Pedrosa & Findon
[2024] FedCFamC1F 397
•7 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pedrosa & Findon [2024] FedCFamC1F 397
File number(s): PAC 4605 of 2020 Judgment of: RIETHMULLER J Date of judgment: 7 June 2024 Catchwords: FAMILY LAW – PARENTING – Allegations the child is being harmed in the mother’s care – Numerous reports to Police and child protection agencies – Father’s allegations not accepted – Child to live with the mother – Supervised time with the father – No matters of principle. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65D, 68B Division: Division 1 First Instance Number of paragraphs: 168 Date of hearing: 11-15 September 2023 & 30 October 2023 Place: Parramatta Counsel for the Applicant: Mr Hegedus Solicitor for the Applicant: Vaikom Law Counsel for the Respondent: Mr Grew Solicitor for the Respondent: Coleman Greig Lawyers Counsel for the Independent Children’s Lawyer: Ms Dalrymple Solicitor for the Independent Children’s Lawyer: Farah Lawyers, Solicitors & Barristers ORDERS
PAC 4605 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PEDROSA
Applicant
AND: MS FINDON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
7 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child, X, born 2014 (“X”).
3.X live with the mother.
Spending time with the father
Period One
4.From the date of these Orders, and subject to Orders 5 to 26 inclusive, X spend supervised time with the father at AA Contact Centre for a period of up to three (3) hours on the first Sunday of each month, or such other day in the month as nominated by the contact centre after consultation with the parents, subject always to the availability of the centre.
5.The costs of supervision be met by the father.
Period Two
6.Prior to the commencement of X’s second term of high school, the mother is to arrange and do all things necessary to facilitate X’s attendance upon a social worker or child psychologist with experience in family counselling on a fortnightly basis, or as recommended by the therapist, to commence no less than two months prior to the commencement of Term two (2).
7.For the purpose of giving effect to Order 6:
(a)The mother is to propose in writing to the father three (3) social workers or child psychologists by no later than 30 January of the year that X is to commence high school;
(b)By no later than 7 February of the year that X is to commence high school, the father is to select one of the three (3) appropriate social workers or child psychologists proposed by the mother and notify the mother in writing;
(c)If the father fails to make a selection or fails to advise the mother in accordance with Order 7(b) above, the mother be at liberty to select the social worker or child psychologist on which X is to attend.
8.The costs associated with X’s attendances in accordance with Order 6 be equally shared by the mother and the father.
9.The mother and the father are each restrained from engaging with the therapist except as requested by the therapist.
10.The mother is at liberty to provide a copy of these Orders and the Reasons for judgment to the therapist.
11.Upon X having attended in accordance with Order 6 on no less than two (2) occasions, the social worker or child psychologist is to provide a letter outlining X’s views with respect to supervision continuing.
Where X expresses that he wishes for his time to be unsupervised
12.Should the social worker or child psychologist record that X expressed that he wishes to transition to spending time with the father on an unsupervised basis (pursuant to Order 11), X spend time with his father on an unsupervised basis as follows:
(a)Should X be attending organised sport on a weekend, once a month with such time to coincide with X’s organised sport and for no more than four (4) hours; and
(b)In the event that X is not attending organised sport on a weekend in the month, on a Saturday or Sunday nominated by the mother in writing at least 14 days in advance, between the hours of 11.00 am and 3.00 pm.
Period Three
13.From the age of 14 years of age, X spend time with his father in accordance with his wishes (including unsupervised time if he so wishes)
Suspension of time
14.In circumstances in which the mother intends to travel with X on holiday and such holiday would interfere with the father’s time subject to Orders 4 to 12 inclusive:
(a)The mother is to provide the father 21 days’ notice in writing;
(b)The father’s time be suspended during the holiday provided that the mother has provided notice in accordance with Order 14(a);
(c)In the event that the father’s time pursuant to this Order is suspended on more than one (1) occasion in a calendar year, the mother arrange make up contact for the second and any subsequent suspension within three (3) weeks of X’s return from the holiday.
Changeovers
15.In the event that the contact centre is no longer available to supervise the father’s time with X then an alternative centre or supervision service shall be chosen by the parties as follows:
(a)The father is to propose three contact centres or supervision services to the mother, providing the proposal in writing, within 14 days of the date of these Orders or becoming aware of an unavailability;
(b)The mother is to select a centre or service from the father’s proposal within 7 days of receiving the proposal from the father;
(c)If the mother fails to make a selection or fails to notify the father of her selection within 7 days in accordance with Order 15(b), the father be at liberty to choose from the list proposed by the father and thereafter inform the mother of his selection; and
(d)The centre or service chosen in accordance with this Order shall facilitate time between X and the father pursuant to Order 4.
16.The parties do all acts and things and sign all documents necessary to complete any intake procedure required by the contact centre or supervision service.
17.Should X spend time with the father in accordance with Order 12(a):
(a)At the beginning of the father’s time with X, the mother will drop X to the location of his organised sport no later than 30 minutes prior to the commencement of the game; and
(b)At the end of the father’s time, the father will deliver X back to the mother’s residence, with the father to remain in the car and to remain outside of the mother’s residence until such time as he sees X enter the residence.
18.Should X spend time with the father in accordance with Order 12(b) above, changeovers are to be facilitated by the S Contact Centre supervision agency (and in the event they are unavailable, such agency or service chosen in accordance with Order 15) and the costs of changeovers be met by the father.
Communication
19.The mother shall assist the child to send cards, letters and gifts to the father should the child wish to do so.
20.The parties are to communicate using the parenting application “2 Houses” (and in the event this app ceases operation, such other app as nominated by the mother in writing) with both parties to take all reasonable steps to register for and pay for the application within 7 days of the date of these Orders.
21.The parties must notify each other as soon as is reasonably possible in writing with respect to:
(a)Any significant illness, accident or injury suffered by X;
(b)Any significant medical treatment provided to X.
School and information
22.The mother authorise X’s school to provide to the father copies of school reports, school photos and other information from X’s school at his own cost.
23.The father be restrained from attending X’s school until such time as X attains the age of 14 except as provided for in Order 24.
24.Upon X reaching 14 years of age, the father be at liberty to attend X’s school events as normally attended by parents if he is specifically invited by X, in writing.
25.If the father receives an invitation from X in accordance with Order 24, the father is to notify the mother in writing at least 48 hours prior to such attendance, or within 3 hours of receiving the invitation.
26.The mother authorise X’s medical practitioners to provide information concerning X’s health to the father at the father’s cost.
Other orders
27.In the event that the father makes a complaint or notification (or causes, requests, or directs another person to make a complaint or notification), in relation to the mother’s care of X to Police, a child protection agency, any medical practitioner, any other government agency, or a mandatory reporting body, he disclose in the complaint or notification these parenting Orders and the Reasons for judgment and that he provide a copy of these Orders and the Reasons for judgment.
28.The mother be at liberty to provide a copy of these Orders and the Reasons for judgment to Police, any child protection agency, any medical practitioner, any other government agency, or a mandatory reporting agency that has received a complaint or notification with respect to the child, AND FURTHER, to any medical practitioner or counsellor providing treatment or counselling to the child.
29.The parties be at liberty to provide a copy of the Orders and Reasons for judgment and report of Dr V dated 8 June 2022 to any psychiatrist, psychologist or counsellor from whom they or the child are receiving treatment or counselling.
30.Save as provided for in these Orders, the father is restrained pursuant to s 68B of Family Law Act 1975 (Cth), unless with the prior written consent of the mother:
(a)From entering upon or approaching within 500 metres of:
(i)The mother’s residence;
(ii)The mother’s place of employment;
(iii)The premises or grounds of the child’s school or extracurricular activities; or
(iv)Any other place where the mother and/or the child may be present.
(b)From contacting the mother, approaching the mother or from attending the mother’s residence or place of employment.
31.The father is restrained from denigrating the mother in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrosa & Findon has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant father and the respondent mother are the parents of one child (X, born in 2014). X has a half-sibling (E, born in 2018) from a subsequent relationship between the father and a former partner. The parenting proceedings between the father and E’s mother were heard at the same time as these parenting proceedings and are the subject of a separate judgment.
On 3 September 2020, the father commenced these proceedings by filing an Application for Final Orders. On 9 August 2023, the father filed an Amended Application for Final Orders seeking orders that:
(a)The mother have sole parental responsibility;
(b)X live with the mother and spend supervised time with the father for a period of up to three hours on a fortnightly basis, graduating to an end point of unsupervised time each Saturday and one night per week during the school term;
(c)Structuring the father’s time so that time with X coincides with the time the father is to spend with his other son, E.
The mother filed an Amended Response to Final Orders on 27 April 2022 seeking orders that she have sole parental responsibility, that X live with her, and that X spend no time with the father. At the commencement of the final hearing, as set out in her Case Outline filed 8 September 2023, the mother’s proposal had changed. The mother sought orders that:
(a)She have sole parental responsibility;
(b)X live with her and spend a period of up to three hours supervised time, four times a year with the father until the age of 14; and
(c)Upon X attaining the age of 14, X spend with the father in accordance with his wishes.
The Independent Children’s Lawyer (“ICL”) proposes orders similar to the mother except that X spend supervised time with the father on a monthly basis until the commencement of the second term of high school, when X could then choose whether he spends supervised or unsupervised time with the father. The ICL did not support the mother’s proposal to reduce X’s time with the father to once each quarter.
Both the father and the mother changed the final orders they sought by the conclusion of the hearing.
BACKGROUND
The father (who is 49 years of age) and the mother (who is 51 years of age) met on an online dating website and established a relationship in 2013. The parties separated four months later in 2013.
The father says that the parties separated after the mother struck him across the face, whereas the mother says the father physically pushed her onto the bed and forced himself onto her while she was pregnant with X. The mother says that the breakdown of the relationship was caused by the father’s “controlling nature and behaviour” and sets out many examples of the things said and done (with particularity) in her affidavit filed 17 August 2023 to support this allegation.
In 2014, X was born. The father was not present at X’s birth, he met X for the first time two months later at the mother’s home. Until X was around 10 months old, X had only spent time with the father at the mother’s home, in her presence.
In 2016 X started spending time with the father at his home and the mother says she was comforted knowing that the father’s then partner, E’s mother, would be present during this time.
In 2018 X’s half-sibling, E was born.
Between October 2014 and January 2019, the parents attended approximately six mediation sessions and made a number of informal parenting agreements about the care of X. X’s time with the father was initially only daytime, but eventually progressed to overnight as X got older. By February 2019 when X had commenced school, he was spending five nights a fortnight with the father. In her affidavit filed 17 August 2023, the mother says that she was not in favour of the increase in overnight time, but agreed as the father has threatened legal proceedings if she did not agree to his proposed arrangement. Whilst the mother was uneasy about the overnight time arrangement, she proceeded, however the difficulties with the father continued.
Thereafter the parenting arrangements broke down.
The father commenced proceedings on 20 September 2020. Interim orders were made on 4 June 2021. From June 2021, X spent three-hour monthly supervised time with the father until February 2022 (when the father ceased time due to an inability to meet the costs of supervised time). X did not see the father in March or April 2022. X spent monthly supervised time with the father in May 2022 and August 2022. From November 2022 to April 2023, X spent monthly supervised time with the father through a new contact centre, run by B Counselling. From June 2023, X spent monthly supervised time with the father at AA Contact Centre.
At the time of the trial the father was spending supervised time with X for two hours, one Sunday per month (facilitated at a contact centre), in accordance with the interim orders made 4 June 2021.
THE EVIDENCE
There was considerable documentary evidence in this matter. There was no objection to the use of the documents, nor request for the authors to be made available to for cross-examination. I have no reason to doubt the accuracy of the notes in the various documents and place weight upon them.
The father
The father presented as a well-dressed man, eager to give evidence and eager to engage in the process of the trial. However, the traits identified by Dr V (discussed below) were apparent in his evidence, particularly the grandiosity of his descriptions of X, the unshakeable confidence of his belief that the mother had been harming X, and that E’s mother had also been harming E. Early in his evidence he was overcome with emotion yet recovered his normal composure and energetic engagement remarkably quickly.
The father maintained that his mental health was “excellent” and when asked why he was hospitalised in 2020, the father said it was because he was traumatised and distraught but not suicidal. He also said that the L Hospital records were “grossly inaccurate” and “manipulated” by the mothers and were recorded by the clerk and not a doctor. He said that the record was just an “intake form” and not a diagnostic tool. It appears that the father may be minimising the extent of his mental health issues and appeared to attribute his mental health issues to the parenting conflict with the mother and his former partner, E’s mother.
Despite the father’s strong views, there is no reliable evidence to suggest that X was ever harmed in the mother’s care.
I found the father a less than impressive witness and approach his evidence with considerable caution.
The mother
The mother presented well in the witness box. Her evidence was calm and considerate. She showed a capacity to reflect on past events and even identify things she may have been able to handle better. It is clear that, at least early in the separation, she facilitated time between the father and X. There was nothing about her evidence that led me to have any doubts as to her reliability and honesty, parenting capacity, or her commitment to X. I place considerable weight upon her evidence.
Dr V
Dr V was engaged as an expert in both this case and the case involving E’s mother to prepare family reports. Dr V presented as a very able professional with considerable insight into the family dynamics. His evidence was open and frank. He readily provided explanations for his views. I found him to be an impressive witness.
During the course of the hearing, an affidavit annexing a 2021 report concerning the father by a forensic psychologist, Ms Z, was tendered. The psychologist was not required for cross‑examination. The report was from some years ago and was without the more recent material. I am not persuaded that significant weight can be placed upon the findings and recommendations set out in the report.
Whilst E’s mother also gave evidence relevant to the case concerning E and the father, her evidence did not go to the matters directly in issue with respect to the arrangements for X.
A BRIEF HISTORY OF EVENTS
In early 2019, X was scheduled to play in his first sports game. The mother went to the sports field and the father and child were not there. The mother says that she was concerned about their whereabouts and that X was missing his first game. At the time, X was in the father’s care and the father did not take X to the game as he said that the mother had not replied to his email. The mother says that the email communication was consistent with the controlling nature of the father’s behaviour, and she felt disappointed for X because the father put his interests before X by denying X his sports game when the mother did not respond to an email. That the father allowed X to miss his first game, regardless of the difficulties in communication between him and the mother, shows a lack of focus upon X’s needs and interests.
In mid-2019, the father attended Suburb BB police station to report an incident where he alleged that the mother had not informed him that X would be receiving an award at school (Exhibit 28).
On one occasion in mid-2019, the father failed to return X to the mother at the conclusion of his time. At that stage, X was spending overnight time with the father every Wednesday and Friday to Monday every alternate weekend. The mother contacted the police to conduct a welfare check on X. The father and X were not present at his residence (Exhibit 25). The father’s account of this incident is that he does not recall sending a text message to the mother saying that he was going to keep the X for an extra night. The following week, the father’s solicitors contacted the mother’s solicitors to tell them that the mother was being investigated by the police and FACS as they were concerned about her behaviour. The mother was not contacted by the police or FACS at that time. The father denied that he overheld X and maintained that there was an agreement between the parents for X to be in his care on this occasion. He also said that this was the first time that a welfare check was done on X, and it was “completely inappropriate and frivolous”. I am not persuaded that the mother’s conduct was inappropriate given X’s young age at the time, and the difficulties that the parties had in the past.
In late 2019, the father made a report to police requesting that they conduct a welfare check on X as he was to spend time with X that day, and the mother was ignoring his calls. The father complained to police that X would suffer psychological injury from not seeing him on that day and that the mother did not facilitate his time that week due to the father’s failure to return X the previous week (Exhibit 28). The following day, police contacted the mother to check on X’s welfare. The police records indicate that the mother advised that her solicitors contacted the father via a letter telling him that she would be keeping X on that day and said that she received no missed calls from the father. On this occasion, the police held no concerns for the welfare of X.
The father says the mother and E’s mother’s friendship started around late 2018 and claimed “it’s a fact” that since that time they have both been in “cahoots” to alienate the children from him. The mother’s know each other, and have probably become closer as a result of the difficulties both have had in dealing with the father and both suffering the stresses of litigation. However, I am not persuaded that the mothers have conspired against the father and I reject the claim that they are “in cahoots”.
In early 2020, the father made an application for compensation under the Victim Rights and Support Act 2013 (NSW). The father alleged that he was the victim of domestic/family violence committed by the mother between 2013 and 2020. It was described as “ongoing domestic violence by the mother of his eldest child- [X]. Verbal and physical abuse, ongoing harassment and intimidation” (Exhibit 12). The father had also indicated that he has suffered psychological injuries as a result. The father’s application was initially dismissed, but on review he was awarded compensation as a “recognition payment”. Remarkably, the process did not involve any notice to the mother, who emphatically denies the allegations. The mother was unaware of the proceedings or findings until the material was referred to in this matter. The mother denies the allegations and was not cross-examined about them. I am comfortably satisfied that the mother did not perpetrate family or domestic violence against the father, rather that he assaulted the mother in 2013 by pushing her onto the bed and climbing on top of her whilst she was screaming at him to get off of her. She escaped and ran from the house. The “recognition payment”, made without any reference to the mother served only to strengthen the father’s false claims, despite the mother being the victim of his conduct.
On one occasion in early 2020, the father had concerns about the risks of COVID-19 and about sending X to school. On this day, X was to return to the mother’s care after spending overnight time with the father. The mother says that the father sent her an increased number of text messages asking for confirmation that X would not be withheld from him during the pandemic and stating that X would remain in his care until he had written confirmation. The mother was concerned about X due to what she saw as the father’s “erratic” text messages and contacted Suburb BB police to request a welfare check on X. X was returned to the mother’s care at around 4:00 pm that afternoon.
The mother’s account of this incident is that X had been withheld from her that day and she was forced to agree with the terms and conditions that the father had laid out with regards to COVID-19 in order for the father to return X to her. The mother said she went to open the security door to let X in and the father pulled the door handle forcefully to open it and the mother was alarmed at his behaviour. She reached out to X and got him through the door and forced the door shut. The mother denied roughly and angrily pulling X through the doors and acknowledged that the other child, E was being held by the father at the time. When cross‑examined about this incident the mother showed considerable insight. She denied pulling X inside, but accepted that she was frightened at the time and did quickly push the door closed. She also accepted that she may have been able to handle the situation better, at least with hind sight. I accept to the mother’s version of this event.
Two days later, the father reported to police that X was not made available to him, and the mother was potentially exposing X to COVID-19. The father says that he received an email from the mother’s solicitors that X was not available that day and he was not provided with a reason as to why. The mother says that police arrived at her home to do a welfare check on X at the father’s request. Shortly after, the father arrived at her home and continuously rang the doorbell, and she observed him to appear agitated. The mother says she was “afraid” (mother’s affidavit filed 17 August 2023, paragraph 93). Later that evening the father sent a video of himself standing in front of the mother’s front door. Police carried out another welfare check on X that night when X was asleep. There is no basis for thinking that X was at risk that night. Following this event, the mother ceased facilitating X’s time with the father.
Less than one week later, the father attended Suburb CC police station and again stated that he was concerned about X’s welfare. Due to the COVID-19 pandemic, the father was concerned that the mother was not protecting X’s health by isolating him in the home and allowing him to go to school. The father also requested that the Department of Communities and Justice (“DCJ”) assist with the wellbeing of X. Police recorded that there was no physical abuse.
In early 2020, the principal at X’s school received a call from the Family Referral Service (“FRS”) who informed him that the father raised his concerns with them and told FRS that he was not allowed to approach the school, but that the principal at the school shared his concerns and was “rushing to make a report to JIRT” (Joint Investigation and Response Team, now known as Joint Child Protection Response Program or JCPRP). The school notes do not support the father’s claim. The notes indicate that the principal and a FRS employee discussed concerns about the father’s mental health which was observed to be “highly agitated and emotional” as he was concerned about X’s wellbeing in the mother’s care.
The following day, the father went to the NSW police to report further issues accessing and contacting the mother and requested a further police check. Police records indicate that the father told police that he sent the mother a text message asking if he can collect X and he did not receive a response. Police informed the father that there was “no imminent threat to [X]’s safety” (Exhibit 28).
A few days later, the father contacted the police’s domestic violence team informing them that his ex-partners are in “cahoots” against him with their respective children and he was concerned about the psychological wellbeing of his children due to the conflict between the parents. When the father was asked about the police reports and welfare checks, he said that his engagement with the police followed after he formed the view that X was being alienated from him. Three days later, police attended upon the mother’s home to undertake a welfare check on X at the father’s request. The mother said that they left without entering her home.
In early 2020, it was recorded in a NSW Health Exchange of Information dated mid-2020 (Exhibit 28) that a doctor “felt due to the longevity of manic symptoms [the father] may be experiencing a 1st Episode of [a mental health disorder]”. The following week in early 2020, the father’s brother in law advised the acute care team that the father was “a bit worse, and had mentioned wanting to burn his ex-partner’s house down” (NSW Health Exchange of Information dated mid-2020 - Exhibit 28). When the father visited the doctor again, two days later, it was noted that he was still manic despite full cooperation and compliance with medication. Later that month, the father was admitted into L Hospital for psychiatric issues. He was discharged in mid-2020 after being treated with medication. The father explained that his general practitioner had referred him to DD Mental Health Service, where he was diagnosed with “acute mania”.
The mother was not aware of the father’s admission until the end of 2020, after the commencement of the proceedings.
In mid-2020, the father telephoned X’s school asking if he could visit X at school during lunch time. The principal informed the father that it is not the school’s role to facilitate visits for parents. The school’s incident correspondence notes that the principal and most senior counsellor did not share the father’s concerns about X’s safety in the mother’s care as X was observed to be a “happy and well adjusted student” at school (X’s school’s file note dated mid‑2020 – Exhibit 28). The school’s notes also say that the father was told that “the FRS were told by him that the school (Principal and most senior counsellor) share his concerns and were rushing to put in a call to JERT”, however the father denied telling FRS this.
In mid-2020, the father attended X’s school to pick him up. At the time, the mother had stopped facilitating X’s time with the father and they had not seen each other since early 2020. It is recorded in the file note from X’s school that the principal informed X that he was going home with the father and in response X began to cry and expressed that he did not want to go. Due to X’s distressed state, the father was told that the school had a duty of care to the child, and he would not be able to take X home. The school principal called the mother who presented at school and later took X home. The father does not believe that the file note is an accurate account of what had happened, however no objection was made to the evidence, nor was the principal required for cross-examination.
A few days later, the father requested police to attend the mother’s residence and conduct a welfare check. The following day, police attended the mother’s home to conduct another welfare check at the father’s request from the previous day. Police records indicate that the mother was not facilitating X’s time with the father as she said that she could not know if the father was adhering to the COVID-19 health restrictions (as were then in place). On this occasion, the father sent the mother numerous text messages, emails and phone calls requesting that she deliver X to the father’s residence or allow the father to pick him up (Exhibit 28), which the mother experienced as being “bombarded” by messages. The mother provided police with a 72-page document of emails and texts that she received from the father. Police found no issue with X in the mother’s care.
In mid-2020, the father again attended upon X’s school. It is recorded in school notes that the father expressed concern that X was not attending school and blamed the mother for keeping him away from school. The father had also reported X’s absence to police and requested a welfare check on X. As a result, police contacted the school regarding the ongoing situation between X and his parents.
A DCJ triage document dated mid-2020 records that the father called due to his concerns that X’s mental health was deteriorating in the mother’s care as a result of her “manipulating, irrational and delusional behaviour” (Exhibit 28). The father alleged that X was showing early signs of psychosis when he was stressed and spoke in “dark and demonic voices” emulating the mother. The document also noted that there had been over 40 reports made for X in that year alone (2020).
Court Proceedings filed in 2020
On 3 September 2020, the father commenced parenting proceedings in the Federal Circuit Court seeking both interim and final orders for X to live with the mother and spend substantial time with him, including orders for X to travel internationally with the father. In her Response filed November 2020, the mother sought sole parental responsibility and that X’s time with the father be supervised on an interim basis.
On 4 June 2021, following a contested interim hearing, orders were made for X to live with the mother and spend supervised time with the father as agreed, and failing agreement, for three hours on a monthly basis at a professional contact centre. X spent supervised time with the father between July 2021 and February 2022.
In October 2021, after a supervised contact visit, the supervisor informed the mother that the visit between X and father did not go well, and X had asked what the time was on numerous occasions and expressed that he wanted to go home. The conversations between the father and child were observed to be a “little awkward”. It was observed that the father took X’s fidget spinner from his hand and did not give the fidget spinner back despite X asking repeatedly. The father then threw the fidget spinner and asked X to go and get it as he “knew where it was”, in a “very dismissive tone”. The contact report states X was very anxious and the father was not responding in an appropriate manner. The father says that this record is “damning and inaccurate” as the conversations were not awkward, but in the father’s view the supervisor was awkward. He maintained that it was a “meaningless” report and the account that X was anxious was “made up” and “not a fact”.
On 6 February 2022, the mother’s solicitor and the ICL (at the time) received an email from the father informing them that he could no longer afford the costs associated with the contact service engaged with X. Between February and May 2022, X did not spend time with the father. When time recommenced in May 2022, it was reduced from three hours to two hours on a monthly basis.
In October 2022, during a contact visit, the father was observed to sound frustrated that the contact between himself and child was occurring on a monthly rather than a fortnightly basis. The contact service staff told the father that based on their assessment it was in X’s best interests for visits to occur on a monthly basis as per the Court orders at the time. The contact service records indicate that the father appeared to sound defiant (which the father denies) and continued to question why they were following the orders and what the mother wants. The father informed the staff that he had completed multiple courses and told them of research that he said supports his claim that there has been parental alienation (by the mother), and that it is harming the relationship between X and the father instead of rebuilding it.
In February 2023, following a supervised contact visit with the father, the supervisor informed the mother that X had told her that he did not want to see the father at the centre. X was observed to not be smiling but had a serious expression on his face.
In March 2023, the father was contacted by the contact service via phone to inform him that X has advised the staff at the centre that he did not want to see the father and no longer wants to visit the contact service. X said that he felt that the sessions were only about playing and did not focus on talking and connecting with the father. The father informed the staff that although X was saying this, he believed that it was coming from the mother as a result of the parental alienation.
In June 2023, X commenced monthly supervised time with the father at AA Contact Centre. X and father were observed playing ping pong and it is recorded in the supervision report that the father responded to X hitting the ball up in the air in a sarcastic manner. It was also observed that X was pre-occupied, did not completely engage with the father, and no affection was observed between the father and child on this occasion. The father gave X a kinder egg toy which X refused and told the father that he can keep it. X did not take the toy and it was left in the contact centre. However, some positive interactions between X and father were observed, notwithstanding the limitations of supervised visits.
FAMILY REPORT
The single expert, Dr V interviewed the parents and X in January 2022. He interviewed X in person and observed him with both the mother and the father. At the time, X was living with the mother and attending year three at a local public school. The parenting arrangement at the time was three hours of supervised time with the father on a monthly basis at P Contact Centre (the initial contact centre/supervision service used by the parties).
Dr V observed the mother to demonstrate an awareness of X’s emotional and intellectual needs. The mother informed Dr V that she remained fearful of X’s safety in the father’s care due to her concerns around “his mental health, threats, belligerence, lack of trust and allegations” (Family Report dated 8 June 2022, paragraph 162). The mother reported to Dr V that she had experienced anxiety as a result of the circumstances. The mother denied that X has significant mental health issues.
The father informed Dr V that he has done everything possible to work with the mother and to accommodate her mood swings. Dr V noted that the father was motivated to maintain a positive approach, but this was not consistent with his reported subsequent behaviour. The father expressed concerns about the mother and child’s mental health. Dr V observed that the father presented himself as the victim and that the mothers “ganged up” on him to deprive him of regular contact with the children (Family Report dated 8 June 2022, paragraph 74). Despite the father asserting that he has awareness of X’s needs, Dr V was of the opinion that the father did not have such a capacity as is evident in the father’s proposal (at that time) to remove X from the mother’s care.
The father told Dr V that the mother in both parenting proceedings are “in collusion” which Dr V observed to be a recurrent theme in the father’s narrative that collusion has prevented him from having a relationship with the children (Family Report dated 8 June 2022, paragraph 20). Dr V said that despite the lack of contact between X and the father, there was no indication of a classic alienation family dynamic.
The father minimised his history of mood disorder despite being assessed as hypomanic when he separated from E’s mother and time was suspended for both children. At the time of the interview, Dr V did not observe a current mental illness impacting the father’s parenting capacity, but in his opinion the father “lacked insight into the impact of his previous abnormal mental state and actions on his family relationships” (Family Report dated 8 June 2022, paragraph 180).
Dr V interviewed the father’s treating clinical psychologist, Mr N, who based on his treatment and assessment found no evidence of a mental health disorder. He also told Dr V that there was no indication that the father had been a risk to himself or to others and the father said that he had not made threatens to his former partners but had expressed frustration regarding the limitations to contact. The father’s treating psychiatrist, Dr J, was interviewed for the purposes of the Family Report. Dr J agreed with Dr V’s opinion of the father presenting with a Narcissistic Personality style and maintained that there was no evidence of an ongoing Mood Disorder or abnormal mental state. Dr V observed the father to have a narcissistic personality style, whereby his primary focus is his own needs and capacity.
The father said that he has the capacity to support both parents being present in X’s life, if he were confident that the mother has a stable mental health and approach to parenting. As Dr V pointed out, the father’s views are concerning, given he would be the authority on the mother’s mental health was stable.
Although Dr V thought that the mother had an anxious avoidant personality style and is vulnerable to anxiety and panic attacks, he did not identify a current mental illness impacting the mother’s parenting capacity.
X
Dr V is of the view that if X is removed from the mother’s care against his will and placed in the father’s care, it is likely that X’s positive developmental progression will be significantly disrupted.
Dr V observed X to be “noticeably fidgety” and was told by him that he was feeling “a bit nervous” (Family Report dated 8 June 2022, paragraph 79). When asked what X enjoyed about living with the mother, he said that he enjoyed playing games together and “she is very fun. And we get along good” (Family Report dated 8 June 2022, paragraph 82). X said there was nothing he did not like about the mother or living with her. When X was asked about the father, he said that he did not “know how to describe it”, “we sometimes ride our bikes down to the park” (Family Report dated 8 June 2022, paragraph 83). Dr V further observed that X struggled to express his experience when asked what he didn’t like about the father but said that “I don’t feel very good with him”.
X expressed the view that he wants to reside with the mother, and he was anxious about unsupervised time with the father and did not want his time to extend to overnight time. Dr V noted that there was no evidence that X’s views were as a result of coaching and Dr V said that significant weight should be placed on X’s views.
Dr V recommended that the mother have sole parental responsibility for X, that X live with her and there be ongoing contact with the father. In Dr V’s view, he “did not identify a need for the maintenance of supervision unless the father should be unable to desist from further derogatory statements or notifications regarding the mother” (Family Report dated 8 June 2022, paragraph 181(iii)). He went on further to say that should the father continue to behave in such a way, “it is likely that [X] will become increasingly resistant to future contact” and that “contact could be reintroduced through sporting engagements” (Family Report dated 8 June 2022, paragraph 181(iii)).
Ultimately, Dr V’s opinion was that “there was no indication that [the father] had the capacity to maintain shared care in a stable and respectful manner” (Family Report dated 8 June 2022, paragraph 181(iv)).
Oral Evidence
Dr V agreed it is necessary for X’s time with the father to continue being supervised if the father cannot accept that X is safe in the mother’s care and accept that she does not pose a risk to X. When asked about the father’s narcissistic world view and how this may impact his capacity to maintain shared care in a stable and respectful manner, Dr V said that as the father has not undertaken psychological treatment since early 2022, it is likely that his perception of harm will continue. He explained that:
From a general sense, I agree that such views would be unlikely to change without therapeutic intervention. Sometimes, of course, lived experience can result in significant changes in people’s point of views; however, from the additional material that I’ve read, I did not see evidence of a change in the father’s views. There were numerous references in the additional material that I’ve been presented with, which identifies that the father remains hypervigilant to the children’s communication regarding their experience.
…
And one of the overriding impressions that I have form all of the material that I read with regard to the father, with regard to the accounts of both mothers and with the regard – with regard to the father’s presentation to myself and with regard to his communications identified in numerous contact visits and with the contact service providers was that he repeatedly presented himself in a somewhat narcissistic manner.
…
I think it would be fair to say from his account of his own approach to his children’s care that he was an ideal parent, that he had much to offer both children, that he viewed himself to be the superior parent to the two mothers of his two sons and it was his view that it was a travesty that there were restrictions on his contact with his children, that his concerns regarding the lack of adequate care being provided by the mothers to his sons were not taken seriously by the courts, by the police, by Child Protection authorities…
(Transcript 14 September 2023, p.18 line 44 to p.19 line 44)
Dr V’s opinion is that the father’s views are not a treatable medical psychiatric condition and there is no information to suggest that his approach to the parenting arrangement can be changed with standard psychological treatment.
Dr V also explained that if the father approaches “certain groups online or certain support groups he will receive a lot of support” (Transcript 14 September 2023, p.22 lines 8–9) and “every time such a conversation is held, every time he receives such report, he will be strengthened in his views” (Transcript 14 September 2023, p.22 lines 15–17). As the father will likely question X in an unsupervised context about his experience, on occasion X may make comments that will “trigger” the father to go down the pathway of reporting to agencies. Ultimately, in Dr V’s view, the father is unlikely to change as he is a hypervigilant parent who has a particular conviction and cannot take a position of “radical acceptance”.
Dr V explained the concept of “radical acceptance” as a capacity, on “a very fundamental level to accept circumstances that are beyond your control”, even in “place of a deeply held conviction” (Transcript 14 September 2023, p.63 lines 6–8). Dr V thought that the capacity of the father for “radical acceptance” of the mother’s parenting of X is very relevant in the current circumstance, but found it difficult to believe that the concept would result in such a change in the father’s views.
Dr V was asked to consider the situation if X was to form a view in the future that he does not want to interact with the father, he explained that the father would view this as alienation by the mother and it would be difficult for the father to “empathise with [X], to put himself in [X’s] shoes and understand”. Dr V said that:
… Now, I think equally as the children reach a certain age and, certainly by the age of 14, if the boys did express a desire to have…unsupervised contact, because I think the age issue is, obviously, important. I certainly would not be recommending that supervised contact goes on forever. There needs to be an age limit, at which I think the boys should be given agency… They will know that he’s interested in them and wishes to have contact with them and, certainly by the age of 14, I think there’s no doubt that the boys…should have a choice on whether to have contact with their father. Certainly, I’m not suggesting that…after the age of 14 that the father is such a risk to them that they would need supervision. Now, there will be an interim period prior to that which would actually…depend on how things are going, because…once the boys are…reaching the age of…12, 13, if every time they saw their dad if all he was interested in…talking about did they go to the doctor…how did they…have that bruise or…quizzing them about what mum is doing. The boys will…not want to see him and…certainly by the age of 12 I think…the boys’ wishes should be respected about whether they’re wanting to have contact or not…and what sort of contact they want to have and so, certainly, if the boys are expressing the wish to see their dad and to…kick a football with him or have a age appropriate activity together, I think that should be respected.
(Transcript 14 September 2023, p.25 lines 13–35)
Dr V was asked if he still recommends that the mother have sole parental responsibility for X and that he should live with her primarily, to which Dr V agreed. He also agreed that at this stage, X’s time with the father should remain supervised as a result of the father’s behaviour and world view.
When asked if there is an age that Dr V proposes for X’s supervision to cease, he said, “once at high school” (Transcript 14 September 2023, p.30 line 42). He explained that between the age of 12 and 14 it would be useful for there to be contact between X and the father and it could be unsupervised contact such as the father attending sporting engagements at school, given the shared interest. Dr V’s opinion is that it would be good to move to informal unsupervised time if X agreed as X should be given some agency.
Dr V was asked to consider the difficulties with changeovers considering the parents relationship and he said that whenever possible there should not be direct handovers between the parents and it would be “extremely uncomfortable for all the parties” including for X. He explained that X will know by looking at his parents’ faces, the tenor of the communication that this is a stressful aversive experience and would trigger him to prefer not being there.
When asked if it would be appropriate for X to have fortnightly supervised time with the father at this stage, Dr V said that although it is difficult for him to say as he has not seen X for some time, he would support it if X was “happy, comfortable and enthusiastic” (Transcript 14 September 2023, p.33 line 16), and it would not cause the mother undue stress to manage such visits.
Dr V was asked if the ICL’s proposal was appropriate, that is an order where from the time X commences high school X is to spend time with the father on alternating weekends for a period of five hours with such time being scheduled to coincide with his organised sporting activity (if he is playing organised sport) and otherwise on Saturday from 11.00 am to 4.00 pm. Dr V agreed that it would be an appropriate parenting arrangement if it was in accordance with X’s wishes. He said that X does not currently need psychological intervention to support a transition to unsupervised contact with the father as he is of the opinion that starting psychological intervention too far in advance raises the likelihood of changing therapists, which is not helpful to X’s circumstances as it would create inconsistency and further uncertainty for him. However, Dr V suggested that in the months leading up to that arrangement if X had established regular time, perhaps fortnightly sessions with a suitably qualified child psychologist or social worker who was able to provide him with a safe space to explore his experience and how things are, then that could continue during the period of transition from supervised to unsupervised contact.
Dr V then explained that although he had given evidence earlier that once X is in high school supervision can cease, he clarified that he was not suggesting on the first week of high school he should have the first time of unsupervised contact with the father. In Dr V’s view, the first term of high school should be for successfully transitioning from primary school to high school and the second term can be used for the commencement of time.
Dr V explained that it is possible that the father has a narcissistic personality disorder, but he did not make that specific diagnosis on the material he had. He said that the father’s presentation has elements that are consistent with a narcissistic personality disorder and in particular the way the father approaches his relationships with both mothers in the parenting proceedings. Dr V used phrases of “narcissistic personality style” or “narcissistic world view” because he did not have enough evidence to make a formal diagnosis of a personality disorder as he has not seen the father in other domains such as in the workplace. When considering the father’s actions such as taking photos of potential bruising or injuries, repeatedly presenting X to authorities, subjecting the parties to recurrent interviews, causing stress to the mothers and children, Dr V’s said this behaviour indicated that the father lacked the capacity to consider the impact of his actions because he was primarily concerned about his own view, which is representative of narcissism and a narcissistic approach to parenting. Importantly, as Dr V said, it is not the diagnosis that matters, but the father’s behaviours and how they affect X and the mother.
Dr V identified one of the damaging behaviours, saying:
I clearly am concerned by the father’s expressed views. It certainly is consistent with his presentation to me last year. It’s consistent with the previous documents that I perused and I was concerned…by [X’s] account of his experience of his father talking about his dad… That’s in paragraph 107 of [the Family Report dated 8 June 2022] and [X] recalled that dad said that mummy was sick and that mummy would hurt him. That was confusing to him, because it wasn’t his experience. He said that he did not want to spend more time with his father. He was ambivalent about the nature…of their contact. Now, if the father was unable to contain himself, as I stated before, and if the father continued to express such views to [X], in this case, I would be concerned about transitioning from supervised to unsupervised, as I’ve said before. With regard to the frequency of contact, I think that should be maintained at a manageable manner…for [X] and also for the mother. It was my understanding that the current frequency of contact was sustainable, which was the reason for recommending that that continue…
(Transcript 14 September 2023, p.45 lines 30–44)
Dr V was asked about the benefits of the children jointly spending time with the father and he said that it can be gleaned from the contact centre reports that they have a good relationship with each other, and the potential benefit would be a that “will have a sense of familiarity with each other and greater sense of security” which would ultimately build the bond between the brothers (Transcript 14 September 2023, p.59 lines 22–23). Dr V viewed this bond as potentially beneficial for the children.
Dr V said that in his view it would be potentially beneficial for the children to spend time together with the father. Although he raised that one of the developmental problems relates to the ages of the children and if they are both at the same developmental stage then it would work well and if they are not then it may be more challenging. When considering the children’s age difference of four years, Dr V was of the opinion that it would potentially be beneficial for X and E to have contact visits together when they are both in primary school. However, he noted that they may have different interests and needs in the future and it would depend on the nature of the sibling relationship and whether they enjoy spending time together.
Dr V said that when considering the possibility of the father spending fortnightly time with the children at the same time it is important to consider not only the children’s experience but also their mothers’ experience. He acknowledged that although there is commonality between the mothers’ experience, there isn’t commonality for the mothers’ circumstances in his view to support such an arrangement.
When asked to consider the father’s allegation that there has been some collusion between the mothers, Dr V said that:
… They both reported related concerns regarding the nature of his behaviour towards them and, indeed, there was commonality in [the father]’s allegations towards both mothers regarding…the problematic nature of their responses to him and their problematic approaches to parenting his sons. There was a lack of trust, mutual respect and goodwill, communication with each of his former partners, and he made multiple allegations against both of them. Now…it was certainly my understanding that this was not a scenario where there were two ex-partners who were ganging up together against the father of their sons, making multiple allegations against him…based on…their concerns without…any actions on his behalf to create such responses. On the contrary, it was my understanding that it was the father who had been really…focusing very heavily on his allegations against both of the mothers and that they were responding to that in part. Now…these mothers did report a shared experience of…the father and, indeed, it was consistent with how the father presented to me.
…
And it was not simply based on…their statements, but it was based on the review of the documents…the review of police record…review of Child Protection records and…review of all the material…that had been provided to me. And…that was essentially what I made of it. So did I come to the conclusion that this was…a case of two ex-partners working in collusion against their former partner who was the father of each of their children? No, that was not my conclusion.
(Transcript 14 September 2023, p.65 line 40 to p.66 line 17)
When considering X’s age (almost ten years old), Dr V was asked if there are any other protective factors that need to be considered to enable X to move into an unsupervised arrangement with the father. Dr V said that the first factor is the father ceasing and desisting from any further allegations and interventions which result in the mother feeling stressed and threatened, and secondly, the mother having confidence in the father having made changes to his approach.
Dr V was asked what steps he takes to exclude the possibility of X’s account being influenced by the parent who is in the room. In this regard, Dr V said that children’s behaviours are always dependent on their context and how X behaves with the mother in the room will be different from how he behaves on his own or with the father, and that’s why Dr V observed X together with the mother, then separately for an extended period, then with the father for an extended period of time. He agreed that there was no evidence that X’s views were coached. Based on Dr V’s experience, the typical sign of coaching includes commonality of language and anecdotes, prepared speeches, the presence of incongruity between the child’s statements and emotional expressiveness, and there will be a black and white way of expressing their experience. Often, for example, everything about the mother may be positive and everything will be negative about the father. Dr V explained that X used age-appropriate language, anecdotes and in his view nothing was prepared about X’s version of his experience. The mother was not observed to remind X of his experiences.
Under cross-examination Dr V explained, when referring to contact service reports, that the father is someone who is so focused on what he is doing that he does not see or hear the obvious communication from X. Dr V said that the real problem with the father is that he doesn’t have the reflective capacity, which is the “capacity to step back and think about what’s going on in the circumstances” (Transcript 14 September 2023, p.47 lines 1–2). In his view, the father lacks reflective capacity because he is fixated on the reason he is in these situations.
Dr V also explained that it was evident from the contact service reports that the father needed guidance to follow X, to be child-focused on his approach, and remain empathetic to X’s experience rather than focusing on his approach. Although, Dr V noted that this is common feedback for fathers who have had limited contact with their children.
SPECIFIC ISSUES
In this matter, the mother’s counsel sought findings on a number of specific issues, all of which were supported by the evidence. The issues are all significant to the assessment of X’s best interests. Having regard to the extensive number of reports made by the father to various government agencies and the assessment by Dr V, it also appears that there is a real risk that the father will again make reports to authorities.
I am positively persuaded that the mother does not pose a risk of psychological or physical harm to X, rather that she has provided X with safe, stable and loving care and is likely to continue to do so into the future.
I am persuaded that the mother has the capacity to meet the physical, psychological and intellectual needs of X and the capacity to appropriately put X’s needs before her own.
I am persuaded that the mother has been subjected to family violence by the father, as detailed above. I am also persuaded that the mother did not assault or perpetrate family violence against the father. Specifically, I am persuaded that the events of early 2023 were as described by the mother and not as described by the father. I found the description of the events in the mother’s material far more compelling than the father’s version and generally found the mother more reliable witness.
I accept the evidence of Dr V, which is consistent with the presentation of the father in the witness box, that the father has a narcissistic personality style and/or worldview and a fixated view that X has been harmed in the mother’s care, which view of the father is not based on the evidence. It is apparent that the father has continued to unreasonably hold such views despite evidence to the contrary. The father’s fixated views have resulted in the mother and X being subjected to unnecessary interventions by the Police and Department of Communities and Justice. Unfortunately, the father lacks any real insight into the impact of his behaviours on X and the mother and is unlikely to change into the future. I am not persuaded that the father, having heard of the concept of “radical acceptance” during the trial, could adopt such an approach or modify his behaviour to accept X’s care by the mother without acting to critique her care or complain to relevant agencies.
For these reasons I am also persuaded that the father presents a real risk of psychological harm to X at this time.
RELEVANT CONSIDERATIONS UNDER THE ACT
Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains the relevant provisions governing parenting decisions. The objects and principles of Part VII are set out in s 60B of the Act. Section 65D of the Act provides for a court to make “such parenting order as it thinks proper”. Whilst this section provides a broad discretion, there are many other relevant provisions in Part VII that require consideration. First, the objects and principles of the Part are set out in s 60B of the Act. Section 60CA of the Act makes clear that the best interests of the child are the “paramount consideration” (which is repeated in s 65AA), and s 60CC provides a lengthy list of relevant considerations when determining the best interests of a child.
Issues relating to parental responsibility are dealt with in Division 2 of Part VII of the Act. Section 61DA of the Act relevantly 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.
…
(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.
Best interests of X
It is convenient to commence with the additional considerations set out in s 60CC(3) of the Act before turning to the primary considerations in s 60CC(2).
X’s Views
X expressed clear views during his interview with Dr V:
158[X] clearly expressed the view that he loved, and felt loved by, his mother and that he wanted to reside with her. He was anxious about unsupervised contact with his father. Although he was willing to maintain contact with his father and the paternal extended family, he did not want extended or overnight contact. There was no evidence that his views were the result of coaching. His interactions with his father were consistent with the contact reports prepared by [P Contact Centre]. Significant weight should be placed on his views.
(Family Report dated 8 June 2022)
X expressed that he wished for time with the father to remain as daytime only, saying “I don’t want to stay overnight”, and indicated he was reluctant to extend visits for longer than three hours as this was “a very long time” (Family Report dated 8 June 2022, paragraph 146). X also told Dr V that he would “just like mummy to be involved” when queried about the father’s possible involvement at sporting activities (Family Report dated 8 June 2022, paragraph 147). Contact supervision reports were not entirely positive but indicated that X appeared to enjoy spending some time with his father, with X having said “I love you, Dad” at the conclusion of one visit in July 2023, although he showed a reticence on other occasions.
During Dr V’s interview with X, when asked about living with the mother, X informed Dr V that there was nothing he didn’t like about his mum or living with her, and that “we get along good” (Family Report dated 8 June 2022, paragraph 82). When asked about his father, X was said to struggle to “express his experience” about what he didn’t like, and said “But I don’t feel very good with him” (Family Report dated 8 June 2022, paragraph 83).
The father submits in his Case Outline filed 7 September 2023 that the views of X ought to be approached with care and with regard to his age. I take account of X’s age and the more limited time he has had with the father in comparison to that with the mother.
It is apparent X as a strong bond and loving relationship with the mother. The father submits that X also enjoys a close relationship with him. However, the father’s relationship with X is more limited because he has spent limited supervised time with X since June 2021.
At paragraph 160 of the Family Report, Dr V observed that X has:
A secure primary attachment relationship to with the mother. A loving engagement was observed between them. There was no evidence of anxiety or difficulty on separation. [X] was hesitant in his approach to his father, but he was not excessively avoidant or oppositional. [X] spoke positively about his connection with his half‑brother, [E], and [E’s] mother…
X’s Relationships
X has a strong relationship with the mother and a limited relationship with the father.
The father submits that X has a close relationship with his brother E, and shares a positive opinion of E’s mother. The mother arranges for X to see E without the need for orders. However, the boys do not spend time together in their father’s care.
Parties’ involvement with X
The mother has been the primary carer for X since birth and has been primarily responsible for X’s day to day care and decisions, given the nature of X’s current limited time arrangement with the father. The father said that he was “heavily involved in [X’s] life following infancy and frequently sought increase in his time with” X (ICL Outline filed 7 September 2023, paragraph 28). However, the mother says the father was not heavily involved, and she encouraged his involvement initially. Even if the father had significant involvement in X’s early years, he has had little involvement in more recent years.
The father has actively sought time with X and to be involved in his care.
The issue in this case is not any lack of genuine desire by the father to become involved in X’s life, but rather the nature of his involvement and its impact upon X and the mother, for example, the extensive reporting to authorities.
The parties’ maintenance of X
The mother is X’s primary carer and has been primarily responsible for meeting the costs of X. The father pays child support as assessed by the Child Support Registrar and says that he has done so even during periods of his own financial hardship. The mother says that the father’s employment status has varied over the past three years, and his child support has been altered from time to time as a result. As she identifies, any future financial support of X by the father is dependent on his employment status. The father will continue to contribute to X’s care through child support in amounts commensurate with his capacity. I accept that the mother meets the vast majority of X’s expenses.
Effect of any changes to X’s care
X is settled with the mother and has a secure primary attachment relationship with her. It is clear that should X be removed from the mother’s care and placed with the father, “it is likely that this would significantly disrupt his current positive developmental trajectory” (Family Report dated 8 June 2022, paragraph 165). Dr V assessed X to be progressing well developmentally.
At trial the father sought orders that moved toward times on weekends and half of school holidays through a number of stages. The impact of the orders sought by the mother is that X will have a very limited relationship with the father.
Practical issues with contact
In his Case Outline filed 7 September 2023, the father submits he resides “in a home equipped with standard amenities, including a children’s playground and other facilities to raising children.” Whilst this may assist should unsupervised time be ordered, should supervised time be ordered, an ongoing supervision cost will need to be met.
The practical difficulty of supervised time in this case is its cost. Neither party has significant funds to support the costs of supervision. The father seeks the costs of any supervised time be shared between him, the mother, and E’s mother (given that his proposal for time with the children includes that the children see the father together).
Capacity of the parties to meet X’s needs
The Family Report sets out the following with respect to the parents’ capacity:
168The mother was identified to have a competent approach to parenting. There was no evidence of impairment.
169The father had limited opportunity to demonstrate his parenting capacity as he had never played a primary parenting role for [X].
170The mother was observed to demonstrate an awareness of [X’s] emotional and intellectual needs. The father asserted that he had the capacity to do so however this was not evident in his account or proposal to remove [X] from his mother’s care.
(Family Report dated 8 June 2022)
I am persuaded that the mother has the capacity to support X’s emotional, physical, or psychological needs. The mother’s capacity to facilitate a relationship between child and father is a more difficult issue. Dr V said that “the mother was unwilling to support a close and continuing relationship between [X] and his father, given the father’s allegedly controlling and threatening behaviour” (Family Report dated 8 June 2022, paragraph 162). However, it is clear that early in X’s life the mother had facilitated time with the father. The arrangements between the father and the mother broke down largely as a result of the conduct of the father. I accept that the mother’s concerns about the father are founded in events that have occurred and that they are genuine.
Further, Dr V noted that:
178… the mother had an anxious avoidant personality style. She had been vulnerable to anxiety and panic attacks. This had been previously addressed with short-term medication and psychological intervention. She was not identified to have a current mental illness impacting upon her parenting capacity.
(Family Report dated 8 June 2022)
The mother has stable accommodation for X which is nearby X’s school.
The father’s capacity to meet the needs of X is in question. He was admitted to hospital in early 2020 as a result of mental health issues. There are no recent independent reports or evidence with respect to the father’s current mental health, other than Dr V’s evidence. The father has made multiple notifications to agencies such as NSW Police, DCJ and medical institutions, none of which appear to be based upon real risks to X.
The father submits that his successful completion of various parenting courses is indicative of his preparedness to meet the emotional needs of X, however he has not persuaded me that he has attained any greater capacity to meet X’s emotional needs.
The father’s capacity to care for X’s emotional and psychological needs appears limited, at best.
During submissions, that father’s counsel disputed the mother’s submissions about risks to X if more frequent time and supervised time were to occur. Counsel for the father submits that X’s age and the general nature of supervised contact mean the risks to X “would not be such as to justify a frequency of contact at the level of once per quarter”, as sought by the mother (Transcript 14 September 2024, p.36 lines 41–42).
Age and circumstances
I have regard to X’s age and maturity. There is nothing of significance concerning his or the parents’ maturity, sex, lifestyle and background that has not been taken into account in the other considerations.
Aboriginal Heritage
X is not said to be of Aboriginal or Torres Strait Islander descent, and there are no particular cultural issues that are significant in this case.
The attitude to X and the responsibilities of parenthood
The mother says she has acted in a way that demonstrates her ability to “prioritise [X’s] development need and need for protection”, and that the father has “demonstrated a poor attitude towards his responsibilities as a parent in several ways”, including the notifications he made to government agencies and X’s school (Mother’s outline filed 8 September 2023, paragraph (h)).
Dr V observed:
174Both parents demonstrated a loving attitude towards [X]. The mother had prioritised [X’s] developmental needs and demonstrated a responsible approach to parenthood. The father complained that he had not been given the opportunity to do so.
(Family Report dated 8 June 2022)
Both parents clearly love X.
Family violence
There are no family violence orders between the parties. Both parties have made allegations of family violence against each other, both have approached police. I accept that the father has perpetrated family violence against the mother.
The ICL, in their submissions, also points to evidence that the father expressed he “wanted to burn the Mother’s house down” whilst he was experiencing his manic episode in 2020 (ICL Case Outline filed 7 September 2023, paragraph 38). This appears to be in reference to the incident in early 2020, when the father’s brother in law advised the father’s acute care team that the father was “a bit worse, and had mentioned wanting to burn his ex-partner’s house down”, however this was during a period where he appeared to be suffering acute mental health difficulties (NSW Health Exchange of Information dated 22 June 2020 – Exhibit 28).
Of real concern at this time is the father’s conduct in making reports to agencies together with his fixed views, which result in the likelihood of psychological and systems abuse of the mother and X. It is appropriate that the Court give this aspect significant consideration when making parenting orders.
The ICL submits that the contentious nature of the parents’ relationship is such that it is likely further proceedings may arise, given that each parent has sought welfare checks of X when X was in the other parent’s care since 2019.
The mother submits the orders sought by her in her Response are orders least likely to lead to further proceedings between the parties.
It is possible that the inability to meet the costs of supervision is a reason for further proceedings to be commenced. The father has changed contact centre or supervision service twice (once from P Contact Centre to B Counselling, and then to AA Contact Centre).
X has clearly expressed his concerns about increasing time with the father, supervised or otherwise, and has expressed concerns about unsupervised or overnight time with him.
As indicated by Dr V, the father has a Narcissistic parenting style. Further, Dr V indicated in his recommendations that “It was evident that, to date, the father had not been challenged regarding his narcissistic worldview and approach to family relationships despite ongoing psychological intervention” (Family Report dated 8 June 2022, paragraph 181(iv)).
The father alleges he has been “abused by both mothers and that, since [late] 2018, they had collude to the demise of his relationship with the children” (Family Report dated 8 June 2022, paragraph 135), which allegation I do not accept.
The benefit of a meaningful relationship
Turning then to the primary considerations of s 60CC of the Act, it is apparent that X has a meaningful relationship with his mother. Since June 2021, X has spent limited time with the father. Dr V observed X to have a limited relationship with the father during interviews, noting X appeared to prefer engaging with the Family Report writer rather than the father at that time (January 2022). The interactions between X and father in January 2022 were “awkward” (Family Report dated 8 June 2022, paragraph 99). The father has been spending limited supervised time with X since June 2021.
The mother contends it is not in X’s best interests to have a relationship with the father, save for limited supervised visits. She seeks that X spend supervised time with the father for three hours, on a quarterly basis – a reduction from current monthly supervised time. The mother has ongoing concerns about the father spending further time with X due to the possible psychological impact resulting from the father’s narcissistic personality style, portrayal of himself as a victim, mental health history, and inability to put the needs of others before his own.
The father says the current arrangements restrict X from having a meaningful relationship with him.
The ICL submits that X would benefit from a meaningful relationship with the father, however, the Court will need to consider the risks to X if his time with the father were to increase over time (as is sought by the father). The ICL says that a relationship is developing between X and his father, despite only spending time with the father at supervised visits, but also notes X’s relationship with the father may be limited by his parenting deficiencies and narcissistic personality style.
Dr V expressed the view that X would likely be resistant to spending time with the father in future if he continued to make derogatory comments about the mother (Family Report dated 8 June 2022, paragraph 181(iii)) (as referred to above at [63]).
The need to protect the child
The need to protect X from psychological harm is significant in this case. The parents have a contentious relationship and have had for some time. There is considerable need to protect X from the father’s narcissistic personality style, and ensure X’s needs are met in circumstances where Dr V has assessed the father to lack the capacity to put the needs of others above his own.
The final orders sought by the mother reflect her concerns and her view that X needs to be protected from the psychological harm posed by the father, including his mental health, any manic episodes, his negative views of the mother, and his significant notifications to various agencies. The mother submits the father has an inability to accept that X is being appropriately cared for by someone other than himself.
The father says X is not at risk of psychological harm if X was to spend unsupervised time with the father, noting that he has participated in counselling and other programs to improve his parenting skills.
By the end of the trial, the father’s position had moved closer to that of the mother and in addresses he expressed the importance of X having more than “identity contact”.
The final proposals of the parties
The father’s proposal at the conclusion of the trial is set out in Exhibit 30 which seeks orders for the mother to have sole parental responsibility, for the child to live with the mother, and a graduating contact arrangement for the time X is to spend with the father. The time proposed by the father is as follows:
(a)For three hours per fortnight supervised time, for the first six months (to coincide with the time the father seeks to spend with E);
(b)After a period of six months and upon the advice of a psychologist as to X’s readiness to transition to unsupervised time (with detailed provision set out), for weekly unsupervised time each Saturday during the school term for five hours, to coincide with X’s sport (otherwise between 10.00 am and 3.00 pm);
(c)From 12 months of orders being made, overnight time during the school term of one night per week with the mother (Wednesday night).
The mother seeks orders for sole parental responsibility and that X live with her and spend supervised time with the father four times per year, for a period of three hours on each occasion, at a location within 20 kilometres of the mother’s residence. Once X is 14 years of age, the mother proposes that time be in accordance with X’s wishes.
The ICL proposes orders for the mother to have sole parental responsibility and that X live with the mother. The ICL proposes monthly supervised time for three hours with the father until the second term after X starts high school. Thereafter, that the parties engage a social worker or a psychologist to obtain X’s views as to ongoing contact, and if X wishes to move to unsupervised time, contact be for four hours each fortnight. Otherwise, the contact continue monthly on a supervised basis until X attains 14 years of age when time is to be in accordance with X’s wishes.
The father seeks the costs of supervision be shared between the parties (and E’s mother for the initial six months of supervised time, which the father proposes occurs concurrently with both children). The ICL seeks the costs of supervision be shared between the parties. The father and ICL seek the parties share the costs of X’s attendance on a psychologist/social worker, as is proposed by them in their respective minutes. The mother seeks the father be solely liable for the costs of the supervision service.
Parental responsibility
The presumptions in s 61DA of the Act do not operate in this case as the father has perpetrated family violence against the mother. Further, Dr V recommended the mother have sole parental responsibility on the basis that “there was no indication that [the father] had the capacity to maintain shared care in a stable and respectful manner” (Family Report dated 8 June 2022, paragraph 181(iv)) (as discussed above at [64]).
The frequent complaints by the father to police and DCJ seeking welfare checks (reasons for which have proved unfounded) demonstrate his inability to share parental responsibility. I am persuaded to make orders for the mother to have sole parental responsibility.
Care Arrangements
It is clear that X’s best interests are served by him continuing to live with his mother.
The extent of the father’s time with X is a difficult question. I am not persuaded that the father would deliberately harm X. However, it is clear that he has limited insight into the effects of his behaviour upon those around him. I am not persuaded that the father will be able to change his views and behaviours in the future. I am persuaded that time between the father and the child should be supervised.
I have reflected upon whether supervised time monthly or quarterly is in X’s best interests. I am mindful that in more recent times X does not appear to have enjoyed time with his father and would prefer it to cease or be reduced. This may be the result of the stresses caused by the litigation or X’s increased age leading to him expressing his own preferences, which may well be based upon him feeling that he receives little benefit from seeing the father. Whilst Dr V referred to informal supervision of time, there is no proposal for any nominated person other than a professional supervisor to be involved in arrangements for X to see the father.
Ultimately, I am persuaded that X’s best interests are served by orders for monthly time supervised by AA Contact Centre (as is currently being used) or one of the other providers the parties have used, or such other supervision agency as is agreed between the parents in writing.
The question arises as to what changes in time should follow as X becomes older. I am persuaded that should X seek unsupervised time with his father at events such as sporting fixtures, that would be appropriate once X has commenced high school, noting that at this time, that is not X’s preference. I am not persuaded that should X wish to spend less time with the father that time should be reduced before he is 14 years of age, as the amount of time is limited and in the safety of supervision, and the only real opportunity for X to get to know the father. Whilst supervised handovers should still be used, this is impractical if the contact is at X’s sport. As the father is unlikely to accept the mother’s reports of the child’s views, it is appropriate to adopt a process similar to that suggested by the ICL and recommended by Dr V.
Once X is 14 years of age, it is in his interests to determine whether he wishes to continue to spend time with the father and the arrangements for that time.
I am persuaded that the father should have access to school reports and medical information. I am also persuaded that the father should be injuncted from attending at the child’s school, save for when he is specifically invited to do so by X or the mother, and gives the mother notice that he will attend.
Neither parent appears to have a significant capacity to meet the costs of supervised time. The mother bears all of the costs of X’s day to day needs. I am not persuaded to impose the burden of the costs of supervised time upon the mother in this case. It is open to the father to seek variations in his child support assessment if the costs are significant in the context of his income, and if he has no income, it will be necessary for him to seek to have supervised time as provided by a publicly funded contact centre, if that is available.
I am not persuaded that it is in X’s best interests to be forced to see a counsellor or psychologist at this time, rather that it is best for X to be allowed to develop without further interventions by professionals. However, should the mother consider such interventions are necessary it remains open for her to arrange them as she has parental responsibility. The mother ought to be at liberty to provide a copy of these Orders and the Reasons for judgment to any medical practitioner, psychiatrist, psychologist or counsellor with respect to treatment of X or herself, as should the father to his treaters to enable any treatment or counselling to proceed with a clear understanding of the complex nature of this case.
Given the difficulties between the parties it is necessary to have Orders providing for a process for choosing supervisors.
Suspension of time for holidays is in X’s best interests, so as to ensure that the contact he has with his father does not become a reason for him being precluded from enjoying reasonable holidays and travel. Should more than one visit per annum be lost to holidays it is in his interests that the mother arrange make-up time for the second or subsequent visits that are missed. Reasonable notice by the mother to the father about such holidays will be necessary for this to be practical.
Orders providing for the method of communication between the parties are needed to ensure that relevant information is exchanged, and the form of communication constrained to relevant material. Notice should be given as soon as reasonably possible in the case of significant illness, accident or injury, or any significant medical treatment for X. It is also in X’s interest that the mother assist him to send letters cards and gifts if he chooses to do so (although with monthly visits most letters and cards will be able to be delivered by X in person). I am not persuaded to make specific orders to permit the father to provide letters cards or gifts other than during supervised contact visits as this would place a burden on the mother to assess the material and potentially lead to further disputes.
I am persuaded that there is a real risk that the father will make unfounded complaints or notifications to police, DCJ, medical practitioners and others. It is not appropriate to restrain the father from making such complaints. However, it is appropriate that the persons who may receive such complaints or notifications from the father to also receive a copy of these Orders and Reasons for judgment so as to ensure that they are aware of the history of the matter and the need to approach any future interactions or enquiries in an appropriate manner so as to discharge the relevant obligations to investigate complaints whilst minimising potential systems abuse for X. I will therefore make orders that in the event the father makes a complaint or notification concerning the mother’s care of X (including a request for a “welfare check” or similar), that he provide the relevant officer or medical practitioner to whom the complaint or notification is made a copy of these Orders and Reasons for judgment at the time the complaint is made.
The mother should also be at liberty to provide a copy of these Orders and the Reasons for judgment to Police, any child protection agency, any medical practitioner, any other government agency, or a mandatory reporting agency that has received a complaint or notification with respect to X.
Injunctions
X and the mother entitled to live, attend work and school, and attend activities without concerns that the father may appear and attempt to participate with them, question X, or otherwise make allegations. It is in X’s best interest that there be clear restraints on the father in this regard.
The mother seeks an injunction pursuant to s 68 of the Act, which provides for injunctions as are “appropriate for the welfare of the child”. I am persuaded that it is appropriate for X’s welfare that the father be restrained from attending X’s school or activities (save for where provided for in these orders as to time with X).
I am persuaded that there is a real risk that the father will make unfounded notifications, allegations or complaints that the mother is harming X or conduct himself in a way that questions her parenting capacity, which would subject X to unwarranted interventions. I am persuaded that there should be an injunction against the father denigrating the mother.
I am not persuaded that there is a real risk the mother would denigrate the father as it appears the mother would not want to distress X, and as such there is no need for an equivalent injunction against their mother.
The father’s conduct has placed considerable burden on the mother. Should he contact her or attend at her residence (other than to return X) or place of employment, it is likely to reduce her parenting capacity and thus an injunction against such actions is for the welfare of X (save for communication for the purpose of implementing or complying with the orders, through a parenting app).
I will therefore make parenting orders accordingly.
At the end of the final hearing during submissions the ICL sought that the mother pay their fees. The ICL could not identify any of the factors in s 117 of the Act that weighed in favour of an order for costs, and in particular was unable to demonstrate that the mother had the capacity to pay costs. I am not persuaded that the mother should contribute to the costs of the ICL in this case.
I certify that the preceding one hundred and sixty-eight (168) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 7 June 2024
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