PAUL & CLOUGH

[2014] FCCA 3026

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAUL & CLOUGH [2014] FCCA 3026

Catchwords:
FAMILY LAW – Interim parenting – 8 month old child – high conflict – serious allegations made by each parent against the other – risk assessment – supervision – concerns expressed about the role of the Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346

Applicant: MR PAUL

Respondent: MS CLOUGH

File Number: WOC 842 of 2014

Judgment of: Judge Altobelli

Hearing date: 12 December 2014

Date of Last Submission: 12 December 2014

Delivered at: Wollongong

Delivered on: 17 December 2014

REPRESENTATION

Counsel for the Applicant: Ms Haughton

Solicitors for the Applicant: Rachel Stubbs & Associates

Counsel for the Respondent: Mr Campton, SC

Solicitors for the Respondent: Champion Legal

Counsel for the Independent Children's Lawyer: Mr Cook

Solicitors for the Independent Children's Lawyer: Gonzalez & Co

ORDERS

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. All previous parenting Orders be discharged.

2. The Child [X], born [omitted] 2014, live with the Mother.

3. Commencing from the date of these Orders, the Child spend time with the Father as follows:

   (a)For a period of four consecutive weekends, each Saturday for a period of four hours;

   (b)From the conclusion of Order 4(a) above, for a period of eight consecutive weekends, each Saturday for a period of five hours as agreed (subject to the availability of the supervised contact service), and failing agreement, from 10:00am until 3:00pm;

   (c)From the conclusion of Order 4(b) above and pending further Order, as follows:

   (i)Each Saturday for a period of five hours as agreed (subject to the availability of the supervised contact service), and failing agreement, from 10:00am until 3:00pm;

   (ii)Each Wednesday for a period of five hours as agreed (subject to the availability of the supervised contact service), and failing agreement from 10:00am until 3:00pm.

   (d)On 24 December 2014, for a period of four hours as agreed (subject to the availability of the supervised contact service), and failing agreement, from 10:00am until 2:00pm.

4. For the purpose of Order 3 above, the Child’s time with the Father is to be supervised by Axia Solutions, and each parent be responsible for 50% of the costs associated with Axia Solutions, to be paid as and when they fall due.

5. The Father abide by the recommendations contained within the Karitane “Settling Strategies” document.

6. Each party is hereby restrained from denigrating, belittling or insulting the other party or permitting the Child to the in the presence of any third party so denigrating, belittling or insulting the other.

7. Each party keep the other advised of any medical treatment provided to the Child as soon as practical.

8. Each party keep the other advised of any medical emergency or emergency treatment provided to the Child as soon as possible.

9. Each party shall keep the other advised of any change to their current residential address and notify the other 14 days prior to changing their address and of the proposed residential address.

10. Each party is restrained, without the consent of the other, in Baptising the Child or involving the child in any cultural events of a similar nature to Baptism.

11. Each party provide to the other a mobile telephone number, within 7 days, and that each party communicate with the other o the number provided in respect to issues relating to the Child only.

THE COURT FURTHER ORDERS THAT:

1. The proceedings are transferred to the Family Court of Australia to be listed for directions before a Registrar on 23 March 2015 at 10:00am.

THE COURT NOTES THAT:

A.The Court recommends that the Interim Orders be reconsidered following the release of the Expert’s Report by Dr K.

IT IS NOTED that publication of this judgment under the pseudonym Paul & Clough is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 842 of 2014

MR PAUL

Applicant

And

MS CLOUGH

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction and background

1. In the matter of Paul & Clough, I provide the following ex tempore reasons.  This matter came before me for Interim Hearing on 12 December 2014, that is, last week.  The matter relates to [X], who was born on [omitted] 2014 and is nearly eight months old.  Her father is the Applicant.  He is 32 years old.  He is a [occupation omitted] and lives at [M].  [X]’s mother is the Respondent.  She is 31 years old.  She is an [omitted] and lives at [omitted]. 

2. The parents cohabited between 2013 and 2014, separating on 12 July 2014.  Whether one has regard to the evidence of the Father or the Mother, it was a short but volatile relationship.  Both parents make very serious allegations against the other in relation to mental health, family violence and their capacity to care for [X].  After the date of separation, [X] spent time with her father for a few hours on a number of occasions. 

3. There was collaborative mediation held in September 2014.  There is a dispute about whether a formal agreement was reached.  I will consider the relevance of this below.  Suffice it to observe that whether the parents reached agreement or not, they seemed to have acted in a manner that is consistent with an agreement having being reached, as set out in a document to which I will make reference. 

4. The matter came before me on 3 November 2014.  It was the first time the matter was before the Court.  Final property Orders were entered into, as well as Interim parenting Orders that provided for the Father to spend time with [X] for four hours each Saturday, supervised by Axia Solutions, with the cost to be borne equally.  This has taken place.  The Father says it has been uneventful and dispositive.  The Mother has expressed some concerns about the supervision that has been provided. 

5. When the matter came before me last week, the Father’s proposal was contained in the document titled “Minute Of Proposed Orders By The Applicant Father”, which I will include as Schedule One to these reasons.  The Mother’s proposed Minute will become Schedule Two. 

6. By way of brief description in the Father’s Minute, he was proposing that there be a gradual increase both in the frequency of time and the length of time over a period, but it be on an unsupervised basis.  In the alternative, he proposed that the supervision be in the presence of the Paternal Grandmother.  The Mother’s proposal summarised be that the supervision take place by the organisation known as Phoenix Rising.  The Independent Children’s Lawyer was not able to advance a proposal and adopted a neutral view. 

7. At the hearing, all parties were represented by Counsel, being Ms Haughton for the Father, Mr Campton SC for the Mother, and Mr Cooke for the Independent Children’s Lawyer, albeit in the absence of the Independent Children’s Lawyer.  The issue before the Court is what time [X] should spend with her father, how often, whether it should be supervised or not, and a number of ancillary matters.

The evidence

1. The evidence before the Court consisted of the Affidavits by the parties, as lengthy as they are, together with a substantial volume of subpoenaed documents, as well as the Child Dispute Conference Memorandum. 

2. The Father relied on the following documents:

   ·Initiating Application, filed 30 September 2014; and

   ·Affidavit of Mr Paul, affirmed 29 September 2014.

3. The Mother relied on the following documents:

   ·Response, filed 28 October 2014;

   ·Affidavit of Ms Clough, affirmed 24 October 2014; and

   ·Affidavit of Ms Clough, affirmed 8 December 2014.

4. The Court also had regard to the following material tendered into evidence:

   ·AXIA Solutions Contact Report;

   ·Bundle of correspondence tendered by the Respondent Mother;

   ·Extracts of relevant information from the subpoena material, tendered by the Respondent Mother;

   ·Documents produced pursuant to a subpoena to Karitane;

   ·Documents produced pursuant to a subpoena to NSW Police;

   ·Correspondence from Rachel Stubbs & Associates to AXIA Solutions, dated 4 November 2014;

   ·Correspondence from Champion Legal to Rachel Stubbs & Associates, dated 11 December 2014;

   ·Child Dispute Conference Memorandum to the Court dated 19 November 2014; and

   ·Collaborative Mediation Practice Memorandum of Interim Agreement.

Applicable law

1. The applicable law is contained in Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of Act, the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)     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.

   (2)     The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)     abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)     how far apart the parents live from each other; and

   (b)     the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)     the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

5. Because s.65DAA refers to the best interests of the child, the Court must then go back to consider s.60CC, which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

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

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

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

   (i)  each of the child's parents; and

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

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

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

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

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

   (i)  either of his or her parents; or

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

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

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

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

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

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

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

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

   (i)  the nature of the order;

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

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

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

   (v)  any other relevant matter;

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

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

6. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that section and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion of risk and best interests

1. I was provided with a chronology by both the Father’s Counsel and the Mother’s Counsel.  These documents were extremely useful to me and I acknowledge the efforts of those who have prepared them, and incorporate the chronologies into Schedule Three of these reasons. There are a number of questions to be answered, which I will do so as follows.  The first question is: does [X]’s time with her father need to be supervised, and, if so, by whom? 

2. The Father’s case is that the supervised time to date has progressed more than satisfactorily, as is evidenced by the reports provided by the supervisors, Axia.  He says, therefore, that supervision is unnecessary.  As an alternative, he proposed the Paternal Grandmother as being a person who will be present during [X]’s time with him. 

3. The Mother’s case is that the Court would be so concerned about the serious allegations about the Father’s mental health and his family violence that, particularly in light of the very young age of [X] – that is, that she is nearly eight months old – supervision should be continued.  The Court believes that supervision should continue for the following reasons until an Expert’s Report has been received, at which time these Orders should be reviewed. 

4. Firstly, the impression formed from the evidence about the collaborative mediation held in September 2014 is that the parents themselves agreed to supervised contact for the Father.  The Court acknowledges that exhibit R8, the Memorandum of Interim Agreement, is not signed by the parents.  There is no dispute that they attended this mediation.  What is striking about the agreement purportedly reflected in the document is that most of the aspects set out therein have been carried out, as is reflected in the Consent Orders made and the correspondence between the parents which is in evidence. 

5. If the parents agreed in September 2014 through an assisted but consensual process that the Father’s time should be supervised until the Expert’s Report became available, and in the context where an Expert’s Report has been ordered and where the only events after September 2014 suggest an increase in the intensity of the conflict between the parents and not a decrease, why on Earth would the Court second guess what the parents themselves agreed to?

6. Secondly, the seriousness of the concerns that each parent expressed about the other (mental health, family violence, etc) are quite out of sync.  By this I mean that the Father’s proposals in relation to [X], that is, the Orders he seeks, are quite inconsistent with the concerns he deposes to at length in his evidence.  By contrast, the Mother’s stated concerns, and the evidence she adduces to corroborate these concerns, are entirely consistent with the Orders she seeks. 

7. The impression formed at this stage of the proceedings is that whatever past concerns the Father had about the Mother’s mental health and family violence, or, alternatively, whatever present concerns he has about her mental health and family violence, do not reflect on her capacity to parent [X].  Once the spotlight is, therefore, taken off her and onto him, the situation starts to look differently. 

8. Thirdly, continuing the metaphor of the spotlight, once that is turned on to the Father, especially his mental health, there is reason to have concerns, and one can readily understand why an Expert’s Report is necessary.  There is considerable evidence that adds to this concern even in a context where no findings can be made.  All the Court is prepared to say at this stage is that the Father’s behaviour is unusual in the circumstances, sufficiently so to raise a concern that his mental health needs to be investigated. 

9. For example, his reporting to the Department of Family and Community Services of concerns in relation to [X] could be construed as quite inconsistent with his actual behaviour.  Indeed, it seems opportunistic and manipulative because his reporting was so selective.  Secondly, the alleged abduction incident and the Father’s subsequent behaviour is bizarre and truly hard to understand.  The Mother’s concerns about possible fabrication are at least arguable concerns. 

10. Fourthly, the family violence allegations the Mother makes, when viewed in the context of the matrix of factors described above, merely add to the concerns about the Father. 

11. Fifthly, this is a very young child, a very apprehensive mother, and a highly conflicted breakdown of a relationship, all factors strongly pointing to a conservative, measured approach.  The Court does not believe, however, that the Paternal Grandmother should be permitted to be the supervisor, quite apart from the fact that so little is known about her, a matter that is not remedied simply by obtaining the usual undertaking.  The toxic lack of trust between the parents strongly contraindicates the use of a family member. 

12. The Court sees no need to change supervision from Axia to Phoenix Rising.  The only evidence in support of this is the Mother’s affidavit of 8 December 2014 which is, quite frankly, histrionic in its terms and provides no objective basis for making the change that she proposes. 

13. The next question is:  should [X]’s time with the Father be reviewed?  The Mother’s proposal seeks to reduce [X]’s time with the Father from four hours to three hours.  She advances absolutely no evidence whatsoever that could, in any objective, probative sense, justify this. 

14. The Father’s proposal is for an immediate extension to four hours, then an increase in frequency to twice each week and then a progression to five hours twice each weekend.  This issue really draws out the lack of developmental and child focus that is evident in both parents.  The Court has previously observed to the parents in open Court about how so little of the vast affidavits they have filed actually speak about [X], her needs, her experience of this and her perspective. 

15. The only helpful evidence about this is as follows:  the Axia supervisor contact notes which suggest that [X] is coping well with the current spends time with arrangement;  the Karitane notes that suggest [X] has settled into a routine of feeding and sleeping;  the Child Dispute Conference Memorandum which describes [X] as vulnerable to the various concerns raised by her parents in this dispute;  the annexure to exhibit R6, being a letter of 11 December 2014 between the solicitors, being the document that set out the Karitane settling strategies.

16. The most important evidence needed to decide this particular issue is missing.  That is, what is [X]’s current sleeping and feeding pattern?  The Mother’s Affidavit contains reference to this issue, but it relates to the past.  We do know, however, that the Mother works five hour shifts in her [occupation], which suggests that, from the Mother’s perspective, [X] can tolerate five hour absences from her mother. 

17. This is not much evidence to work with.  It is disappointing indeed that two obviously intelligent parents, assisted by experienced family law solicitors and Counsel, could not have adduced the evidence that was in fact needed to decide this issue.  The Court can only do what it can drawing on its own experience.  There is no reason not to increase the length of the Father’s time, albeit progressively. 

18. After another eight weeks of the current arrangement, it can progress from four hours to five hours.  Increasing the frequency of [X]’s time with her father is also desirable, but the Court is concerned that spending time on successive days is not necessarily the best outcome for [X].  A better arrangement would be twice weekly, separated by three or four days, rather than by a gap of five days as the Father proposes. 

19. I accept this might create logistical challenges for the parents.  They have to make it happen because the Court believes it is a better outcome for [X].  In four weeks’ time, the frequency can increase from every Saturday to every Tuesday and Saturday, again, on a supervised basis. The Court does not know [X]’s sleeping patterns. In circumstances where the parents’ ability to agree is strained, to say the least, it is necessary to impose arbitrary times subject to the availability of Axia. 

20. One hopes the parents will at least take into account her sleep patterns and feeding patterns.  There is no evidence to suggest any need to revisit the current agreed arrangement for the cost of sharing of supervision.  It is [X]’s expectation that her parents bear the cost equally.  If the parents are concerned about the cost, they would do well to reconsider their investment in legal costs so far. 

21. The Father proposes time on special occasions, especially Christmas.  Drawing on the Court’s own experience, and in the absence of evidence led by the parents, obtaining supervision on public holidays will be difficult.  Christmas Eve might be possible however, so if the Father can arrange Axia, it can be from 10:00am until 2:00pm on Christmas Eve, as he proposes.  A changeover is to be facilitated by Axia Solutions.  The Father sought a number of Orders that are unnecessary at this stage.  There is no basis for making Order 9 that he proposes, that is, the restraint in relation to Ms Clough. 

22. A number of other matters arise.  Firstly, it is unnecessary to consider the issue of parental responsibility.  Neither parent sought equal time or substantial and significant time, nor could that be in [X]’s best interests or reasonably practicable.  The Orders are the best that the Court can do in the circumstances. 

Additional matters

1. There are two additional matters.  Firstly, I intend to make an Order transferring this matter to the Family Court of Australia at Sydney.  The intensity with which this matter has been litigated to date gives a strong indication that it will probably be a long, drawn out battle, with multiple further interlocutory matters and will take more days to hear than this Court can offer in the Wollongong registry or, indeed, in the Sydney registry.  The Court will recommend, however, that once

   
   

   Dr K’s Report has been made available, that the Interim Orders be reconsidered. 

2. There is a second matter of concern.  The participation and performance of the Independent Children’s Lawyer in this case leaves much to be desired.  For the Independent Children’s Lawyer to appear by Counsel, and to adopt a neutral position was not only inappropriate, but most unhelpful to the Court.  There was no suggestion, for example, that either the Independent Children’s Lawyer or his Counsel had looked at any of the subpoenaed material in this case. 

3. Quite frankly, the involvement of the Independent Children’s Lawyer in this case has been a total waste of public resources.  If this matter had remained in my docket, I would have directed the Independent Children’s Lawyer to show cause as to why he should not be discharged.  As it turns out, he is not present today, so other than to express the concerns that I have in these reasons for judgment, I will take it no further.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       9 February 2015

Schedule One

Orders proposed by Applicant Father

1. That annexure “C” of the Orders dated 3 November 2014 be suspended.

2. That the child of the relationship, namely [X], born [omitted] 2014 (“the child”) live with the mother.

3. That the father spend time with the child as follows:-

   (a)Commencing 13 December 2014 for a period of two (2) weeks each Saturday from 10:00am to 2:00pm;

   (b)Commencing 27 December 2015 for a period of four (4) weeks each Saturday from 10:00am to 2:00pm and each Sunday from 10:00am to 1:00pm;

   (c)Commencing 24 January 2015 for a period of four (4) weeks each Saturday and Sunday from 10:00am to 2:00pm;

   (d)Commencing 21 February 2015 each Saturday and Sunday from 10:00am to 3:00pm;

   (e)Any other occasion as agreed.

4. Not withstanding Order 3 above, the father is to spend time with the child on the following occasions:-

   (a)On Monday 22 December 2014 from 10:00am to 2:00pm;

   (b)On Wednesday 24 December 2014 from 10:00am to 2:00pm;

   (c)On Christmas Day from 1:00pm to 6:00pm;

   (d)On Monday 29 December 2014 from 10:00am to 2:00pm;

   (e)On Wednesday 31 December 2014 from 10:00am to 2:00pm;

5. That the provisions of Order 3 be suspended on the weekend that includes Mother’s Day from 5:00pm on Friday until 5:00pm on Mother’s Day.

6. That for the purposes of changeover, the child shall be delivered and returned to the McDonalds Restaurant at [M] by the mother and father or their nominees at both the commencement and conclusion of the father’s time with the child.

7. Each party is to keep the other party informed of a contact telephone number for the child whilst the child is in the other party’s care, and notify the other party of any change to the contact telephone number within forty eight (48) hours of the change occurring.

8. Each party is to keep the other party informed at all times of the name and address of any treating medical practitioner or other health professional who treats the child and authorise each treating medical practitioner and health professional treating the child to provide the other party with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the child’s requirements.

9. That Mr C be restrained at all times from driving whilst the child is in the vehicle.

OR IN THE ALTERNATIVE

1. That annexure “C” of the Orders dated 3 November 2014 be suspended.

2. That the child of the relationship, namely [X], born [omitted] 2014 (“the child”) live with the mother.

3. That the father spend time with the child in accordance with Order 3 and 4 with such time to be in the presence of the paternal grandmother.

4. That the provisions of Order 3 be suspended on the weekend that includes Mother’s Day from 5:00pm on Friday until 5:00pm on Mother’s Day.

5. That for the purposes of changeover, the child shall be delivered and returned to the McDonalds Restaurant at [M] by the mother and father or their nominees at both the commencement and conclusion of the father’s time with the child.

6. Each party is to keep the other party informed of a contact telephone number for the child whilst the child is in the other party’s care, and notify the other party of any change to the contact telephone number within forty eight (48) hours of the change occurring.

7. Each party is to keep the other party informed at all times of the name and address of any treating medical practitioner or other health professional who treats the child and authorise each treating medical practitioner and health professional treating the child to provide the other party with information that they are lawfully able to provide about the child and communicate with the other party in relation to the treatment of the child and/or the child’s requirements.

8. That Mr C be restrained at all times from driving whilst the child is in the vehicle.

Schedule Two

Orders proposed by Respondent Mother

1. That the Orders for the father to spend time with the child, being Orders 1 & 2 of the Orders of 3 November 2014, be discharged.

2. That the father, pending further Order, spend three (3) hours each Saturday with the child [X] born [in] 2014, at such times to be nominated and supervised by Phoenix Rising.

3. Phoenix Rising is to report to each party at the conclusion of each occasion the father spends time with the child [X] born [in] 2014, as soon as practicable after each occasion of time, reporting to each party as to:

   1.1Who attended the visit.

   1.2What activities and interactions took place.

   1.3Information relevant to the wellbeing of the child.

   1.4Negative behaviour impacting the child.

4. That the father pay the costs of Phoenix Rising and the mother reimburse the father each month for one (1) half of the costs incurred during that month.

Schedule Three

Father’s Chronology

DATE	EVENT	EVIDENCE
[omitted] 1982	The father is born (currently 32 yrs)
[omitted] 1983	The mother is born (currently 31 yrs)
24.1.01-31.5.02	The father is a member of the RAAF	#135
6 May 2003	The father joins the NSW Police Force
14 Dec 2004	The father joins the Army Reserve	#136
12 April 2007	The father is involved in a shooting incident when he is a police officer and suffers PTSD	#129
Aug 2009	The father is medically discharged from the NSW Police service
Jan 2010	The father obtains employment at ASIC and has no subsequent PTSD symptoms	129-130
Dec 2012	The parties meet	#5
Mar 2013	Cohabitation commences when the mother moves into the father’s home at [omitted], [M]	#5
18 May 2013	The mother says she has a medical procedure as a result of a miscarriage (#26)
16 June 2013	The mother says the parties became engaged (#30)
July 2013	The mother says cohabitation commenced (#31)
[omitted] 2013	The mother says the parties find out she is pregnant (#32)
26 Sept 2013	The mother rings him from her NZ trip and tells him she is going to kill herself and the baby and she sounds frantic and hysterical but calms down and says she is exhausted and she is not going to do it	#116
27 Sept 2013	In another telephone call with the mother whilst she is in NZ she again threatens to kill herself and says she hurt herself and the father contacts her parents and plans to travel to NZ	#118
30 Sept 2013	The father pays for an expensive airline ticket from Sydney to fly home with the mother from Melbourne after she told him she is “over this” and she wanted to die	#121 pge 170
22 Oct 2013	The mother say the parties wrestle in front of the father’s gun cabinet and suffers severe abdominal pain and an ambulance is called (#73)
25 Oct 2013	The mother says [omitted] Hospital staff recommend she undertake surgery  to repair a hernia but she discharges herself to get a 2nd opinion (#76)
26 Oct 2013	The father is unable to calm the mother down while she is screaming and throwing things and he calls her mother and he goes to his sisters The mother says he punches the wall, damaging it and she leaves with her mother  (#80)  She says he says he has been to see Dr J and she later sees a bottle of anti-depressants with Dr J’s name on it (#85)	#124
28 Oct 2013	The mother says she agrees to surgery at [omitted] Hospital and changes her obstetrician to Dr P
18 Nov 2013	There is an argument and the mother breaks the key in the lock and won’t let the father leave.  She later sends him an SMS apologising for throwing a tantrum	#125 pge 172
Dec 2013	The mother says that during an argument, she tells the father that if she leaves, she is not coming back and he won’t see his daughter (#93)
26 Dec 2013	The mother jumps out of the moving car during a discussion about her cousin and his wife being charged with mortgage fraud (the mother’s evidence is #95-101)	#126-127
4 Jan 2014	The father calls the police after an argument about the baby’s name escalates into the mother hitting the father and has a knife The police remove the father’s guns although he is the victim	#85-93 #4
5 Jan 2014	The mother sends the father a text saying she is seeing a Psychologist tomorrow and she has told her mother about her trying to hurt herself The psychologist is Ms P at the [omitted] Medical Centre (The mothers evidence is #102-109)	#93 pge 141 #146
7 Jan 2014	The police returns the father’s guns and the mother sends him a text saying she is glad he could get them back	#157 pge 214
Jan-Mar 2014	The father works for the maternal grandparents [omitted] business	CDC memo
1-8 Mar 2014	The parties attend a Parenting Education Program at Westmead Private Hospital	#168
21 Mar 2014	The father undertakes a pilot physical with Dr B who reports he has not signs of cognitive impairment, mental illness or PTSD	#140
March 2014	The parties attend a course to learn about breastfeeding	#168
30 Mar 2014	The mother threatens to kill herself and the baby during a telephone conversation with the father and his sister overhears it	#128
31 Mar 2014	The parties separate after a domestic violence incidence where the mother punches him in the jaw and he tries to leave but she won’t let him leave without her and he subsequently calls the police as he wants her to be assessed at the hospital The mother is arrested for assault and an AVO issued in favour of the father However, they remove his guns She later sends him an SMS on 11 April 2014 admitting she jumped out while it was moving (The mother’s evidence is in #127-148)	#6, 94-109 #161 #149
1 April 2014	Interim AVO is made	Page 155
2 April 2014	The father is abducted at gun point and the father suspects the maternal family is involved.  He spends a few days in hospital	CDC memo
15 April 2014	Dr J writes a brief report advising that the father has had no PTSD symptoms since 2009	Page 174
17 April 2014	The hearing of the AVO for the father and an interim AVO is made	#108 page 151
April 2014	The mother attends a party where there is an alleged assault – the father is told about this on 2 Aug 2014 by Mr G, a friend of the mothers	#80
22 April 2014	The father passes his Class 2 Aviation Medical	#141
24 April 2014	The father asks the police to withdraw the AVO and they do so The mother says that on 17th April he asked for it to be removed and as the interim one expired on 30th April, they left that in place (#161)	#109 page 162
[omitted] 2014	The parties reconcile The child [X] is born by caesarean section and remains in hospital for 5 days The father is between jobs and stays home for 2 weeks	#6 #7
[omitted] 2014	The mother and baby come home from hospital	#11
[omitted] 2014	The father returns to work In May he opens an account in [X]’s name depositing $5,000 and $200 pfn	#12 #75
21 May 2014	The parties exchange text messages about [X] needing to be fed every 2 hrs and getting a breast pump so they can share the feeding (pge 49)
June 2014	[X] is put on formula at 2 mths as she is underweight
11 July 2014	The mother tells the father that her parents have opened a bank account for her	#74
12 July 2014	The parties separate when the mother takes the child and moves to her mother’s home	#6, 18
13 July 2014	The mother sends the father a text about her collecting some of her things from the house and she tells him the child is unsettled and they are going to a fair. She attends his home with [X] and the mother hits the father after she has almost dropped the baby and he had saved her.  He accidently hits the mother with his elbow as the mother attacks him The mothers evidence is in #203	#20-23
July 2014	The mother tells the father that her psychologist Ms P wants to see the 2 of them together to discuss their relationship but he declines due to the conflict of interest	#150
14 July 2014	The father pays $5000 into the mother’s account for child support although she says she does not want that much	#69 page 93, 94
19 July 2014	The father was to have 4 hrs with [X] at his home and he takes her to his mother’s home and his sister is also there He cuts short his time with [X] however as the mother wanted to attend a family birthday and there is an argument This is the only day he attends the paternal grandparent’s home where the mother and child are residing to return the child	#24a #55 #60
20 July 2014	The father has 4 hrs with [X] (arranged by lawyers) and takes her to her cousin’s birthday party The mother says she sends him an SMS in which she says “As if I am going to stop you seeing her” (page 54)	#24b
21 July 2014	The father contacts DFCS about his concerns for [X] as he knows nothing about what is happening	#78
21 July 2014	The mother says she sends the father a sms which includes “Until there is a parenting plan put in my place, I will not be leaving [X] with you unsupervised.  I do not trust that you will not disappear with her and her birth certificate” (page 56)
23 July 2014	Ms P engages the father in conversation when he is at the [omitted] Medical Centre to see Dr A The father’s solicitors write to the mother about her collecting her possessions and the father spending 4 hrs with [X] on 27 July 2014	#151 Page 89
25 July 2014	The mother’s solicitors request confirmation that there will be no guns in the house when the child is there.  The mother has never before objected to the guns being there prior to separation	#159
26 July 2014	The mother attends an ice hockey game and accuses the father of stalking her because he knew she attended but he had been invited to it prior to separation	#50
27 July 2014	The last time the father see’s the child until after he commences proceedings.  The lawyers organise him to have the child for 4 hrs.  There is an argument when the mother comes to collect [X].  The father thinks she was picking a fight.  Her mother and the paternal aunt are there.  The mother sends him and SMS saying she recorded it. He sends her an SMS calling her a “bad mother” and he later apologises for having done it She sends him an SMS saying she has been advised to not allow him any access to [X] until they have a mediation and a parenting plan in place In an SMS she says that she won’t let him see her until there is a parenting plan in place because if he refused to return her, he could do so and she would have to go back to court to get her back	#19 #56 Page 57 Page 61
28 July 2014	This is the date the mother had agreed to collect her belongings and the father packed them in boxes for her The lawyers had agreed that she would attend with 2 people to attend his garage to remove items but she attends with 7 people and later she refuses to move and tells him she has told the police he will make a vexatious claim.  When he calls the police who say they will attend she says “Great.  Thanks [Mr Paul].  That’s all I wanted”	#61 110-113
29 July 2014	One of the mother’s iPads accesses the father’s wifi without his permission The father himself makes an application to the CSA for a child support assessment	#64 #70 page 96
30 July 2014	The mother makes a complaint to the police about the father accessing her iTunes account without her consent to buy a DVD	#64
1 Aug 2014	The CSA issues a child support assessment showing that the father is to pay $1,3854.92 to the mother	Page 101
2 Aug 2014	The father is told about a party the mother attended in April where there was an assault and argument
5 Aug 2014	The father’s request to the mother’s lawyers for contact is ignored.  Due to arguments at handovers about financial matters, the father’s solicitor suggests the parties only discuss matters relating to [X]	#26a, pge 65
10 Aug 2014	The father is interviewed by police after the mother makes a complaint that he logged into her itunes account without her consent	#62
12 Aug 2014	The father’s request to the mother’s lawyers for contact is ignored The father’s lawyers say the father wants to see [X] ASAP and offers to pay for private mediation because of the 6 months waiting list with Relationships Australia	#26b Page 68
14 Aug 2014	The father’s request to the mother’s lawyers for contact is ignored RA has no record of the mother having contacted them and asks the mother consent to engaging with Mr B, a private mediator	#26c, pge 71
15 Aug 2014	The mother’s solicitors advise the mother and [X] are going to be staying at Karitane They also make allegations about the father being violent which the father says is the first time he has heard such allegations The mother attends the FRC at [suburb omitted] and her lawyers advise she will be attending Karitane on 18 August 2014 The mother’s lawyers write about the allegations the father and his sister have  engaged in family violence and he has withheld financial support (even though he gave her $5,000 in July)	#28 #44, 45 Pge 83 Pge 86
18 Aug 2014	The mother and [X] attend Karitane	Page 83
19 Aug 2014	Dr J writes a 2nd report confirming that other than PTSD in 2007-2009, the father has had no mental health issues	Page 176
27 Aug 2014	The father’s request to the mother’s lawyers for contact on father’s day is ignored.  He asks for a copy of the report from Karitane His lawyers invite the mother to attend the Collaborative Mediation Practice and if there is no response, the father will commence court proceedings	#26d #29 Page 74 Page 76
29 Aug 2014	The mother’s solicitors respond saying that the mother’s stay at Karitane was “successful” and “[X] has now settled into a sleep and feeding pattern”.	#30  pge 78
4 Sept 2014	The mothers solicitors write that the mother wants documents from the father as a result of his behaviour towards the mother and [X]	Page 178
9 Sept 2014	The mother tells the father he can’t have the baby for more than 2 hrs due to her need to feed her They agree he will pay her $5,000 and give her household items from the house but when this is confirmed in writing to her lawyers, they do not respond The parties attend the Collaborative Mediation Practice (memo from that Practice)	#37 #77
12 Sept 2014	The mother’s solicitors write offering supervised time, initially for 2 hrs and later 4 hrs	#32 pge 81
30 Sept 2014	The father commences these proceedings seeking only parenting orders
28 Oct 2014	The mother files a Response seeking only parenting orders
3 Nov 2014	Orders made: ·    Final property orders made; ·    Father spend time with [X] 4hr each Saturday supervised by AXIA solutions and they pay ½ of the costs each ·    Non denigration orders; ·    Each party to provide medical information; ·    No party to baptise the child; ·    ICL appointed; ·    Communications about the child only; ·    Joint expert report to be prepared by a family & child psychiatrists and pay ½ each
8 Nov 2014	The father spends time with [X] supervised by AXIA solutions
15 Nov 2014	The father spends time with [X] supervised by AXIA solutions
19 Nov 2014	The parties attend upon Family Consultant S
22 Nov 2014	The father spends time with [X] supervised by AXIA solutions.  The mother does not supply a bottle, formula or Panadol.  They go and buy a bottle and formula but the father has to leave the session to buy panadol
29 Nov 2014	The father spends time with [X] supervised by AXIA solutions

Mother’s Chronology

Date

Event

[omitted] 1982

Birth of father. Presently aged 32 years.

[omitted] 1983

Birth of mother. Presently aged 31 years.

July 2013

Commencement of cohabitation (father says March 2013).

[omitted] 2013

Mother discovers that she is pregnant.

September 2013

Mother travels to New Zealand. While in New Zealand she receives numerous telephone calls from the father accusing her of having an affair with an ex-boyfriend [name omitted]. The mother says that at one point the father said to her: “I can’t do this anymore. I am going home to kill myself and there’s nothing you can do about it”. The father later advised the mother that he had telephoned her parents and told them that the mother was sick and that he had to get to New Zealand and says that her parents tried to book a flight for him to New Zealand. In fact, the mother only had a gastro infection and was booked to fly home 2-3 hours later.

22.10.2013

Mother refers to an altercation between herself and the father, resulting in her being admitted to hospital and being diagnosed with a hernia.

26.10.2013

Mother says that the father advised her that some of his friends had ‘sorted out’ a former boyfriend [name omitted] of the mother.

An argument ensued, and the mother says that the father told her to get out of his house and called her mother to fetch her. That afternoon, the mother says that the father told her on the telephone that: “I am sitting in my car with a gun in my mouth. I don’t want you to come and get me”. She says that sometime later she received a telephone call from the father who said to her that: “[name omitted] came and took me to Dr J and he sent me to [omitted] emergency and a Mental Health Assessment was done and I’ve been discharged. The hospital prescribed me antidepressants”.

5.01.2014

Argument between the parties escalates to point where the mother grabs for something to throw at the father but, when she finds that she had grabbed a letter opener, she immediately dropped it. She says that the father then said to her that “You have ruined my life… You are the worst mistake of my life”, prompting her to tell him that she was leaving. However, the mother says that the father tried to prevent her from leaving and that she tried to escape over the back gate. She says that she noticed the father filming her efforts to escape. She says that the father followed her and she picked up a banana and threw it at him, which led him to accusing her of assault and calling the police.

28.03.2014

According to the mother, the father told her that on the Thursday of the previous week he had been visited by the NSW Police Crime Commission and that they had told him that they were concerned that the mother’s brother, Mr C, was involved in illegal activities and had connections with ‘bikies’. The mother says that the father made her believe that her brother and family were involved in criminal activities. However, she says that when she raised the issue with her father, it was apparent that he did not know what she was talking about. The mother is of the view that what the father told her was a fabrication.

[omitted] .
2014

This was the mother’s first day of maternity leave (she was 37½ weeks pregnant). In a telephone conversation, the mother says that the father said to her that: “I will have nothing to do with your family. They are all criminals. Your father will never see his granddaughter”. Later, at the parties’ place of residence, the mother says that she saw the father with his passport in his hand and says that he told her “I am going overseas”. She says that the father tried to push past her but that she stepped in front of him. She says that there was then some pushing and shoving as the father tried to leave. She says that the father then got into his motorcar and that she got into the passenger seat and that the father then drove off and told her that he was taking her to the police station. She says that when the father slowed down, she jumped out of the car and that he sped off. She says that she then ran off down a grassy slope and when she turned round she saw that the father was on the nearby bridge filming her. She says that the father then drove off and she walked back home. When she arrived back home, the mother says that the father, whilst talking to his sister on the telephone, accused the mother of having punched him in the face. She says that the father refused to allow her to enter the house, saying: “I am not letting you into the house. I don’t trust you. You have done your dash. That’s it you have done it”. The mother says that she thought that her waters might have broken and that she was worried about the baby. She says that she then got into her car and drove to the hospital. After spending about two hours at the hospital she went back home, and says that the Police then arrived and that she was told by them that the father had alleged that she had assaulted him. She was taken to the Police Station and interviewed at 3:25 am and an Interim Apprehended Violence Order was issued, with her as the Defendant and the father as the Protected Person.

1.04.2014

The mother returns to the home to get a change of clothing and other things that she needed, but finds that the locks had been changed.

2.04.2014

The mother’s mother telephones the father and arranges for the mother to come to the house at 7:00 pm that night to collect some of her clothes and belongings. When the mother arrived at the home at 7:00 pm, no one was at home and telephone calls and text messages were not answered. Later, the mother received an SMS from the father’s sister, stating that: “There has been a death in the family, but [Mr Paul]’s okay”.

3.04.2014

The mother sees the father’s brother-in-law at a cafe, and he tells her that the father had gone missing and that they did not know where he was and that they were very worried.

4.04.2014

The mother receives a telephone call from the father, who tells her: “I have been involved in an incident and have spent the last few nights in hospital. I am ok, but I am not allowed to tell anybody what had happened”. The mother says that she asked the father who told her that he could not tell her what had happened and says that he replied: “It’s a police investigation”. The mother says that she was subsequently told by the general manager of her father’s business that he was asked on 7 April 2014 to attend at the Police Station to speak about a ‘serious incident’ that had occurred in respect of the father and that when he went to the Police Station he was asked about the father’s mental state on the day before he disappeared, as he had apparently told the police that he had been abducted.

17.04.2014

Mother attends Court in respect of the Apprehended Violence Order. Father advises that he did not want to proceed with the AVO (which expired on 30 April 2014).

21.04.2014

Parties meet to discuss their situation and, according to the mother, the father says that: “On the Wednesday afternoon, I pulled up in the driveway at home. I got out of my car and went to the boot. Out of nowhere, 2 people appeared and hit me over the back of the head and pushed me into my boot and closed the boot door. They then got in the car and drove. I had my mobile with me and was able to record some of it. They drove for about 45 minutes where (sic) they pulled up. When they opened the boot, I was ready for them and started kicking and punching. I managed to escape and run into the bush as we had pulled up at a truck stop on the freeway. I manage (sic) to lose them eventually in the bush. After a few hours, I made my way back to the freeway and flagged down a truck driver, who drove me to the local police station. The police found my car abandon (sic) down the Southern Highlands and they took it for fingerprinting. They also took my phone, as I had recorded the incident. I was then taken to the hospital, where the police stood guard overnight”.

The mother says that the father also told her that he did not believe that it was really the Crime Commission that had previously come to his house and that he believed it had been “Someone with bikie affiliates and they were trying to scare me as they knew my previous history with the bikies”.

22.04.2014

The mother’s father tells her that: “The detectives from [C] contacted me and told me that they are not investigating Mr Paul’s case any further. They believe that he fabricated the story”. The mother says that her father also told her that the police said to him that they had recommended that the father not get his guns back.

23.04.2014

The parties meet and the mother says that the father said to her that: “I went into Sydney yesterday and was interviewed by the State Crime Command in the NSW Police and they wanted me to be an informant against [names omitted]” (the wife’s cousin and his wife) and that: “The bikies were involved in my kidnapping…”.

[omitted] 2014

Birth of [X]. Presently aged 6 months.

[omitted] 2014

After leaving the hospital after the birth of [X], the mother returns to the party’s home at [M]. She says that on the first night at home when she asked the father to help with [X], he became a rude and abusive, saying to her: “She is obviously hungry. Get your lazy fat arse out of bed. You’ve only had a caesarean, millions of woman (sic) have them every day and you don’t see them carrying on like you”.

May 2014

In the week after [X]’s birth, the father receives a telephone call from the Police asking him to attend at the station. On his return, he tells the mother that: “They called me down to tell me they are not returning my guns due to public safety”, and that: “I am going to take the NSW Police to Court to force them to give me my guns back and I am going to sue them for not investigating my kidnapping properly”.

19.05.2014

Father tells the mother that he had been contacted by detectives who were investigating his case and that they had told him that there had been a home invasion at [M] where two men had impersonated police officers and that they wanted to ask him more questions about his ‘kidnapping’.

However, the mother was subsequently told by Detective D that what the father had told her was not true and that he was “making it up”.

Late June 2014

Parties become embroiled in an argument and the mother throws water into the father’s face, causing him to jump up with his fist in her face and say; “Fuck I could really punch you right now”.

12.07.2014

Date of final separation. The mother had informed the father that she was required to attend [omitted] in a work-related capacity, which led to an argument between the parties. The mother says that the father said to her: “If you walk out that door you are never coming back, so make a choice”, to which she replied: “I have to go to work, things come up at the last moment, I can’t help it…”. The mother says that she then called her parents and told them that she was coming home with [X]. She says that after she told the father that she was leaving, he said, inter-alia: “You don’t know who you are dealing with. I’ll take you down. I’ll win”.

13.07.2014

The mother says that she returned to the home with [X] to collect some of her possessions. She says that she thought that the father might have got over the argument and that she would be able to move back home. She says, however, that the father started to pack some of her possessions into a suitcase and that she said to him: “I can’t believe you kicking me and your [number omitted] week old daughter out, you are absolutely unbelievable “, and that he replied: “I hate you and you ruined my life” and that he demanded that she return her engagement ring. She says that this led to an altercation, with the father grabbing her around her shoulders and elbowing her hard on the left side of her head.

19 & 20.07.2014

By arrangement between the parties, [X] spends time with the father on these days. When the father was due to return [X] on Sunday, 20 July 2014, he sent the mother a text message saying that he wanted the child’s birth certificate.

27.07.2014

Arrangements made for [X] to spend time with the father on this day. When the mother arrived at the father’s house with [X], she says that he snatched the child from her arms and refused to acknowledge her. She says that an unpleasant argument then ensued.

28.07.2014

When the mother arrived at the father’s house to collect her possessions (as arranged through the party’s solicitors), there was an argument between the parties, which resulted in the police being called.

29.07.2014

Mother discovers that all the content that she had on her phone, including photos taken of [X] after her birth, had been removed. She also found that the content of her iPad had been removed. Similarly, she subsequently found that all of the content had been deleted from her office computer and two laptops. The mother says that the office computer contained all her financial records, tax records, [omitted].

The mother says that she reported this to the [C] Police. She says that she has established with Apple that the deletion of the content of her devices occurred 10 minutes after the police had left the father’s house on the previous night.

7.08.2014

Having made contact with Relationships Australia, the mother instructs her solicitors to invite the father to also make contact with Relationships Australia.

14.08.2014

The mother is told by Detective D of the [C] Police that: “It’s interesting about the factory resetting of your phone. He did the same thing to us. When he reported that he was kidnapped he said, ‘All the evidence was on his mobile phone’. We took his phone as evidence and by the time we had organised to get his car to be fingerprinted, we looked at his phone and it had gone back to factory settings. When we told him we thought he had done it himself, he denied it and accused us of doing it. It is just too much of a coincidence that it has happened to you as well”.

15.08.2014

Mother attends an appointment at a Relationships Centre (not having realised that Relationships Australia had transferred her call to a Relationships Centre).

18.08.2014 – 25.08.2014

Mother and [X] spent time at a Karitane Home in order to establish a proper feeding and sleeping pattern for [X].

4.09.2014

Letter from the mother’s solicitors to the father’s solicitors requesting production of documents relating to the father’s employment with the NSW Police Force and the Australian Defence Force and documents relating to a Workers Compensation Claim that was made by the father and an authority to any psychiatrist or psychologist consulted by the father to provide documents and records in respect of the father.

There has been no response to this request.

The aforesaid request was made because the mother has been told many and various tales by the father regarding events and incidents during his employment with the Police Force and the Defence Force.

9.09.2014

Parties attend upon the Collaborative Mediation Practice and enter into an Interim Agreement in terms whereof resolution was reached in respect of property issues and in respect of arrangements for [X], which arrangements were as follows:

1.   That an independent, court approved psychiatrist would be appointed to carry out a Mental Health Assessment to evaluate the parenting capacity of both parties, with the assessment to take into account previous and current mental health records;

2.   That in the event of the evaluation is proving favourable, the parties would both return to mediation to discuss the unsupervised time that the father would spend with [X];

3.   That in the interim period, the father would have four hours supervised access to [X] every weekend at times that would fit in with her sleep patterns;

4.   That the parties would agree to a suitable supervisor as soon as possible from the local community, preferably a child care worker or a Karitane Nurse;

5.   That the father would commit to returning [X] to the mother at the designated time after each visit and that the parties were agreeable to providing information at each changeover on sleeping, eating and toileting times. With

30.09.2014

Father commences proceedings in the Federal Circuit Court of Australia.