OLSEN & RIGBY
[2020] FamCA 885
•23 October 2020
FAMILY COURT OF AUSTRALIA
| OLSEN & RIGBY | [2020] FamCA 885 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child – Where the mother seeks orders that the child live with her and spend only supervised recognition time with the father four (4) times per year at three (3) month intervals – Where the father seeks orders that the child spend unsupervised time with him and increase that time on a graduated basis – Where the Independent Children’s Lawyer seeks orders be made for the child to live with the mother and spend supervised recognition time with the father for once per month up until the child commences Kindergarten and then for that time to be reduced to six (6) times per year – Where the mother makes allegations that the father has perpetrated family violence against her and sexually abused the child – Where the mother has a history of mental health issues that are now in remission – Where the mother currently suffers from Post-Traumatic Stress Disorder and contends that disorder has arisen from an incident of non-fatal strangulation perpetrated by the father – Consideration of the family violence in the nature of ‘jealousy’, ‘gas lighting’, ‘social isolation’, ‘serious acts of physical violence’ and ‘excessive drinking’ – Where the Court finds that the father has perpetrated family violence against the mother including physical violence and by engaging in controlling, coercive and belittling conduct – Where the Court concludes that, based on the evidence presented, no finding is made that the father sexually abused the child – Where the Court finds that the mother is the only person who is the viable primarily care for the child – Whether there is an unacceptable risk to the child in spending time with the father – In the context of the mother having a pre-existing vulnerability to mental health issues, consideration given to the potential impact of the father’s conduct on the mother’s functioning including fulfilling her responsibility of being the child’s primary carer – Orders made for the child to spend recognition time with the father as proposed by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) s 4AB, 43(1)(c) and (ca), 60B(1), 60CA, 60CC, 61DA, 65DAA, Evidence Act 1995 (Cth) s 140 |
| A v A (1998) FLC 92-800 John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15 |
| APPLICANT: | Ms Olsen |
| RESPONDENT: | Mr Rigby |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5015 | of | 2017 |
| DATE DELIVERED: | 23 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 20 and 21 July 2020 in person; 22 July 2020 in person for half the day, and web conference in the afternoon; 23 and 24 July 2020 by web conference. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Christie SC |
| SOLICITOR FOR THE APPLICANT: | Pearson Emerson Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Hill |
| SOLICITOR FOR THE RESPONDENT: | Inner West Solicitors Pty Ltd |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lioumis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That Ms Olsen (“the mother”) have sole parental responsibility for B (“the child”) born … 2017.
That the child live with the mother.
That Mr Rigby (“the father”) spend time with the child, as follows:
(a)Up until the child commences Kindergarten, on the first Sunday of each month for a period of up to four (4) hours co-ordinated by a professional supervisory service nominated by the mother; and then
(b)On the first Sunday of each second month (being six (6) times a year) for a period of up to four (4) hours, to be co-ordinated by a professional supervisory service nominated by the mother.
(c)That each party will meet in equal shares the costs associated with Order (3)(a) and (b) herein.
That the time in Order (3) shall occur at locations which are agreed between the father and supervisory service and may include members of the paternal family as elected by the father.
That the father be at liberty to send cards and gifts to the child and the mother be permitted to read such cards and check such gifts to ensure that they are appropriate before passing them onto the child.
That all communication between the parties is to be via email to an email address nominated by each party to the other.
That the mother shall notify the father as soon as practicable in the event that the child suffers a major illness and injury.
The mother have the sole authority to obtain a passport for the child without the consent of the father.
Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to take the child outside the Commonwealth of Australia without the consent of the father.
That the father pay, within 28 days, the Independent Children’s Lawyers costs in the sum of $6,950.50 to be paid to Legal Aid NSW.
That the mother pay, within 28 days, the Independent Children’s Lawyers costs in the sum of $5,300.50 to be paid to Legal Aid NSW.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Olsen & Rigby 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 SYDNEY |
FILE NUMBER: SYC 5015 of 2017
| Ms Olsen |
Applicant
And
| Mr Rigby |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns an Application for parenting orders in respect to the child B (“the child”) born … 2017. The child currently lives with Ms Olsen (“the mother”) and spends time with Mr Rigby (“the father”) on three (3) occasions per week. That time is supervised by either the paternal grandfather or a friend of the father’s. The mother seeks orders that would reduce the child’s interaction with the father to recognition time only, such contact, she contends, should occur up to four (4) times per year at three (3) monthly intervals. The primary reason that the mother seeks those orders is that she contends she has been the subject of family violence that has resulted in her suffering post-traumatic stress disorder (“PTSD”). The mother contends that the prospect of the child spending time with the father is such that it so impacts upon her mental health and sense of well-being that it is likely to adversely impact upon her parenting capacity in circumstances where she is the child’s primary carer.
The father denies the mothers allegations that he has engaged in coercive and controlling conduct or otherwise engaged in conduct that constitutes family violence. He seeks orders for the child to spend a graduated amount of unsupervised time with him, with that time building up to the child spending overnight time with him commensurate with her developing maturity.
The Independent Children’s Lawyer initially reserved her position, however, after hearing the totality of the evidence presented in these proceedings, essentially supports the mother’s position. In that respect, the Independent Children’s Lawyer proposes that the child spend only recognition or identity time with the father and that time occur once per month for a period of four (4) hours, with that time to be supervised by a professional contact centre. The Independent Children’s Lawyer further proposed that that time be reduced to bi-monthly after the child commences school.
For reasons which I set out in this decision, I have substantially adopted the orders proposed by the Independent Children’s Lawyer.
Issues
The mother has had a complex history of mental health challenges. I am satisfied, however, that the mother has been diligent in seeking treatment to address those challenges. Leaving aside the PTSD arising from a non-lethal strangulation incident which occurred in early 2017, at the hands of the father, I am satisfied that the mother’s mental health program is successful and she is in remission in respect to the historic conditions from which she has suffered including an eating disorder and depression. Nonetheless, in the context of that history and the impact of the PTSD, the mother remains vulnerable to further mental health episodes. I respectfully agree with the submission by the Independent children’s lawyer that, in addition to having regard to those matters set out in s 60CC of the Family Law Act1975 (Cth) (“the Act”) , the most significant issues to determine in these proceedings are:
a)Whether an order for the child to spend time with the father has the potential to adversely impact upon the mother’s health and well-being; and, if so
b)Whether that impact carries a risk to the child which is unacceptable; and, if so
c)Whether that risk can be ameliorated.
As will be explained in the course of this decision, the impact of the early 2017 non-lethal strangulation incident upon the mother is significant in respect to the Court’s consideration of each of those issues.
Applications
Orders sought by the mother
The mother seeks that orders be made in accordance with her Minute of Order (marked ‘Exhibit 33’ in the proceedings), as follows:
1. In these Orders:
1.1 “Child” means B born … 2017.
1.2 “Father” means Mr Rigby.
1.3 “Mother” means Ms Olsen.
2. The mother have sole parental responsibility for the child.
3. The child live with the mother.
4. There is no order for the child to spend time with the father.
5. The father have contact with the child by way of telephone, FaceTime or other video link application on up to four occasions per year at 3 monthly intervals, and a person nominated by the mother will be in the presence of the child during any such contact.
6. The father is at liberty to send cards and gifts to the child, and the mother is permitted to read such cards and check the gifts to ensure that they are appropriate before passing them on to the child.
7. All communication from the mother to the father is to be by email.
8. In the case of an emergency, communication from the father to the mother is to be by email and will be directed to the email address of a person nominated by the mother within 7 days of the making of these Orders.
9. The mother is to notify the father as soon as practicable in the event that the child suffers a major illness or injury.
10. That pursuant to s68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother, the father be restrained from:
10.1 coming within 100 metres of any place at which the mother may live including but not limited to EE Street, Suburb FF NSW in the State of New South Wales;
10.2 coming within 100 metres of any place at which the mother works;
10.3 assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother; and
10.4 contacting, attempting to contact, communicating with or attempting to communicate with the mother other than is provided for in these Orders, except in the case of an emergency when paragraph 8 applies;
11. The mother have the sole authority to obtain a passport for B without the consent of the father.
12. Pursuant to section 65Y the mother be permitted to take B outside the Commonwealth of Australia without the consent of the father.
Orders sought by the father
The father seeks that orders be made in accordance with his Minute of Order (marked ‘Exhibit 34’ in the proceedings), as follows:
The Court Notes that:
1. In these Orders:
1.1. “Child” means B born … 2017.
1.2. “Father” means Mr Rigby.
1.3. “Parent” means the mother or the father.
1.4. “Party” means the mother or the father.
1.5. “Parties” means the mother and the father.
1.6. “Mother” means Ms Olsen.
The Court Orders that, pending further Order:
2. That the parties have Equal shared Parental responsibility in consultation with each other in relation to making decisions concerning the long term care, welfare and development of the child.
2.1 In the event that Equal shared parental responsibility is not ordered by the court, the court order Parental responsibility to be held by the Parent whom the child is with, within the court allocated visit schedule as per Family Law Act 1975 – section 61C (1), (2),(3) and Section 61 D (1) and (@2) [sic].
3. The child’s Surname changed via the relevant authority to Olsen-Rigby.
4. The child live with the mother 9 Days out of 14 days and spend time with the Father 5 days out of 14 days. Including half school holidays. Upon a graduating schedule up to the commencement of school.
5. From the date of these Orders and up until an age appropriate change is required for the child and her routine, the father spend time with the child at times agreed between the parties in writing, and if not agreed, as follows:
5.1 The immediate schedule of time to commence with an increase from 3 hours to 6 hours
5.2 The visits to occur on alternating weeks/weekends;
-week 1 :Saturday, Sunday and Thursday 10am – 4pm
-week 2: Monday, Tuesday and Thursday 10am – 4pm
5.3 Within a 3 month period, the visit schedule increase to include 1 overnight visit on the consecutive days in week 1 and 2 above.
-Week 1: Saturday 10am – Sunday 10am and Thursday 10am – 4pm
-Week 2: Monday 10am-4pm and Tuesday 10am – Wednesday 9am (drop off at the child’s daycare or school) and to include on Saturday Video-Facetime call for a minimum period of 10 minutes.
5.4 Within a 6 month period, the visit schedule increase to include 2 overnight visits over three consecutive days on alternative weeks/weekends;
-Week 1: Friday 5pm – Monday 5pm and to include a Wednesday Video/Face time call for a minimum period of 10 minutes.
-Week 2L Wednesday 5pm Pick up at Daycare – Friday 9am (drop off at Thrive daycare)
5.5 Subject to order 4, When the child begins Schooling or at the age of 5 the visit schedule change to longer care periods spent with the father in one block over the fortnight;
-Week 1: Friday at conclusion of the School day through to the following Wednesday at the conclusion of the school day.
5.5 Subject to orders 6.1 and 6.2; for a minimum of 4 hours from 10am to 2pm on each of the following special occasions: the child’s birthday, the father’s birthday, Good Friday, Christmas Day and New Year’s Eve.
6. The removal of the order for a required person to be present during the Child’s visitation with the Father.
7. A Supervised handover to be conducted at the beginning and conclusion of each visit.
8. For the purposes of Order 7:
8.1. Unless a supervised Handover upon each visitation is conducted at The child’s daycare or school, or contact centre, on each occasion the father shall collect the child from the mother’s residence at the beginning and the mother shall collect the child from the father’s residence at the completion of each visit with handover to occur in the presence of the maternal grandparents, paternal grandparents or agreed party and or Supervision contact service.
9. The Parties communicate all child related matters through the App Our Family Wizard Or through the services of a Parenting Coordinator and cease the use of litigation via legal counsel for communication.
10. The Court orders that in the event that either of the Parties intend to conduct Overseas or interstate travel with the Child they seek and receive approval for the Child to travel out of the Country and only within the allocated time period of the court ordered schedule. Unless otherwise agreed between the parties in writing prior.
11. The Parties agree to the Baptism of the Child and the appointment of two Godparents; Godmother – Ms GG (Mother’s Sister) and Godfather – Mr M as originally agreed upon by the parties.
12. The mother provide the father with regular updates as to the child’s progress by email, including, but not limited to, photographs of the child at intervals of no less than one week, developmental progress and copies of any reports from any health professionals seen by the child. The Father provide the Mother with regular updates relating to specific child activities within the timeframe of the visit schedule.
13. Both parents notify the other not less than 21 days before change of address.
14. Both parents notify the other of any change to the parent’s telephone number and email address.
15. Neither parent shall denigrate the other within the child’s presence or hearing.
16. The mother shall attend on her treating Psychology Practitioner, treating Psychiatrist, General Practitioner and Dietician on such basis recommended by that Health Professional.
17. Both parents notify the other as to any event within two hours of any serious injury or illness of the child.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with their Minute of Order (marked ‘Exhibit 32’ in the proceedings), as follows:
1. That the Mother have sole parental responsibility for the B born … 2017.
2. That the child live with the Mother.
3. That the Father spend time with B:
a. Up until the child commences Kindergarten, on the first Sunday of each month for a period of up to 4 hours co-ordinated by a professional supervisory service nominated by the mother, and then
b. On the first Sunday of each second month (being six times a year) for a period of up to 4 hours, to be co-ordinated by a professional supervisory service nominated by the mother.
c. That each party will meet in equal shares the costs associated with order 3 (s) and (b) herein.
4. That the time in Order 3 shall occur at locations which are agreed between the Father and supervisory service and may include members of the paternal family such as the father elects.
5. That the Father be at liberty to send cards and gifts to the child and the Mother is permitted to read such cards and check such gifts to ensure that they are appropriate before passing them onto the child.
6. That all communication between the parties is to be via email.
7. That the Mother shall notify the father as soon as practicable in the event that the child suffers a major illness and injury.
8. That the Father pay within 28 days the Independent Children’s Lawyers costs in the sum of $6,950.50 to be paid to Legal Aid NSW.
9. That the Mother pay within 28 days the Independent Children’s Lawyers costs in the sum of $5,300.50 to be paid to Legal Aid NSW.
Senior counsel for the mother indicated that the mother agreed with the Independent Children’s Lawyer’s proposed orders 1, 2, 5, 7 and 9 and further order 6, providing there is an addition with the words “to an email address nominated by the mother.” In the circumstances of the anxiety experienced by the mother in communicating with the father, I accept that the additional words of qualification are appropriate but should apply equally in respect to both parties.
Evidence
The mother relied upon the following documents:
a)Amended Initiating Application filed 6 April 2020;
b)Affidavit of the mother filed 9 June 2020 and annexures to that Affidavit;
c)Affidavit of Ms E Olsen (“the maternal grandmother”) filed 9 June 2020;
d)Affidavit of Mr F Olsen filed 9 June 2020;
e)Affidavit of Ms G filed 9 June 2020;
f)Affidavit of Ms D filed 9 June 2020;
g)Affidavit of Mr H filed 9 June 2020; and
h)Single Expert Report of Dr J dated 11 February 2019.
The father relied upon the following documents:
a)Response to Initiating Application filed 8 September 2017;
b)Amended Application in a Case filed 30 January 2018;
c)Notice of Risk filed 8 September 2017;
d)Affidavit of the father filed 9 June 2020 and annexures to that Affidavit;
e)Affidavit of Mr K Rigby (“the paternal grandfather”) filed 9 June 2020;
f)Affidavit of Ms L Rigby (“the paternal grandmother”) filed 9 June 2020;
g)Affidavit of Mr M filed 9 June 2020;
h)Affidavit of Mr N filed 16 January 2018.
The Independent Children's Lawyer relied upon the following document:
a)Single Expert Report of Dr J dated 19 February 2019.
The following exhibits were relied upon:
a)Letter from solicitor for the mother to the father dated 29 January 2020 (‘Exhibit 1’);
b)Photograph of O Street dated 11 February 2018 (‘Exhibit 2’);
c)Medical Report by Dr P and Dr Q of R Hospital, in respect to the child, dated 10 February 2020 (‘Exhibit 3’);
d)Notes by New South Wales Department of Communities and Justice Child Protection Case Worker, Ms S (category: correspondence – phone calls, letters or emails) dated 10 March 2020 (‘Exhibit 4’);
e)Notes by Ms S (category: consultation – health) dated 10 March 2020 (‘Exhibit 5’);
f)Tender bundle of the Independent Children’s Lawyer (‘Exhibit 6’);
g)Three (3) text messages between the mother and the father on 11 February 2017 commencing from “I wanted to share your page…” and concluding “Thanks but I’ll be home at 3 and do it then xxx” (‘Exhibit 7’);
h)Handwritten report of Dr T dated 16 March 2020 produced pursuant to subpoena by Department of Communities and Justice and notes by Ms S (category: correspondence – phone calls, letters or emails) dated 18 February 2020 (‘Exhibit 8’);
i)Photograph of handover between the mother and Mr Rigby dated 5 November 2017 (‘Exhibit 9’);
j)Bundle of text messages between the mother and the father from 20 March 2016 and 21 June 2017 (‘Exhibit 10’);
k)Record produced pursuant to subpoena by Ms U (‘Exhibit 11’);
l)Email from the father to Ms U dated 10 June 2018 (‘Exhibit 12’);
m)Medical notes of Dr V dated 23 January 2015 (‘Exhibit 13’);
n)Five (5) pages from notes produced by Ms G, the mother’s psychologist (‘Exhibit 14’);
o)Copies of academic transcripts of the father produced pursuant to subpoena by W University (‘Exhibit 15’);
p)Documents produced pursuant to subpoena by New South Wales Police (sleeves 10, 31 and 32) (‘Exhibit 16’);
q)Documents produced pursuant to subpoena by Ms U (‘Exhibit 17’);
r)Complete patient record as at 13 December 2017 in respect of the father produced pursuant to subpoena by Dr V (‘Exhibit 18’);
s)Copy of internal academic transcript in respect of the father produced pursuant to subpoena by W University (‘Exhibit 19’);
t)Student history report in respect of the father produced pursuant to subpoena by X University (‘Exhibit 20’);
u)Documents produced pursuant to subpoena by Ms G (‘Exhibit 21’);
v)Letter from Dr Y addressed to Dr Z of AA Medical Centre dated 15 May 2020 and handwritten note produced pursuant to subpoena by Dr Y (‘Exhibit 22’);
w)Documents produced pursuant to subpoena by the New South Wales Department of Communities and Justice (‘Exhibit 23’);
x)Case report produced by the New South Wales Police Force dated 9 April 2020 and Fact Sheet produced pursuant to subpoena by the New South Wales Police Force in respect of the father dated 7 October 2006 (‘Exhibit 24’);
y)Documents produced pursuant to subpoena by AA Medical Centre (‘Exhibit 25’);
z)Notes in respect of the mother produced pursuant to subpoena by the BB Clinic (‘Exhibit 26’);
aa)Page from notes of Ms S in respect of the mother produced pursuant to subpoena by the New South Wales Department of Communities and Justice (‘Exhibit 27’);
bb)Single Expert Report of Dr J dated 11 February 2018 (‘Exhibit 28’);
cc)Notes produced pursuant to subpoena by Ms G (sleeve 15) (‘Exhibit 29’);
dd)Text messages between the mother and the father dated 4 and 5 June 2016 (‘Exhibit 30’);
ee)Notes by Ms S (category: consultation – specialist) dated 24 February 2020 (‘Exhibit 31’);
ff)Minute of Order proposed by the Independent Children’s Lawyer (‘Exhibit 32’);
gg)Amended Minute of Order proposed by the mother (‘Exhibit 33’); and
hh)Minute of Order proposed by the father (‘Exhibit 34’).
Relevant factual contentions
In this decision, under the subheading ‘Consideration’, I will set out the relevant factual findings that I make in arriving at my decision to make the orders set out at the commencement of these reasons for judgment. At this stage, it is useful to set out the non-controversial facts and, where controversial, the parties’ respective factual contentions.
On … 1979, the father was born. He is currently aged 40 years.
On … 1981, the father’s former partner, Ms D (“the father’s former partner”), was born. She is currently aged 38 years
On … 1984, the mother was born. She is currently aged 36 years.
On 2 March 1998, the father was enrolled in a Bachelor of Arts course at the W University. Prior to withdrawing his enrolment on 26 May 2004, the father undertook four units of study which were not completed.
In 2002, the father met his former partner, Ms D, and commenced a relationship with her in 2003. Their relationship continued until 2009. Ms D contends that, during the relationship, the father advised her:
“I’m involved with [a motorcycle gang]”.
“I’m a qualified lawyer”.
“I have ties with the [organised crime]”.
“My mate [Mr M] is involved with [a gang]”.
“I’ve been a street racer”.
“I’ve been a cage fighter”.
“I’ve played [rugby league for a Sydney team]”.
…
In 2009, the father was admitted into a Legal course at X University which he continued until 2012. The father passed eight (8) subjects, however, did not complete the degree.
In 2010, the mother was diagnosed with thyroid cancer and required surgery.
In 2010, as contended by the father’s former partner, Ms D, an encounter between herself and the father occurred, in which the father stated to Ms D, “I’ve finished my law degree and I’m working at a think tank of lawyers for my dad. It’s a fly in fly out role between here and Sydney”.
In September 2012, the mother was treated in relation to an eating disorder at the CC Clinic in the United States. This consisted of residential treatment for nine (9) months, followed by two (2) months of transition care.
On 19 March 2016, the parties met and commenced a relationship. The mother contends that, on that date, the mother discussed her history of depression and an eating disorder with the father. The mother further contends that the father advised her that he had studied law at W University and had previously been a criminal lawyer. After the parties’ first date, the mother informed her parents, Mr DD Olsen (“the maternal grandfather”) and Ms E Olsen (“the maternal grandmother”) (collectively referred to as “the maternal grandparents”), that the father “was a lawyer but became disenchanted with law and he is now working [in allied health]” and that the father “said that he studied law at Sydney Uni and had worked for a Barrister in [a country town]”. At that time, the mother was working as an assistant at an accounting firm.
On 25 March 2016, in a text message in response to a question from her brother, Mr F Olsen (“the mother’s brother”), the mother told her brother that the father “was a criminal lawyer. But left because it sucked him dry. Now [the father] owns his own [allied health] company”.
On 14 April 2016, the mother attended an appointment with her clinical psychologist, Ms G. Ms G’s notes state that the mother was “swept off [her] feet” and, inter alia, that the father has “been through a lot bad boy turned good” and, in respect of the father, “criminal lawyer. He was at a crossroads chose conscious path”.
On 16 April 2016, the father met the mother’s family at a family dinner. The maternal grandmother and the mother’s brother state that they overheard a conversation between the father and the mother’s brother-in-law regarding his history as a lawyer. The maternal grandmother inquired, “Where have you practiced law In Melbourne?” to which the father responded, “No, in the country”.
In May 2016, the father commenced residing with the mother “almost every night” in an apartment in Suburb SS owned by the maternal grandparents. The father contends that he commenced residing with the mother in August 2016, which is the month in which the mother states that the father “moved his furniture into [her] apartment and started paying rent”.
The mother attests that, until June 2016, the father drove the mother to and from her workplace on most days. The mother states that, prior to this arrangement, she took public transport to get to and from her workplace and that the father has asked her, “on more than one occasion… ‘Why are you late [home]?’, ‘When exactly do you work until?”. The mother also contends that the father has stated to her, “I don’t want you working there anymore… ‘Those boys at work see you as an object. They don’t respect you’… ‘I have seen it in my law career, you are being sexually harassed at work”. The father, however, attests to the mother complained to him about experiencing sexual harassment at her workplace and stating to him, in June 2016, “I am only seen as a sexual object”.
On 10 June 2016, the mother resigned from her employment at the accounting firm. She contends she did so as result of pressure from the father. For reasons which I subsequently set out, I am satisfied that the father was jealous of the mother’s relationship with her employer and placed pressure on her to leave her employment.
On 29 June 2016, on her last day of employment at the accounting firm, the mother attended a lunch arranged by her colleagues. The mother states that the father “repeatedly asked [her] if [she] was going out for drinks with [her] colleagues and if [she] had been drinking”.
In July 2016, the mother states that the father told her that he used to be “an associate of the [motorcycle gang] in [a country town]” and recounted an occasion to her at which he and “the commander in charge” had to “kill the men involved” in an altercation that arose.
In August 2016, the mother contends that the father told her that he had been hired by an Organisation while studying law at W University. The mother also contends that the father stated that, because of his affiliation with the Organisation, he was “instructed by them” to kill a man “by breaking his neck”.
Both parties describe, in detail, their own perspectives of the sexual aspect of their relationship in the period from June 2016 to August 2016. In particular, the father states that he “had fallen deeply in love with [the mother] and was infatuated to the point of being willing to do whatever she asked” of him, including attending adult cinemas and clubs with her. However, the mother states the reverse and that the parties’ participation in those cinemas and clubs were as result of pressure placed upon her by the father. For reasons which I set out further below, I accept the mother’s account that she participated in those activities as a result of pressure placed upon her by the father.
On 30 August 2016, the parties found out that the mother was pregnant. After this, the mother contends that the father insisted on attending the mother’s medical appointments, including with Dr VV, whom the mother had been seeing in relation to acupuncture and treatment of her thyroid condition.
The mother states that the parties had arguments, during her pregnancy, in relation to the parties’ attendance at the adult cinemas and that, “on more than one occasion [the father] brought up the events… and said to [her], ‘I am going to tell your mum that I don’t know if the baby is mine. I took a video of you having sex with that man, and I’m going to show it to her”. On 15 September 2016, following one such argument during which the mother contends that the father had said “I don’t trust you that the baby is mine”, the mother received a text message from the father stating, “I don’t need us to get a paternity test I trust you”.
In September 2016, the parties opened a joint bank account which the mother states the parties opened for the purpose of facilitating the mother’s medical expenses. The father states that the mother ceased working in September 2016 and, as such, he was the “sole income earner” during their relationship.
On 12 October 2016, the mother contends that the parties had an argument about her appointments with Dr VV and that the father had said to her, “I’m not happy about this. You have to stop seeing her. You’re becoming completely dependent on your medical team and therapists. Call her now and tell her you are not going to see her anymore. You need to choose between me or Dr VV”.
On 15 October 2016, the mother states that the father proposed marriage to her.
In November 2016, the mother contends that the father told her that he has killed nine (9) people in total and said, “Any incidents from my past are cleared because of my involvement with [the Organisation]”. The mother also attests to the father informing her that he has an unregistered gun which he has used before. The father denies this conversation and denies owning a gun.
The mother states that, in November 2016, the father began going to a pub approximately three (3) times per week and, on some occasions, would return with $200 to $300 in cash. The mother states that the father would leave her for hours at a time to go to a pub and would return in the evening smelling of alcohol and cigarettes, slurring his speech and instigating arguments.
Conversely, the father states that the mother’s mood changed rapidly throughout her pregnancy and attests to the mother becoming angry and violent towards him, which she would later apologise for. On 10 November 2016, the father received the following message from the mother:
I know I’ve been terrible these last few months and probably the worst person to live with. I’m so sorry for all my explosions and loosing [sic] my cool to you – the person who means the absolute world to me.
Since falling pregnant I’ve reallly [sic] realised how much I fear failing as a mother and when feeling so gross and different it’s hard to deal with these fears as they exacerbate all that I feel underneath…
In early 2017, the mother contends that, on one evening, the father approached her in their bedroom and “began arguing with [the mother] and became aggressive” before stating that he “just want[s] to strangle [her]”. The mother describes the father leaping at her and putting his hands around her neck until the mother stopped breathing momentarily. The mother also describes attempting to call the Police, however, being unable to do so as the father had taken her phone and thrown it on the ground. After this incident, the parties commenced attending couples’ counselling with a psychologist, Ms WW. The alleged assault, involving non-lethal strangulation, is a significant event and, for reasons which I set out below, I accept the mothers account of what occurred.
On 10 early 2017, the mother states that the father returned from a pub at “around 3am and was clearly intoxicated”. According to the mother, the father yelled at her, “what is this? [holding a small, empty dish from the kitchen] You’ve been smoking weed! How dare you hurt our baby”. The mother denies smoking marijuana and describes feeling hurt by the father’s accusation. In a text message received by the mother from the father on 10 early 2017, the father states:
I believe you if you say it’s a random dish and don’t know why it looks like drugs i just don’t understand where it came from it wasn’t in there.
I would like to come to you or come and get me.
Otherwise I accept you will be back soon.
The mother replied:
I’ll be back in 2 hours
I am taking TIME OUT because you are stressing me to the MAX. Please respect me enough to respect this request. I shouldn’t have to ask!!!!!!
On 21 early 2017, during an argument regarding the mother’s wish to attend her sister’s birthday celebration, the mother contends that the father said to her, “I don’t think you should go to the birthday party. She doesn’t deserve a present. Your family are unsupportive of us, and they don’t like me. They are trying to undermine our relationship”.
On 24 early 2017, the father received a text message from the mother following an argument regarding the mother’s family being “judgmental on [the parties’] pregnancy”, which stated, “I’m sorry about our argument before and for all that my family has caused and how they have hurt you and made you feel less than. I’m with you in unity and solidarity, I love you x”.
On 28 early 2017, the mother states that the parties had another argument about the mother’s family and her sister’s birthday, after which the mother received a text message from the father stating:
Please go and buy [the mother’s sister] a present I don’t need to argue about it I’m stressed enough. Your [sic] stressed enough. Just do it let me pick my battles and I choose not to fight anymore.
I love you, you drive me crazy but I love you.
On 29 early 2017, the parties attended the UU Hospital maternity ward as the mother was experiencing stomach pains, for which the treating doctor performed an internal examination of the mother’s cervix. The mother attests to the father being “noticeably aggressive towards the doctor conducting the examination” and stating to the doctor, “Is this really necessary? What are your qualifications?” The father, however, gave evidence stating that the mother was stressed and, in her defence, he questioned the doctor, “Is that really necessary to do that this way?” For reasons which I set out below, I accept the mother’s account of what occurred on that day.
On 11 February 2017, the mother sent the father the following text messages:
I wanted to share your page on my page and started writing it about you but think this would be better for you to write about how you got into PT and why you are so passionate about it. You can use bits of what I wrote or ignore it [Heart emoji] but thought it was a start.
New Years resolutions gone out the window already?
Want to let go of negative beliefs about yourself and your body?
Wanting to feel STRONG, EMPOWERED and CONFIDENT within?
I have been working in the personal training industry since ….As an ex-criminal lawyer I witnessed the depths of suffering and the continual re offences. It was not only heart breaking but soul destroying
Changing careers I committed to myself to make a real difference in this world and support others to believe in themselves and what they could achieve.
…
To which she received the following reply from the father:
Thanks but I’ll be home at 3 and do it then xxx
On 22 February 2017, the mother states that the father’s parents, Mr Rigby (“the paternal grandfather”) and Ms C (“the paternal step-grandmother”), transferred $8,000 into the parties’ joint bank account which they opened in September 2016. The mother stated that her understanding was that those funds were to be used to purchase a pram, a car seat, a monitor and other items needed for the parties’ unborn child. The mother states that, from 1 early 2017 to 27 June 2017, the father transferred a total of $703 into the parties’ joint bank account and withdrew a total of $8,120 into a separate bank account, in his sole name, which the mother did not have access to.
On 23 February 2017, the mother attended an appointment with Ms G, the mother’s clinical psychologist, at which Ms G recorded in her notes, “lots of stress w/ [the father]… He had a PA [panic attack], threw up the other day… He feels v left out of the baby”.
On 22 March 2017, the parties received a relationship questionnaire from Ms WW, their couples’ counsellor, to be completed. The mother states that the father said to her, “Promise me you won’t put anything in there about what happened in January”. The mother attests to refraining from disclosing the non-lethal strangulation incident that occurred in early 2017, to Ms WW.
In 2017, the parties’ child, B (“the child” or “B”), was born. She is currently three (3) years old.
Following the birth of their child, the mother was the primary carer of the child and has since not returned to paid employment. The mother states that the father assisted in feeding the child once or twice per day, as well as settling the child during the day and changing the child. The mother also states that she suggested that the father bathe the child so that he may experience “special bonding time with her”, however, that the father rarely did so as he returned home too late to bathe the child. The father states:
Once home as a family and until our separation in June 2017, [the mother] and I worked as a team adapting to lack of sleep, feeding schedules and general care. I continued to work in order to support the family. I bathed [the child] twice a week and supported [the mother] in breastfeeding by providing her with cups of tea or a bottle of water and making sure she ate to keep up her energy.
The father also attests to being “comfortable and confident” caring for the child without the mother being present. On 4 May 2017, the father sent a text message to the mother stating, “Yes [the child] took 55mls and is napping now with a cuddle. All is ok here see you soon”.
The father attests to the mother’s mood fluctuating “constantly” following the birth of the parties’ child and states that, on occasions, the mother “got angry and stormed out of [the parties’] apartment leaving B behind”. The father also attests to becoming concerned that the mother may have “relapsed into [the eating disorder]” due to her weight loss following the child’s birth and the mother informing him that “the voice of [the eating disorder] in [her] head used to be distant but is now right in the forefront of [her] mind”.
The mother contends that, on 20 May 2017, the parties had “another serious argument”, during which the father referred to the mother as “psychotic” and threatened to inform the maternal grandmother of the events in the “sex booth” that the parties had attended in August 2016. That same day, the mother received a text message from the father stating, “Fine she can know the full truth, that I am unsure whether B is mine because you had sex with a random stranger man in a stall on Oxford st”.
On 24 May 2017, the mother describes an incident where the child woke in the early hours of the morning and started screaming and crying. The mother states that the father brought the child into the room that the mother was in and said, “[The child] is always calm for me. She is always happy when she is around me. She is always tense around you”. The mother also contends that the following conversation occurred:
As the argument escalated, I said to [the father], “I want you out of here tomorrow.” [The father] responded, “Fine, I will take her with me…I am her father. I have every right to take her with me.” I said to [the father], “I will be calling the police then.” [The father] responded, “I can do whatever I want… there is something wrong with you. There is something seriously wrong with you.”
The mother contends that the father continued going to pubs after the birth of the parties’ child and returning home “drunk and smelling of alcohol”. On 8 June 2017, the parties had the following text message exchange:
8/06/2017 6.37 pm
[The father] Thinking about what you said. I stop drinking and you get help. I I [sic] love you…
[The mother] I will believe it when I see it. You’ve told me that so many times, most often when you are at the pub drinking. I have already been getting help but you’re failing to see that.
[The father] I’m figuring some shit out right now. And I realise what I need to do. I love you and I’m not giving up
8/06/2017 8.41 pm
[The father] Working some shit out
[The mother] And this is exactly what I mean.
You leave for 5 hours and go visit the pub or whoever it is. And you tell me you’re not seeing someone else? Well I find that hard to believe.
8/06/2017 10.00 pm
[The father] Not doing anything with anyone I love you.!!!
Figuring out how to beat my problem
The mother states that, when the father returned home on 8 June 2017, the father said to the mother “There is something very wrong with you and you are not being a good mother… You are schizophrenic. You are paranoid”. The father, however, states that, on 8 June 2017, the parties had an argument regarding the mother’s responsibility to breastfeed the child throughout the night. According to the father, the mother had set alarms but had slept through them, leaving the child unfed for up to seven (7) hours. The father deposes that he was concerned at the time as the child was six (6) weeks old and had not been gaining weight.
On 13 June 2017, the mother attended an appointment with her psychiatrist, Dr KK. The mother contends that she was not diagnosed with post-natal depression, however, was advised by Dr KK that she was at a greater risk of post-natal depression and, accordingly, the Mental Health Crisis Team were notified for the purpose of providing further support. Comparatively, the father sets out a conversation between himself and the mother during which, he contends, the mother stated that she had been diagnosed with post-natal depression and prescribed an antipsychotic medication, Seroquel.
On 14 June 2017, the father contends that, at about 5:30pm, he informed the mother that he needed to “process [his] feelings” regarding the parties’ circumstances, namely, the mother’s requirement for Seroquel and the associated “erratic” behaviour, and that he was “going out for a beer”. The following text message exchange took place between the parties:
Received on 14 Jun 2017 6:07:49 PM
[The mother] Sweetheart I just wanted to say that I am sorry we are having to deal with this and that I’m sorry it’s been so hard on you for so long. I am sorry I’ve been so difficult to live with and have taken so much of my pain out on the person I dearly love so much – you. You don’t deserve it one bit. And I am sorry. You are the most amazing partner and dad that I could ask for and I will do whatever I have to be the best partner to you and mother to [the child]…
Sent on 14 Jun 2017 6:29:34 PM
[The father] I’m just figuring my way through this. I appreciate your [sic] owning the situation and I will support you. I am stressed and I’m scared but I will push forward it’s what I do. I will not give in on [the child] ever.
After receiving text messages from the mother asking him to come home, the father returned home and contends that he stayed awake through the night caring for the child. The mother disputes the father’s version of events and describes an argument between the parties during which the father “aggressively kicked the child gate” that the parties had installed and after which the mother reluctantly left the father to care for the child.
On 15 June 2017, the mother states that she heard the child screaming in the parties’ living room while on the couch with her wrap over her face. The mother describes the child as being positioned with her face against the couch and such that, if she moved or rolled, there would be nothing protecting her from falling from to the ground. According to the mother’s description of the event, the father was asleep on the couch and “difficult to rouse” and there were “two empty longneck bottles of beer” near him.
The father, however, states that, on the morning of 15 June 2017, the mother removed the child from his arms while he was asleep on the parties’ living room couch and that there were two (2) beer bottles on the floor as a result of his consumption of one (1) glass of beer on the night of 14 June 2017 and another the night before. The father also deposes that, following the argument that ensued, the parties were “amicable” and planned to go out for the afternoon after resting.
On the afternoon of 15 June 2017, the mother left with the child and attended a park with the maternal grandmother and arrangements were made for the father and the paternal grandfather to meet the mother, the child and the maternal grandmother at that park. After discussions between the parties, the father and the mother agreed that the mother would take the child to the maternal grandparents’ house and further discussions would take place the following day. The mother states that Dr KK, the mother’s psychiatrist, arranged for the mother to speak with a representative from the UU Acute Crisis Care Team.
On 16 June 2017, following discussion between the parties, at the maternal grandparents’ residence, the mother returned with the child to the parties’ apartment.
On 16 and 18 June 2017, the mother spoke with representatives from the Acute Crisis Care Team. The father was present for their conversation on 16 June 2017, although he contends that this visit from the Acute Crisis Care Team occurred on 17 June 2017. The father was unable to be present on 18 June 2017. Following the teams second visit, the mother sent the father the following text message:
The crisis team have come already as they called me and I was on the phone to the psych and when I called them back they were already outside. It was two females and they were only here for 5 mins. All was okay.
On 19 June 2017, during a telephone conversation between the mother and the maternal grandmother, the mother contends that the maternal grandmother said, “…we found out that [the father] was not a lawyer and that he has been lying about this the whole time”. The mother also sets out the following conversation between her and the paternal grandfather:
[The mother] said “I’m worried and scared of [the father]”. [The paternal grandfather] said, “Why?” [The mother] responded, “[The father] said he is involved with [a motorcycle gang] and that he used to be involved with [the Organisation]. I haven’t told anyone else because [the father] said I would be killed if I did”. [The paternal grandfather] said, “It’s all just stories. Do you think [the father] might be on drugs?” [The mother] responded, “I’m not sure”.
The paternal grandfather acknowledged having a conversation with the mother about her assertion that the father informed her that he had been an agent for the Organisation and had been a member of an organised motorcycle gang but did not otherwise accept the mother’s account of the content of the conversation.
On 20 June 2017, the parties separated. The parties each provide a detailed description of their respective perspectives of the events that occurred on that day. The paternal grandfather presented a handwritten document purported to be an agreement setting out the parties’ care arrangement in respect of the child. The agreement states:
We agree to have equal access to our daughter… from today while we are separated. This means that both parents [the mother] and [the father] will have equal time with [the child] and always are able to gain access to [the child] while [the child] is in the care of the other parent. We will do everything we can in the best interests of [the child] including informing each other of [the child’s] whereabouts.
The mother contends that the father attempted to pressure the mother into signing the agreement, however, the mother received advice from her brother, Mr F Olsen, instructing her to refrain from signing the agreement. According to the mother, the mother’s brother contacted the Police and the mother notified the Police Officers that arrived of the non-lethal strangulation incident that occurred between the parties in early 2017 and stated that she wished to apply for an Apprehended Domestic Violence Order (“ADVO”).
The father states that a provisional ADVO was not issued against him. He contends that a Police Officer advised him that, “even though there is no evidence of [the mother’s] claim and it was such a long time ago and she told no one regardless of what I believe I have to put in an application, it’s not an order it’s just the application”.
From 20 June 2017 until February 2018, the mother and the child resided at the maternal grandparents’ house.
Following the parties’ separation and until Orders were made by Senior Registrar Campbell on 13 October 2017, the father spent time with the child as agreed and arranged between the parties and supervised by either the paternal grandfather or Ms L Rigby (“the paternal grandmother”). Both parties contend that they have made attempts, through lawyers and/or proposed mediators, to open communication and develop suitable parenting arrangements and both parties contend that such attempts have not been fruitful due to the lack of facilitation by the other party.
On 21 June 2017, during a treatment session with her treating psychologist, the mother advised Ms G that her relationship with the father had been emotionally abusive and at times physically abusive.
On 22 June 2017, the mother informed the child’s early childcare nurse that she had obtained an ADVO against the father and discussed “the family violence” she had experienced. The nurse advised the mother that she was obliged to report what the mother had told her to the New South Wales Department of Family & Community Services (“FACS”).
On 25 June 2017, the father, upon request received from the maternal grandparents, vacated the apartment in which the parties were living during the course of their relationship. The father states that he took all of his possessions, however, left all items for the care of the child in the apartment, including her bassinet and her clothes.
On 26 June 2017, an interim ADVO was made against the father for the protection of the mother.
On 6 July 2017, the mother contacted the father’s former partner, Ms D, who has sworn an Affidavit and given evidence in these proceedings. The mother contends that the following telephone conversation took place:
[The mother] said to [Ms D]:
“I am calling because I have an ADVO against [the father], and I understand you were in a relationship with him for quite a while. I just wanted to know if you had experienced similar things in your relationship.”
[Ms D] responded:
“Yes, I was in a relationship with [the father] for six years. He was the worst kind of narcissist and manipulator. He is a master at gaslighting. He was violent towards me on more than one occasion and he tried to strangle me numerous times. He never worked a full day in his life and I don’t know where he gets his money from….I wanted to warn you when I heard he was in a new relationship with you, but I didn’t want to seem like the crazy ex-girlfriend. I am happy to provide an Affidavit or statement about any of this, if you need it for the ADVO.”
On 19 July 2017, the mother was visited at the maternal grandparents’ house by Ms QQ from FACS to assess the child’s circumstances.
On 26 July 2017, the father was visited by Ms QQ to discuss the allegations made against him regarding risk to the child.
On 31 July 2017, the parties attended the Local Court for a hearing in respect of the application for a final ADVO against the father. The father consented to the ADVO on a “without admissions” basis for a period of 12 months. It is agreed that ADVO has not been renewed.
On 1 August 2017, the mother’s solicitor sent a letter to the father’s solicitor at the time confirming that the mother had registered the child’s birth and received her birth certificate, issued on 3 July 2017, and enclosed the application form necessary for the father’s details to be listed on the child’s birth certificate. The child’s name is registered on her birth certificate as “B Olsen”.
On 4 August 2017, the mother filed an Initiating Application in the Federal Circuit Court of Australia seeking sole parental responsibility for the child.
On 24 August 2017, the mother received a letter from FACS stating, “There are no current concerns that your mental health is impacting on your ability to care for [the child]”.
On 13 September 2017, the father commenced a parenting course called “The Circle of Security” conducted by Mr LL and completed the course on 20 December 2017. The father states that the course gave him “confidence in [his] parenting intuition and affirmed to [him] that [he is and has] the ability to continue to be an excellent parent to [the child]” and that he continues “to reflect and implement what [he] learnt”.
On 13 October 2017, Senior Registrar Campbell made the following interim parenting Orders:
…
2. The child live with the mother.
3. Subject to Order 6, from the date of these Orders and up until 1 January 2018, the father spend time with the child at times agreed between the parties in writing, and if not agreed, as follows:
3.1 each Tuesday, Wednesday, and Sunday from 10.00am until 12.00pm.
4. Subject to Order 6, from 1 January 2018 the father spend time with the child at times agreed between the parties in writing, and if not agreed, as follows:
4.1 each Tuesday, Wednesday, and Sunday from 10.00am until 1.00pm.
5. Unless otherwise agreed between the parties in writing, the father not take the child outside of the Sydney Metropolitan Area during the times he is spending with the child in accordance with Orders 4 & 5.
6. Unless otherwise agreed between the parties in writing, the father do all things and make arrangements as necessary for the paternal grandparents, or either of them, or Ms C, to collect the child from the mother’s house at the commencement of his time with the child, and the mother collect the child form either the father’s house, or the paternal grandparents’ house, at the completion of the father’s time with the child.
7. During the period of 24 hours before and during any period in which the child is spending time with him:
7.1 The father not consume alcohol;
7.2 The father not consume any drug or dosage of drug which is not prescribed for him by a registered medical practitioner.
…
Senior Registrar Campbell also made Orders requiring the father to attend XX Pathology to undertake urinalysis and CDS blood testing upon the request of the mother.
In October 2017, after Senior Registrar Campbell made interim parenting Orders, the mother attests that she experienced difficulties when communicating with the father and prepared a form which contained information pertaining to the child that she believed would minimise the need for such communication between the parties. The mother contends that the father used the form to communicate his concerns about the child and, as such, she ceased providing the form to the father from late October 2017 onwards.
On 9 November 2017, the father filed an Application in a Case seeking a review of the Orders made by Senior Registrar Campbell.
In a letter dated 21 December 2017 addressed to the mother’s solicitor from the father’s solicitor at the time, the father’s solicitor states:
We are further instructed that on 20 December 2017 your client arrived at our client’s home to collect [the child] and waited outside our client’s residence. That behaviour is akin to stalking and our client felt harassed and intimidating [sic] during his time with [the child]. Given the ADVO in place, we suggest that it is highly inappropriate and deliberately antagonistic for your client to loiter outside our client’s residence for almost half an hour.
On 1 February 2018, the father’s Application in a Case filed 9 November 2017 was heard by Rees J and, on 7 February 2018, her Honour made the following interim parenting Orders:
…
PENDING FURTHER ORDER
(5) That [the child] live with the mother and spend time with the father on each Tuesday, Wednesday and Sunday from 10.00 am to 1.00 pm, in the presence of either of the paternal grandparents or [the step-paternal grandmother].
(6) That [the child] spend time with the father for three hours on each of her birthday, the father’s birthday and Christmas Day, in the presence of either of the paternal grandparents or [the step-paternal grandmother].
(7) That the father cause [the child] to be collected from the mother’s residence at the commencement of the time she spends with him by either of the paternal grandparents or [the step-paternal grandmother] (or another person acceptable to the mother) and the father not be present at the handover.
(8) That the mother, or her nominee, collect [the child] at the conclusion of the time with the father and that the father not be present when [the father] is returned to the mother.
In February 2018, the mother completed a course called “Circle of Security” at RR Service.
On 9 July 2018, in light of the paternal grandfather and the step-paternal grandmother moving away from Sydney, the parties consented to Orders varying the Orders made by Rees J on 7 February 2018 to, inter alia, allow for the father’s time with the child to be supervised by JJ Service, a professional supervision service, or another adult as agreed between the parties. The Orders also stipulated that the costs of any independent supervision service were to be shared equally between the parties.
On the date of the making of the consent Orders, the father’s solicitor proposed that Mr M, a friend of the father, be permitted to supervise the father’s time with the child at least one (1) day per week.
On 30 July 2018, pursuant to the mother’s proposed conditions to Mr M supervising contact, an Undertaking signed by Mr M was filed. The Undertaking was in the following terms:
1. I have read the affidavit of [the other] dated 14 June 2018 and [the father’s] affidavit dated 14 May 2018.
2. I am willing to be present during the time [the father] spends with his daughter… when requested and at times I am available (the Visits).
3. I will immediately report any issues of concern relating to [the child] I hold arising during the Visits to the mother by telephone.
The mother subsequently agreed that the time that the father spend with the child may be supervised by Mr M.
In November 2018, the mother completed a post-separation parenting course called “Keeping Kids in Mind” run by RR Service. The mother contends that the course focused on encouraging co-parenting yet did not acknowledge family violence issues “to a large extent” and, accordingly, she found it quite difficult.
During the course of 2019, parenting arrangements proceeded in accordance with the Orders made by Rees J as varied, by consent, between the parties.
On 2 February 2020, the mother contends that, after collecting the child from the paternal grandfather and while changing the child, the child said “oww” and that, while bathing the child, the child “began crying and holding her vagina, saying “gina oww’ and crying”. The mother also contends that, on that night, the mother heard the child cry from her cot and found her standing and saying “gina sore’…oww, ‘gina” while attempting to take her nappy off and pointing to her vulva. According to the mother, the child later began crying again and said, “Daddy go in” while pointing to her vulva. The mother states that she contacted the maternal grandparents and, together, they took the child to the R Hospital. The mother also states that, at about 1.30am on 3 February 2020, a medical practitioner examined the child and told the mother that she had found an “abrasion in [the child’s] vagina”. The mother, however, concedes that she is not certain as to whether the doctor specified that the abrasion was in the child’s vulva.
On 3 February 2020, at around 11.00am, a doctor from the Child Protection Unit of R Hospital, Dr Q, attended to the mother and the child and interviewed the mother and the maternal grandmother in the presence of a social worker. The mother states that Dr Q said to her, “I could see the abrasion. It is not clear what could have caused it, but I have taken samples for STI’s and a forensic sample for semen”. Upon enquiring what could have caused the abrasion, the mother states that Dr Q responded, “It’s unclear, it could be accidental but it is a very grey area”. The hospital referred the child’s injury to the New South Wales Department of Communities and Justice, previously FACS, (“NSW DCJ”) for investigation.
The mother contends that, upon advice received from Ms S, the Child Protection case worker assigned by NSW DCJ for investigation on 4 February 2020, the mother instructed her solicitor to request from the father that, pending the finalisation of the enquiry by the NSW DCJ, all time that he spends with the child be supervised by a professional supervision service. The father, initially, did not agree to the mother’s proposal, however, by email dated 6 February 2020, advised the mother’s solicitor that he agreed that his time with the child be supervised by JJ Service, the costs of which to be met by the mother. Since then, all time that the father has spent with the child has been professionally supervised, save for one (1) occasion in March 2020 on which the father’s time was supervised by the paternal grandfather.
A medical report dated 10 February 2020 signed by Dr P and Dr Q (marked ‘Exhibit 3’ in the proceedings) states:
…
On genital examination, [the child] had partial fusion of the central portion of her labia minora with an opening at either end of the fusion. Due to the fusion her hymen was unable to be visualised. [The child] had a ~1cm area between her left labia majora and labia minora of split skin. This ran parallel to the point of her labial fusion. This tear appeared to be healing and there was no active bleeding from the area. There was no surrounding bruising. There were no signs of vulvovaginitis.
…
The cause of this injury is unexplained. It could have occurred as a result of an accidental injury either by a sudden split of her legs or accidental abrasion to the area whilst changing the nappy. It may also have occurred as a result of sexual assault however this is less likely…
Of note, [the child] has history of a similar injury at 17 months of age which was noted by her Paediatrician, Dr NN on routine examination. This was also not explained at the time.
…
From February to May 2020, the mother attests to the child continuing to complain about her injury throughout the period, including by making statements such as, “Daddy hurt my gina” on several occasions, to which the mother replied, “Thank you for telling me”. The mother also describes what she characterised as other strange behaviours that, upon the mother’s questioning, the child attributed to the father. Specifically, the mother attests that, on 17 February 2020, the child spat on her own stomach and then attempted to “spit on herself further down her body towards her vagina area” and, on 27 February 2020, the child instructed the mother to lie down before “straddling” the mother and bouncing up and down on her. Each time the child informed the mother that she had learned those behaviours from the father, the mother replied, “Thank you for telling me”.
The mother informed both NSW DCJ and JJ Service of the comments made by the child.
On 24 February 2020, Ms S of the NSW DCJ recorded the following note (marked ‘Exhibit 31’ in the proceedings):
Discussion:
- Provided an overview of the [child’s] injury and the medical findings
- Explained that mum, dad, [the child], [paternal grandfather] was spoken to
- Spoke about how we don’t have enough evidence to substantiate the allegations
- DCJ concerns that mum may continue to raise allegations
- DCJ concerns around [the child] presenting to the doctors so frequently
On 5 March 2020, the mother states that she received a telephone call from the Director at the child’s daycare centre during which she was told that the child had made comments to the effect of “Daddy hurt my gina” and “Daddy hurt my bum” to an educator and in front of other children. It is the mother’s understanding that the Director reported the comments to Ms S of the NSW DCJ.
On 12 March 2020, the mother took the child to see her general practitioner, Dr T. The mother contends that Dr T made a comment about the child seeming “not her usual self” and suggested that the child might benefit from play therapy to address any stress or anxiety that the child might be affected by.
On 13 March 2020, the mother attests to the following conversation between herself and her brother:
[Mr F Olsen] said… “you know how I got a PI to look into [the father] ages ago? Well, I also got a PI to watch [the father] while he was with [the child], to make sure his time is properly supervised. A couple of the reports I have show that [the paternal grandfather] and [Mr M] are not always around watching [the father] when they should be.” I… said to [Mr F Olsen], “Can you send them to my lawyers? They might need to see them.”
In about mid-March 2020, the mother states that she was told by a case worker from the NSW DCJ that the investigation would be closed shortly and that they would be recommending that the father’s time with the child continue to be supervised. Accordingly, the mother, noting the concerns raised by her brother, requested an Undertaking from the paternal grandfather and, on 20 March 2020, the paternal grandfather provided the mother’s solicitors with a signed Undertaking confirming that he understood his role and obligations.
In late-March 2020, the mother was informed by JJ Service that they were no longer able to supervise the father’s time with the child. Since then, the father’s time with the child has been supervised by YY Service.
Credit
As has already been partly set out, the parties’ written and oral evidence was at odds in a number of significant respects. The Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings: see Adamson & Adamson (2014) FLC 93-622 at 79,703. However, it has been necessary to do so in this matter. This is because I cannot discharge my statutory obligation to make orders that are in the best interests of the child unless I make an assessment regarding each of the parties competing accounts as to whether the mother was exposed to family violence during the course of the parties relationship including, most relevantly, non-lethal strangulation by the father. To do so, in the circumstances of this case, it is necessary to make an assessment of the parties’ credit and the differing accounts they give in respect to allegations they each make of the other, particularly in the area of family violence. I will subsequently set out why I prefer the mother’s evidence to that offered by the father. One of those reasons is, however, the manner in which the father conducted himself in giving his oral evidence.
In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 (“Kuhl v Zurich Financial”), the plurality said at [62]:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was “reluctant” to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness’s knowledge for which the question does call).
In that case, the High Court acknowledged that it was a serious matter to reach the conclusion that a party’s witness has failed to comply with the duty to tell the whole truth to the Court. Regrettably, as I will discuss, I arrive at that conclusion in respect to the evidence of the father.
Comparatively, the mother, while emotional on occasions, gave evidence that was clear and responsive to the questions asked of her. She did not attempt to embellish her answers, she made concessions where appropriate and gave responses that were relevant to the questions asked. Significantly, the mother acknowledged that the evidence presented in these proceedings was not such that she could conclude, on the balance of probabilities, that the father sexually assaulted the child in February 2020. More generally, I found the mother’s written and oral evidence was internally consistent and her evidence was consistent with what was shown by other objective evidence.
In terms of Kuhl v Zurich Financial (supra), on a number of occasions, the father gave answers that were non-responsive and evasive.
While not of great weight in terms of the orders that I make in these proceedings, in terms of assessing credit, an issue that gained some significance in these proceedings, which will be further discussed below, was the mother’s allegations that the father has misrepresented himself as being a practising criminal lawyer. As set out above, Ms D, the father’s former partner, gave similar evidence that the father had made a similar representation to herself.
The mother’s evidence that the father advised her he was a criminal lawyer is consistent with a text message that she sent her brother, Mr F Olsen, on 25 March 2016, six (6) days after the parties met stating, “He [the father] was a criminal lawyer. But he left because it sucked him dry.” That text is referred to at paragraph 13 of the mother’s brother’s Affidavit.
The mother’s evidence is further consistent with advice she provided to her treating psychologist at a consultation on 14 April 2016. In that consultation, the mother stated that she had met a man who had swept her off feet and he was a “criminal lawyer.”
Further evidence, that is consistent with the mother’s evidence, is provided by a report from a private investigator, from “TT Company”, which is attached to the Affidavit of the mother’s brother, Mr F Olsen. The private investigator gives an account of a conversation that he had with the father during a personal training session they attended with the father in October 2016. The investigator records that the father advised him that he had been a criminal lawyer in a country town for nine (9) years and that he had studied at W University, that he had worked on both sides of the Victorian and New South Wales border and that he needed two (2) law licenses in order to do so. The investigator recorded that the father advised him that most of the legal work he had been doing was related to “drink driving”, “theft” and “petty crime”.
Dr J, in his single expert report dated 11 February 2019, succinctly summarised the relevant evidence to which I have referred, at page 43, as follows:
In relation to the account which [the father] provided to me about the allegation that he had claimed to be a practicing criminal lawyer in [a country town], I note that at a consultation with Ms G [the mother’s psychologist] on April 14th 2016, [the mother] reports that she had just met [the father], who had swept her off her feet, and that he told her he was a criminal lawyer. Importantly in the same consultation, she appears to indicate that he was going to be meeting her family the following Saturday night, so presumably he had not met her family before that. I also note that the [TT Company] report indicates that [the father] told their Operator that he had been a practicing criminal lawyer in [a country town]. [The father’s] statement to me was that he made up the story about being a criminal lawyer essentially to create a better impression with [the mother’s] family, whom he perceived as valuing professional success. In my view the above two matters significantly undermine his explanation. It seems clear that he told [the mother] that he was a criminal lawyer from the outset, and before he had even met her family, and he also told the same to the [TT Company] Operator in a context which had no association with her family at all. On [the father’s former partner, Ms D’s] account to [the mother], he also told her that he was lawyer. In other words, this material seems to indicate that misrepresenting himself as a lawyer is a pattern of behaviour which was not intrinsically related to his relationship with [the mother]. I also felt that his account about this to me was quite evasive in that it took some time to draw out and at times it seemed unnecessarily ambiguous.
While it is not the role of a single expert to make findings of fact, it is of note that the father continued the pattern of providing ambiguous and evasive answers in respect to that issue during the course of these proceedings. One example of that is as follows:
[Senior counsel for the mother]: You told [the mother] that you are a criminal lawyer didn’t you?
[The father]: Not specifically.[1]
[1] Transcript 21 July 2020, p. 91 line 35.
When the father was questioned in respect to why the mother may refer to the father having had a career as a criminal lawyer in a text message that she sent to him on 11 February 2017, senior counsel for the mother asked the father whether the mother had fabricated that evidence. The series of questions were as follows:
[Senior counsel for the mother]: she was making it up?
[The father]: Making up what?
[Senior counsel for the mother]: That you had witnessed the depth of suffering that you had been an ex-criminal lawyer?
[The father]: Making that up specifically?
[Senior counsel for the mother]: She was making it up?
[The father]: Yes.
[Senior counsel for the mother]: Right. It wasn’t anything you ever told her?
[The father]: Not specifically.[2]
[2] Transcript 21 July 2020, p. 96 lines 5-15
In fact, rather than giving direct and responsive answers in accordance with a witnesses obligations, as set out in Kuhl v Zurich Financial (supra), the father used the expression “not specifically” in responding to a number of other questions including those set out below.
Senior counsel for the mother asked the father whether he had a conversation with a private investigator, engaged by the mother’s brother, regarding the father having an interest in horses:
[Senior counsel for the mother]: [the private investigator] said that you told him you had been into horses. That’s something that you told [the private investigator], isn’t it?
[The father]: Not specifically, no.[3]
[3] Transcript 21 July 2020, p.101 line 35.
Senior counsel for the mother also cross-examined the father as to whether he had advised his treating psychologist, Ms U, that he had been an overachiever:
[Senior counsel for the mother]: Do you remember using the words: “overachiever growing up.”?
[The father]: No, not specifically.[4]
When pressed as to why Ms U had included in her clinical notes the expression, “I was an overachiever growing up”, and whether the father had used those words, the father again replied “Not specifically.”
[4] Transcript 21 July 2020, p. 105 line 15.
When asked how many subjects of his Arts degree he had completed, the father initially replied “a few. A handful.”[5] When pressed as to whether he knew the number of subjects he had completed, the father again used the response “Not specifically, no.”[6] Similarly when asked as to how many subjects of his Legal studies degree he completed, the father responded “I don’t know specifically.”[7]
[5] Transcript 21 July 2020, p. 106 line 5.
[6] Transcript 21 July 2020, p. 106 line 10.
[7] Ibid.
Significantly, the evidence is clear that the incident which occurred on 2 February 2020 has, in the context of the mother suffering PTSD, caused the mother to experience anxiety including sleeplessness and panic attacks. As referred to above, the mother revisiting that issue triggered that response, including when conferring with Dr Y on 15 May 2020. In her report dated 15 May 2020, Dr Y reported:
… I reviewed [the mother] via phone consultation today. She reported very significant stress and anxiety over the last few months due to an incident involving her daughter, B, who reportedly returned from time with her father complaining of pain in her genital area. This was further assessed and investigated with involvement of FAC, JIRT and the police and the findings were inconclusive. Nevertheless, [the mother] has found herself experiencing high levels of distress, anxiety, and also feeling numb due to the shock of this situation. She reported experiencing nightmares of being chased and themes of a carpark. Her sleep is poor. She reported panic symptoms e.g. on four days last week and two days this week.
Her final trial in the Family Court is scheduled for July. [Ms Olsen] was careful to state she was not making an allegation against B's father today but she was conveying what B reported and the impact on her.
There are a number of factors that have resulted in me determining that the mother’s belief, that such an act of sexual abuse of the child perpetrated by the father could occur in the future, is a belief that is genuinely held.
Firstly, the mother does not trust the father. In circumstances where he has told her untruths, that lack of trust is understandable. Those untruths include:
·that he is a qualified lawyer;
·that he worked for an Organisation;
·that he was a member of an organised motorcycle gang;
·that he broke a man’s wrist; and
·that he has killed people.
In the eight (8) week period immediately after the child’s birth, the father also told the mother a number of falsehoods regarding his whereabouts when she required his assistance at home including providing false information as to why he returned home late at night.
I have found that the father has also given false evidence in these proceedings regarding the mother being the initiator of sexual encounters in establishments in Sydney.
The father has engaged in acts of family violence against the mother, as detailed earlier in this decision, including one (1) significant event which occurred in early 2017 when the mother feared for her mortal safety when he placed his hands around her neck and restricting her breathing. That event should be called what it was. As I have stated, the mother was the victim of strangulation which, while non-fatal, caused the mother to fear for her life. It was a serious act of family violence. I am satisfied this event gave rise to the mother suffering PTSD with the associated consequence of her being in a state of hypervigilance and hyperarousal.
It was not questioned in these proceedings that the child sustained an injury to her vulva in February 2020. It was not questioned that the mother believed that the injury occurred at a time that the child was in the father’s care, in circumstances where the father’s time with the child was being supervised by the paternal grandfather or the father’s friend, Mr M.
The mother’s fear and associated anxiety also needs to be seen in the context of the mother’s vulnerability as a result of the history of mental health challenges that she has faced.
The mother’s distress at being in the presence of the father in these proceedings was palpable. In the circumstances that I have outlined, specifically that she was the victim of non-fatal strangulation at the hands of the father, that distress was understandable.
Comparatively, the father contends that the mother suffers from the ongoing consequences of mental health issues. Other than in respect to PTSD, I have, however, accepted and agree with the opinions expressed by Dr J and Ms G that the mother’s historic mental health issues of an eating disorder and depression are in remission. I do however accept the opinion of Dr J that, as result of those historic mental health issues, the mother remains more vulnerable to suffering adverse mental health consequences in the event of the symptoms of her PTSD being triggered.
In determining what orders are in the best interests of the Child, the Court must, as I have stated, accept the traits of the mother, who is the primary caregiver of the child, as they are presented to the Court. This includes her heightened vulnerability to mental health issues to which I have referred.
In summary on the issue of the mothers vulnerability, for reasons which I have set out above, I am satisfied that the mother has, during the course of her relationship with the father, been the subject of a course of controlling, coercive, sexually belittling and violent conduct engaged in by the father. Being subject to such a course of conduct is likely to have adversely impacted upon any woman irrespective of a history of mental health challenges. The fact that, as explained by Dr J, the mother, in this is case, was more vulnerable to being adversely impacted by such conduct is a factor in the Court accepting the genuineness of the mother’s assertions regarding the anxiety that she experiences in interacting with the father and the anxiety she experiences in those instances where the child spends time with the father. This includes as a result of the mother’s fear that the father may harm the child.
In responding to a question from counsel for the father, asking him to explain the symptoms of PTSD, Dr J stated:
Well, they’re mainly – they, sort of, fall into a couple of – two boxes, I guess, two main ones. But the first one is that the person experiences a very high level of anxiety and that’s associated often with sleep problems, bad dreams, you know, heart palpitations, sense of panic, a whole array of manifestations of anxiety. And the other symptoms, if you like, is that they are in a state of hypervigilance. They’re on the edge of their seat, worrying – on the edge of their seat, not necessarily consciously thinking but that there’s something bad that reminds them of the precipitating incident is going to occur. But they’re in a state of preparedness for it to happen. The other – the third thing actually is that sometimes they become rather emotionally numb as well. But those two first ones are the main ones.
The mother’s vulnerability, as described by Dr J, also provides context that supports the validity of the opinion of her treating psychologist, Ms G, that the mother’s parenting capacity will be adversely affected if orders are made for the child to spend time with the father.
At “Appendix B” to her report, annexed to her Affidavit, Ms G attaches the diagnostic criteria for PTSD and has highlighted the relevant symptoms that, in her view, impact upon the mother. They include:
a)recurrent, involuntary, and intrusive distressing memories of the traumatic event or events;
b)recurrent distressing dreams in which the content and/or effect of the dream are related to the traumatic event or events;
c)intense or prolonged psychological distress and exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event or events;
d)Marked psychological reactions to internal or external cues that symbolise or resemble an aspect of the traumatic event or events;
e)avoidance of efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts or feelings about or closely associated with the traumatic event or events;
f)persistent and exaggerated negative beliefs or expectations about oneself, others or the world;
g)persistent negative emotional state;
h)hypervigilance; and
i)exaggerated startle response.
The identification of those specific symptoms suffered by the mother is consistent with the evidence of Dr J who, speaking generally, identified the common symptoms associated with PTSD, to which I have referred to above.
Ms G also highlighted, in that “Appendix B”, that the “disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning”.
The evidence satisfies me of the validity of Ms G’s opinion, which is confirmed in the observations of Dr Y in her report dated 15 May 2020, to which I have earlier referred.
In considering the likelihood of the mother being exposed to a triggering event, I note that, in her report, Ms G stated, “Unsupervised contact with [the child], or requirements for [the mother] to communicate with [the father] in any form will in my opinion risk continuing the cycle of emotional abuse, and trigger [the mothers]’s PTSD symptoms.”
Having regard to the totality of evidence including the evidence concerning the mother’s historic mental health challenges and the existing diagnosis that the mother suffers from PTSD, counsel for the Independent Children’s Lawyer submitted that even though the Court would find, as acknowledged by the mother, that the evidence does not justify a conclusion that the child has been harmed by the father, that the principles enunciated in R & C [1993] FamCA 62 (“R & C”) apply in the circumstances of this case. In that decision, the Full Court referred to the decision of the Full Court in B and B (supra) and stated at [32]:
In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
In the cited decision of B and B (supra), the Full Court at 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
In A v A (supra) at [3.29], the Full Court outlined the appropriate approach for a trial judge to take in such circumstances, as being:
... The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
It should be noted that both R & C (supra) and A v A (supra) concern instances where, even though a finding was not made that the child who was subject to the proceedings had suffered sexual abuse, the mother had a genuine belief that such abuse had occurred and was likely to occur in the future. It must be acknowledged that there is a point of distinction in this case where the mother, intellectually, accepts that the less likely explanation for the injury to the child’s vulva, detected in February 2020, was a result of sexual abuse perpetrated by the father. However, nonetheless, in light of the conduct of the father towards the mother, she has a genuine concern that such abuse will occur in the future. In those circumstances, the principles adumbrated in R & C (supra) and A v A (supra), and a number of cases that have relied on those principles, are relevant to my consideration of the issues arising in the current proceedings. As Lord Mansfield said, in the late 18th Century case R. v Bembridge (1783) 22 St. Tr. 1 at [332], “The law does not consist of particular cases but of general principles, which are illustrated and explained by these cases.” In this case, while the mother clearly has a concern that sexual abuse of the child may have occurred, the mother intellectually accepts that as an unlikely explanation of the child’s injury to her vulva. The mother nonetheless has a genuine concern that such abuse may occur in the future and that concern triggers an anxiety response in the circumstances where she suffers PTSD which condition, was, itself, caused by an assault perpetrated by the father.
Accordingly, the general principle adumbrated in R & C (supra), and many subsequent cases that have relied upon that authority, that I apply to the facts of this case, is that, in making parenting orders, the circumstances may be such that it is necessary to have regard to the impact that such orders will have on the mental health and well-being of the child’s primary carer. This is particularly so on the facts of this case where, for reasons which I have set out, I am satisfied that there is no viable alternate primary carer for the child other than the mother.
To summarise on this particular aspect, I do not determine that there is an unacceptable risk that the child will be sexually assaulted by the father in his care particularly if that time is supervised either professionally or by a relative or close friend. I accept, however, that, in circumstances where the child sustained an injury to her vulva in February 2020, at a time when the child’s time with the father was being supervised by a family member, that mother has a genuinely held fear that the father may have sexually abused the child and that he could do so in the future. This genuinely held fear triggers an anxiety response as a result of the mother suffering from PTSD which has been caused by family violence perpetrated upon her by the father.
Possible mitigation of risk by third party facilitation of changeover
During his re-examination of the mother’s brother, counsel for the father enquired of him whether he would be prepared to facilitate handover between the child spending time with one parent to the other. The mother’s brother indicated that, as a result of his own work and family commitments, he could not commit to such a program. In any event, the evidence of the mother’s brother indicates that tensions would likely remain if he was the person who facilitated such handovers. In that respect, in an email sent by the father to the mother’s brother on 23 December 2019, the father confirmed the details of his next visit with the child. The mother’s brother responded to the father saying, “Thank you. Confirmed. Best regards, [Mr F Olsen]”. In response to the receipt of that email from the mother’s brother, the father sent an email to the mother’s solicitors at 3:37pm on 23 December 2019, which read:
I was very clear in my letter regarding my not wanting any contact from [the mother’s brother], which you confirmed your client agreed to.
My confirmation email was very clear “I do not request or require a reply”.
Please remind [the mother’s brother] to NOT contact me under any circumstances.
This is a deliberate attempt to further make me uncomfortable and an attempt to create conflict, [the mother’s brother] is clearly not child focused and as I have previously stated an inappropriate person to be facilitating anything in regards to [the mother] and my daughter.
(Emphasis in original)
I make two (2) findings as a result of the contents of the above email exchange. Firstly, clearly, the mother’s brother is not, from the father’s perspective, an appropriate person who could facilitate a stress free hand over of the child between the parents. Secondly I am satisfied that, in the period subsequent to these proceedings when the parties are no longer represented by legal practitioners, there is likely to be further tensions associated with arrangements being made for the child to spend time with the father in the future.
Consistent with that second finding is a concern that the consecutive contact reports provided on 24, 26 and 28 April 2020 note that the father spent some time at each of the contact visits examining the child for bruises and questioning the child. Further, records produced by NSW DCJ record a representative of NSW DCJ being advised by the child’s contact centre that the father has phoned them and attempted to engage a representative of the contact centre including enquiring whether the child cries when she is in the care of the mother. The records produced by NSW DCJ record that the representative of the child care centre who had spoken to the officer of NSW DCJ reported that she advised the father that she could not talk to the father “about the mother.”
I respectfully agree with senior counsel for the mother that, on the basis of the father engaging in conduct of that nature, it is likely that there will be tensions between the parties in respect to future occasions when the child spends time with the father. In the context of the mother demonstrating hypervigilance and hyperarousal as a result of suffering PTSD, I am satisfied that such events and associated tensions, could be a trigger for the mother’s PTSD and activate the symptoms to which I have earlier referred. I am further satisfied that the activations of those symptoms would adversely impact upon the mother’s parenting capacity. As a result, I am satisfied that there is an unacceptable risk that the mother’s mental health will be adversely impacted in the event of the Court making orders for the child to spend time with the father. The question then becomes how that risk can be appropriately mitigated.
Mitigation of risk
In Blinko (supra) at 83, the Full Court confirmed that, in circumstances where the Court is satisfied that a parent represents an unacceptable risk of harm to a child, the Court is required to consider steps that can be taken to ameliorate that risk. Counsel for the father, appropriately, in my view, summarised the relevant principle to be that wherever “[un]acceptable risk of harm that is said to be present needs to be evaluated against the prospect of it actually occurring against the protective measures that might be put into place to ameliorate or minimise that risk to an acceptable level”.
The father contends that there is no basis for the mother’s application for the child to spend supervised time with the father. For the reasons set out below, I respectfully do not accept that submission.
I have earlier explained why I have found that the father has been deceptive to the mother and, where it has conflicted with evidence presented by the mother on the crucial factual findings that I have made, I have not accepted his evidence. Specifically, I have found that the father has lacked candour in failing to acknowledge that he has engaged in coercive and controlling conduct in respect to the mother and, most concerningly, that he has been physically violent to the mother. That concern has been heightened as a result of the lack of remorse shown by the father. Further, for reasons which I have explained, I have found that the father has narcissistic personality traits that result in him lacking empathy and being self-absorbed. In the context where I have found the mother to have a pre-existing vulnerability to mental health issues from which she has substantially recovered, the father’s conduct, I have found, has the potential to significantly impact the mother’s functioning including fulfilling the important responsibility as the child’s primary carer. Dr J agreed with senior counsel for the mother that, in the event of findings of that nature being made, the realistic options before the Court were to consider orders whereby the child had either “limited supervised identity time or no time” with the father.
In considering the issue of mitigation, other than in respect to the potential impact on the mother’s mental health and sense of well-being, the risks to the child spending time with the father could, in my opinion, have been adequately mitigated by making orders for the child’s time with the father to be supervised by a professional service. However, as I have explained, in this case, the greatest risk to the child is a potential deterioration in the mother’s mental health as a result of the impact of orders being made that require the mother to facilitate the child spending time with the father.
For reasons which I have earlier set out, I have found that the father has engaged in a pattern of controlling and coercive, and belittling, conduct towards the mother, including, during the course of this litigation. I have further found that he has failed to show remorse for engaging in that conduct which conduct includes an act of serious physical family violence. As a result, I am not satisfied that any therapy or program of education or training would remedy the situation. I am therefore satisfied that the father’s pattern of ongoing controlling and coercive conduct towards the mother will continue into the future and that the abusive pattern is unlikely to change. In response to a question asked of her by counsel for the Independent Children’s Lawyer, as to what impact that would have on the mother, in circumstances where, after this litigation, communication between the mother and the father would not be through their respective legal advisers, Ms G responded:
I believe that under those circumstances we would see an uptake in the abusive behaviour, which would potentially worsen her symptoms, her ability to manage the symptoms and her overall quality of life would be affected.
In fact, Ms G was of the opinion that the mother’s mental health would be impacted by the necessity to engage in communication with the father regarding parenting arrangements irrespective of whether the father engaged in abusive conduct. In that respect, counsel for the Independent Children’s Lawyer questioned Ms G as to what the likely impact would be upon the mother of having to negotiate arrangements for the child to spend time with the father:
[Counsel for the Independent Children’s Lawyer]: Would it be the case that, given [the mother], in your view, and part of the symptomology of post-traumatic stress disorder is that you are hyper aroused, hypervigilant of the person who has caused you to experience the symptoms?---
[Ms G]: Yes.
[Counsel for the Independent Children’s Lawyer]: In effect, what I’m asking is would that create difficulties for [the mother] looking forward if she had to negotiate time with the father irrespective of his conduct?---
[Ms G]: Yes. Yes.
For reasons which I have set out, I am satisfied that it is likely the father would, however, engage in an ongoing pattern of psychologically abusive conduct in respect to the mother and, as a result, I am further satisfied that it is likely that the mother’s mental health would be adversely impacted. The consequences for the mother would be suffering the symptoms to which I have earlier referred, as highlighted in ‘Appendix B’ to the report of Ms G, and as described in the report of Dr Y dated 15 May 2020. I am further satisfied that, as a result of suffering such symptoms, the mother’s parenting capacity would be detrimentally affected and, in circumstances where the mother is the only viable primary carer of the child, this would not be in the best interests of the child.
In considering the potential risk to the child, in those circumstances, I have considered an order which would provide for structures to be imposed on the child’s time with the father for a limited or closed period of time to enable the mother to undergo a program of therapy either with her treating psychologist or psychiatrist. However, in rejecting that as realistic option, I note that, in responding to a question from counsel for the father, Dr J expressed the view that PTSD “can be a very difficult problem to treat and quite resistant to treatment, even though, you know, people can be motivated. They don’t want to live that life. But it can be very resistant – it can be very difficult for them to respond to treatment.”
Counsel for the father contends that the Court should accept that, in the event of the Court determining that there should be an order for the child’s time with the father to be supervised on an ongoing basis, the supervision should continue to be provided by either of the paternal grandparents or Mr M. In that respect, it was contended that their ability to supervise was not diminished by evidence that on two (2) occasions that either the paternal grandfather or Mr M did not remain in the father’s presence while the child was with him. In circumstances where the father was either in view of the supervisor or in close proximity and only absent for a very brief period, I respectfully agree with the father and note that counsel for the Independent Children’s Lawyer was of a similar opinion.
However, I am nonetheless satisfied that the supervision required in this matter should be provided by a professional agency. In that respect, I note the opinion of Dr Walters that if the Court found that the father presented a risk to the child as a result of the matters to which I have earlier referred, then, in light of the complexity of the task of providing appropriate supervision, it should be provided by professional service. I have also had regard to the evidence of the mother’s treating psychologist Ms G that the provision of professional supervision would mitigate, to a degree, the extent of the mother’s anxiety concerning the child spending time with the father.
I am, however, satisfied that in order to protect the child from risk, it is necessary to make an order for the child to spend limited supervised identity time with the father. In so determining, I have had regard to the opinion of Dr J, which I accept, that in light of the findings I have made in respect to the father, the Court is realistically looking at, by way of mitigation of risk, either limited recognition time or no time. I am satisfied that the alternative of the child spending no time with the father would not be in the child’s best interests and, accordingly, in those circumstances. I will make orders for the child to spend limited recognition time with the father.
I am conscious that such an order will result in there being indefinite supervision of the time that the child spends with the father. I am aware of pronouncements of the Full Court in which they have expressed considerable disapproval of regimes of parenting orders which see protracted or indefinite supervision of the child’s time with a parent: see for example Slater v Light (2013) 48 Fam LR 573. However, as noted by Tree J in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19], while it is and must be the case that a trial judge is bound by statements of law or general principle adumbrated by the Full Court, that does not mean that each case is not to be decided on its own facts.
In this case, for the reasons advanced by Dr J, the alternative to such an order would be an order for the child to spend no time with the father. For reasons which I have set out, I do not consider that such an order would be in the best interests of the child.
Conclusion
For all of the reasons set out above, I make orders in accordance with those set out at the commencement of these reasons for judgment.
Costs
The Independent Children’s Lawyer has proposed an order that each party share in the costs incurred by the Independent Children’s Lawyer. The different amounts sought by the Independent Children’s Lawyer in respect of each of the parties reflect the fact that the mother has, to date, paid a greater sum than the father in respect to the costs incurred by the Independent Children’s Lawyer.
The mother indicated that she consented to an order for costs being made for the parties to share the costs incurred by the Independent Children’s Lawyer. The father did not address the Court in respect to that issue. I have previously expressed the opinion that there is a presumption in favour of parties to parenting proceedings meeting the costs of the Independent Children’s Lawyer: see Nardini & Legal Aid NSW [2019] FamCA 340. For the reasons which I there set out, I remain of that opinion. In circumstances where I have not been addressed as to why that should not occur in this case, I propose to make an order, as sought by the Independent Children’s Lawyer, that the Independent Children’s Lawyer’s costs are shared between the parties.
I certify that the preceding four hundred and thirty-two (432) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 23 October 2020.
Associate:
Date: 23 October 2020
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