Pacetti & Dambrose (No 2) - [2023] FedCFamC1F 616

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pacetti & Dambrose (No 2) [2023] FedCFamC1F 616

File number(s): PAC 2061 of 2018

Judgment of: HANNAM J

Date of judgment: 28 July 2023

Catchwords: FAMILY LAW – PARENTING – Where each party contends that the other has perpetrated family violence – Where the father and the ICL contend that the mother poses an unacceptable risk of psychological and emotional harm to the child – Where the father and ICL seek orders that the child live with the father and spend no time with the mother – Where the Court finds the mother has perpetrated family violence – Where the Court finds that the mother poses an unacceptable risk of harm to the child – Where the mother lacks genuine insight – Where the risks cannot be mitigated by long term supervision – Where orders are made for the children to live with the father – Where orders are made for no contact with the mother.

Legislation:
Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 61DA, 65D

Mental Health Act 2007 (NSW) s 22

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases cited:
Amador & Amador [2009] FamCAFC 196

Fitzwater v Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Goode & Goode (2006) FLC 93-286

Isles & Nelissen [2022] FedCFamC1A 97

M & M (1988) 166 CLR 69

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 [2009] FamCAFC 92

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 460

Date of last submission/s: 5 April 2023

Date of hearing: 22 – 24 February 2023; 9 March 2023

Place: Parramatta

Counsel for the Applicant: Mr Liedermann

Solicitor for the Applicant: Edwards Kirby Lawyers

Counsel for the Respondent: Mx Bateman

Solicitor for the Respondent: Hanson & Associates

Counsel for the Independent Children's Lawyer: Ms Shea

Solicitor for the Independent Children's Lawyer: Steiner Legal Pty Ltd
ORDERS

PAC 2061 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PACETTI

Applicant

AND:
MS DAMBROSE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

28 JULY 2023

THE COURT ORDERS THAT:
1.All prior Orders in these proceedings are discharged.
2.Mr Pacetti born 1988 (“the father”) shall have sole parental responsibility for all decisions of a major long term nature for X born 2016 (“the child”).
3.The child shall live with the father.
4.The child shall spend no time with Ms Dambrose born 1981 (“the mother”).
5.Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the mother is restrained from approaching, contacting or communicating in any way with the child, or from coming within 200 metres of the child’s school or home. This is an order for the personal protection of the child to which a power of arrest attaches pursuant to s 68C of the Act.
6.Pursuant to s 68B(1)(b)(i) of the Act, the mother is restrained from approaching, contacting or communicating in any way with the father. This is an Order for the personal protection of the father to which a power of arrest attaches pursuant to s 68C of the Act.
7.That Order 5 and 6 being [the injunctions made pursuant to section 68B of the Family Law Act 1975] will come into effect immediately upon any existing Apprehended Domestic Violence Order made against the Mother, Ms Dambrose, for the protection of the Father, Mr Pacetti, and/or the child, X, born 2016, being withdrawn, set aside, discharged, dismissed or otherwise expiring.
8.Within 7 days of the making of these Orders the father is to do all things necessary to arrange for the child to attend upon one of:
(a)Mr JJ of KK Psychology;
(b)Dr LL of MM Psychology; or
(c)Any therapist at NN Counselling.

for counselling at the first available opportunity and thereafter as recommended by the selected therapist, for the purposes of assisting the father to explain these Orders to the child in an age and developmentally appropriate manner, and to support the child in relation to the change in her circumstances. The father is to attend any counselling sessions with the child, or by himself, as recommended by the therapist.
9.The father has leave to provide a copy of the following documents to the therapist referred to in Order 8:
(a)These Orders;
(b)Reasons for Judgment dated 28 August 2023;
(c)Family Report of Ms PP dated 10 May 2022; and
(d)Updated Family Report of Ms QQ dated 20 February 2023.

10.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the father is permitted to do all acts and things and sign all documents necessary to apply for and maintain a current Australian Passport for the child.
11.Pursuant to s 65Y(2)(b) of the Act the father is permitted to take the child out of the Commonwealth of Australia from time to time for the purposes of overseas holidays.
12.Pursuant to s 65Y of the Act the mother, her servants and/or agents be and are restrained by injunction from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia.
13.Each party has leave to provide a copy of these Orders and Reasons for Judgment dated 28 July 2023 to any treating mental health professional upon whom they respectively attend.
14.The father has leave to provide a copy of these Orders to NSW Police, the child’s current and future school, the federal agency responsible for the administration of the Passports Act, and any Australian or foreign border force or like authority.
15.Each parent is restrained from discussing, disseminating, providing information about, commenting on or publishing any statements about family law proceedings related to the child, or any issues arising from these proceedings, with any media outlet, journalist, media identity and/or any social media platform, website, forum or publication.
16.Each parent is restrained from publishing derogatory statements about the other parent on social media (which includes, but is not limited to, blogs, Instagram and/or Facebook) or in any media publication, website, forum or digital platform, or causing any third party to do so.
17.The Independent Children’s Lawyer (“ICL”) in these proceedings is discharged.
18.Any outstanding applications are otherwise dismissed, and the proceedings are removed from the list of matters awaiting finalisation.

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

The parties (“the mother” and “the father”, collectively “the parents”) are engaged in a dispute in relation to the future parenting of their only child, a little girl aged six (“the child”).
The parents separated in early 2018 following a violent incident which occurred at the paternal grandparent’s home where the family were living, which led to an Apprehended Domestic Violence Order (“ADVO”) being issued against the mother for the protection of the father and paternal grandfather. Other than for a short period of time, the child has lived with the father at the paternal grandparents’ property since the parents separated.
In August 2020 final orders were made in the Federal Circuit Court (as it was then known) which provided that the child live with the father and spend time with the mother on a gradually increasing basis. It suffices to say that there was significant difficulty in implementing this parenting arrangement and the proceedings were reopened a few months later. For reasons which will be explained, the child spent no time with the mother from January 2021 until August 2022 when that time recommenced for two hours each fortnight at a supervised contact centre pursuant to interim orders made on 21 May 2021.
The father and the ICL seek orders that the child live with the father and spend no time with the mother and that injunctions be made restraining the mother from contacting the child. It is the father’s contention with which the ICL agrees, that the mother poses an unacceptable risk of harm to the child and that this risk of harm outweighs the benefit that the child would receive from having a relationship with the mother.
The mother contends that she does not pose a risk to the child. She proposes a parenting arrangement that would see the parents equally share parental responsibility for the child and the child spend increasing time with her that is supervised for three months and graduates to an endpoint of living with each parent in a “week about” arrangement. In the alternative, if she is found to pose an unacceptable risk of harm to the child, the mother proposes that orders be made that the child live with the father and spend weekly supervised time with her and that she be granted leave to apply to the Court to seek a variation of this order after a period of 12 months and upon the Court being provided with a report by her treating psychologist.
The question for me to determine is which of the proposed suites of orders is proper, having regard to the child’s best interests as the paramount consideration.
BACKGROUND
The mother who is aged 42, was born in Country N. The father aged 35 is of mixed heritage. He was born and raised in Australia.
The parents met in 2014 when they were both on holidays in a European country. At this time, the mother was living in a different European country to where the parents met.
The parents communicated electronically from 2014 until 2015 when the mother moved to Australia to commence a relationship with the father. At this time, the mother entered the country on a tourist visa and began living with the father in an apartment in Sydney.
The parents’ only child was conceived in 2016. Two months later, the mother travelled to Country N as she wished to have the support of her family when she gave birth to the child.
In 2016 the father travelled to Country N to assist in preparation for the birth of the child.
The child was born in 2016 in Country N and is a dual citizen of that country and Australia.
In 2017 the father returned to Australia.
The mother and child moved to Australia to live with the father a few months later. At this time, the father was living with the paternal grandparents in their home on a rural property in a small town near Region GG. The parents and the child moved to live in separate premises on this property.
Shortly after she arrived, the mother applied for a de-facto partner visa so that she could remain living in Australia. The father paid for the cost of the visa application.
Each party deposes in their respective affidavits that their relationship was characterised by family violence. It is the father’s case that he was scared of the mother from around 2016. He deposes that the mother was physically violent towards him, denigrated him and used the child as a way of controlling him. The mother contends that she was the victim of coercive and controlling family violence perpetrated by the father and her experience of this violence caused her to be emotionally dysregulated at times. Allegations of family violence is a matter to which I will return.
It is not in dispute between the parties that final separation occurred in early 2018 and that the mother was subsequently charged with an offence in relation to an incident on that date. A condition of an ADVO made on the application of police against the mother for the protection of the father and paternal grandfather was that she was restrained from returning to the paternal family property.
In mid-2018 the father and paternal grandmother attended the Local Court for the ADVO proceedings and the child was returned to the mother’s care as the father understood from a conversation with a solicitor from the Domestic Violence Advocacy Service that he was required to do so.
In May 2018 the father commenced parenting proceedings in the Federal Circuit Court (as it was then known). At that time, the father was seeking that the child live with him and spend time with the mother as agreed between the parties in writing.
On 1 June 2018 interim orders were made following a contested hearing which provided that the child live with the mother and spend time with the father for two nights a week and that the mother comply with all treatment recommendations of her treating psychologist.
In mid-2018 there was an incident at the mother’s home when the father arrived with the paternal grandmother to collect the child for her time with him. As a result, police arrested the mother the following day and charged her with assaulting the father and contravening the ADVO.
On 31 July 2018 orders were made with the consent of the parties (“the July 2018 interim orders”) which provided that the child live with the father and spend supervised time with the mother at a contact centre pending interim hearing. The child has been living with the father since this time. Orders were also made for the child’s name to be placed on the Family Law Watchlist.
In early 2019 each of the offences with which the mother had been charged (being the offence arising from the early 2018 incident and the offences related to the events of mid-2018) were dealt with by way of discharging the mother into the care of a responsible person pursuant to section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1900 (NSW).[1] The reports from a psychiatrist relied upon in those proceedings indicate that the mother was diagnosed with major depression but the psychiatrist opined that she was not a mentally ill person.[2] The psychiatrist opined in the second report that the key issues associated with the mother was her depression, impulsive aggression, problem with anger management, social instability, lack of personal support and insecurities as a new mother.[3]
[1] Section 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (since repealed) allowed the Magistrate to make an order dismissing the charge and discharging the individual either unconditionally or into the care of a responsible person or on the condition that they attend upon a person or a place for treatment or support.
[2] Exhibit 11 – Psychiatrist records.
[3] Exhibit 12 – Psychiatrist records.
In March 2019 the child commenced spending time with the mother once a week for two hours at a contact centre (“the first contact centre”). It is the father’s case that the mother exhibited concerning behaviour when the child was spending time with her pursuant to the July 2018 interim orders which resulted in the contact centre no longer being prepared to facilitate these contact events. There is significant dispute between the parties about this matter as it is the mother’s case that she spent nine months of supervised time at the contact centre without any incident. The mother’s conduct at the contact centre is a matter to which I will return later in these Reasons.
On two occasions in early 2019, the mother telephoned the child’s pre-school using a false name and demanded information about the child.
In April 2019 the mother filed an application seeking unsupervised time with the child, or that the child’s time with her be supervised by a third-party.
In December 2019 the mother’s application to vary the July interim orders was dismissed. In late 2019 the mother was charged with contravening the ADVO by making contact with the father and sending him photographs of herself which were of a sexual nature.
As a result of the dismissal of the application to vary the interim orders, the July 2018 interim orders were undisturbed and the child’s time with the mother remained supervised. It was noted at that time that the family were not engaged with a contact centre so that the child was not actually spending time with the mother in accordance with the July interim orders.
In early 2020 the child commenced spending supervised time with the mother at a new contact centre (“the second contact centre”) twice a week.
In mid-2020 the mother was found guilty of contravening the ADVO regarding the incident in late 2019 and without a conviction being recorded, she was released on a conditional release order including a condition to continue treatment with a nominated doctor. The ADVO was extended by the Court that day so that it was to remain in force until early 2022.
Final parenting orders were made by a Judge of the Federal Circuit Court on 7 August 2020 (“the August 2020 orders”) following a three day final hearing. Those orders provided that the parents have equal shared parental responsibility for the child, that the child live with the father and spend time with the mother on a gradually increasing basis commencing with day time and supervised changeovers before reaching an endpoint of alternate weekends from after school Friday until before school on Monday and during school holidays.
In the ensuing months, the father facilitated the child’s time with the mother pursuant to the August 2020 orders but on several occasions, the mother did not return the child in accordance with the orders. The mother’s failure to return the child to the father in October 2020 caused the contact centre to intervene. Her actions and compliance with the August 2020 orders also appears to be a matter of significant dispute between the parties and will be later considered in detail.
In September 2020 the father was advised by letter from the child’s pre-school that he was being provided with two weeks’ notice to find an alternative pre-school for the child as a result of the mother’s conduct and the impact it had on the provision of service at the pre-school. The father had been previously advised that the mother was consistently contacting the pre-school, on some occasions daily, to request information and in an attempt to arrange to see the child which was disruptive to that service. The father subsequently found another childcare centre for the child.
In November 2020 the child spent time with the mother in accordance with orders, but failed to return her to the father when required at 3.00 pm. The father requested that staff at the contact centre, who were facilitating the changeover, contact the mother in relation to the child’s return. Although the contact centre worker informed the father that the mother had been informed that police would be contacted if the child was not returned and that the mother said she would return the child, this did not occur. The father understands that the supervisor of the contact service contacted police requesting a welfare check.
The father filed an urgent Initiating Application in the Federal Circuit Court seeking a recovery order and to vary the August 2020 orders. On 23 November 2020 an order was made ex-parte that police recover the child and return her to the father. On the same day, the mother took the child to the Emergency Department and reported that the child disclosed to her that the paternal grandmother smacked her when she is incontinent. According to the discharge summary[4] nothing of concern was observed by the hospital staff. There is no evidence that this led to any further investigation or action by any authority.
[4] Exhibit 23 – Hospital records.

The following day, police executed the recovery order at the mother’s home. Later that evening, the mother requested police to undertake a welfare check on the child while she was in the father’s care. The foregoing events in November 2020 are matters to which I will return when considering the mother’s allegations about physical abuse of the child at the hands of the paternal grandmother and the mother’s conduct during these events.
In late 2020 the mother attended at the Court Registry, although there was no court event scheduled for that day. She refused to leave the Registry, behaved erratically and claimed that the child will die if the Court does not accept her application. The mother recorded her own conduct in this incident and posted it on social media.
On 21 December 2020 the ICL was appointed.
In early 2021 the mother attended the second contact centre for changeover despite being told by staff that the changeover had been cancelled on this day. The father was contacted by the staff at the contact centre who informed him that the mother claimed she did not receive an email which informed her that the changeover was cancelled, that she had screamed at staff, video-recorded them, punched the elevator and made the staff feel unsafe.
The mother then sent a text message to the paternal grandmother asking when she could pick up the child. While driving to the home of the paternal grandparents, the mother called 000 and said that if she could not get custody of her daughter, police would find her dead body. The mother attended the front gate of the paternal family home and called out for the child. Police attended and the mother was placed under arrest and charged with contravening the ADVO by approaching the paternal family home contrary to conditions of the ADVO. The mother was also taken to a hospital pursuant to s 22 of the Mental Health Act (NSW) (“the Mental Health Act”).[5]
[5] Section 22 of the Mental Health Act 2007 (NSW) empowers a police officer to apprehend a person who appears to be mentally ill or mentally disturbed and take them to a declared mental health facility without a warrant if the officer has reasonable belief that they are committing an offence or have recently committed an offence or if the person is likely to harm themselves or others and that it would be beneficial to that person's welfare to do so.
Following this incident, the father ceased complying with the August 2020 orders. Further, as a result of the mother’s behaviour the second contact centre subsequently terminated services for the family.
The mother was found guilty of contravening the ADVO in the early 2021 incident and without recording a conviction was released on a conditional release order.
In March 2021 the mother collected the child from her childcare centre without notice to or consent of the father even though there were no orders in place for this to occur. The mother’s conduct on this day appears to be a matter of dispute and will be considered later in these Reasons. As a recovery order with respect to the child remained in place, police executed the recovery order on the evening of the same day and the child was again returned to the father.
Three days later, the mother sent an email to the father claiming that when the child was in her care she had noticed a “big red rash” on the child’s “private parts”. As a result, the father took the child for examination at a hospital but nothing of the nature claimed by the mother was detected. The father deposes that the child was reluctant to show the medical staff her genital area as this was the second time the mother had caused the child to go through medical examination of her genitals at a hospital.
On 31 March 2021 the mother approached the father following a court event and started screaming loudly. She was held back by security guards and the father was escorted out of the building via a different exit. While in a café near the Court, the father was again approached by the mother, who started screaming about the child and the proceedings. The father deposes that he felt intimidated, harassed and scared by the mother’s conduct and reported the incident to police.
The matter was transferred to the Family Court (as it was then known) on 22 April 2021. Immediately after transferring the proceedings, the mother filed a Contravention Application in respect of the father’s failure to facilitate the child’s time with her, which was later dismissed. During an adjournment at Court that day, the mother harassed and frightened the father in the precincts of the Court and following the conclusion of the hearing, the father needed to be escorted from the building by security.
Although the father did not facilitate the child spending time with the mother pursuant to the August 2020 orders following the incident in early 2021, the mother attempted to spend time with the child at her childcare centre even though the orders did not provide for that to occur. In mid-2021 the mother contacted the childcare centre regularly to inquire whether the child was in attendance. The staff at the childcare centre contacted the father informing him of the mother’s enquiries and on at least two occasions the father attended and collected the child before the mother could make contact with her.
On one occasion in mid-2021 the mother attended the childcare centre and spent time with the child for about 20 minutes before staff were able to return the child to the father. On this occasion, staff confiscated the mother’s car keys to prevent her from attempting to remove the child.
On 21 May 2021 interim orders were made (“the May 2021 orders”) by another Judge of this Court which suspended the August 2020 orders in relation to the child’s time with the mother and restrained the parents from uploading, publishing or commenting on social media any information that identifies the child. Orders were made for the child to spend supervised time with the mother for two hours a fortnight at a contact centre or under community based supervision service agreed to by the parties or in default of agreement to be nominated by ICL. After this court event, the mother again followed the father out of the courtroom and raised her voice screaming about matters related to the child and the proceedings. The security staff at the registry intervened to stop the mother and the father was escorted out of the building.
Attempts were made to arrange for the child’s time with the mother to occur at contact centres, but none were prepared to provide services to the family. As a result, the child spent no time with the mother between 21 May 2021 and 12 October 2021 when orders for that time were suspended.
On 24 June 2021 the mother filed a further Contravention Application regarding the father’s alleged failure to file an Application in a Case for interim orders as required. On 29 June 2021 the father filed an Amended Initiating Application seeking orders that he hold sole parental responsibility for the child, that the child spend no time with the mother and that the mother be restrained from approaching the child or contacting the pre-school. The father also sought costs and an order that the mother be declared a vexatious litigant and that she be restrained from filing any further applications without the leave of the Court.
It is the father’s case generally that the mother conducted a campaign of harassment and intimidation against him particularly following the August 2020 orders and that this conduct which he contends also falls within the ambit of family violence, extended to his family. He deposes to the conduct of the mother which harassed members of his extended family and is a matter to which I will return.
On 12 October 2021 the mother’s Contravention Application filed on 28 April 2021 was listed for hearing. On this date, the hearing was vacated as an order had been made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) banning each of the parties from personally cross-examining one another and the mother remained self-represented. In those circumstances, the father made an application that the mother’s Contravention Application be summarily dismissed and the proceedings were listed on 24 November 2021 for hearing of his application.
It was noted at the 12 October 2021 court event that the child had not spent any time with the mother since early 2021 and the Court was advised that this was a result of the contact centres declining to provide services to the family due to the risks associated with the mother’s behaviour, a matter that the mother emphatically denied. Noting that the child had not spent time with the mother for a lengthy period of time and in the absence of any expert information in relation to the risks associated with the child spending time with the mother, an order was made that the parties and the child attend upon a Court Child Expert for the purpose of preparing a Child Impact Report. The child’s time with the mother as set out in the interim orders was suspended until the release of that report.
On 24 November 2021 the Child Impact Report was released to the parties. The concerns held by the first Court Child Expert (“the first expert”) about the risk to the child associated with the unpredictable and chaotic parenting arrangements is a matter to which I will return. On that day, an order was made for the preparation of a Family Report to progress the matter to final hearing. Further, the mother’s Contravention Applications were summarily dismissed.
In late 2021 the mother again attended the child’s day care centre without notice or consent of the father and asked to the see the child in an incident which is considered at greater length later in these Reasons.
In early 2022 there was an incident which caused the mother to come to the attention of police and resulted in police contacting paramedics to conduct a mental health assessment and subsequently the mother was taken to hospital. This event will be considered later in these Reasons when I return to the issue of concerns about the mother’s behaviour and emotional dysregulation.
In early 2022 a final ADVO was made against the mother for the protection of the father, the paternal grandparents and the child for a period of five years. The mother was restrained from approaching the school or childcare that the protected persons may attend. She was not to go within 200m of where the protected persons live or work and was also restrained from contacting the father, paternal grandparents and child except through a lawyer, to attend a court‑approved counselling/mediation, ordered by Court or as agreed in writing between the parties.
Following the making of the final ADVO, the mother continued to contact both the paternal grandmother and father by telephone. She was charged with contravening the ADVO and also charged with using a telephone to menace or harass the paternal grandmother and father. These are matters to which I will return later in these Reasons.
On 23 May 2022 the Family Report was released to the parties and the ICL. The Family Report will be dealt with at greater length later in these Reasons. It suffices to say for the purposes of this background that the first expert recommended that the father hold sole parental responsibility for the child, that the child live with him and spend no time with the mother. It was also the first expert’s recommendation that the mother be permitted to send the child a card on special occasions and this should occur in conjunction with therapeutic support to assist the child in understanding her parenting arrangements and her lack of relationship with the mother.
In August 2022 the child commenced spending supervised time with the mother on a fortnightly basis at the third contact centre engaged by the family (“the third contact centre”).
On 24 August 2022 the proceedings were fixed for a final hearing for four days to commence on 22 February 2023 and orders were made for the preparation of an updating Family Report to ready the proceedings for hearing.
After the child began spending time under the supervision of a third contact centre in August 2022 there were a number of occasions where the mother’s behaviour caused concern to the staff and as a result of an incident in late 2022, the third contact centre suspended its services to the family for two months. These matters will be considered in greater detail when I return to the father’s contention that the mother’s behaviour is such that she poses an unacceptable risk of harm to the child.
On 21 February 2023 the updating Family Report was released. The updating Family Report is a matter to which I will return, but for the purposes of this background, the Court Child Expert who wrote the report (“the second expert”) held similar concerns about the risk of harm the mother poses to the child as the first expert and made recommendations about a final parenting arrangement along the same lines.
In early 2023 the mother pleaded guilty and was convicted of one instance of contravening the ADVO in relation to the phone calls to the father and paternal grandmother between October 2021 and March 2022. The other charges against her were withdrawn.
The final hearing
The final hearing commenced on 22 February 2023 and on that day, all parties were represented by counsel. The second expert who prepared the updating Family Report was cross-examined by each party’s counsel on that day.
When the hearing continued on the next day, 23 February 2023, the father’s counsel informed the Court that he is no longer seeking an order that the mother be declared a vexatious litigant. In accordance with his Case Outline, the father continued to propose that he hold sole parental responsibility for the child, that the child live with him and spend no time with the mother.
In the mother’s Outline of Case, she sought orders that the parents equally share parental responsibility for the child, that the child live with her and spend time with the father. The proposed orders subsequently changed throughout the course of the final hearing and at its completion, the mother proposed that the child initially live with the father and spend increasing time with her until it reached an endpoint of living with each parent in an equal shared care arrangement.
On the second day of the hearing the mother made an application to vacate the remainder of the hearing on the basis that the proceedings could not be completed within the allocated three days. For reasons given ex-tempore, I dismissed the mother’s application and a timetable was provided to the parties to contain the proceedings within the allocated days.
Ultimately, some further additional time was allocated to the final hearing on 9 March 2023 and the evidence was completed on that day. It was also subsequently agreed that the Local Court file in relation to the mother’s court proceedings in early 2023 should be admitted into evidence.
FACTUAL DISPUTES
Although the parties do not each depose to all of the factual matters in dispute between them in their respective affidavits, it became apparent under cross-examination that there are a number of matters about which they do not agree. While some of these matters are of little moment having regard to the final orders that they each propose and the general way in which their respective cases were run, some of these matters require resolution for reasons I will explain.
First, it is necessary in my view to make findings concerning the mother’s behaviour in various settings and incidents, as it is central to the case of the father and the ICL and to the opinion expressed by each of the experts that the mother’s behaviour and in particular, her inability to regulate her emotions, gives rise to a risk of harm to the child. While at times under cross‑examination the mother conceded the inappropriate nature of her conduct, she otherwise took issue with some of the father’s evidence and the contents of various records upon which the father relies. For this reason, the parties competing cases in relation to the mother’s conduct on various occasions is a matter which requires resolution.
I am also of the view that it is necessary to make findings in relation to family violence. I propose to deal with this issue first as it is the mother’s case that any of her conduct that the Court may find inappropriate or demonstrative of emotional dysregulation results from her having been the victim of family violence at the hands of the father.
Family Violence
Although, the mother’s position in relation to family violence was at times unclear or may be seen as at odds with the orders she proposes, it is her contention that the father engaged in coercive and controlling behaviour towards her during their relationship that falls within the definition of family violence.[6]
[6] Section 4AB (1) Family Law Act 1975 (Cth) defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The father denies that he ever behaved towards the mother in a manner that constitutes family violence and it is his case that he and his family were subjected to serious and ongoing family violence at the hands of the mother.
The Full Court held in Amador & Amador[7] (“Amador”) that the High Court’s decision in M v M[8] should not be used to support an argument that it is unnecessary for a trial judge to make positive findings in relation to abuse or violence between the parties. Indeed in Amador (supra) the Full Court affirmed that a trial judge should make findings if “they are available and necessary to determine what is in the best interests of the child”.[9]
[7] [2009] FamCAFC 196.
[8] (1988) 166 CLR 69.
[9] [2009] FamCAFC 196 at [88].
In addition to ss 60CC(2)(b), 60CC (3)(f)(i)(j) and (m) of the Act which are referred to in Amador (supra) as matters that may be significantly impacted by findings that a party has assaulted another party,[10] in these proceedings there are a number of specific contentions about matters relating to the child’s best interests that depend upon findings as to family violence. So far as the mother’s allegations of family violence are concerned, it is central to her case that the father’s engagement in coercive and controlling behaviour towards her directly resulted in her behaving in an emotionally dysregulated manner, which she generally conceded gives rise to legitimate concerns about the impact of this conduct upon the child and the child’s well‑being. Further, although the mother contends that it is in the child’s best interests that the parents equally share parental responsibility, this does not arise by virtue of the presumption of equal parental responsibility if it is found that the father has engaged in family violence.
[10] [2009] FamCAFC 196 at [94].
Both the father and ICL submit that the presumption of equal parental responsibility does not apply on the basis that the mother has engaged in family violence. So far as the orders proposed by the father that the child spend no time with and have no contact with the mother are concerned, it is a central plank in his case that the mother’s propensity to engage in family violence (and her emotional dysregulation caused by her mental health difficulties) are such that she poses an unacceptable risk of physical and psychological harm to the child. Both experts also made recommendations that depend upon the findings of the Court in relation to the parties’ allegations of family violence. For all of the foregoing reasons, it is necessary that I make findings with respect to each parent’s allegations that the other parent was the perpetrator of family violence.
The allegations of family violence prior to separation
As touched upon in the background, the father deposes that he was scared of the mother from around 2016 being the time at which the child was conceived.

According to the mother’s affidavit, the parties’ relationship was good until 2016 when she became pregnant with the child. She deposes that from around this time, the father began to verbally abuse and denigrate her and for this reason she returned to Country N in 2016 to receive support from her family around the time of the child’s birth.
The mother deposes that after she arrived in Australia with the child in 2017, the father did not spend much time with them as a family and she felt isolated and alone. The mother deposes that after the father paid for her spouse visa application (about $7,000) he said words to her to the effect of “I own your life”.
Although the father deposes to feeling scared of the mother as from 2016, the first incident about which he provides any detail in his affidavit allegedly occurred in 2017. According to the father’s affidavit, on this occasion the mother threatened to take the child to Country N so that he would not see her again. He deposes to becoming worried and to taking the mother’s passport and that he started walking towards the car. The father says that the mother followed him outside that she proceeded to pick up a brick near the driveway and raise it in her hand towards the car. The father told the mother to stop. He deposes that the mother then called the police, that he returned the mother’s passport to her and that police attended their home and spoke to the mother and then left. The mother does not give an account of this particular incident in her affidavit.
Under cross-examination, the father maintained that he was scared of the mother from an early stage in their relationship. He was otherwise not questioned about the 2017 incident.
When asked about the period of time after the mother returned to Australia with the child in 2017 until separation in April 2018, the father denied that he did not spend much time with the mother and child and he did not accept that the mother felt isolated during this period. He was adamant that the paternal family welcomed the mother into their home and did their best to comfort her so that she did not feel isolated. The father confirmed that the mother had a driver’s licence and drove during this period and that he always left a car at the home for her to use.
When asked about the mother’s application for a spouse visa to remain in Australia, the father confirmed that he was aware of this from 2017 as he funded it and was also aware that she was granted a bridging visa pending the outcome of her substantive application. The father denied saying words to the effect of “I own your life” in relation to him having paid the fees in respect of her visa.
The father next deposes to an incident in 2018 which arose from an argument between him and the mother about items that they had purchased when shopping. According to the father’s affidavit, the argument occurred when he was driving and the mother and the child were rear passengers. He deposes that the mother tried to open the back door to get out and constantly screamed “let me out of the car” and punched him from the back seat to his head while the child was in her car seat. He deposes to pulling over at the first opportunity and that the mother then removed the child from the car seat and left the car. The father says that he stayed in the car and waited for the mother to calm down and that after a short period of time she returned to the car. The father deposes that he was too scared to call the police on this occasion and he didn’t want the mother to get into trouble and was also worried that the police would not believe him. The mother does not depose to an alternate version of this event in her affidavit and the allegation was not put to her under cross-examination. The father was not challenged under cross-examination about his account.
There appears to be no dispute between the parties that in April 2018 they had arguments about the mother’s visa application and the father’s refusal to sign it before receiving advice. The father deposes to a specific incident on an unspecified date when he said he was not going to sign the application and that the mother accused him of humiliating her. He deposes that the mother raised her fist and punched him in the chest and on the cheek.
According to the mother there was an event which involved a physical altercation between the parties in April 2018. She deposes that on this day at around the time she was getting ready to leave for work, the father accused her of sleeping with other men. She says that around 6:10 am she walked towards the car and had almost reached the driver’s side door when the father walked quickly behind her and told her that she could not use the car. She deposes that the father then opened the driver’s door, hit her in the forehead forcing her to fall to the ground and that he did not provide any assistance to her. The mother says that she stood up, told the father that she needed to drive the car to work and that he moved away and she got into the car and drove away.
The father deposes that there was a further argument about the visa application and his refusal to sign it in April 2018 and on that occasion, the mother hit him at least three times, threatened to call the police and kill him and threatened him with a knife saying “you will never talk to me again. Get the fuck out of the house. I will fucking stab you and I will go to gaol”.
Under cross-examination that appeared to relate to the incident on that day, the father denied that he refused the mother permission to take the car, but he did agree that there was a discussion about the use of the car on that day. The father was not challenged under cross‑examination about his evidence that the mother threatened him with a knife or any other details of his account concerning this incident and an alternate version of events was not put to him under cross-examination.
As also noted in the background, there is no dispute between the parties that there was a violent incident five days later which started with an argument about the mother’s visa application. The father deposes that he feared the mother would physically assault him and for this reason he picked up the child and began walking towards the main house on the paternal grandparents’ property. While walking to the main house, the father looked back into the parties’ premises and saw the mother run into the bathroom with a knife. The father heard a “bang” and started running to the main house as he was fearful that the mother would stab him as she had threatened to do previously. While running to the main house, the father saw the paternal grandfather and asked him to call police. The mother then entered the main home and asked the father if he had called police and told him that he would “pay” (for doing this). The mother picked up the child and began walking back towards their premises and said she was going to call police and tell them that the father has been abusing her. The mother then walked outside and grabbed an object and smashed the window of the paternal grandfather’s car while holding the child. Police arrived soon after and removed the child from the mother and gave her to the father. They spoke to the mother outside and the father deposes that the officers later asked him whether the mother has any mental health problems as she was taking off her clothes while talking to them. Police then applied for an urgent provisional ADVO against the mother for the father and paternal grandfather’s protection.
According to the mother’s affidavit, she and the father were having a discussion when the father took the child to his parents’ home. The mother deposes that she told the father she was going to have a shower and before she did, she went to the kitchen while naked to obtain a lemon to exfoliate her skin. The mother says that when the father saw her naked cutting a lemon with a knife, he asked her what she was doing and that their discussion escalated into an argument in which the father threatened to call the police. The mother says that she begged the father not to call the police and that she got dressed, got the child from the main home and proceeded to leave with the child in her arms. She deposes to grabbing an object and smashing the car window “out of desperation to get into the car”. The mother was arrested by the police and taken to a police station where she was charged with an offence. The ADVO was taken out against her the following day.
Under cross-examination, the father remained firm as to his account of the incident including in relation to the order of events. He confirmed that the mother had a knife in the kitchen, but he did not recall her picking up a lemon and did not see her naked. The father agreed that he formed the view that the mother was intending to leave the property with the child in the car, but denied that she smashed the car window for the purposes of gaining access to it so that she could drive away. He was firm in his evidence that the mother had the keys to the vehicle and that he recalled her picking them up from the kitchen bench. The father agreed that after smashing the window of the car the mother did not drive way, but moved back and forth from inside to outside their premises. The father also firmly maintained under cross-examination that he was traumatised by the incident. The father was not challenged about any of his other evidence concerning this incident under cross-examination.
When cross-examined, the father did not agree that by not signing his part of the visa application he intended that the mother not be granted a permanent visa to remain in Australia. The father denied that he was tormenting the mother with the prospect that she would not gain a permanent visa to remain in Australia or that he was attempting to create a situation so that the mother’s application for a visa was less likely to succeed. The father denied that he does not want the mother to get a permanent visa to remain in Australia.
According to the father’s affidavit, after the mother was arrested and charged with an offence arising from this incident and the ADVO was made against her for his protection, she contacted him by telephone on 30 April and 2 May 2018 threating to kill herself by jumping in front of a train. He also deposes that on 1 May 2018 the mother sent him an “application” that she intended to make to work in a brothel which he considered to be a form of emotional abuse. The father was not challenged about this evidence under cross-examination.
Allegations of family violence following separation
The mother deposes that there was an incident in mid-2018 which resulted in her arrest for contravening the ADVO in place for the protection of the father. According to her affidavit, on this date the Department of Immigration contacted her regarding her visa application and she asked the father to provide her with the relevant documents that were at his home. She deposes that she went over to his home to pick up the child and the father said he could not find the documents in question. The mother goes on to say that she saw the documents on the car seat and “leaned over [the father]” to get them and that this action resulted in her arrest for contravening the ADVO. The mother deposes that two days later, the father refused to return the child to her in accordance with the June 2018 orders and that she did not see the child for the following six months.
The father does not depose to any relevant event on that date. According to his affidavit, on a later date in mid-2018, he delivered groceries, items for the child, household items and the mother’s belongings to the mother’s home at approximately 7:30pm and after delivering the items sent a text message to the mother informing her that they were in the garage. He deposes to receiving a phone call from the mother in which she stated her intention to find a new step‑father for the child. On the following day, he deposes to receiving text messages from the mother and that they had a subsequent conversation in which the mother screamed at him saying that he was “going to get [her] deported”. The father says that he told the mother that he was not trying to get her deported, but was not going to sign a false statement to the effect that they are in a relationship.
As noted when setting out the background to this dispute, the next incident in which the father alleges the mother was violent towards him was two days later in mid-2018. At this time, the child was living with the mother and spending time with the father two nights per week pursuant to the interim orders then in place. The father deposes that the mother screamed at him while holding the child, but eventually handed the child over to him. He says that as he was walking towards his car, the mother threw an object at him which scratched his face and neck. He deposes that the mother started hitting him, grabbed his clothes and pulled on them and tried to grab his phone, but eventually ran off.
The father deposes that police were informed of this event and the mother was arrested overnight. She was charged with assault and with contravening the ADVO which was then in place for the father’s protection. The mother does not depose to a version of this incident in her affidavit.
Under cross-examination, the father was adamant that there had not been an incident on the earlier date and that the incident that led to the mother’s arrest had occurred on the later date in mid-2018. The mother’s counsel then put to the father that the incident the mother deposed to having occurred on the earlier date actually occurred four days after that, but the father firmly denied that any incident along those lines had occurred at all.
It was also put to the father under cross-examination that nothing at all occurred on the later mid-2018 date and in particular that the mother did not assault him on that day, but the father remained firm as to his version of events. He denied when it was put him that on that date he reported an incident to police that had occurred the previous week. The father was very firm in his evidence that he was assaulted by the mother on that date and that the marks on his body which he showed police were caused by the mother in that assault. The father denied that he had given a false account to police that he was assaulted by the mother on that date and that he was seeking that the mother be charged with the contravention of the ADVO. He also rejected the proposition that he was seeking that she be charged so that her visa application would ultimately not be successful.
Under cross-examination, the father denied periodically threatening the mother with things that may have the effect of reducing the likelihood of her getting a permanent visa. He repeatedly stated that the only reason he contacted police was because he was scared of the mother and denied that calling police had anything to do with reducing the likelihood of the mother obtaining a permanent visa.
Under cross-examination about each party’s version of events in mid-2018, the father agreed that there was an occasion at changeover when he told the mother that he could not find the documents that she sought, but denied that they were in plain sight in his vehicle and that the mother “leaned over” him to take possession of the documents. He also denied that on one occasion in mid‑2018 he refused to return the child to the care of the mother. The father remained firm that the incident in which he was assaulted by the mother which led to her being charged and to him retaining the child in his care occurred over a week later. He agreed that as a result the child did not see the mother for a period of six months.
Under cross-examination, the father did not agree that during the six months in which the child spent no time with the mother between mid and late 2018 that the mother had no family support. He maintained that she had arranged for the maternal grandmother to come to Australia at the time.
In late 2018 a final ADVO was made against the mother with her consent for the protection of the father and paternal grandfather for a period of 12 months.
Allegations in relation to mother after supervised time with child recommenced
It is broadly the father’s case that the mother has engaged in a campaign of harassing and intimidating him and on occasions, the paternal grandparents, by various means and in particular after the child began living primarily with him in mid-2018 and that this harassment and intimidation intensified after the child began spending supervised time with the mother at a contact service in early 2019.
The father deposes to an incident at the contact centre where he attended with the paternal grandmother to facilitate the child’s time with the mother in August 2019. It is the father’s evidence that the mother was staring at the paternal grandmother in such a manner that caused a staff member to speak to the mother. He deposes that the mother was taken away and she returned after a few minutes and once again approached the paternal grandmother, which was again observed by the staff member who told the mother not to do this and put her in another room.
The father also deposes that in September 2019, after he collected the child from the contact centre following her supervised time with the mother, the mother ran towards his car crossing two lanes of traffic which caused the father to panic as he did not want to expose the child to an altercation with the mother. He deposes to locking the car doors and driving away and to subsequently becoming aware that the mother’s conduct at supervised time had caused such concern for the staff that they were no longer willing to supervise the child’s time with her. The mother gives no account of this incident and as previously noted, she contends that the child spent supervised time with her at the contact centre for nine months without any incident.
Under cross-examination, the mother was asked about her behaviour at the contact centre in September 2019 and she agreed that the services of the centre were terminated as a result of her behaviour. The mother was not asked about the father’s allegation that she approached him just after he had left the building. The father was also not cross-examined about his version of this event.
In late 2019, two days before the ADVO against the mother for the protection of the father and the paternal grandfather was due to expire, the father made an application to vary the ADVO by extending it. At various ensuing court events, the ADVO was extended on an interim basis.
The father deposes to the mother sending him multiple text messages including two sent in late 2019 in which she attached naked photographs of herself of a sexual nature and made reference to the parties’ previous sexual encounters. Although the mother does not refer to these matters in her affidavit it is clear from police and court records that she was charged with contravening the ADVO in relation to these communications. Police records in relation to this charge indicate that over nine days in late 2019 the mother sent the father 22 text messages and 12 images.[11]
[11] Exhibit 13 – Police records.
It was not suggested to the father under cross-examination that his account of any of the foregoing incidents was incorrect and no questions were asked to challenge his account concerning the impact that the mother’s conduct has had upon him.
When cross-examined about her arrest and charges in late 2019 in relation to contact with the father, the mother initially denied that the charges related to messages she was alleged to have sent in late 2019. The mother subsequently agreed that the police record which indicates that the relevant messages were sent in late 2019 was correct and admitted that she sent a photo of herself naked to the father at the time.
It is the father’s case that after the August 2020 final orders were made and changeovers were supervised at a contact centre, the mother continued to perpetrate family violence against him and on occasion, members of his family.

There is no dispute between the parties that there was an incident in early 2021 triggered by a cancellation by the contact centre of the child’s scheduled time with her mother on that day.
According to the mother’s affidavit, after becoming aware that this time had been cancelled, she then attended at the father’s home as she was “desperate” to see the child. The mother deposes that before she drove there she telephoned police to ask for help with the changeover which the police declined to assist with and that she then said to police “if I cannot see my daughter, my body will be found in the bush”. Police records indicate that the mother called 000 and stated that police would find her dead body if she could not get custody of her daughter. It does not appear to be in dispute between the parties that the father was not present at his home when the mother subsequently attended there.
The mother deposes that she attempted to contact the father and paternal grandmother, but that neither answered their phone. She then drove to the father’s house and saw the child looking at her from the window. The mother deposes to singing a song to the child and that she was “not violent or aggressive”. The police record also indicates that the mother called out for the child in front of the paternal home.
According to the father’s affidavit after he was informed of the mother’s conduct at the contact centre that morning he became concerned that the mother may contravene the ADVO made for the protection of himself and the paternal grandfather, in particular by attending at his home in breach of the restraint from approaching within 200m of those premises.
After speaking to the police and the contact centre staff, the father deposes to receiving a telephone call from his father at about 10:40 am. The paternal grandfather informed the father that the mother was at the home and walking up and down the fence screaming and the father who was on loud speaker, deposes to hearing the mother screaming in the background and hearing the child say “that’s my mumma”. The father then instructed the paternal grandmother to remove the child so that she could not hear the mother and says that after some time he could no longer hear the mother’s voice.
There is no dispute that police attended at the paternal family home and that the mother was arrested, taken to a hospital to be assessed under the Mental Health Act and charged with contravening the ADVO.
Under cross-examination, the mother conceded the accuracy of some of the father’s affidavit account including that after she was informed by the contact centre that the child’s time with her had been cancelled, she sent an email to the father’s lawyer advising that she had called police and that she was 200m away from the father’s house waiting for him to bring the child outside. The mother denied walking up and down the fence at the front of the father’s property and yelling at the time, but agreed that police arrived at some point and that she was taken to a hospital. The mother acknowledged that before arriving at the house she called police, but she denied saying anything about finding her “dead body”. The mother claimed not to have a full recollection of what she said and also added that she “may have used a poor choice of language”.
Under cross-examination, the father denied that on this occasion the mother contacted him by phone but was not otherwise challenged in relation to his version of this event. Neither of the paternal grandparents gave evidence in the proceedings.
A few days after the early 2021 incident (which resulted in the contact centre terminating its services and the father ceasing to facilitate the child’s time with the mother pursuant to the August 2020 orders), the mother reported to police that the father had abused the child and at about 2:30 am on that day, police attended at the father’s home to carry out a welfare check but nothing concerning was observed.
In early 2021 the father became aware of the mother making various posts and claims on social media platforms in which he and the paternal grandmother were identified as having abused the child and he was identified as a domestic violence perpetrator. The mother also posted images of herself on the steps of the Court Registry holding banners. In other posts the mother made references to “child abuse”, and named the judge who was presiding over the proceedings at the time and the father’s solicitor as “defending the child abusers”. Copies of the posts in which the mother makes scandalous claims about the Court, the relevant Judge and the father’s solicitor that her daughter’s life is at risk and drawing attention to various media outlets and the father’s employer (through the use of hashtags) together with multiple photographs of the child that the mother posted on these platforms are attached to the father’s affidavit. The mother does not address the issue of her conduct with respect to social media in her affidavit, but was cross-examined about her posts to one particular social media platform.
Under cross-examination, while the mother initially insisted that the videos she had posted to social media were on a private page and thus only for family members, after some prevarication admitted that she had “tagged” or “hash tagged” various services such as Child Protection, the Federal Circuit and Family Court of Australia and various media agencies. When asked why she had attached those hashtags or services to her posts, the mother said she was “shouting for help, shouting to be heard” out of “desperation” and that she was “just in total despair” as she had not heard from her daughter in months. The mother denied that in adding hashtags to organisations such as media and the Court, it was her intention that someone from those organisations would be able to see her post, and she continued to insist her posts were private. However, under later cross-examination the mother agreed that by adding a hashtag naming an agency (in that case the father’s employer) she understood that this could draw attention of her post to that agency.
The next incident occurred on 31 March 2021 when the parties attended Court for the purposes of the proceedings. On that day, the father said that while within the Court complex, the mother followed him and with a raised voice said words to the effect of “I am going now where (sic). I am the mother. I will fight you forever. This is not ending. You will give me my daughter”. The father says that he and the paternal grandmother walked away from the mother, but that she started “screaming at the top of her lungs” which caused various people to come out from a number of rooms within the Court building to see what was causing the commotion. The father deposes that the security guards at the Court intervened and held the mother back while he entered a room with the paternal grandmother and his legal representatives, but the mother continued to yell at the security guards and refused to leave the building.
According to the father’s affidavit, security escorted him, the paternal grandmother and his solicitors through another exit. After they left the Court building, while he was engaged in a discussion with his solicitors nearby, the mother approached and again started screaming words along similar lines to those she had used before. The father deposes to feeling intimated, harassed and scared and that as he attempted to get away from the mother, she followed him and the paternal grandmother for about 800 metres to the train station screaming at the top of her lungs “[the father’s name] I am the mother you will never beat me. I am going nowhere. Who do you think you are you are. You are a liar. I am the mother”. The father deposes to pedestrians and members of the public looking concerned about the mother’s conduct and that he subsequently reported the matter to police.
The father also deposes to the mother’s conduct after another court event on 22 April 2021 at which the judge of the Federal Circuit Court (as he then was) determined that there had been a significant change in circumstances such that it was in the child’s best interests for the parenting proceedings to be reopened and transferred to the Family Court.
According to the father’s affidavit, in the course of these proceedings the mother “had a breakdown” and the judge gave a short adjournment to allow the mother to regain her composure. During the adjournment, the father deposes to leaving the courtroom and walking into the common area and the mother approaching him and staring at him. He says that his solicitor asked the mother to move along, but she refused and he was then ushered into a small meeting room by security staff which had a glass panel as the only source of light. The father deposes that the mother peered through the glass and was sobbing and screaming at staff as they attempted to move her and that she beat on the door and continued yelling. The father faced the back wall and deposes that he was shaking, scared and felt “trapped”. He describes the event as “a traumatising experience”. He deposes that at the conclusion of the Court proceedings on that day, security waited for the mother to leave the building before he was escorted out through another exit. He reported the intimidation and harassment to police.
According to the father’s affidavit, in May 2021 he received a telephone call from a relative advising him that the mother had approached that family member and the father’s 81 year old grandmother when they were out at dinner and sat next to them saying “lucky you don’t have a AVO on me. I can talk to you”. The father deposes that he was told that his relative and grandmother notified security about the approach and asked if security could escort them to the car and while they were speaking to security, the mother circled around the security desk. The father was told that when security officers walked his relative and grandmother to their car they observed that the mother had parked her car behind their car, blocking them in. The relative also reported that the mother drove close behind him and appeared to be recording them on her phone while driving and also turned her high beam on their car while driving extremely close to it. It was reported to the father that they were followed for about 10 minutes and that the father’s grandmother was shaken up by the incident and police were called.
The father deposes to another incident at around this time after a court event. According to the father’s affidavit, on 21 May 2021 after court he was ushered out by security but the mother quickly followed as he left the Court room and started to raise her voice. He deposes that a security guard held the mother back from him while another security guard grabbed him and ushered him down the fire exit. He was also informed that the mother was waiting within the Court complex and that he should leave the area using another route to avoid further conflict.
On 24 May 2021 the father received a telephone call from a police officer and was advised that police were intending to seek a variation of the ADVO to include an order restraining the mother from contacting or approaching him due to police concerns.
The mother did not address any of these incidents in her affidavit nor was the father challenged about his version of any of these events under cross-examination. Video recordings from the security footage of the incidents at the Court on 22 April and 21 May 2021 were admitted in evidence.[12]
[12] Exhibits 25 and 26 – Court CCTV footage.
As previously touched upon, it is the father’s case that the mother’s campaign of harassment and intimidation against him falls within the ambit of family violence and extended to his family. In his affidavit, the father deposes that on 27 August 2021 the mother forwarded numerous emails to his solicitor, the ICL, the Court, a supervision agency and himself titled “Dying Wish” in which she claimed that the maternal grandmother was dying and that it was the maternal grandmother’s dying wish to speak with her only grandchild. A copy of one version of these emails is annexed to the father’s affidavit. The father deposes that the mother then sent the email to members of a club of which the paternal grandmother was a member making claims about the maternal grandmother’s dying wish along similar lines and making allegations about the paternal grandmother and father and urging the members of the club to encourage the paternal grandmother to accede to the maternal grandmother’s dying wish.
The father also deposes that on 11 October 2021 the paternal grandmother received over 30 phone calls from a private number and that on several occasions he answered the calls and muted the phone on his end but could hear what sounded like a computer-generated robotic voice saying unusual things such as “I’m monitoring the internet”. He deposes that each time he hung up the phone it continued to ring and he was required to turn the phone off.
From November 2021, the father deposes that he began to receive similar calls at various times throughout the day and at night, ranging from late at night to early in the morning and that there were generally between five to eight calls each day.
As noted previously, the father initiated an application to vary the ADVO against the mother for the protection of himself and his father and these variation proceedings took some time to be determined. It appears (consistent with the father’s affidavit) that police were increasingly concerned about the mother’s conduct and also sought to extend the duration of the ADVO, the protected persons and the extent of the restraints. In early 2022 the ADVO was extended so that it is to remain in force for a further five years until early 2027. The protected persons were also extended to include the paternal grandmother and the child.[13] Further, in addition to the mandatory conditions, the mother was restrained from approaching any of the protected persons and was not to go within 200 m of any place where any of the protected persons live or work.
[13] It came to light in the course of the proceedings that the mother applied successfully for an order to quash the order extending protection under the ADVO to the paternal grandmother. Although it appeared that there was to be a further hearing in relation to the inclusion of the paternal grandmother as a protected person in the order, this did not seem to be a matter of any significance. The mother was ultimately convicted in early 2023 of contravening the ADVO at a time when the paternal grandmother was a protected person under that order and on this basis it is likely that the paternal grandmother will be reinstated as a protected person.
According to the father’s affidavit, in early 2022 after the ADVO was varied he and the paternal grandmother continued to receive a large number of phone calls from private numbers at odd hours of the night and early hours of the morning which they both found to be harassing, and instilled fear and concern in the father. Police identified that the mother was responsible for these calls and she was arrested and charged with contravening the ADVO and using a telephone to harass or menace the father and paternal grandmother. Police records indicate that the mother denied making phone calls.
Court records indicate that the mother was initially convicted of these charges in her absence but subsequently had that conviction annulled. Although the mother then pleaded not guilty in relation to the offences, on the day the charges were fixed for hearing, she pleaded guilty to one contravention of the ADVO and the other two charges were withdrawn. The mother was convicted and fined in respect of the contravention of the ADVO.
The father’s allegations of family violence – discussion and findings
I am satisfied to the requisite standard[14] that the mother has engaged in family violence against the father. In particular, I am satisfied that the various instances of physical abuse alleged by the father are proved in accordance with his evidence as follows:
·The mother assaulted the father in the course of an incident in 2018 when he was driving with her as a passenger by punching him to his head;
·The mother punched the father to the chest and the cheek in 2018 following an argument about the father’s refusal to sign the mother’s visa application;
·In 2018 the mother assaulted the father by hitting him and threatening him with a knife; and
·The mother assaulted the father in 2018 at a changeover by throwing an object at him which scratched his face and neck and by hitting him.
[14] S 140 of the Evidence Act 1995 (Cth) provides that in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
I am also satisfied to the requisite standard that the mother has perpetrated family violence against the father and members of the paternal family as follows:
·The mother damaged the paternal grandfather’s car in 2018 and in the same incident caused the father to fear that he would be physically assaulted. The mother’s actions on this occasion also occurred in the presence of the child;
·The mother caused the father to be fearful when she contravened the ADVO in place for his protection in mid-2018. The child was also present on this occasion;
·The mother acted in manner towards the paternal grandmother at the contact centre in August 2019 which is likely to have harassed and caused the paternal grandmother to be fearful;
·The mother caused the father to be fearful by approaching him in September 2019 following the child’s supervised time with her;
·The mother breached an ADVO in place for the protection of the father and paternal grandfather in late 2019 and early 2021; and
·The mother intimidated the father and caused him to be fearful at or following court events on 31 March 2021, 22 April 2021 and 21 May 2021.
I am also satisfied that the mother has engaged in many individual actions through electronic means such as phone calls, emails and defamatory social media posts that have had the effect of harassing and intimidating the father and the paternal grandparents since the child has lived in the father’s care.
In finding the father’s allegations proved to the requisite standard, I attach weight to the following.
First, many of the incidents in which the father alleges the mother engaged in family violence, harassment or intimidation were ultimately not challenged by the mother. There are numerous incidents both before and after separation which are not addressed by the mother in her affidavit such as the incident in 2018 when the father alleges that she assaulted him while travelling in the car, the father’s version of the circumstances which lead to the mother being charged with contravening the ADVO in late 2019 or the incidents that occurred in the court precincts in 2021.
When cross-examined about other incidents the mother effectively agreed with the father’s account. For example, when asked about the explicit text messages sent to the father in late 2019 which lead to her being charged with contravening the ADVO, the mother initially claimed that she had contacted the father in relation to bushfires but ultimately agreed that she had sent a photograph of herself naked to the father at that time and conceded that she “trust[ed]” the police records in relation to that matter. Further, in relation to the incident in early 2021, although the mother disagreed with some aspects of that event which she maintained under cross-examination (such as denying that she walked up and down outside the paternal family home), she did not dispute that she attended the home in breach of the ADVO and that she was charged in relation to that incident.

It would appear that neither expert asked the child to express a view in relation to her parenting arrangements as this matter is not reported upon in either report. When interviewed by the first expert in May 2022, the child, aged 5, spoke highly of the father, and her paternal grandparents and did not identify any issues or concerns about any of them. At this time, the child said that she remembered the mother and stated that she would like to see her again and thought that the reason that she did not was because of restrictions associated with the Covid-19 pandemic. It is recorded by the first expert that on observation the child and father interacted with each other in a comfortable and warm manner. The father has been the child’s primary carer for virtually all of her life and the first expert records that this relationship appeared to be well established and that the father was observed to be appropriately responsible and attuned towards the child.
In forming an opinion about the nature of the child’s relationship with the mother at that time, the first expert had access to information from some of the occasions the child had spent time with the mother in 2020 when the child was of three years of age. The first expert assessed that overall the child seems to have had a disrupted relationship with the mother over the years with some occasions of spending regular time with her and others where she has not had contact with the mother for extended periods of time. The first expert noted that there have seemingly been some positive interactions between the mother and child as observed by supervisors at contact centres and some interactions that were not as child-focused, which the expert opined while not ideal, are not of themselves necessarily cause for concern. This expert did not observe the interactions between the mother and the child due to limitations in being able to manage safety issues for the child with the mother during that assessment process.
By the time the second expert assessed the family in February 2023, shortly before the final hearing, the child had been spending supervised time with the mother at a contact centre for seven months. On this occasion, the child described both her mother and her father in identical terms as “playful, loving and helpful”. When assessed, the child appeared to the second expert to be comfortable with the father and paternal grandmother and spoke fondly of the father and in a similar manner about her paternal grandparents when interviewed. The second expert assessed the relationship between the child and father as close and positive. The child stated that “I have a mum, but she does not live with me…I have to go to a special place to see Mum. It’s really nice to spend time with Mum. We talk and play and draw”.
When reporting on the child’s relationship with the mother, the second expert had access to the reports that were then available of the child’s time with the mother at the third contact centre. The second expert reported that it appeared the child’s relationship with the mother “has developed in the controlled context of supervised visits”. She opined that the documents she had read of the child’s interactions including the recent supervised time events at the third contact centre indicate that the interactions between the child and the mother were generally positive but some were not as child-focused.
Although the child was not asked about her views in relation to her parenting arrangements at interview with experts she has on occasion expressed a desire to see more of her mother and even to live with her. Even if such statements were found to be an accurate reflection of the child’s views, little weight can be given to them in these proceedings due to the child’s age and in light of my finding as to risk of harm posed by the mother. This is consistent with the opinion of the second expert under cross-examination that limited weight should be attached to the child’s wishes, noting the child’s age and interactions with the mother.
It may be assumed that the child’s primary attachment relationship is with her father who has been her primary carer and with whom she has lived almost exclusively throughout her life. Both experts identify the strength, warmth and loving nature of the child’s relationship with her father and also identified her bond with paternal family members and in particular the paternal grandmother.
The child’s relationship with the mother has become more developed in recent times as previously the child spent little time with the mother during the course of her life, largely due to the mother’s actions in interrupting that relationship. The child clearly enjoys her time with the mother, in the confined environment of a contact centre and shows warmth in the positive interactions with her. The second expert opined that the child’s experience of the mother has been “quite fun, involving lots of play”. While these observations indicate that the child has had a positive experience of the mother, this relationship is not as developed as the child’s relationship with the father.
Likely effect of change in the child’s circumstances
This consideration is of great significance in these proceedings as the proposal of the father and the ICL provide for no orders to foster the child’s relationship with her mother. This arrangement which would see the child spend no time with the mother would bring about a significant change for the child who has spent limited but regular time with the mother for almost a year.
It is proposed by each of the parties in the event a finding is made that the mother poses an unacceptable risk of harm to the child (which are the circumstances are consideration) that the child continue to live with the father. It is not in dispute that such an arrangement is in the child’s best interests having regard to many considerations including the nature of the relationship between the child and the father and the pattern and quality of his care of the child throughout her life.
Given that the child has a developing, and positive relationship with the mother, if orders are made as sought by the father and the ICL and the child’s relationship with her mother comes to an end, it is highly likely that the child will experience grief and sadness over the loss of that relationship and all connection with the maternal family. The second expert also opined that the child may wonder why the relationship has been terminated (as the child has no understanding of the dynamics between her parents), may possibly fear that she has been abandoned, and may exhibit an escalation in adverse behaviour as manifestations of her loss. The second expert also agreed that there is a possibility that the child may internalise that loss and have issues about her own identity.
The first expert also identified that if orders are made as she recommends and the child spends no time with the mother in the future this loss of a relationship with a parent “in and of itself” can be harmful to the child’s well-being. The first expert opined that although there had been lengthy periods in which the child spent no time with the mother and the child did not appear to have been adversely affected, ongoing separation from the mother may lead to the child having difficulties with feelings of rejection and abandonment and to her questioning why the mother could not prioritise the child’s needs over her own. However, the first expert considered that priority must be given to the child’s protection from harm arising from the mother’s inability to moderate her own behaviour and maintained that the child spending no time with the mother is the least detrimental option in the circumstances.
Both experts indicated that the outcomes for the child will to a large extent depend upon the father’s capacity to manage the child’s feelings of grief and loss and assist her in understanding her family situation. The first expert recommended that the father seek the ongoing support of a suitably qualified clinician with experience in working with children and families where relationships with a parent have been troubled or terminated. The second expert who also recommended that the child have no contact with the mother said under cross-examination that she did not get the sense that the father would be unwilling to access any necessary support to help the child mange the difficulties that may arise with respect to termination of her relationship with the mother.
The orders proposed by the mother in the circumstances under consideration (that is where I have found that she poses an unacceptable risk of harm to the child) if made and able to be implemented, would also bring about some change in the child’s circumstances. In particular, the child would spend time with the mother in the artificial environment of a contact centre for at least 90 minutes every week for the balance of her childhood.
Neither expert was cross examined about the impact upon the child of the change in her circumstances if orders were made in accordance with the mother’s proposal. However, I consider it unlikely that either expert would have considered this a suitable arrangement for the child given that each expert recommended that there be no time spent with the mother in the future.
In my view, any benefit the child may receive in spending more regular time with the mother in the future than she has done in the past is outweighed substantially by the identified risks to child including the risk of being more regularly exposed to her negative views and lack of support for the child’s relationship with the father and the likely dissonance for the child between the mother’s negative narrative and the child’s lived experience in the father’s care.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the child and to spend time and/or communicate with the child
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
These are not salient considerations in determination of this dispute. Having made that observation I note that the father has been a committed parent for the child throughout her life and in particular, following separation. He has been solely financially responsible for the child and has not received any child support from the mother.
The mother had also been extremely committed to being involved in the child’s life through persistently seeking orders that she spend time with and communicate with the child and otherwise play a significant role in the child’s life.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
As noted earlier when considering the question of long-term supervision of the child’s time with the mother, there may be significant practical difficulties and expense if orders are made as proposed by the mother in her alternate proposal, which is the proposal I am considering having found that the mother poses an unacceptable risk of harm to the child. As submitted by the ICL, there is no evidence about the availability of any of the contact centres specified by the mother in her orders to facilitate the child’s time with her for the balance of the child’s childhood and with such regularity as the mother proposes. There is also no evidence as to either parties’ financial capacity to pay for supervision.
Capacity of each parent and any other person (including grandparent or other relative) to provide for the child’s needs including emotional and intellectual needs
Attitude to the child and responsibilities of parenthood demonstrated by each parent
The serious shortcomings in the mother’s capacity to provide for the child’s needs have been dealt with at length when considering the risk of harm that I have found that she poses to the child. Some of the domains of harm all fall squarely within the mother’s incapacity and limitations in her parenting skills and inability to support the child’s need for a relationship with her father and paternal family in a manner consistent with his role as the primary carer.
The father has shown himself to be a capable parent in the day to day care of the child. Each of the experts’ report that the child presents as a happy and well balanced child which is a great credit to the father who has been her primary carer. The first expert assessed that there was no information to suggest that the child was not meeting her milestones and developing well in all domains of her life.
In the opinion of each of both experts the father may need to access some professional services to support the child if orders are made as he proposes and the child has no future contact with her mother. Given the father’s demonstrated capacity as a parent to date, there is no reason to conclude that he will not capably respond to the child’s needs in adjusting to her new circumstances if such orders are made. The ICL proposes orders for the father to make necessary arrangements for the child to attend upon one of three nominated therapists, each of whom have the necessary experience as identified by the second expert to assist the father to explain the orders in an age and developmentally appropriate manner to the child and to support the child in relation to the change in her circumstances.
Both of the parents and especially the father have shown a commendable attitude to the child and the responsibilities of parenthood in the manner in which they have shielded the child from the particularly acrimonious dispute between themselves without apparently influencing the child’s views of the other parent.
The father also appears to have protected the child from other potential harms associated with the adverse experiences the child has had related to the proceedings including being recovered by police from the mother on two occasions. It was noted by the first expert that during the CIR assessment the child spoke of having contact with police and the child’s understanding that this occurred because the mother had kept her in her care for too long and that she was initially scared of police. The child did not raise this again in the Family Report interviews which caused the first expert to opine that these events may not have had a lasting impact on the child. If this were the case, the first expert is of the view that it would be most likely because the father has supported the child in this regard and assisted her to co-regulate any emotional intensity so that those early experiences have not caused her ongoing distress.
Although the mother’s role in shielding the child from the parental conflict and the dynamics of the parental relationship reflect well upon her attitude towards the responsibilities of parenthood, her non-compliance with orders of the Court and her intrusive and disruptive actions at the child’s pre-school and childcare centre (which in relation to the pre-school caused the pre-school to withdraw the services) reflects poorly on the mother in this regard. Similarly, the mother’s actions which resulted in significant disruptions in the child’s time with her may be characterised as a serious neglect by the mother of the responsibilities of parenthood. This is most unfortunate for the child for there is no doubt that the mother loves her and the father himself acknowledges that the child would receive a benefit from having a meaningful relationship with the mother if not for all of the risks that she poses.
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
The child’s mother is from Country N in which the child was also born. Although the mother does not depose in her affidavit to any matters related the child’s maternal cultural heritage or traditions, on the final day of the hearing, the mother gave oral evidence of festivals and important cultural days that she hopes to share with the child. The mother’s primary proposal includes orders that the child spend time with her on these days of cultural significance. However, the alternate orders she proposes in circumstances where I have found that she poses an unacceptable risk of harm to the child do not include orders of this nature or any other orders that will foster the child’s right to know and enjoy her cultural heritage.
The father did not provide any particular evidence as to how he will support the child’s understanding and enjoyment of her maternal cultural heritage if orders are made as her seeks. It is thus likely that there will be some loss to the child under both parent’s proposals as there are no orders to promote her understanding of her maternal culture.
Other matters related to culture and traditions associated with the child’s paternal heritage and the father’s faith and traditions will be promoted within the paternal home under all parties’ proposals for orders that the child live with the father.
Family violence relating to the child or a member of the child’s family
For the reasons previously given and explained at length, this is a significant matter in these proceedings and in particular in relation to the risk of harm posed by the mother to the child.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
This is a very significant factor in these proceedings where the parents have been engaged in a dispute about the child’s parenting arrangements throughout almost the whole of her life.
The father was also not challenged about his evidence that he has been worn down and his mental health has been adversely affected by the highly litigious way the mother has conducted the proceedings including withholding the child and taking the child into her care contrary to orders which has necessitated that the father obtain a recovery order which was executed on two occasions. The mother has also instituted contravention proceedings in circumstances where they were doomed to fail and necessitated numerous additional court attendances.
In my view, the orders proposed by the ICL and father are the least likely to lead to the institution of further proceedings. While this is not a weighty factor of itself in the context of proposals for such extreme orders, these orders are highly unlikely to lead to the institution of further proceedings as the child will spend no time and have no communication with the mother, if such orders are made.
The orders proposed by the mother include an order that she have liberty to apply to the Court to seek a variation of the requirement that the child’s time with her be supervised on any occasion and through as many applications as she wishes to bring after 12 months have elapsed so long as she files a report from a (otherwise non-particularised) “treating therapist”.
CONCLUSION
Where the Court is to determine parental responsibility, the starting point is s 61DA of the Act. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for her (subsection 61DA(4)).
For the Reasons given, I am satisfied that the mother has engaged in family violence so the presumption of equal shared parental responsibility does not apply. The father seeks an order that he have sole parental responsibility while the mother seeks an order for equal shared parental responsibility.

For the reasons explained, I propose making an order that the child live with the father and spend no time with the mother. The parents have no capacity for any communication, let alone joint decision-making, and each of the experts recommend that the father hold sole parental responsibility for the child. The findings I have made when considering each of the best interests’ considerations are consistent with this recommendation. In the foregoing circumstances, I am easily satisfied that it is in the child’s best interests for the father to have sole parental responsibility for her.
Application of the primary considerations and in particular, the need to protect the child from harm together with my finding that the mother poses an unacceptable risk of harm to the child is effectively determinative of this dispute. However, weight must also be given to all of the best interests considerations in determining which of the proposals would lead to a parenting arrangement that is in the child’s best interests. Having considered each of the relevant matters and attaching weight to particular considerations for the reasons given, I am satisfied that orders which provide for the child to live with the father and spend no time with the mother are in the child’s best interests.
Although the ICL and father propose slightly different orders, where there are differences between them, for reasons which can be gleaned from the totality of this judgment I consider the proposal of the ICL as proper in these circumstances. Accordingly I make orders as set out at the forefront of these Reasons.

I certify that the preceding four hundred and sixty (460) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 28 July 2023

File number(s):	PAC 2061 of 2018
Judgment of:	HANNAM J
Date of judgment:	28 July 2023
Catchwords:	FAMILY LAW – PARENTING – Where each party contends that the other has perpetrated family violence – Where the father and the ICL contend that the mother poses an unacceptable risk of psychological and emotional harm to the child – Where the father and ICL seek orders that the child live with the father and spend no time with the mother – Where the Court finds the mother has perpetrated family violence – Where the Court finds that the mother poses an unacceptable risk of harm to the child – Where the mother lacks genuine insight – Where the risks cannot be mitigated by long term supervision – Where orders are made for the children to live with the father – Where orders are made for no contact with the mother.
Legislation:	Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 61DA, 65D Mental Health Act 2007 (NSW) s 22 Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases cited:	Amador & Amador [2009] FamCAFC 196 Fitzwater v Fitzwater (2019) 60 Fam LR 212 G & C [2006] FamCA 994 Goode & Goode (2006) FLC 93-286 Isles & Nelissen [2022] FedCFamC1A 97 M & M (1988) 166 CLR 69 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483 [2009] FamCAFC 92 Rice & Asplund (1979) FLC 90-725
Division:	Division 1 First Instance
Number of paragraphs:	460
Date of last submission/s:	5 April 2023
Date of hearing:	22 – 24 February 2023; 9 March 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Liedermann
Solicitor for the Applicant:	Edwards Kirby Lawyers
Counsel for the Respondent:	Mx Bateman
Solicitor for the Respondent:	Hanson & Associates
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Steiner Legal Pty Ltd

PAC 2061 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PACETTI Applicant
AND:	MS DAMBROSE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	28 JULY 2023