful, looking to see if there’s anything to be concerned about. If he had a drinking problem, I wouldn’t be with him and I certainly wouldn’t be here today”. She said her understanding of Dr P’s recommendation was for the father to abstain from consuming alcohol for 24 hours before seeing B.
Ms D confirmed her willingness to provide supervision should orders be made for the father to spend supervised time with B. She agreed that she would take appropriate action to protect B should she hear any denigrating statements made by the father about the mother or maternal grandmother.

Affidavit of Ms C

The father relied upon an affidavit sworn by Ms C on 22 August 2016.
Ms C is a friend and work colleague of the father. Ms C is originally from the United Kingdom but she met the father in Sydney in 2015. After they ceased working together, Ms C deposed that she continued to see the father in a social capacity.
Ms C deposed that the father has told her of the current situation with B. She deposed that the father told her “I’m not allowed to drink alcohol around B or before seeing her. At times I used to drink alcohol excessively”.
Ms C deposed that the father said to her, “[The mother] is afraid for B’s safety if she is in my care because of my past behaviour.” Ms C stated that she was aware of there being an Apprehended Violence Order against the father.
The father spoke to Ms C about the changes he made in relation to his alcohol consumption. He told her that “I have changed my drinking. I have reduced it considerably and changed when I do drink alcohol. I monitor what I am drinking and regulate it.” There is no indication of when the father said this to Ms C.
Ms C deposed that during the time she worked with the father and when spending time together in a social setting, the father did not appear to be under the influence of alcohol, nor did he behave as though he was intoxicated.
Ms C deposed that she has many friends who have children, is a godparent and often babysits children for her friends. She deposed that she would agree to undertake the role of supervisor for the father to spend time with B if she was required. She deposed that she is confident that she would intervene to protect B if necessary and would prioritise B’s safety and her compliance with her obligations under any orders made by the Court.

Oral evidence of Ms C

Ms C confirmed that she would accept the responsibility of supervising the father’s time with B for a block of several hours up to once per week. She believed this could be an ongoing responsibility over some three to six months. She said she would have no difficulty if that period were to extend beyond six months.
Ms C said she had been told by the father that the mother was afraid about B’s safety in his care due to “his past behaviour”. She believed this to relate to his prior drinking. The father told her that currently (at the time of the trial) he either had not been drinking or had been drinking “very little”. He had not elaborated on his consumption of alcohol.
The father had not told Ms C of any occasions of physical violence between him and the mother. She was aware that there was an AVO of some effect against the father. She was not aware that the father had felt depressed, although she would agree with that description based on her observations of him.

Affidavit of Dr P

Dr P is the father’s treating psychiatrist. He swore an affidavit in these proceedings on 24 August 2016 to which he attached a copy of his Comprehensive Psychiatric Evaluation Report dated 23 August 2016 setting out his psychiatric opinion of the father.
Dr P had an initial assessment with the father on 8 August 2014. During that assessment, Dr P reported that the father presented with a six-week history of depressive symptoms, characterised by depressed mood, low energy level, low motivation, lack of enjoyment, loss of appetite and significant weight loss. The father reported that the onset of his depressive symptoms were precipitated by the breakdown of his marriage. He had been accused of being physically aggressive towards the mother and an AVO was taken out against him, his financial situation deteriorated, and he was given only limited access to his daughter.
The father reported no history of psychiatric disorders, illicit substance abuse, or of aggression or violence. The father reported to Dr P that he used alcohol in varying frequency and quantity. Dr P noted there was no evidence of alcohol abuse or dependence.
Based on his initial assessment, Dr P diagnosed the father with Major Depressive Disorder.
Dr P reported that the father’s depression promptly responded to medication and psychological treatment. His depressive symptoms had resolved by 31 October 2013.
On 18 September 2014 the father attended a follow-up consultation with Dr P. It was noted that the father presented with no symptoms or signs of any psychiatric disorder, including depression. The father reported that he stopped consuming alcohol on a regular basis. Dr P noted this was consistent with his blood test results on 16 October 2014.
On 20 October 2014 the father attended on Dr P accompanied by Ms D. Dr P noted that the father remained in complete remission of his symptoms. Ms D corroborated that the father was not experiencing symptoms of depression and that he was not misusing alcohol.
On 1 March 2016 the father reported his continued distress and disappointment in relation to his limited access to his daughter. Dr P reported that there was no evidence of major psychiatric disorder or alcohol abuse disorder. He requested regular therapy and Dr P provided four weekly sessions of therapy as requested. During those sessions, Dr P reported that the father presented well without any features or symptoms suggestive of a psychiatric disorder or alcohol abuse disorder.
Dr P reported that the father’s GGT results indicated hepatocellular damage, which in the case of reported regular alcohol intake is likely to be due to regular alcohol consumption in excessive quantity. The father’s results from 2008-2013 demonstrated an elevation of GGT. The rest of the father’s results were within normal range. His results on 16 October 2014 demonstrated a significant drop from his previous results on 12 August 2013 of a high GGT reading.
The father’s test results for 2 September 2015, 22 January 2016 and 19 July 2016 indicated a reducing trend in GGT levels which Dr P noted could mean reducing amounts of alcohol use or improving level of hepatocellular damage following a complete cessation of alcohol use.
The father’s MRI brain report dated 23 August 2016 showed no abnormalities.

As seen herein, Dr S, who has never met the father nor observed B interacting with him, opined that the photograph was taken, having regard to the mother’s history and her brother’s death, to be a potential threat. I do not accept that she could reasonably have reached that conclusion based upon the mother’s version of fact only.
The mother, I accept, was very distressed when she saw the photo, however, because she has a particular vulnerability which has been identified by the single expert I find that particular impact upon her was not one that was intended by the father. I do not accept that the father created the circumstance or even took advantage of a circumstance in order to send a hurtful message to the mother.
In addition to the above I do not accept it was at all reasonable to consider the placement of the skipping rope in the child’s hands for that photo could be considered as a noose.
In her evidence the mother attributed words to B about the circumstances of how the rope came to be used in the game. The mother said she had a conversation with B about the photograph. She said B told her that the father pointed out where the rope was and he helped her onto his shoulders to play cowboys. B said that the father told her to hold the rope.
I do not accept the mother’s evidence about that conversation in that I do not accept the mother did not lead the child into the conversation or either directly or subtly suggest the answer she was so sure about.
The mother told police that the father had depicted the scene of her brother’s death to intimidate her. She suggested that the way the rope was being held resembled a noose.
The father told police that B had found the skipping rope on the floor and “wanted to use it as reins on the horse as she was riding on [his] shoulders pretending he was the horse.” The father was aware of the allegations made about the photo but said that was not his intention. He told police the photo was picked out by him and his solicitor as one of many photographs to display how happy the child was during their contact visits. The record notes that the police did not believe the allegation could be substantiated.
I accept the version of fact provided by the father to the police.
The evidence satisfies me that the father did not intend to send a message to the mother by having a photo taken of B playing the horsey game with him including the use of a skipping rope as a pretend rein.

Section 60CC Considerations

Primary considerations

In addressing the considerations set out in sub-section 60CC(2), I take into consideration the terms of sub-section 60CC(2A), which requires me to give greater weight to considerations set out in paragraph (2)(b).

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;

In this matter there is no issue that B will live with the mother. The mother, however, seeks an order that B spend no time with the father. In those circumstances it will not be possible for B to have a meaningful relationship with her father.

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The evidence supports a conclusion that B was exposed to domestic violence prior to the separation of the parties. That domestic violence consisted of, at the least, being exposed to yelling and arguing between the parents as the mother has alleged. It is also possible that she observed some degree of physical interaction between the parents which was domestic violence.
Orders will be framed by the Court to do all that can be done to protect B from exposure to parental conflict and any form of physical or psychological harm or from being exposed to abuse or family violence.

Additional considerations

(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

B is too young for her views to be given any real weight. However, certain conclusions can be drawn from the reports of supervised contact she has had with her father over a two year period. I have included in these reasons, perhaps somewhat tediously, a lengthy list of summaries of the observations of the supervisors of the father’s time with B. The compelling conclusion is that B has responded positively and warmly with her father. She clearly identifies him as “Daddy” and her interaction with him has been patently enjoyable for both her and the father. Further, the reports support the conclusion that the father has skills in interacting with her.
The evidence also satisfies me that B has a close and dependent relationship with her mother and is comfortable and enjoys being cared for by the mother.

(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child);

I accept that B has a good and close relationship with the mother. There is no issue between the parties on that assessment.
As can be seen from the evidence recited in these reasons, the mother accepted that the notes indicate that the relationship between B and her father is one valued by B. That concession was a significant one in this case. Had the concession not been made I would still have determined, as I do, that B does value her relationship with her father. I find that B clearly identifies the father as “Dad or Daddy”. The reports provided by the supervisors of the father’s time with B overwhelmingly report positive, warm and responsive interactions between the father and B at the N Centre and the subsequent visits supervised by the M Group.
The mother is of the opinion that the father has such a strong and beguiling personality that he is able to manipulate the workers at the N Centre such that he can choose the supervisors who are favourable to him and then have them report only the positive aspects of the interaction they observe. There is no evidence to support a finding to that effect and, in any event, I consider it so unlikely so as to be able to dismiss it as a possibility.
Dr F observed the father’s relationship with the child to be positive from the commencement of their visits at the N Centre in November 2013.
Dr F opined that at least the significant component of the child’s disposition towards the father was positive.
In his observation with the child, Dr F noted that the child separated well from the mother and engaged positively with the father. The father was very child-focused. Dr F noted that the father was not disconnected in an abstract demonstration of being a “good father”, as he indicated can occur in narcissistic parents.
Dr F was asked to consider the report of the contact session held on 11 March 2017. This was reported as a positive interaction notwithstanding B had not seen the father for four months. Apart from commenting on the strength of the relationship between B and the father, Dr F said that the mother has the capacity to shield the child from her negative views of the father. In cross-examination Dr F said:
The other comment I would make is that it – this observation is consistent with the mother’s report that she does not undermine or denigrate the child’s relationship with the father, because – and that she tries to protect the child from her own anxiety, because considering the intensity of the mother’s negative judgment of the father and her past experience of him and her fears about him, if the child had exposure to those things, you would expect after four – and there would be a significant risk after four months that the child was now much more averse to the father.

(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii) to spend time with the child; and

(iii) to communicate with the child;

When asked about her future intention in relation to advising the father of any long-term decisions made in respect to B, the mother proposed that she could give updates to her solicitor. She said another way would be to pass information on to a third party. She agreed that it is important for the father to know information about B’s health and welfare. She did not agree that it was important for the father to have knowledge of information such as education or schooling.
The mother has demonstrated her desire to completely dominate the father in terms of stipulating he is not to spend any time with the child. She seeks an order, as her primary position, that the father have no time with B.

(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The evidence in relation to the father’s history of payment or non-payment of child support was not canvassed to the point where I can be certain of whether the father has paid all his child support up to date at the point of the hearing. The mother, however, seemed reasonably convinced that the father was either in arrears or that he was paying a very small amount of child support pursuant to a Child Support Assessment.
The mother said the father ceased paying the day care fees for B in July 2013, however, the reason for that was not canvassed. It seemed that he may have received a Child Support Assessment shortly thereafter or alternatively was required to meet his own accommodation costs which left him with less funds than he had at the time of the separation.
The mother deposed that the father has a history of paying irregular amounts as child support.
I am unable to make any clear findings about this consideration.

(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The potential changes in the child’s circumstances can be defined as:
·The possibility that B spends no time with her father (in accordance with the mother’s proposal); or
·The possibility that B spends more time with the father graduating to unsupervised time.
Dr F indicated that B would grieve a complete disconnection from either parent.
Dr F opined that the child would adapt to a total separation from the father, but she would experience some grief which would become complicated as she grows older. If she were to be disconnected from her father, she would miss out on the positive and energetic input that the father is able to provide, and the beneficial challenge of adapting to two different parents.
The possible impact on B of spending time with the father as he proposes is that she grows her relationship with him. The possible adverse impact would be if the mother was unable to psychologically cope with B spending additional time in an unsupervised environment with the father.
Dr F’s opinion was that the mother would be capable of coping with such a change if specific safeguards were in place. It was the evidence of the mother’s treating counsellor Ms H and psychologist Dr S that the mother would not be able to cope with the father spending unsupervised time with B.

(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The practical impact upon the parties relates to the cost of strictly supervised time and the distance from each parties’ home to the point where the contact takes place.
The mother has been meeting at least half the cost of the supervision as is a requirement of the N Centre and the father pays as well. Additional fees are required if extra or special time is requested.
The single expert has opined against the need for and benefit of long term supervised time for the father with B.

(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

This consideration includes looking at the psychiatric and psychological wellbeing of each parent. Dr P, the father’s treating psychiatrist, gave evidence that he had diagnosed the father with a major depressive disorder. He said he had treated that illness and the father had responded to medication and psychological treatment. His depressive symptoms had resolved by 31 October 2013. Dr P reviewed the father in September 2014 and found he presented with no symptoms of depression or any psychiatric condition.
Dr P saw the father again in March 2016 and presented no symptoms of a major psychiatric disorder or alcohol abuse disorder.
Dr P reviewed the results of testing carried out on the father over a period from 2014 to 2016. He said the results did not indicate any alcohol abuse.
Dr P said he was optimistic the father would maintain remission from his alcohol use disorder.
In oral evidence Dr P said he had seen the father as recently as May 2017.
Dr P acknowledges that there were likely to be triggers which could see the father revert to a depressive state. One such factor would be if he was not permitted to see his daughter.
Dr F was of the view that the father experienced some symptoms of anxiety or depression prior to and after separation. He opined that the father’s symptoms were likely an adjustment disorder with depressed and anxious mood. Dr F considered the father’s excessive consumption of alcohol to be a significant perpetuator of his depressive and anxious symptoms.
Dr F opined that the father likely has an alcohol use disorder of a moderate to severe nature. However, he noted that the father’s alcohol use disorder was in partial remission at the time of the report.
Dr F opined that the father had some personality dysfunction, in terms of narcissistic personality traits and a dismissing adult attachment style. However, the expert considered it unlikely that the father had a personality disorder.
Dr F’s opinion of the father’s parenting capacity was that the father is committed to the child and to the responsibilities of parenthood and has been since the child’s birth. Dr F’s view was that the father was motivated by an altruistic desire to “do right by his child.”
Dr F’s opinion was that, when sober, the father is capable of providing for the child’s basic needs for food, shelter and protection from harm, and that the father has the capacity to meet the child’s immediate emotional and developmental needs. However, he expressed concern about the father’s capacity to meet the child’s more complex emotional, relational and developmental needs.
Dr F opined that the mother was a capable parent.
I find that the only aspect in relation to the mother’s capacity which is a matter of concern arises when consideration is given to the mother’s psychological strength to accept and make workable for B and herself the Court’s orders for B to spend time with the father.
The regime of time for B to spend with her father which has been recommended by Dr F has been constructed to give the mother a high degree of assurance and also to allow her to adapt on a gradual basis to the idea that B will be spending time with the father and that is something she has to facilitate as a matter of law.

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

This consideration does not call for address in this case other than to say B is a female child who has demonstrated some shyness when attending at the N Centre. There is also some evidence about a difficulty B had with requiring a number of pacifiers to accompany her to various places.

(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right

This consideration is not applicable.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

The mother has demonstrated a positive attitude to the child and I am satisfied she has used her best endeavours to protect B from the father’s domestic violence. I am satisfied she has been genuine in her apprehension for the safety of B in the care of the father.
As I stated at the commencement of these reasons this child is a special child for each of the parents in that she is their only child and each probably will not have further children. The consequence is that each has a large emotional investment in their relationship with B.
The mother has clearly demonstrated responsible parenting.
For the father, responsible parenting involves taking control of an alcohol abuse disorder which I am satisfied he has done. He has accepted his fault in his interaction with the mother during the cohabitation which in my experience is infrequently the case in hearings in this Court. Here the father contritely agreed he had behaved in the manner complained of by the mother with the only area of dispute being exactly what occurred in a particular altercation where the mother said the father had attempted to strangle her with her own arm.
I am satisfied the father has undertaken courses and done his best to challenge the demon of alcohol addiction and abuse. He has not achieved what has been recommended, however, he has certainly moved closer thereto. In so doing he has acted as a responsible adult doing as best he can to ensure he can have a relationship with his daughter.

(j) any family violence involving the child or a member of the child’s family

I am satisfied the evidence in this case establishes the father has demonstrated family violence as he has agreed he has. I am satisfied that which did occur between them of a physical nature in which the mother said the father had tried to strangle her was family violence even if the father’s version is accepted. I accept that on that occasion there was a scuffle between the parties as described by the father but I cannot be satisfied the father intended to try and strangle the mother nor that he was aware at that time that is what she believed that he was attempting.
I am satisfied the conclusion about domestic violence as recorded by Dr F is warranted and available as a conclusion based on my assessment and weighing of the evidence in this case. Dr F considered the issue of family violence in these proceedings to be significant. His opinion was that the father, during his relationship with the mother, “enacted a pattern of recurrent critical, entitled, demeaning, cruel, aggressive, intrusive and threatening behaviour towards the mother, which amounted to a pattern of family violence”.
Dr F elaborated that in using the term “family violence” he was not suggesting that the father had been physically violent to the mother, although he noted the mother’s description of the incident that occurred in March 2013 where the father held the mother by the neck. Rather, Dr F reported to use the term “family violence” to denote a pattern of behaviour that is “coercive, intimidating, disrespectful, and harmful to the other.”
Dr F further opined that the pattern of abuse perpetrated by the father led to distress and insecurity in the child and contributed to the child’s observed development of some inhibition and vigilance in her temperament.

Dr F reported:
I think it likely that the mother’s narrative [of family violence] is mostly an accurate account of her own experience, and that where the paternal account differs, this relates to conscious and unconscious minimising of his aberrant behaviour and the need to equate it to maternal behaviour, to lack of insight into the emotional impact of some of his behaviours, and likely to disrupted recall of events that occurred when he was intoxicated with alcohol.
To the extent that the court finds the mother’s narrative unreliable, and the father’s reliable, then any pattern of family violence perpetrated by the father may be less severe than I have opined, or there may have been more a pattern of symmetrical couple conflict, or the mother herself may have primarily been coercive and disrespectful in her behaviour towards the father.
Despite Dr F’s opinion in relation to the father, his stated impression was that the father displayed a prosocial and constructive self-image and intent with regard to his future role in parenting the child and as a respectful co-parent of the mother.
Dr F believed there are risks associated with family violence in the father’s care, but outlined that the risk is not high and can be managed by the child spending less than 50% of her time with the father.

(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;

(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;

(iv) any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter

On 11 September 2013 the father consented to an ADVO without admissions. The ADVO expired on 11 September 2015. The father deposed that he agreed to the ADVO as he did not want to prolong the matter. The father deposed that he acknowledged he had been emotionally and verbally abusive to the mother during their relationship and that he had consumed alcohol excessively. However, he denied that he had ever been violent to the mother.
When the ADVO expired the mother applied for a further order or an extension of the original, however, that was not made.

(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The evidence in this matter supports a conclusion that a final order should be made and the parties and the child relieved of ongoing litigation in this Court.

(m) any other fact or circumstance that the court thinks is relevant

There is a consideration in this case as to the impact upon the mother of an order being made for B to spend time with the father. Although the mother provided to the Court an alternate minute of order, the time she proposed for the father to spend with B was less than that recommended by Dr F.
The evidence from Dr Q shows that the mother has been treated for panic attacks and sleep deprivation. The mother also has been treated for an anxiety disorder.
The worry which the mother had about the possible outcome of this case, including that B would have unsupervised time with her father, caused her to seek medical attention and she was given a medical certificate to exempt her from work for some days.
The mother found the concept of make-up time for the father at N Centre stressful to the point of making her feel physically sick. She ultimately refused to agree to same, which meant that B missed time with her father.
The mother informed the Court and her counsellor Ms H that she believed the father was capable of murdering B.
The mother did not permit B to see her father after B had fractured her arm whilst under the supervision of the mother. She did so by using the reason that the doctor had instructed her not to. She said “The doctor gave me the same instructions in terms of making sure that she wasn’t anywhere where she would be at risk of having it bumped, which – at a contact centre does include that risk.” I consider that demonstrates the mother’s willingness to grab at any excuse to avoid having to deal with B spending time with the father.
I have set out above my consideration of the issue about the “rope” incident at the N Centre. The mother’s reaction to the photo which arose from that incident demonstrates to me the mother’s vigilance, sensitivities, and suspicions as to the father’s motivations.
The maternal grandmother deposed that after the photograph was sent to the mother that depicted B holding what appeared to be a noose around the father’s neck, the mother has become fearful of B’s safety. The mother told the maternal grandmother “the photograph is a warning and B could be killed, I really think he could do it.”
The mother told the maternal grandmother that she was “absolutely devastated” following the release of Dr F’s report about the thought of B spending unsupervised time with the father. The mother has told the maternal grandmother about her continuing panic attacks and disturbed sleep. The maternal grandmother deposed that when the mother discusses supervised visits or the father spending time with B she is often close to tears.
Dr S opined that the mother presented with extremely severe levels of anxiety. The mother was reported to become visibly distressed when discussing the court case and Dr S noted that the mother hyperventilated on a number of occasions, indicating the emergence of a panic attack. Dr S reported that the mother required assistance during their consultations to manage her breathing. Dr S stated:
It is my professional opinion that [the mother] will be unable to cope should the Court order unsupervised access visits between the Father and their daughter B. [The mother] is likely to be debilitated to the extent that she is unable to work and parent effectively. At the present time, any thoughts of this occurring leads to a rapid escalation in her anxiety level and difficulty breathing and a developing panic attack. This is most likely due to the thoughts acting as triggers of memories of her history of trauma and her body reliving these experiences.
The observations of the mother not being able to consider the possibility of unsupervised time for B with the father were not evident in the hearing before me. The mother knew from the recommendation of Dr F in his report that is what he was proposing at the time she gave her oral evidence.
Dr S opined that once the proceedings are finalised, the certainty of final orders would assist the mother in being able to deal with her anxiety more effectively.
In relation to other referrals that Dr S would recommend for the mother, she said she would recommend the mother meet with a clinical psychologist on a fortnightly basis, as she would benefit from some one-on-one therapy to help manage any continuing and ongoing symptoms.
The mother did not make any positive statement about the father during her oral evidence which I have recorded. Even when she conceded B was reported to have enjoyed her time with her father on any supervised time, she did not concede that B genuinely enjoyed the time or that she did not know what was really in B’s mind. She held the view that the father had somehow corrupted the actuality of the reporting of the time B spent with him at the N Centre by manipulating the service to only provide supervisors who were likely to provide a favourable report of his time with B and who would not rigorously enforce the strict rules and protocols imposed by the N Centre.
On 7 April 2015 the mother told Ms H that the father was attempting to harm her and B through the things that were occurring during supervised contact visits. She said that the father could not be trusted to maintain boundaries.
On 11 August 2015 the mother told Ms H that she could not see the father spending unsupervised time with the child. She said “It’s terrifying to think a little 4 year old can live with him.”
On 2 February 2016 Ms H wrote a letter recommending that the supervised visits be changed to fortnightly to allow the mother some respite. The mother told Ms H that reading Dr F’s report had been a trigger for her. The mother reported having panic attacks on a regular basis and feeling exhausted. She said she had to take sick leave from work. The mother told Ms H that attending the contact centre has aggravated both her and B’s anxiety levels and she has been finding it “extremely hard” to maintain the weekly visits.
One of the mother’s concerns which she has voiced on a significant number of occasions was that B had nightmares about monsters. The mother clearly connected those nightmares with B visiting her father, however, Dr F reported that B’s early childhood teacher told him that B became emotionally upset and required comforting when other children were talking about monsters.
It was Dr F’s view that the mother was experiencing an anxiety disorder. His opinion was that the mother’s anxiety disorder could best be characterised as Post Traumatic Stress Disorder associated with her experience of family violence perpetrated by the father, in particular his emotionally and verbally abusive behaviour and the incidents of physical intrusion upon the mother in 2013. Dr F opined that the mother’s PTSD occurs on the background of some likely pre-existing PTSD symptoms associated with the traumatic loss of her brother.
Dr F opined that the mother’s PTSD was in partial remission at the time of his report. He did not consider the mother to have experienced associated depression.
It was Dr F’s opinion that the mother has not burdened the child with her misgivings about the father.
The mother had reported to Dr F that she was concerned about the father using the supervised visits with the child to instil fear in her or the child. She referred to the father’s use of dark colours and speaking of the theme of monsters, or the use of the rope. Dr F did not see any evidence of these concerns in the contact centre reports.
I have set out earlier in these reasons the recommendations provided by Dr F for the time that B should spend with the father. Those recommendations are made with the knowledge of the diagnosis made by Dr F of the mother and also with the knowledge of all the fact contained in his report including the evidence of domestic violence and alcohol abuse of the father. It is clearly the conclusion of Dr F that orders constructed with the safeguards he recommends will enable the mother to tolerate (in the sense of her health) the impact upon her of the Court’s orders for B to spend time with the father.

Balancing of all considerations under Section 60CC and the defined issues

Balancing the matters set out in section 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of B.
I accept the recommendation of Dr F as to the time and the circumstances in which B spends time with the father. I am satisfied that the conclusions of Dr F have been well founded and logically reached based upon the evidence which was provided to him and which has been provided to the Court.
The great advantage of the recommendations of Dr F over the primary position of the mother is that the proposal allows B to continue a relationship which is important to her. It enables her to understand her identity and exposure to each parent in an atmosphere of safety will enable her to ultimately form her own views and conclusions about each parent and what she would prefer to do about the time she lives with or spends time with either.

Section 61DA

This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the child’s best interests for their parents to have equal shared parental responsibility for the child.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the child.
The section further provides in sub‑section (4) that the presumption may be rebutted if it is determined to be not in the child’s best interests.
In this case each parent askes the Court to make an order for sole parental responsibility in favour of the mother.

Section 65DAA

SECTION 65DAA(1)-(4)

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility.
The order to be made here will be one of sole parental responsibility. The time that B will spend with the father will be very restricted at least in the near future and may develop to significant time at some future date however it will not happen for a long time in all probability.

SECTION 65DAA(5)

This section requires me to consider making an order for equal shared time for the child with each parent where it is proposed to make an order for equal shared parental responsibility. The section also requires the court to consider other configurations of time for the child to live with and spend with each parent or relevant person.
The orders to be made will be very limited in scope because of the reasons set out above.

The Orders to be made

The father conceded the mother should have sole parental responsibility. He did so because he considered such an order would stop conflict between them, at least to some extent.
Ms D deposed that she is comfortable and willing to act as a supervisor for the father’s time with B if required by the Court. If she were to act in this capacity, she deposed that she would take appropriate action to protect B if she observed anything that posed a risk to B’s safety. Ms C, friend of the father, also provided evidence that she would make herself available to supervise the time between the father and B and take steps to ensure B’s safety if required.
Dr F said that it would not be appropriate in his view for Ms D to be the only supervisor of the father’s time with B, however, there are practical consideration to be taken into account. The order requiring professional supervision carries with it a significant cost that would be onerous for the parties to bear if it was to continue for a lengthy period of time. I therefore propose to require professional supervision of the father’s time with B up to and including 24 March 2018.
The father has been having professionally supervised time with B for four years and that, in my view, is as much as the Court can reasonably ask of the parents in this case. Additionally, the Court recognises that strict supervision of time for the father and B creates an artificial environment in which to grow their relationship. The hearing in this matter concluded in May this year and the mother has had another seven months since the hearing to adapt to B spending time with the father.
After a further three months of professional supervision, I propose to move the supervision of the father’s time with B to supervision by Ms D and/or Ms C and/or any other supervisor who is agreed to between the parties in writing. Overnight time for B with the father will not commence under the orders I propose to make until November 2018. The overnight time will be supervised until the beginning of the 2020 school year. At the beginning of the 2020 school year B will be eight and a half years old.
In order to cater further to the mother’s needs I propose to require each of the non-professional supervisors to sign a form of acknowledgment of their obligations as supervisors and have a copy of that document provided to the mother’s solicitor and the Independent Children’s Lawyer.
I further propose to make an order to permit the father to expand the number of supervisors to assist or replace the two nominated supervisors Ms D and Ms C if required. The order will be framed so as to avoid the necessity of the father having to approach the court to obtain an order unless the mother persists with objection in the face of approval of the supervisor by the Independent Children’s Lawyer. In such circumstances the continued objection by the mother will be at her risk as to costs. For the purpose of that order and other reasons, I propose to extend the appointment of the Independent Children’s Lawyer for two years.
Subject to what has been said by me above and subject to some adjustments I propose to make orders as recommended by Dr F together with any other protections submitted by the Independent Children's Lawyer where I consider same are of value in supporting the Court’s orders.

I certify that the preceding six hundred and fifty-two (652) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 December 2017.

Associate:

Date: 20 December 2017

[2017] FamCA 1101

20 December 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Injunction

Procedural Fairness

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