Philidor & Philidor (No 2)
[2023] FedCFamC1F 496
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Philidor & Philidor (No 2) [2023] FedCFamC1F 496
File number(s): MLC 9942 of 2020 Judgment of: MCNAB J Date of judgment: 27 June 2023 Catchwords: FAMILY LAW – PARENTING – Where the child lives with the mother and has no contact with the father for about 3 years and where the child is aged 4 – Where the mother seeks orders that the father spend no time with the child – Where the father seeks supervised time with the child for a limited time – Where there are allegations of family violence by the mother – Allegations of coercive and controlling family violence – Where the mother alleges the father is a risk to her and the child – Whether the court should make interim orders for supervised time to enable the father to be reintroduced to the child and to test the operation of spend time arrangements – Interim Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: A and A and The Child Representative [1998] FamCA 25
Bielen & Kozma [2022] FedCFamC1A 221
Carter & Wilson [2023] FedCFamC1A 9
Fitzwater & Fitzwater [2019] FamCAFC 251
Illgen & Yike [2018] FamCA 17
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2021] FamCAFC 1
L v T (1999) FamCA 1699
Philidor & Philidor [2023] FedCFamC1F 245
Re Andrew [1996] FamCA 43; (1996) FLC 92-692
Division: Division 1 First Instance Number of paragraphs: 208 Date of last submission/s: 18 April 2023 Date of hearing: 14 – 23 March 2023 & 18 April 2023 Place: Melbourne Counsel for the Applicant: Mr Hutchings Solicitor for the Applicant: Schembri & Co Lawyers Counsel for the Respondent: Ms Devine Solicitor for the Respondent: Nevett Ford Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Lampe Family Lawyers ORDERS
MLC 9942 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PHILIDOR
Applicant
AND: MR PHILIDOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCNAB J
DATE OF ORDER:
27 june 2023
THE COURT ORDERS THAT:
1.Within 14 days of these orders or as soon as practicable thereafter subject to the availability of Ms B, and prior to the commencement of supervised time in accordance with Orders 4 & 5 hereof, the mother and child, X born 2019, attend upon Ms B on a date to be nominated by Ms B for the purposes of Ms B explaining to X the identity of his father and that he will be commencing spending time with him.
2.A copy of these Orders and Reasons for Judgment be provided to Ms B by the ICL forthwith.
3.The mother must comply with all requests and recommendations of Ms B as to how the appointment is to be conducted to ensure the minimisation of any emotional impact on X.
4.The cost of the appointment between the mother and Ms B be borne by the father.
5.Until further order, X commence spending time and communicating with the father as follows:
(a)Each Saturday for one hour for a period of six visits with the first session commencing on 15 July 2023;
(b)Thereafter, each Saturday for two hours for a period of four weeks commencing on 26 August 2023;
(c)Thereafter, each second week on a Saturday for four hours and commencing on 23 September 2023,
(d)Or otherwise as agreed between the parties in writing,
with the parties to follow the recommendations of the supervisor if that supervisor is of the view that a shorter visit would be more responsive to X’s needs in the initial stage of establishing a relationship with the father.
6.The father’s time with the child pursuant to Order 4 be supervised by the G Contact Centre (“the Centre”) or such other professional supervision services as may be agreed between the parties and approved by the Independent Children’s Lawyer (“ICL”) and in accordance with the following terms:
(a)The father be responsible for meeting the costs of all supervision sessions;
(b)Within 48 hours from the date of these orders, the mother and father forthwith do all such things and sign all necessary documents to enrol and complete any application form at the Centre including attending all required appointments as directed by the Centre for the purposes of the family commencing supervised time between the father and X;
(c)Unless otherwise directed by the supervisor, time between the father and X pursuant to Orders 4(a), (b) and (c) is to take place:
(i)Within the Suburb F area or within 10km of that area at a venue as agreed between the parties and the supervisor or at such other venue in an alternative area or as agreed between the parties and the supervisor;
(ii)After four (4) visits the father’s partner Ms H may be introduced to the visits; and
(iii)After a further four (4) visits Ms H’s daughter J may be introduced to such visits.
(d)After no fewer than 10 supervised sessions in accordance with Orders 4 hereof the father is to obtain a Supervision Report from the service at his expense.
7.Without admission as to the necessity for same, both parties are hereby restrained by injunction from:
(a)Abusing, belittling or denigrating the other in the presence or hearing of X or permitting others to do so; and
(b)Discussing these proceedings with or in the presence or hearing of X or permitting others to do so.
8.Prior to the next return date of the matter on 16 October 2023 the parties attend upon Ms B for the purposes of the preparation of an updated Family Report to be provided to the Court by 2 October 2023 with interviews with the parties to take place only after 30 August 2023 and the father obtaining a report from the supervisor.
9.The costs of the Family Report be shared equally between the parties.
10.The mother forthwith to advise the ICL of:
(a)Any general practitioner engaged by her for the purposes of obtaining a treatment plan; and
(b)A psychologist engaged by her.
11.The ICL be at liberty to provide any psychologist giving therapeutic support and assistance to the mother with the following court documents:
(a)Psychiatric assessments of the parties prepared by Dr D;
(b)Psychological assessments of the parties prepared by Ms E;
(c)Psychosexual assessment of the father prepared by Ms K;
(d)All family reports prepared by Ms B;
(e)Supervisor’s reports as may be prepared pursuant to Order 5(d) hereof; and
(f)A copy of these Orders.
12.The matter be adjourned to a mention before the Hon. Justice McNab 18 August 2023 at 9.30 am by Microsoft Teams.
13.The matter be listed for a final hearing (part-heard) before the Hon. Justice McNab on 16 October 2023 at 10.00 am for two days.
14.The respondent father file and serve any further affidavit/s and supervision report/s upon which he intends to rely upon by 4.00 pm 6 October 2023.
15.The applicant mother file and serve any further affidavit/s upon which she intends to rely upon by 4.00 pm on 10 October 2023.
16.The ICL file and serve any affidavit/s by 4.00 pm on 12 October 2023.
17.All parties file and serve a Minute of proposed final orders they intend to rely upon by 4.00 pm on 13 October 2023.
18.All parties have liberty to apply to the Chambers of the Hon. Justice McNab to have the matter listed at short notice.
THE COURT NOTES THAT:
A.Pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Philidor & Philidor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:
This matter concerns the parenting and property arrangements between the applicant mother, Ms Philidor (“the mother”), and the respondent father, Mr Philidor (“the father”). There is one child of the marriage, X, born in 2019, who was aged 3 years at the time of the hearing (“the child”).
There is an Independent Children’s Lawyer (“ICL”) in this matter.
Property matters were settled by consent on 16 March 2023, the third day of the trial, and the Court made Final Property Orders by consent. Parenting remained in dispute, and these reasons deal exclusively with parenting matters.
The matter ran for eight days from 14 – 23 March 2023. The matter concluded part-heard without hearing the evidence of Ms B, the Family Report Writer, due to her being unavailable in the appointed court time. The matter resumed for one day on 18 April 2023 to deal with Ms B’s evidence. An application for interim orders was made by the mother on 23 March 2023 to provide for supervised time between the father and the child during the adjournment until the Final Hearing resumed. That application was supported by the ICL. That application was dismissed for reasons published in Philidor & Philidor [2023] FamCFamC1F 245.
The parties commenced cohabitation in mid-2015, married in 2016 and separated in May 2020.
The mother relies on the following documents:
(1)Amended Application for Final Orders filed 15 February 2023;
(2)Financial statement filed 15 February 2023;
(3)Affidavit of Ms Philidor filed 15 February 2023;
(4)Affidavit of Ms L filed 15 February 2023;
(5)Affidavit of Ms M filed 15 February 2023;
(6)Affidavit of Mr N filed 15 February 2023;
(7)Affidavit of Ms C filed 15 February 2023;
(8)Affidavit of Ms B of P Psychology (Family Report Writer), Family Reports filed 12 May 2021 and 24 February 2023;
(9)Affidavits of Dr D filed 1 September 2021 and 7 October 2022; and
(10)Section 67Z Reports dated 15 December 2020 and 15 February 2021.
The father relies on the following documents:
(1)Affidavit of Mr Philidor filed 1 March 2023;
(2)Affidavit of Ms H filed 28 February2023;
(3)Affidavit of Ms Q filed 28 February 2023;
(4)Affidavit of Mr R filed 28 February 2023;
(5)Affidavit of Ms S filed 28 February 2023;
(6)Affidavit of Ms T filed 28 February 2023;
(7)Affidavit of Ms U filed 28 February 2023;
(8)Affidavit of Mr V filed 28 February 2023;
(9)Affidavit of Mr W filed 28 February 2023;
(10)Affidavit of Mr Y filed 28 February 2023;
(11)Affidavit of Mr Z filed 20 February 2023;
(12)Affidavit of Mr AA filed 28 February 2023;
(13)Affidavit of Mr BB filed 3 March 2023;
(14)Financial Statement filed 2 March 2023;
(15)Amended Response filed 28 June 2022;
(16)Affidavit of Ms E filed 17 February 2023; and
(17)Affidavit of Ms B (Family Report) filed 24 February 2023.
The mother seeks final orders, amongst other things, that:
(1)She has sole parental responsibility for the child;
(2)The child lives with her within Victoria in an undisclosed location;
(3)The father spends no time with and has no communication with the child;
(4)The child attends a child therapist for a period of time as recommended by the child therapist;
(5)The mother be at liberty to withhold the details of the child’s school and any treating health professionals from the father;
(6)The mother provides the father with a twice-yearly report including information about the child and a photo via OurFamilyWizard; and
(7)The child’s surname be changed to the mother’s maiden name.
She seeks these orders on the basis that she has a genuinely held belief that the father poses an unacceptable risk to the child, and her anxiety in relation to that potential harm is likely to adversely impact her ability to care for the child such that it would not be in the child’s best interests.
The father and ICL share the position that the child spends supervised time with the father on an interim basis for a total of twenty weeks, to be:
(1)Six sessions occurring weekly for the period of one hour in a family contact centre;
(2)Four sessions occurring weekly for the period of two hours in the contact centre; and
(3)A further 10 sessions occurring weekly for the period of two hours, to occur under supervision at the father’s residence.
After the twenty weeks of supervised sessions with the child, they propose the matter come back for a final hearing, to be assisted by a report prepared by the Professional Supervisor and the mother’s treating medical professionals detailing any impact on her and her parenting capacity.
In the event the Court finds that the mother is not willing or able to promote or facilitate the child spending time with the father, the father seeks that the Court order that the child live with the father and spend regular time with the mother.
The mother opposes the making of interim orders and is seeking orders that the child lives with her and has no contact with the father.
The mother opposed any spend time orders being made prior to hearing all the evidence in the proceeding, including evidence from the Family Report Writer. The Court accepted that was an appropriate approach given the allegations that the mother had made in relation to risk to her and the child. Interim orders have been made so as to enable the mother to obtain further assistance in relation to coping with spend time orders and for the Court to assess how the time between the father and child proceeds, where the only time they have spent together in the last three years was at Family Report observation sessions. Unlike many cases, where interim orders are made before all the evidence that parties rely on has been placed before the Court or when orders are made as interlocutory orders before a final hearing, in this case all the evidence has been placed before the Court. Each party has urged me to make findings of fact in relation to the issue of risk. I have not received submissions from the father or the ICL as to what final orders should be made. The fact that I have made findings of fact and then made interim orders does not disqualify me from continuing to hear this matter and make final orders if the parties cannot agree on final orders.
Background
The mother is 37 years of age and is engaged in parenting and home duties and is currently studying full-time. She has had sole care of the child since 2020, and is dependent on government benefits and child support.
The father is 39 years of age and is employed as an educator. The father has re-partnered and lives with his new partner and her six-year-old child. The father has had no time with the child since mid-2020.
At the conclusion of the eight days of evidence pending the matter being set down for a further day for the Family Report Writer to be cross examined, the ICL and father sought interim orders for supervised time pending the final determination of the matter. The mother opposed the making of interim orders for reasons including that it would pre-empt the making of the final decision as to whether there should be any spend time for the father and the child. On the basis that the matter could be accommodated for a further day within a relatively short period, the Court did not make interim orders for spend time arrangements at that time, and gave reasons on 29 March 2023.
Orders were made for the filing of written submissions by 17 April 2023. The evidence of Ms B was heard on 18 April 2023, followed by further oral submissions relating to her evidence.
On 18 April 2023, the father and ICL again proposed that orders be made on an interim basis for supervised time in order to effectively test how the mother will cope with spend time arrangements and how the supervised time progresses. The mother opposed these orders and maintains that there should be no time ordered.
The ICL supports the father's submissions, and believes that the child should have a relationship with both parents. The ICL suggests that it is time for the child to be made aware of who his father is, and to have the opportunity to develop a relationship with him and the extended paternal family. The ICL submits that the evidence shows that the parents were not well-suited and that the father was not emotionally equipped to cope with his grief as a result of the death of his close relative and a new child. There has also been the issue that the mother has fought for almost three years to ensure that the child does not have a relationship with his father.
The ICL notes that the father spent time with the child during the Family Report writing process which went without incident and he followed the directions of the Family Report Writer, Ms B. Ms B's report suggests that Ms Philidor was able to manage her distress symptoms in the presence of the child, which have improved since relocating.
The primary issue in this matter is the assertion by the mother that the father is an unacceptable risk such that he should have no contact with the mother and child. The mother’s claim of the father being an unacceptable risk is based on an extensive alleged history of family violence towards both herself and the child prior to and following separation.
The father alleges that the mother’s claims of family violence are largely fabricated or exaggerated, and that he poses no risk to the child.
There is an IVO in this matter against the father naming the mother and child as affected family members. In mid-2021 the father pled guilty to multiple charges against the mother. These are matters are detailed below.
There are two family reports in this matter completed by Ms B on 4 May 2021 and 20 February 2023. Both reports make recommendations based on alternative findings of the Court as to whether the father is a future risk to the child.
Chronology
The parties provided the following chronologies in their outlines:
Date
Event
1983
Respondent father is born.
1986
Applicant mother is born.
2014
Parents meet.
2015
Parents commence cohabitation.
2015-2016
Mother alleges the father begins committing family violence against her.
2016
Parents marry.
2019
The father’s close relative passes away.
2019
X is born.
Mid-2019 – mid-2020
Mother alleges family violence perpetuated by the father against her escalates.
Mid-2020
Mother makes a report of father’s behaviour to Victoria Police.
May 2020
Parents separate. Father vacates family home.
14 September 2020
Mother initiates parenting and property proceedings in the Federal Circuit Court with first return on 15 February 2021.
Late 2020
Father is charged in relation to alleged assault of the mother.
Late 2020
Father consents to a final intervention order in favour of the mother with the child listed only for Clause 1, on a without admission basis.
Late 2020
Father contacts Officer CC and discusses hypothetically abducting X.
Late 2020
Father is served with application to vary intervention order to include all conditions for the child X.
Late 2020
Mother alleges father’s friends begin harassing her.
Late 2020
S67Z Report released by DFFH. Determined that child protection involvement is not warranted at that time and report is closed at intake.
Late 2020
Father consents to a final intervention order in favour of the mother with the child listed for all conditions, on a without admission basis.
15 February 2021
Proceedings are adjourned to Conciliation Conference and to Interim Defended Hearing on 15 July 2021. Court later adjourns 15 July 2021 to 13 August 2021 due to judicial availability.
19 February 2021
Report of Ms K released – Psychosexual Risk Assessment of father is released identifying him as 'low risk'.
4 May 2021
Family Report #1 is released.
The report recommends that the father spend time with X on a professionally supervised basis but only if the Court can be satisfied that the risk is manageable. A recommendation is made for both parents to be psychiatrically assessed.
Mid-2021
Father enters plea to charges. Father is sentenced without conviction to an Adjourned Undertaking and a payment to the Court Fund.
10 August 2021
Psychological assessments of the parties prepared by Ms E are released.
Mother: Generalised Anxiety Disorder with obsessive compulsive traits and paranoid personality style.
Father: No major clinical conditions or personality disorder. Assessed as no risk to child.
17 August 2021
Psychiatric Assessment of mother is released by Dr D. Obtained by the mother independently of a court order. Mother is diagnosed as having PTSD.
29 August 2021
Addendum to Psychiatric Assessment by Dr D is released.
4 October 2022
Psychiatric Assessment of father released by Dr D. No diagnosable psychiatric disorder. Opinion expressed that the father has enduring Cluster B personality traits.
October 2022
Father engages Mr BB in accordance with recommendation of Dr D.
20 February 2023
Family Report # 2 is released.
Recommendation that in the event the Court does not make a finding of unacceptable risk, X should spend time with the father on a gradually increasing basis, commencing with professional supervision and progressing to unsupervised.
Issues in Dispute
The parties identified the following issues as being in dispute:
(1)The risk the father poses to the child and the mother;
(2)The impact of the mother’s mental health on her ability to encourage and facilitate a relationship between the father and child;
(3)The potential impact on the mother’s mental health and parenting capacity should it be ordered that the child spend time and communicate with the father;
(4)The impact on the child of spend time periods with the father and whether same is in the child’s best interests;
(5)Parental responsibility for the child; and
(6)Whether the mother should be permitted to withhold her and the child’s residential address, details of the child’s educational or child care facilities, details of the child’s medical and allied health practitioners, and other details which disclose the child’s and mother’s location.
EVIDENCE
Family Violence
The uncontested evidence depicts that the relationship between the parties deteriorated significantly following the near simultaneous death of the father’s close relative and the birth of the child in 2019. Both parties, in particular the father, gave evidence of struggling to cope at that time, and both received support to assist with their mental health.
The mother gave evidence that the father was extremely physically and verbally abusive and that this pattern of coercive and controlling behaviour diminished her confidence and autonomy. She gave evidence that over the years she became increasingly submissive in an attempt to “placate” the husband to avoid being abused. She sets out at length in her trial affidavit a history of the abuse she believes she was exposed to from [17] – [254], spanning across around 75 pages.[1] The majority of this evidence is denied by the father.
[1]Court Book, pages 502-507 of 1783.
She gave evidence that the father has abused both herself and the child. In her Outline of Case filed 9 March 2023, she summarises the abuse as follows:
The father has:
•Physically assaulted the mother on numerous occasions – some resulting in a plea of guilty to criminal charges
•Physically intimidated the mother
•Threatened to kill the mother
•Threatened to physically harm (“smash”) the mother
•Swore at the mother and verbally abused her
•Called the mother names, taunted and demeaned her
•Isolated the mother from friends.
In regards to the child, the mother states the father has:
•Assaulted him by roughly throwing him on a bed when he was only [an infant]
•Threatened to abduct him (directly to Victoria Police)
•Verbally abused him directly (calling him a “cunt” amongst other things)
•Taunted and abused the mother in the child’s presence
•Failed to take reasonable actions to protect him from harm
•Shown disregard for his wellbeing.
The father acknowledges that he was verbally and physically abusive, but states that the abuse is limited to the instances to which he pled guilty in mid-2021; although he said in his affidavit and during cross examination that he did not agree with the mother’s version of the events that led to the charges, as set out in her affidavit material in the following terms:
•[In mid-2020], my mum was staying with us. [Mr Philidor] had been verbally abusing me all day and by evening after putting [X] to sleep, I was worn out and tearful. [Mr Philidor] kept smirking and laughing at me saying I was being amusing. I asked him to leave me alone and instead he listed my shortcomings. I became more upset and my mum asked [Mr Philidor] if he knew what a person in distress looked like. She then left the room briefly and [Mr Philidor] came over and knelt in front of me. He put his hands on either side of my head and squeezed my head between them. I recoiled and told him not to touch me. Mum came back at this moment and rushed to me. She asked [Mr Philidor] what he was doing and he replied “fuck off [Ms M].”[2]
•[In early] 2020 at around 3:00 am I could not sleep. I went to [Mr Philidor’s] room for comfort. We had been sleeping in separate rooms on and off since 2019. [Mr Philidor] became irritated with me and reached up quickly with his right arm and put his hand around my neck. He held my face down into the doona whilst ranting at me. I could not make out what he was saying. He held me for about fifteen seconds whilst I struggled. I felt trapped and afraid. That morning, I left with [X] and stayed with my parents for a few days.[3]
•[In early] 2020 at around 3:00am, I woke and could not get back to sleep. At 4:30am I woke [Mr Philidor] and asked if he could get up with me. He was irate, rolled over and called me a “fucking arsehole”. I said I was sad and just wanted company. He jumped up angrily and yelled “I’m up, you’ve got what you wanted, happy?” I asked him not to wake [X], to forget about it and go back to sleep. He yelled again, pushed me aside and stormed into the living room. I followed and tried to explain why I was sad but he was in a rage and pushed past me, ignoring me. After a while I ended up on the floor crying, begging him to calm down. He started throwing lemons at me and one hit me hard in the chest. He imitated my sobbing whilst saying I was one of ‘those’ women and then in a mocking voice said “ergh my pregnancy was sooo hard” while he danced around the kitchen. We had not been talking about my pregnancy and there was no context for referencing it. For a period of time he walked back and forth past me, bending down over me each time to say things loudly in my face such as “you’re pathetic” and “you’re the fucking problem”. After a while I moved to sit at the kitchen table. I again ask [Mr Philidor] for a separation. He stared at me coldly in response and said “that wouldn’t be good for you, you have it good right now. You won’t be able to watch me with [X]. I will do things to [X] that you won’t like”.[4]
•[In early] 2020, I tried to speak to [Mr Philidor] about how he made me feel [about two weeks earlier]. He started yelling and leaning me over menacingly. I stumbled backwards and cowered on the floor crying. He bent down over me and continued ranting in my face, saying to me “there is nothing in your head” while he hit his fist into his own head. He left and I cried quietly, feeling frozen with shock and fear. Approximately ten minutes later, [Mr Philidor] returned to tell me to stop crying because he was trying to sleep. I went to the spare bedroom and curled up on the bed. He followed me and restrained me with his arms. It hurt and I cried for him to let me go and struggled until he released me. I ran outside and fell to my knees in the front yard. I felt so powerless and trapped by [Mr Philidor]. He followed me, furiously demanding that I “get up, get up or it’ll hurt”. He picked me up from behind, turned around and walked back towards the house and threw me onto the porch. I landed on my feet and stumbled forwards, he pushed me hard in the back twice towards the door, both times yelling “get in the fucking house”. I almost hit the glass door with my face and my [arm] was hurt.[5]
[2] Mother’s trial affidavit at [112], Court Book, page 533 of 1783.
[3] Mother’s trial affidavit at [108], Court Book, page 532 of 1783.
[4] Mother’s trial affidavit at [105], Court Book, page 532 of 1783.
[5]Mother’s trial affidavit at [76 d.], Court Book, page 521 of 1783.
The father denies the allegations or gives an alternate explanation. In regard to the offences he pled guilty to, he denies the mother’s version of events and gave evidence as follows:
•As to paragraph 112 [of [Ms Philidor’s] trial affidavit], I say that this is inaccurate. [Ms Philidor] had been upset a lot and was having another argument with me that went around in circles. By this time, I had had enough of the abuse from her. [Ms Philidor] became very upset because I did not care. I was sitting with [Ms Philidor] on the floor as she cried uncontrollably. While her mother was in the other room, I gently cupped [Ms Philidor] [sic] face to turn her to look at me, trying to comfort her and reset her so she could breathe and stop crying. [Ms Philidor] asked me not to touch her, and I stopped.[6]
•As to paragraph 108 [of [Ms Philidor’s] trial affidavit] I say that this is inaccurate. [Ms Philidor] came into my room and turned on the light. I put my hoodie over my eyes. While I was laying on the bed, [Ms Philidor] was kneeling over me. She got angry and forcefully jabbed me in the chest with her fingers pressed together. I reached up to push her away but she moved sideways. Once my arm was past her, I then pulled her towards me to hold her close so she could not attack me again. After a very short time I let her go.[7]
•As to paragraph 105 [of [Ms Philidor’s] trial affidavit] [Ms Philidor] did wake me at 4:30am and I was annoyed that I was not allowed to sleep. I do not recall ever throwing lemons at her. During the conversation of our separation I questioned how she thought a separation would help her issues with me not doing everything she demanded. The comment I made was in regard to giving [X] toys made from plastic instead of wood and clothing that is not 100% organic cotton which [Ms Philidor] and I discussed. She was fully aware that I was talking about clothing and toys. I did not threaten nor have I ever threatened to harm [X].[8]
•As to paragraph 76(d) [of [Ms Philidor’s] trial affidavit], I say that this is inaccurate. A week later she wanted to talk about it again. She lectured me for hours and we had an argument. Around midnight [Ms Philidor] started talking about committing suicide. She would not stop yelling at me and crying. At 1:00am she ran out of the house. [X] was asleep in the back room. I ran out after her and stopped her from leaving fearing she would harm herself. She was slumped on the front lawn. As [X] was asleep, and it was 1:00am I wanted her to go inside the house. I told her I was going to pick her up and take her inside. I did so, and as [Ms Philidor] said in her statement to police, I put her down on her feet on the front porch and walked her inside.[9]
[6]Father’s trial affidavit at [223], Court Book, page 1427 of 1783.
[7]Father’s trial affidavit at [219], Court Book, page 1426 of 1783.
[8]Father’s trial affidavit at [216], Court Book, page 1426 of 1783.
[9]Father’s trial affidavit at [172], Court Book, page 1421 of 1783.
The father did plead guilty to charges but maintained that he did so on legal advice and contested in this proceeding the detail of what occurred to give rise to charges being laid. In pleading to the charges after hearing the summary of the offences presented to the Magistrates’ Court, I accept that the father did commit family violence as alleged in the Summary of Charges. I also accept that those matters arose at the time of separation and that there has been no continued family violence.
The father gave evidence that the verbal insults throughout the relationship were mutual and he often attempted to leave during arguments, but the mother would prevent him by following him or breaking down in tears and begging him not to leave. He stated that this conflict occurred in the context of both parties being depressed and suicidal, and the mother “threatening suicide”. All of this is denied by the mother.
The father argues that the mother's allegations of post-separation family violence are inaccurate and/or imaginary. He summarises these allegations by the mother as including his application to the Child Support Agency, the delay in negotiations about the former matrimonial home, the shed, and the removal of his belongings from the family home. She also argues that the father's continuation of these proceedings is family violence, but the father notes that she is the applicant in these proceedings. The father also notes that the mother has not made any complaints to the police since mid-2020, despite making numerous allegations since that time.
The mother maintains the view that due to ongoing fears for the safety of herself and the child there should be no contact with the father and that she should be permitted to withhold details of their location and the child’s schooling and other information such as health providers.
The father denies ever having any intention to harm the child and insists he would never do so if permitted to spend time with him.
There is an IVO in this matter which includes the mother and the child as protected family members. This was varied in late 2020 in respect of the child from a limited to a full IVO following the father’s communications with a police officer to whom he allegedly made comments about abducting the child if he saw the child on the street with the grandparents. The mother refers to Officer CC’s evidence before the Senior Judicial Registrar on 14 October 2021 regarding a complaint made by the father against Officer DD. Officer CC explained to the father about access to the child and confirmed that the IVO no longer included the child but that the protections regarding the mother still applied. The officer’s evidence was that the father had expressed to him a desire to remove the child from the grandparents whilst in a public place. Officer CC also confirmed that the father had equal rights as the child's parent but understood the father's dispute due to his inability to see the child. The mother argues this demonstrates a lack of respect for authority figures which increases the risk to the mother and child.
The father submits that this evidence about the concerns about the father removing the child from her care must be considered in the context of the whole of Officer CC’s evidence. He submits that whilst he was frustrated and agitated during this conversation, he was trying to elicit an explanation as to how he could simultaneously have “equal rights” with regards to his child whilst being unable to see the child.
The mother is concerned that the father is a risk to the child based on her experience of the father’s abuse towards both herself and the child and she relies on her trial affidavit, and the accounts of the maternal grandparents by affidavits and under cross examination.
Mr N, the maternal grandfather, gave evidence of what he described as abuse towards the mother and child by the father. He also recounted cruel and/or indifferent behaviour, threatening behaviour and times when the father's anger was “out of control”. Mr N regularly stayed at the home from mid-2019 until separation. Mr N recalled the father smirking at the child's distress when he was young, wondering if the father was jealous of the child. In early 2020, Mr N witnessed the father whispering to and hurting the mother, even after she asked him to stop because of the pain.
During cross examination, he described the incident where the father allegedly squeezed the mother’s leg, causing her pain, in the waiting room of a medical clinic as “absolutely horrific”, but despite being in a medical clinic, neither grandparent nor the mother said anything to the doctor or any other staff.
He described a particular event when he saw the father hurt the child after giving him a bath, gripping the child tightly causing the child to be hysterical. Mr N gave evidence that when the father saw him, he immediately loosened his grip on the child, and he could see red marks. He described the incident under cross examination:
I would see him pinching the – the child’s bones and, you know, sort of, when a baby is crying you don’t always know why it’s crying, but there would be times when he was very close to the child with his hands pressing and holding them - the child and from a distance then but mightn’t have looked like he was doing anything but then suddenly the child would have a frantic scream, which is a bit unusual, and I’ve seen a lot of children. But in the last – the last two months it all, sort of, came to a head.
He also gave evidence of the father holding the child “with his arms outstretched straight but, holding the child as if he was trying to… press him to nothing and looking like he was going to drop the child”. He said: “And then later on he got what I think of as being very cunning and he was hurting the child, you know, in – in the – just the performance of some basic things…”
When asked if he would describe the father’s behaviour as “torturing” the child, he agreed “I suppose you could call it torture”. He later sought to clarify:
Well, at the time I wouldn’t have called it torture. I would have said he was just rough and deliberately doing small things to make the – the child start crying. I didn’t think of it as torture at the time…. I think he was taking something out on the child…
Despite this, he gave evidence that neither he nor the grandmother sought to get the child any medical assistance, nor did they report this behaviour to anyone. He said “I don’t know if that was sufficient to go to the authorities, or, you know, the water could have been too hot. Maybe there was too many excuses he could have made”. The grandfather also gave evidence that he did not see any bruises or marks on the child other than a few red marks immediately after the father put the child down.
The father and the ICL submit that the grandfather’s evidence should be given little weight because he was unable to make appropriate concessions at times when challenged about his lack of action to protect his daughter and grandson. He confirmed seeing the father shouting and being abusive, but failed to take any action himself or call the police or child protective services. Mr N also alleged that he witnessed the father abusing the child and the mother, and agreed that the behaviour could be described as “torture”. However, he did not take any action to report it to the authorities, he did not take the child to the doctor after the alleged assault, and he did not personally remove the mother and child from the home. He also allowed the father to take the child on walks alone from six months of age, despite alleging that he was a risk to the child. The father submits the Court should have doubts about the accuracy and credibility of Mr N's evidence, especially where it is unsupported by third parties.
The mother responds by arguing that the attack on Mr N's credibility during a hearing fell short as he was under no legal or moral obligation to report the abuse to authorities or physically remove the mother and child from the house.
Ms M, the maternal grandmother, gave evidence that she witnessed the father act inappropriately towards the mother and the child, including allegations of abuse and deliberate harm towards the child. She gave evidence that she believed the father was deliberately hurting the child. Despite this, when asked what she did about it, she responded “I tried to be present”.
The father notes that Ms M did not make any complaints to the police or child protection, despite knowing she could do so anonymously and that she had the capacity to call emergency services if required. The father submits that the fact that she allowed the father to take the child for car rides alone on a regular basis raises doubts about the accuracy and credibility of her evidence.
The mother alleges the father is a sexual risk to the child due to behaviour including his lying on the floor naked with the child, singing “sexual” songs, alleged sexual abuse towards her and a historic allegation of sexual advances towards an under-aged person. There is no evidence to suggest the father has done anything that would put the child at risk of sexual abuse by the father. A Psychosexual Risk Assessment of Ms K, Forensic Psychologist, filed 23 February 2021, found the father to be a low risk with no basis that the father would pose a sexual risk to the child. Further, in her assessment she noted that “both parties appear to have psychologically decompensated” prior to separation, and it was her view that the incidents described were a pattern of “common couple violence”. There was no substantial challenge to this report during the cross examination of Ms K.
In closing submissions on behalf of the mother, she accepted that there was not sufficient evidence to support that the child was at risk of sexual abuse by the father.
The mother submits that the attacks on her credibility were based on when she reported incidents of abuse, but she submits this failure to report certain events is understandable given the limits on her ability to detail all relevant matters and her PTSD from being a victim of family violence.
The mother submits that the father’s evidence should not be accepted where it is not verified by an independent source. She submits he has a history of misleading authorities including the police and the courts.
The mother makes submissions in regards to coercive and controlling family violence. In Illgen & Yike [2018] FamCA 17, Justice Gill analysed the terms "coerces or controls" and found that they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. Coercive control is generally understood as a course of conduct aimed at dominating and controlling another person. The father in the case failed to establish coercive control on the part of the mother, and the evidence showed that the mother experienced family violence in the relationship in the form of coercive and controlling behaviour.
In Carter & Wilson [2023] FedCFamC1A, Justice Bennett agreed with the need to contextualize behaviour that constitutes family violence and acknowledges that "coercive control" is a technical phrase in social science literature but not specifically defined in the legislation. She emphasised the wide definition in s 4AB(1) of the Act and that its application must meet the purpose of the statute. Various definitions of coercive control and domestic violence in different contexts with different terms are highlighted, and the significance of individual acts can only be understood properly within the context of wider behaviour.
Notably, the ICL submits that the professional evidence before the Court is insufficient to support a finding that the child is at an unacceptable risk of harm in the father’s care.
Psychological and Psychiatric Assessments of the Parties
In assessing the parties’ evidence, I take into account the psychological assessment and psychiatric assessments conducted by Ms E, Dr D and Ms K. These persons were appointed as single experts to assist the Court.
In the summary regarding Ms Philidor provided by Ms E at [149] – [153] of her report dated 7 August 2021:[10]
149.[Ms Philidor] has experienced family trauma. She described unease with [Mr Philidor] almost from the outset. This was her first experience living with a man. She felt the relationship deteriorated following [Mr Philidor’s close relative’s] death and [X’s] birth that had occurred shortly afterwards.
150.Following [X’s] birth, she struggled with [Mr Philidor], at one stage asking him to sleep outside the home […]. She threw herself into the role of mother but eventually found herself lost, and unloved and not looked after. She spoke of [Mr Philidor’s] inability to understand her needs.
151.[Mr Philidor’s] difficulties in relating to his wife, and an awareness of a deeper emotional needs and conflicts appear to have contributed to a deteriorating marital relationship. [Ms Philidor] came to lean heavily on the support of telephone crisis services.
152.[Ms Philidor’s] [sic] continued to reference herself as being victim of her husband's abuse.
153.[Ms Philidor] is diagnosed with generalised anxiety disorder with obsessive-compulsive traits and paranoid personality style.
[10] Court Book, page 697.
Further in providing an opinion, Ms E stated at [161]:[11]
161.[Ms Philidor] presents with Generalised Anxiety Disorder with obsessive and compulsive traits and paranoid personality style. This psychological presentation was inferred to be chronic and was likely exacerbated during the period of marital unrest and conflict.
162.This presentation should not affect her parenting capacity or risk to [X]; however symptoms are high where targeted professional counselling should continue. [Ms Philidor’s] particular symptoms may result in thought patterns where perceptions may be intensified and lead to avoidance and flight behaviours e.g. wanting to relocate with [X] to an undisclosed place or move interstate. The impact of these behaviours upon [X] may not [sic] favourable.
[11]Court Book, page 698 of 1783.
In relation to the father the Ms E from [85] of her report on the father:[12]
85.He impressed as well-meaning, and to an extent, things have generally gone well in his life leading up to his marriage to [Ms Philidor].
86.He impressed as loving of his child. He acknowledged regarding his former wife, that he struggled within himself and with deeper aspects of her emotional functioning. He was aware of the traumatic exposures and anxiety presenting in social situations.
87.He denies the allegations levelled against him in regard to drinking excessively and, deliberate physical or emotional abuse of his wife. For his part, he saw himself as someone who tried to keep the relationship going, but in the process, missed the early signs of their increasing difficulties.
88.The marriage came to an end when he was asked to leave, and the locks were changed on the house.
89.[Mr Philidor] struggled following his [close relative’s] death and adjusting to life when [X] was born and his changing perceptions towards his wife. There was a major downturn in mood before the separation and maladjustment where he attended upon psychotherapy. He is distressed about not seen [X]. He has recovered some ground of stability in regard to separated life with stable long-term friendships and his wider family support.
90.[Mr Philidor] is diagnosed with suffering a Grief Reaction Adjustment Disorder with anxious mood. The severity of these symptoms are presently assessed as mild.
[12]Court Book, page 691-692 of 1783.
Ms E stated in her report at [90]:
[Mr Philidor] is diagnosed with suffering a Grief Reaction and Adjustment Disorder with anxious mood. The severity of these symptoms are presently assessed as mild.[13]
[13]Court Book, page 692 of 1783.
Ms E noted at [83] in her report:
According to [Mr Philidor], their relationship was impacted by [Mr Philidor’s] poor coping about his [close relative’s] death and [Ms Philidor’s] deteriorated mental health and coping, and the couple’s struggle to get on. These problems amplified following the birth of their son.
Ms E noted at [81] of her report that the father scored 2 on the Ontario Domestic Assault Risk Assessment which is considered low risk. She noted at [78] of her report that this assessment: “is an actuarial risk assessment that calculates Family Violence (FV) likelihood”.[14]
[14]Court Book, page 691 of 1783.
Dr D in his psychiatric assessment of the mother conducted on 17 August 2021 offered the opinion at [61] of his report that [the mother] “appears to suffer from Post Traumatic Stress Disorder arising out of her experiences in her relationship with the father”.[15] He did not agree with the diagnosis of Generalised Anxiety Disorder made by Ms E and stated at [55] of his report:
… Her anxiety symptoms occur in relation to triggering stimuli, and are better explained by diagnosis of PTSD. However, [Ms E’s] assessment was conducted around 6 months ago, and her clinical picture may have been different at the time.
[15]Court Book, page 305 of 1783.
He did state from [56]:
56.… There is an impression that although [Ms Philidor] may be accurately reporting the father's behaviour, that she imbues motivations or intent on the part of the father for which there is little evidence. Such examples include having homicidal intent towards her and [X] (by stabbing a piece of meat) and taking sadistic pleasure in her distress (when she was upset by his actions towards [X]). These beliefs greatly increase her level of fear regarding the father, exacerbate her PTSD symptoms, and may cause her to have difficulty estimating the level of threat that the father poses (eg. abducting and harming [X]). I note [Ms E’s] finding that the mother had “elevated paranoia” on the MMPI-2 test.
57.… There is no evidence of systematized delusions, or other psychotic phenomena, nor were there any signs of thought disorder on mental state examination. She did not appear to be psychotic on mental state examination. The overall impression in the assessment is that [Ms Philidor] still suffers from PTSD, in a woman with a fragile personality structure. In this regard, I note her difficulties with establishing intimate relationships, and her lack of confidence in her adolescence.
58.It is, of course, possible that the father really did have such ideation and motivations ascribed to him. Without conducting an assessment of the father, it is difficult to make any estimation of this possibility. PTSD can often result in hypervigilance and mistrust that can be mistaken for paranoid delusional beliefs. The veracity of [Ms Philidor’s] statements, regarding the father may never be fully established, nor the accuracy of her fears about his intent.
At [62], he stated:
… Although she is not overtly psychotic, [Ms Philidor] does have persecutory ideation regarding the father and his intentions, that does not appear to be backed by reliable evidence. However, she does not appear to be suffering from a Psychotic Disorder. Her ideation regarding the father, is more likely to be a combination of her PTSD, her experience of the father’s behaviours as traumatizing during the relationship, and her personality structure. There remains a possibility that there is a degree of truth in her concerns. During the period of the intense conflict following [X’s] birth, she appears to have decompensated psychologically. This is gradually resolving, but her ideation regarding the father has remained steady.
Dr D also assessed her as suffering from PTSD. He recommended in relation to Ms Philidor was noted at [66] of his report: “Recommendations 1. Ongoing counselling at a weekly frequency. It would be more helpful if this could be with one therapist, with whom to develop a trusting bond”. When queried about this recommendation when giving evidence, Dr D stated that it would be preferable for Ms Philidor to see a “clinical psychologist particularly, and has specific expertise with the after effects of traumas and relationships in balance … .”[16]
[16]Transcript of Proceedings, Philidor & Philidor, Melbourne, Thursday 23 March, page 16, [10] - [35].
Dr D gave evidence that the mother can view events in a different light than how they actually happened. When asked whether it was his “impression that her anxiety was – had been improving since May 2020?” he answered “She did give that impression, yes, that things had gradually been moving in a better direction.[17] He agreed that her self-report to him in his report of 17 August 2021 at paragraph 10 was “that she states that she is able to function well as she is able to distract herself.[18] When pressed further:
So she was able to manage those symptoms at that time. That’s right, isn’t it?---
Seemingly so, yes.
Yes. And they had improved since May 2020; that’s right?--- As reported by her, yes.[19]
[17]Transcript of Proceedings, Philidor & Philidor, Melbourne, Thursday 23 March, page 26, [30].
[18]Transcript of Proceedings, Philidor & Philidor, Melbourne, Thursday 23 March, page 26 [35] - [40].
[19]Transcript of Proceedings, Philidor & Philidor, Melbourne, Thursday 23 March, page 26 [35] - [40].
Dr D performed a psychiatric assessment on the father on 16 August 2022 and provided a report. At [55] – [57] of that report, Dr D provided the following diagnosis:
55.[Mr Philidor] does not currently suffer from any diagnosable psychiatric disorder.
56.In 2019, he suffered from symptoms of persistent lowered mood, sleep and appetite disturbance, difficulties in concentration, feelings of despair and suicidal ideation consistent with a diagnosis of a Major Depressive Episode (MDE). He responded well to a combination of antidepressant medication and psychological counselling after a few months, and has remained essentially symptom free since then. There are no prior other signs to suggest the presence of an ongoing mood disorder.
57.[Mr Philidor] appears to have had enduring characteristics of a need for control of external events and people, with prominent anxiety and a degree of affective dysregulation when he is unable to retain control of such events, consistent with having mild Cluster B personality traits. These traits would have predisposed him to his level of alcohol consumption earlier in his adult life. These predated his MDE, and were evident following its resolution, but may have been exacerbated by the presence of the MDE.[20]
[20]Court Book, page 1674 of 1783.
The difficulty with the psychiatric opinion provided by Dr D in relation to the father is that he gives no commentary on the Cluster B personality traits. There is no description of which particular Cluster B traits they are. Further, to the extent that the report of Dr D relies upon the opinion of Ms C, I do not place any store on that aspect of the opinion for the reasons set out below.
Dr D also expressed concerns that the father’s insight into his “level of frustration and dysregulative outbursts” [21]was lacking, for which he recommended the father engage in therapy.
[21]Court Book, page 1675 of 1783.
Following the release of the report by Dr D including recommendations that the father engage in therapy, the father has been receiving ongoing psychological treatment from Mr BB from late 2022, with an emphasis on improving his ‘dysregulation’. These sessions have reportedly focused on Cognitive Behavioural Therapy and Interpersonal Therapy. Mr BB stated in correspondence addressed to Nevett Ford Lawyers, with the father copied in, and produced in the father’s evidence:
At no time throughout the sessions has [the father] been noted to express violence-supportive attitudes or evidence anything other than a desire to best support his son. [The father] has clearly acknowledged the best interests of the child lie in his mother being well. [The Father] has indicated his strong desire – if, given the opportunity – to work together with the mother in ways that are most conducive to healthy and respectful shared parenting.[22]
[22]Court Book, page 1584.
As referred to above, Ms K conducted a Psychosexual Risk Assessment of the father and found him to be a low risk of sexual offending and that there was no evidence that the father poses a risk to the child in his care.
Ms E stated in her report that the father presented with no major clinical conditions or personality disorders, although she found that he suffered from a Grief Reaction following his close relative’s death, precipitating an Adjustment Disorder that resulted in the poor coping and the behaviours he described. She noted that as at the time of her assessment:
[Mr Philidor] is diagnosed with suffering a Grief Reaction and Adjustment Disorder with anxious mood. The severity of these symptoms as presently assessed is mild.[23]
[23]Court Book, page 692 of 1783 at [90].
At [81] of her report Ms E noted that the results of tests that she administered, the father scored a low risk of committing family violence.
Treatment and assessment of the mother by Ms C
Shortly before the parties separated they attended psychotherapist Ms C for marriage counselling. According to the mother, the father ceased seeing her in May 2020.[24]The mother continued to see her on a regular basis for therapy according to Ms C’s Report which cites Ms Philidor in 2022.[25]
[24]Mother’s trial affidavit at [107].
[25]Court Book, page 390 of 1783 in Ms C’s report titled: RE: [Ms Philidor] - Court Proceedings 26/02/2022.
In my view, the evidence provided by Ms E in relation to both of the parties was compelling and supported by the psychological testing which she administered. The descriptions of the mother's anxiety are borne out in the evidence before the Court, including the evidence of third parties who have observed the mother.
Dr D gave evidence that supervised time would be likely to exacerbate her symptoms, but that the impact could be lessened over time with the use of intensive focused therapy.
Notably, Ms B, in her report of 20 February 2023, gave evidence that:
At the interview, [Ms Philidor’s] distress symptoms remained high although not so when in [the child’s] presence, suggesting an ability to manage the expression.[26]
[26]Court Book, page 1698 of 1783 at [29].
Whether one adopts the diagnosis of Dr D or Ms E, both experts were of the view that the mother required targeted psychological treatment in order to assist her coming to terms with the child spending time with the father and the substance of the recommended treatment did not differ greatly. It will be a matter for any treater that the mother has engaged or will engage to determine the best approach to assisting the mother so that she is in a position to co-parent.
The mother is no longer seeking any treating professional and has not been since March 2023. She gave evidence that she has attempted to seek the assistance of a number of psychologists, but as at 18 April 2023 she has not been able to see any professional due to the shortage of psychologists and long wait lists. She told the Court, by her counsel, that she is no longer intending to see Ms C due to concerns about the appropriateness and effectiveness of her treatment raised by the Court and in the course of the cross examination of Ms C.
Significant time was dedicated to exploring Ms C’s qualifications and expertise, and it was argued by the father and the ICL that the counselling she had provided was not of any assistance to the mother in terms of assisting her to cope with the possibility of the father spending supervised time with the child. Indeed, when questioned about whether she had attempted to assist the mother in this regard, Ms C stated “That’s not my role”.
The father makes submissions that Ms C has actively undermined the mother’s ability to cope with the possibility of supervised time by “entrenching her pre-existing views” with regard to the father.
Further, he submits Ms C's expert opinion on the case should be deemed inadmissible due to the lack of proven facts and assumptions that she based her opinions on. Furthermore, it is submitted that her professionalism is highly questionable as she failed to follow the PACFA Code of Ethics regarding conflicts of interest, respecting professional boundaries and diversity, keeping appropriate records of her work and maintaining her professional registration with PACFA. Ms C is accused of not providing effective therapy to the mother in their 83 sessions and instead validating her thoughts about the father being a perpetrator of narcissistic abuse. The father submits that Ms C's affidavits should be removed from evidence or given no weight due to her questionable conduct.
In support of this submission about Ms C’s inability to assist, counsel for the ICL referred to [29] of Ms B’s report:
[Ms Philidor’s] psychological injury is most evident when discussing the impact of [Mr Philidor] on her. She appeared so exquisitely pained when recalling this experience that her distress resembled that of an inconsolable child. If this response is a gauge of her treatment progress, then the pace of recovery is slow.[27]
[27]Court Book, page 1699 of 1783.
The mother submits that the evidence of Ms C should not be disregarded despite her personal opinions about the father. She submits that she may not have received adequate treatment, but this is not the fault of the mother or Ms C. Ms C's affidavit contains information about the mother's symptoms and context for her expression which she seeks to rely on.
It was submitted by counsel for the father that Ms C stopped writing notes of her sessions with the mother after she received a subpoena to provide her notes in August 2021. She denies this allegation, but the evidence shows that there were notes prior to that date and no notes following the subpoena.
Further, while still treating both parties for marriage counselling, Ms C began sending the mother material about narcissistic abuse, and expressed her belief that the father was a narcissist and that the mother was a victim of narcissistic abuse. She insisted under cross examination that it was not her role to diagnose or give an opinion of the father, but she accepted that she had formed the view that the mother was a victim of narcissistic abuse from the father’s behaviour.
By a letter dated 22 October 2022, the mother's solicitors wrote to Ms C in the following terms:
As you are aware out client is currently in the midst of family law proceedings relating to the care of her son [X] aged 2 (“[X]”). An issue in the matter relates to our client's capacity to cope with the commencement of time between [X] and his father …
An Interim Defended Hearing has been listed on 25 February 2022 where it will be determined whether supervised time should commence between the Father and [X] (“the Hearing”). Between now and the commencement of the Hearing, the Court has directed our client to work with various professionals in her life, including yourself, to try and position herself so that she is able to cope with a scenario where spend time Orders are made.
We kindly request that you work with our client over the next four months in order to try and achieve this goal.[28]
[28]Exhibit R7.
That letter accurately sets out the intention of the court as reflected in the reasons given by the SJR on 14 October 2021. Despite this clear request that Ms C should engage with the mother to assist her in accepting that X may spend supervised time with the father and provide an updated report of the mother's progress, Ms C gave evidence that she had made no attempt to assist the mother in coping with supervised time in their 37 sessions between October 2021 and February 2022 and that she considered that it "wasn't [her] role".
When asked what work she had done to assist the mother in coming to terms with the father spending supervised time with the child, she said she:
did not come to the conclusion that it would be ok for them to spend time … [Mr Philidor] is not my client, [Ms Philidor] is my client and I was working around her decisions and trauma… it’s not my job to help her change her mind, it’s to help her in the context of trauma. My role to help her …. Support her.
Rather than providing treatment that might assist the mother in coming to terms with the father spending time with the child, Ms C sent a number of articles which were critical of courts in making orders, including the following:
(a)‘Why do you always feel need to repeat yourself to narcissists?’[29]
(b)‘Why Couples Therapy Doesn’t Work For People In Abusive Relationships With Narcissists’[30]
(c)Relationships Australia ‘Helping Clients Deal with Narcissists’[31]
(d)Relationships Australia. ‘The Importance of Intimacy in Relationships’[32]
(e)Kristen Milstead, ’Defining Narcissistic Abuse: The Case for Deception as Abuse’[33]
(f)Sandra Laville, ‘Domestic violence’”[34]
[29] Exhibit R2.
[30] Exhibit R3.
[31] Exhibit R4.
[32] Exhibit R5.
[33] Exhibit R6.
[34] Exhibit ICL 5.
Notably, article (f) above is from the UK, and the by-line states: “Guardian investigation shows how women are often cross-examined by violent ex-partners in secretive civil court hearings”.
It also includes a quote from a party to a UK proceeding:
why does the judge allow him to continue this abuse? I had escaped a really violent relationship, it was a very hard thing to do, and the court threw me back into harm’s way constantly. It was torture for me.
It goes on to state that their investigation revealed how the Family Court:
•Allows men with criminal convictions for abusing their ex-partners to directly question them – sometimes repeatedly.
•Is able to ignore restraining orders imposed by the criminal courts to protect the women.
•Allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers.
•Can ignore expert evidence that women are at risk from abusive men.
•Fails to adequately protect vulnerable victims of domestic and sexual abuse.
It is noteworthy that Ms C did not refer to any of the legislative changes in this country including S 102 NA of the Act.
The mother has told the court that she does not intend seeing Ms C. In these circumstances it is not necessary for the Court to make orders in relation to attendance on her.
The mother’s attendance on Ms C has been counter-productive for her and the child. Ms C purported to provide marriage counselling to the parties as a couple yet formed a view which was entirely critical of the father whilst not informing him of that view and sending information and expressing opinions to the mother that undermined the father without informing the father.
Ms C failed to keep notes of her treatment of the mother after she was served with a subpoena from the ICL in August 2021, despite being subject to guidelines of the professional body covering psychotherapists which mandated the keeping of notes. Ms C failed to act as an objective professional and her notes indicate that she identified with the mother and that she supported the mother to prevent the father from seeing the child.
On page 392 of the Court Book is Ms C’s Further Psychological Assessment Report provided to the mother’s solicitors and annexed to her affidavit dated 22 February 2022, which stated, amongst other things:
I also share [the mother’s] concern that he will continue to perpetrate abuse at any opportunity in the future. He will likely continue to use the same coercive strategies of manipulation, power-play, gaslighting, transference of blame, stalking, and victimisation to gain control, through intimidation and fear.[35]
[35]Court Book, page 392 of 1783.
The mother submits that she suffers from PTSD, and that her condition will be exacerbated by any connection with the father, which in turn will adversely impact her ability to parent the child. She refers to the report prepared by Ms C, and to a lesser extent the reports of Dr D and Ms B.
I do not accept that the evidence of Ms C provides a proper basis for a finding that the mother will be so adversely psychologically affected by having any contact with the father that it will affect her capacity to parent. She did not give objective expert opinion evidence; and the evidence that she did give shows that she is aligned with the mother and does not see it possible that the father could spend any time with the child. She failed to keep notes recording her treatment of the mother following the service of a subpoena on her in breach of the practice guidelines that she said she was a member of (her membership had lapsed at the time of hearing). Most concerning is that she purported to provide advice to the father as a marriage counsellor whilst being actively critical and derogatory about him to the mother.
Family Reports
Ms B prepared two reports, noting the mother's emotional state and positive interactions between the father and child.
She described the child as a “confident, curious and typically developing three-year old child”[36] with a “warm and secure”[37] attachment with the mother. She notes that these characteristics will assist in the reunification work between himself and the father.
[36]Court Book, page 1699 of 1783 at [30].
[37]Court Book, page 1699 of 1783 at [30].
She suggests that professionally supervised time should commence despite the possibility of family violence.
In her second report she observed positive and appropriate interactions between the child and the father. She stated that after the observation session with the father and the child, the mother was able to manage her distress symptoms in the child's presence, and there had been no negative impact on the child spending time with the father. Ms B believed that this demonstrated the mother was able to compartmentalise her reactions to a large extent in order to remain child focused. She also noted that the mother expressed feeling supported and integrated into her new community, which would likely be a psychologically protective factor.
Ms B gave evidence in her report and under cross examination that the mother’s parenting style was that of “protective gatekeeping”, but if her reports of the father’s abuse are overstated or found to be false, her style would be deemed “restrictive gatekeeping”.
She noted that the father had a more relaxed parenting style which encouraged safe risk taking, and she stated a mix of both parenting styles would be beneficial to the child.
Under cross examination, she stated that the mother’s maintained fears of the father will likely impact the child, even if the mother is able to manage her symptoms around him. She stated that the underlying anxiety and fear of the father will likely be picked up by the child, which will in turn make him fearful of the father. She stated in her report that if the continued conflict is stemming from the mother’s personality vulnerabilities, then her capacity to facilitate the child’s relationship with the father is compromised. This would make reunification more difficult in later life as the child aligns with the mother’s view of the father.
She gave the clear recommendation that the mother engage with her GP for a complete assessment and treatment plan, which may include psychological treatment and medication. She noted that it would be best if supervised time did not commence until the mother had begun engaging in treatment, but expressed concern that this could lead to matters being delayed unnecessarily. She noted there should be a timeframe of several months before supervised time begins to allow the mother to seek treatment.
In relation to any potential deterioration in the mother’s mental health impacting the child, Ms B gave evidence that having two parents could have a protective effect in that it “cocooned” the child to some extent through experiencing different behaviours and parenting styles.
The father’s partner, Ms H, took part in the second report. She was interviewed and participated in the observation session. Ms B commented that their relationship was “mutually respectful and supportive” and “stable”,[38] with no controversies or concerns relating to the father’s behaviour with Ms H or her daughter. Ms B noted she would be a valuable parenting resource for the child.
[38]Court Book, page 1693 of 1783 at [13].
It was her recommendation that the father spend supervised time with the child in weekly one hour sessions, with 10 weeks at the contact centre, then a further 10 weeks in the father’s home. The father and the ICL have largely adopted these recommendations. This supervised time would be reportable to assist the Court in making a final determination. Ms B gave evidence that she recommends this course of action regardless of whether the Court made a finding that family violence had occurred.
Ms B noted that one hour was most appropriate for the child’s age because of his capacity to concentrate, and frequency was important as his ability to develop a solid relationship would be significantly reduced if the sessions occurred fortnightly.
She gave clear recommendations that it was too early for there to be a final determination in this matter, and that there needed to be interim supervised time orders to “test” how the mother and child would cope. She acknowledged that she believed the mother would experience a rapid deterioration, but believed treatment would assist. She recommended that the mother’s treater provide evidence on any impact to her capacity to the Court. Similarly, she noted it was too early for orders relating to parental responsibility to be made on a final basis.
In response to the father’s alternate proposal that the child live with him and spend time with the mother in the event the Court finds the mother is unable to facilitate a relationship, Ms B commented: that the loss of relationship with the primary carer at such a young age would likely impact his emotional and psychological stability. This would in turn impact on the formation of his identity and relationships in later life. In the shorter term, the child would likely be unable to be soothed by the father, regardless of his parenting skills. She opines that frequent contact with the mother would be needed to assist in managing the child’s stress, however, this would also invite separation stress each time the child was separated from the mother, which may aggravate his sense of loss.
In response to the mother’s proposal of the child spending no time with the father, Ms B gave evidence that it is in the best interests of any child to have a relationship with both parents, and that children look increasingly to the parent of their gender as a role model as they age, particularly in early adolescence. However, she acknowledged if the Court made orders such that the child could only have one parent in his life, it would be in the child’s best interests that the mother be that parent as she is a better fit for his developmental needs at this stage.
In giving evidence before the Court, Ms B stated that if the mother was to see a specialist therapist (as opposed to Ms C), that new therapist’s role would not be to provide confirmation of a set of unestablished facts (being the family violence, other than the family violence that the father has admitted; and was the subject of charges), alleged abuse of herself and the child) but to work on the underlying issues and symptoms without reinforcing the mother’s narrative. Ms B said that this would assist the mother in viewing the father through a different, less harmful lens.
Under cross examination by counsel for the mother, Ms B agreed that therapy aimed at trying to convince the mother that her fears are wrong would be ineffective and stated that the mother needs trauma therapy rather than encouraging her to look through a “trauma informed lens”. This would enable her to develop strategies to manage her symptoms.
Ms B gave evidence that the mother demonstrated a good degree of containment around the fears about the observation between the father and the child and that she did not outwardly demonstrate her anxieties and concerns around the child.
In response to Dr D’s evidence that developing a rapport between the mother and a new therapist may take months, Ms B agreed, although she said that two months is extreme and that rapport can develop quickly, in fact as soon as the second session.
As to the difficulties of arranging to see a suitably qualified psychologist, Ms B was positive about telehealth and stated that there were studies which supported telehealth but stated that it all depends on the person and their preferences. She noted that telehealth would increase the availability of practitioners.
In terms of the frequency of therapy sessions, Ms B suggested they should initially be weekly which was in line with Dr D’s recommendations. When asked by the court what additional orders may be made in able to assist the mother moving through this time, Ms B gave evidence that there is a lot of speculation involved in what the mother’s treatment needs should be, but recommended that she have a consultation with her GP because it may be the case that medication is required. She said that most people that she had come into contact with who had been diagnosed with PTSD were medicated and that a treatment plan should be put in place with the assistance of a GP whilst awaiting appropriate therapeutic intervention.
The ICL sought orders, which the father agrees with, that Ms B speak to the child to prepare him for meeting his father. Ms B was asked about this process, which she is willing to be a part of. She noted that she hopes the mother will cooperate with bringing the child to her and continuing positive messaging in preparation for the first visit with the father.
PARENTING ORDERS
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. When making an order under Part VII of the Act, the best interests of the children are the paramount consideration (s60CA).
In determining the best interests of the children there are two primary considerations which must be taken into account. The two primary considerations are as set out in s 60CC(2). The court must consider:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In addition, amendments to the Act effected by subs 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the Court is required to give greater weight to the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
Interim Orders
The Family Report Writer recommended that interim orders be made at this time. That position was supported by the father and the ICL. This is to enable the Court to determine how spend time arrangements proceed before making final orders.
In circumstances where the mother seeks orders that the father spends no time with the child, supervised or not, and irrespective of whether those orders are interim or final, the Court must deal particularly with the allegations of family violence said to give rise to the risks to the child and mother at this interim stage.
Unacceptable Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In regard to unacceptable risk, the father submits that the position is set out in Isles & Nelissen [2022] in which the Full Court adopted Justice Austin's dissenting judgement in Fitzwater & Fitzwater [2019] FamCAFC 251, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The Court stated that the higher the chance of harm, the greater the risk, and risks of harm must be considered even if they are improbable eventualities. The Court also noted that a comparatively small risk of serious harm can justify action in child‑related proceedings, while the virtual certainty of slight harm might not. The Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The Court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction.
Further, in relation to the consideration of unacceptable risk, the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 at [51-54] held:
51.In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk” (Emphasis added).
52.After referring to and applying that decision, the Full Court in Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [84] stated: In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
(Emphasis added)
53.In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”
54.Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]: The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
Ms T described the mother as being extremely anxious after the birth of the child. The evidence of the sister was not challenged and she was not required for cross examination.
The father's brother, Mr W, swore an affidavit dated 28 February 2023 where at [15] of that affidavit he described the trip to Europe in 2016. He stated:
[Ms Philidor] was quiet as usual and didn't show many outward signs of enjoying herself. I recall on multiple occasions having to work hard to find a restaurant she was happy with. We would be outside of the restaurant, suggest the menu looked like it could meet everyone's needs, and she would look at it and say no and then walk away. This happened on multiple nights, but on one night in particular we visited 8-12 restaurants before we had to tell her we were going in one as our children were hungry. She was visibly unhappy about having to eat at the restaurant we chose.[82]
[82]Court Book, page 1389.
The effect of that evidence is that the mother was not happy on this holiday with either the father or his family and this was prior to the parties becoming married. Whilst the focus on these matters may appear prosaic given the serious allegations of abuse which are made by the mother, I raise these matters as they tend to illustrate that these parties may never have been happy together as a couple, and the anxiety that the mother now exhibits is something that has been a feature of her personality for some years. It also indicates the entirely different perspectives of the parties, with the mother’s view of the father being entirely negative.
Findings About Risk
The father has responded in detail to each of the allegations made by the mother in relation to family violence. The most serious allegations of family violence as far as they involve an assessment of risk to the child are those made in relation to the father’s treatment of him.
I do not accept that the father has intentionally hurt his son or subjected him to abuse. I found the evidence of the mother and her parents’ account of the father intentionally pinching the child to cause him pain to be unconvincing. That conduct was described by the maternal grandparents as extreme behaviour. The grandfather characterised it as torture. I would presume that both the mother and the grandparents would act protectively of the child. The grandfather gave oral evidence that he attempted to intervene by saying “stop that”, and at times took the baby off the father, but he was afraid of doing more out of fear of escalation. The grandmother gave evidence that it was not her place to intervene:
There was no way that I felt that I could say something like that to [Mr Philidor]. He was very dismissive and, I don’t know; there was something about that – I just didn’t feel that he would – I didn’t want to interfere, and I didn’t think that I was free to say anything like that towards him.
No reasonable explanation was given as to why this conduct was not reported to the police or a child protection agency given that the behaviour alleged was so was extreme. I do not accept that a report was not made because the grandparents were concerned that it would cause a deterioration in the relationship between the parents. If it was the case that the father was openly and deliberately hurting the child, why would reasonable people who cared for the child and the mother not intervene or bring it to the attention of the police? Alternatively, they could have taken the child and mother to live in their residence if the child was at risk. I also find it difficult to accept that the grandfather would sit by and have the father refer to his daughter as a “cunt” in front of him, the grandfather and the mother. There is no evidence that the father was physically menacing to the grandfather.
There is no evidence of the child being taken to the doctor in order to assess whether he was being injured by the father (whether by the mother or anybody else). The medical records of the child were not in evidence and not subpoenaed.
The maternal grandmother gave evidence that she had a background of working as an educator with children with disabilities for many years - that is children who are vulnerable. Had she been of the view that the father was deliberately hurting the child, there was no reason for her not to report the matter to the police or to child protection.
I find it unlikely that in circumstances where it is alleged that the father would actively hurt the child even in the presence of other adults, that the mother and the maternal grandparents would allow the father to take the child in the car without anyone present for hours at a time.
The maternal grandmother gave evidence that the father acted in uncaring ways (later to be characterised by the mother in response to the Family Report Writer as sadistic[83] and in the mother’s written closing submissions at [124] as cruel) by standing and watching the child cry in the highchair in around mid-2020.
[83]Court Book, page 210-211 at [15].
The grandmother described in her oral evidence that the child was upset and the father was looking at the child smiling and not assisting the child. She does not give evidence of how long this was said to have gone on, what the child was presumably upset about, i.e. whether he wanted to get out of the chair, whether he did not like the food he was eating or whether he wanted attention, etc. This is presented as part of the evidence that the father was deliberately hurting the child.
The grandmother did not give evidence of the father deliberately pinching or grabbing the child to cause pain – her evidence was that the father held the child to his chest too tightly and was rough in bathing and towelling the child.
The maternal grandparents are naturally aligned to the mother. They have a view that is shared by the mother that the child is better off without the father and they see no benefit in the child having a relationship with the father at all. I do not accept their evidence as an accurate, objective view of the father’s conduct towards the mother and the child. Whilst the father has engaged in conduct towards the very end of the relationship which may be regarded as family violence, having seen the parties and the grandparents give evidence and weighing the probabilities of what is alleged to have occurred, I prefer the evidence of the father. He was subjected to vigorous cross examination by counsel for the mother and gave his evidence in a straightforward way, in the sense that he was not evasive and gave clear and cogent evidence. He did not attempt to denigrate the mother and the impression I got was that his actions in responding to the mother’s application was motivated by a genuine desire to be a father and parent.
There have been times at the conclusion of the relationship where he has acted impulsively. I find that the father’s conversations with Officer CC in late 2020 as example of this.[84] Similarly, the complaints that the father had reported to the police regarding alleged sexual assaults by the mother on him (which are referred to in the statement of Officer CC of late 2020) are evidence of the father’s impulsive or reactive behaviour where he seemed to be raising what appear to be spurious allegations of sexual assault by the mother in response to allegations made about him by the mother. I do not think that the evidence of Officer CC established that the father intended to abduct the child. The issue of whether he could take the child arose in the context of the father debating with the policeman how orders excluding him from the child operated with the notion that he had equal rights of access to the child. There has been no evidence given of any breach of the orders or attempts by the father to make contact with the child or the mother since proceedings were issued. I understand that the mother would become concerned about the father’s conduct, particularly given that it was raised with her by the police, however I do not believe that those concerns now provide a proper basis for excluding the child entirely from the father, whether viewed as a single incident or cumulatively with other incidents of family violence which the father has admitted.
[84]Exhibit ICL 10.
I do not accept the mother's evidence that the father was an uncaring parent and I do not find that is established by the evidence. At [74] of the mother's trial affidavit she says words to the effect that the two months following X’s birth were physically hard for her as she was recovering from a difficult childbirth. She states that there was no empathy, support or reprieve offered by the father, and that he had the expectation that she would care for him, the newborn child, and take care of the household tasks, including cooking, cleaning and washing. She says he expected her to do this while also being “taunted, mocked, humiliated, berated and intimidated” by him.[85]
[85]Court Book, page 520 of 1783.
The father gave evidence that in the first few months after the child's birth, he was in charge of cooking for the mother and himself, and generally tidying up and cleaning the house. As the child was breastfeeding he was unable to help with feeding, but would sit in the bedroom with the mother and get her anything she needed. The text messages between the parents at about this time, which are Exhibits M, N and O to the trial affidavit of the father, indicate the father acting cooperatively in the care of his child with the mother.[86] The evidence supports a finding that the parents largely shared in the care of the child whilst they were co-habiting. There were periods where, shortly after the birth of the child, the father had a Major Depressive Event where he did not cope. There is no evidence that he suffers from any mental illness or incapacity to parent.
[86]Court Book, pages 1500, 1501, 1503 and 1517.
The mother sought to gather evidence from third parties to seek to demonise the father.
In mid-2020 the mother applied for an IVO against the father.
In mid-2020 the mother contacted a former girlfriend of the father via email to “understand how dangerous [Mr Philidor] may be.”[87]
[87]Court Book, page 75 of 1783.
The former girlfriend responded on the same day stating, amongst other things “I’m sorry I’m unaware of anything illegal that [the father] could have been involved in. He could be a bit of a grump and moody about the most stupid things but I never felt threatened by him physically.” The mother then responded seeking to elicit information about “an incident involving a minor […].” The former girlfriend responded that she had no information but reiterated that the father was moody.[88]
[88]Court Book, pages 74-75 of 1783.
In mid-2020 the mother made contact by email with a former acquaintance of the father seeking to elicit information. She states:
since an Intervention Order was put in place, I have been made aware that it was common knowledge within [his workplace] that (the father) may have had an inappropriate relationship with at least one [person], your name was provided to me.[89]
[89]Court Book, page 35 of 1783.
That person responded that she was the person referred to and stated “before I go on, I should make clear that [the father] made no physical or sexual advances towards me”.[90] The person explained that she had a crush on the father. His workplace became aware and action was taken. The writer then goes on to speculate as to whether the father subjected her to special attention.[91]
[90]Court Book, page 37 of 1783.
[91]Court Book, page 38 of 1783.
There is no evidence that the writer was ever made aware that her email would find its way into evidence in a Family Law Proceeding and relied on as to its truth. The point of the mother raising this material is to try and cast the father in the worst possible light. The material from the acquaintance should not have been included into evidence. As noted by the ICL, the mother has attempted to cast the father in a negative light and this is evidence that the mother is not acting in a child-focused way. The mother, by her written submissions, justifies the forensic decision to include this material on the basis of:
the mother’s concerns when seen in the context of her lived experience of the father as a dangerous, cruel, dishonest and manipulative individual. [92]
[92]Mother’s written closing submissions at [25].
However, the submission (drafted by counsel) then goes on to state:
the sms from the (now adult) [acquaintance] … is merely supportive of there being a justified fear by the mother. This is quite aside from whether or not the father engaged in any unacceptable conduct – about which it is conceded the court could not so find on the evidence, and where such a finding would be unnecessary in any event.[93]
[93]Mother’s written closing submissions at [25].
I do not accept that the mother was justified in placing this material before the Court. If no finding can be made about it and where any such finding is unnecessary, the only reason to include it is to try to cause prejudice. The submissions of the mother which were drafted by counsel are replete with highly personalised attacks on the father in hyperbolic terms largely on the basis of the mother’s evidence when there had been no findings about the conduct.
Similarly, evidence of the mother that the father and his friends were stalking her between mid‑2020 and late 2020 is not supported by the evidence. In particular, the friends alleged to have been involved in stalking each filed affidavits denying same and they were not required for cross examination. The father relied on affidavit evidence of third parties who observed the father with the mother and the child at their home. That evidence was positive in relation to the father and not in negative terms about the mother. That evidence was not challenged. The family consultant gave positive evidence about the father’s partner at [13] and [28] of the second Family Report.[94]
[94]Court Book, pages 1693 and 1698.
The mother gave evidence of the father throwing the child on a bed when the child was an infant and swearing at him.[95] The father denied that allegation in his trial affidavit. In an earlier affidavit of 23 November 2020 (2nd affidavit), which was responsive to the same allegation made by the mother in an affidavit filed 14 September 2020, the father stated:
I once accidentally put the child down a little hard in the dark on our mattress. [X] did not cry any more than he had previously. [Ms Philidor] yelled at me with [the child] in the room which distressed him. I have always stressed to [the mother] that it was just a misjudgement in the dark room.[96]
[95]Mother’s trial affidavit at [82] Court Book 522.
[96]Court Book, page 990 of 1783.
The father was cross examined about this incident and repeated this evidence. He was asked to demonstrate how he put the child down. I do not accept that the father threw the child onto the bed, swore at him or tried to hurt him. I do think that it is the case that the father may have disengaged from the mother and child at times after the child’s birth and the death of his close relative and this may be explained by the evidence of Dr D that the father experienced significant depression at this time. That condition is not ongoing.
I do not accept that the father has subjected the mother or child to the level of family violence alleged. The father has responded in a detailed and coherent way to a very large number of allegations that have been raised against him. These include allegations that arose for the first time in the mother’s trial affidavit. The father’s closing written submission refers to 70 new or expanded allegations of family violence which were included in the mother’s trial affidavit. These include allegations of cruelty by the father to animals (being the parties’ pets),[97] allegations of road rage incidents,[98] assault on the mother by pulling a cushion away causing her to hit her head,[99] claims that the father had made inappropriate sexual remarks regarding students,[100] and claims that the father had said that he masturbated whilst driving his car on a highway[101] and that a sexual assault resulted in the conception of a child.[102] These matters were not raised in earlier affidavits and most importantly they were not raised prior to the father being interviewed by Ms K for the purposes of a psychosexual assessment which was arranged on the insistence of the mother. These were all matters relevant to the psychosexual assessment of the father and given the large number of matters that were alleged in the first affidavit, I have concerns about the veracity of these allegations made years down the track and I do not accept that the reason they were not raised is explained by any psychological conditions suffered by the mother. The mother did not discuss these issues of assault with any of the professionals that she saw, whether as part of a court ordered process or otherwise. I do not accept that the father did engage in the conduct alleged in relation to cruelty to animals, inappropriate sexual conduct or sexual assault.
[97]Mother’s trial affidavit at [98].
[98]Mother’s trial affidavit at [41] – [42].
[99]Mother’s trial affidavit at [92].
[100]Mother’s trial affidavit at [135].
[101]Mother’s trial affidavit at [37].
[102]Mother’s trial affidavit at [68].
The mother has made allegations of post-separation family violence in relation to:
(a)The father’s application to the Child Support Agency to have non-agency payments credited;
(b)Alleged failure to have electricity restored to the former matrimonial home;
(c)Delay on the father’s part in responding to demands to demolish a dilapidated shed on the former matrimonial home because any delay was said to constitute a risk to the mother and child; and
(d)Delay in negotiations in coming to a joint decision about how the former matrimonial home should be sold and the distribution of assets.
None of these matter give rise to a basis of post-separation family violence in any of its forms. As to the first matter, the father was entitled to make the application and it was reasonable for him to do so. There was no evidence that the father had dragged out the process for dealing with the sale of the former matrimonial home or with the proceeds of sale. There was negotiation of court orders and once orders were made the property was placed on the market, sold within a short period and the proceeds dealt with in accordance with orders. As to the balance of matters, the documents the Court was referred to indicate that the father through his solicitor responded promptly to the matters raised about the power supply and the shed.[103]
[103]Exhibit R8.
The parties had been in an unhappy relationship which presented circumstances which would have been challenging for a couple even if they were fond of one another. The parties experienced the loss of a child through miscarriage and then went through fertility treatment. Throughout this they set up a household and renovated the house where they lived. This occurred during a time when the mother has stated that she was unhappy and did not get on with the father and his family from almost the start of the relationship. The father experienced grief and a Major Depressive Episode shortly after the birth of the child. Both Dr D and Ms E set out the history of the mother, where she stated that she has had no long term intimate relationships prior to the relationship with the father. The reports also described the difficult relationship she had with her own parents as a result of the traumatic experiences within her family.
The mother presented at trial as being in considerable distress particularly when there was a reference to the child spending any time with the father. Given the presentation and evidence of the mother at trial, I accept that any time between the mother and child will present her with difficulties in coping. However, each of Dr D and Ms B were of the view that the mother could be assisted by directed therapeutic intervention so that her concerns may be contained within reasonable limits. This may not entirely eliminate her concerns, but as Dr D stated in his oral evidence: … “she will be anxious and – and – and distressed. I don’t think it’s going to be possible to stop it. But I guess it is possible in therapy to prevent the thinking that really, you know, it’s going to end in some sort of absolute tragedy.[104] He did say that there was no guarantee that therapy would assist the mother but that it was possible. Dr D gave evidence of his own patients who have been entrenched in their views improving over time with therapy stating: “it may take quite a long time for a deeper acceptance … But, yes, it certainly …can happen”.
[104]Transcript Proceedings, Philidor & Philidor, Melbourne, Thursday 23 March, page 18, [5] – [10].
There was no recommendation from Dr D that supervised time should not commence because of the psychological condition of the mother or that she would be unable to cope with supervised time if she was to engage with directed psychological counselling.
Primary Consideration
As noted above, the Court must consider:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The Court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
The father has admitted to committing family violence and that is reflected in the orders made in the Magistrate’s Court. For the reasons stated I do not believe that there is a risk of physical or psychologist harm such that the child should spend no time with the father. Interim orders will determine the next steps to be taken in this matter, thereafter following a receipt of a supervisor’s report and a further update to the family report.
Parental Responsibility
Section 60DA(1) of the Act provides that when making a parenting order, 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. Section 61DA(2) provides that 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.
Given that the Court is making interim orders, I will defer making orders regarding parental responsibility at this time. The parties will have to devise a means of communicating about the arrangements for the child whilst these interim orders are in force. That could be through a parenting app. I urge the parties not to conduct day to day communications through their respective legal representatives as this will be entirely unworkable and come at a great financial cost.
Additional Considerations
Section 60CC (3) of the Act sets out a number of additional considerations to which the Court is required to have regard. I will deal with those below.
Issues relating to the children – their views, level of maturity, culture and relationships
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
The child is too young to express a view. The child has a close relationship with his mother and her parents. The child has no relationship with the father or his family.
Issues relating to the parents – decision making, time spent with the children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
·The mother has prevented the father from seeing the child for the last three years. She was supported in this approach by a psychotherapist whose treatment did not assist her for the reasons set out above. These interim orders will provide each party with the opportunity to allow each party to demonstrate their capacity to provide for the needs of the child. With the professional support as recommended by Dr D and Ms B it is anticipated that the mother will have the capacity to facilitate a relationship between the father and child. It is also anticipated that the mother will receive support from her parents in assisting her through this interim period. The father has the capacity to parent and has support from his family and partner.
Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
These matters have been canvassed.
Effect of Change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Whilst the reintroduction of the child to his father is a change, that can be managed and that is reflected in the orders.
Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There are likely to be some practical difficulties in facilitating the orders because of the distance between the parties, however that may be managed. The locality in which time will be spent is an effort to alleviate those difficulties. The question of the mother’s location and whether it is disclosed will be a matter for final hearing.
Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
This is a case where I see no alternative than to make interim orders for the reasons set out above.
Any risks to the wellbeing of the mother can be addressed by the protections built into the orders proposed by the ICL and the father.
The Court has not made orders directing the mother to undertake particular treatment. The Court does not have the power to make orders of that kind as part of a parenting order as orders of this kind are not a parenting order as defined by s 65B(2)(i) of the Act, even if such orders are in the child’s best interests.[105] It is a matter for the mother to consider the recommendations that have been given and then make her own decisions about what treatment she gets so as to enable her to facilitate the time under these orders.
[105]See L v T (1999) FamCA 1699.
Those orders reflect the considered evidence of the Family Report Writer and the recommendations made by her to assist the mother in facilitating time between her and the father. It is in the best interests of the child that he has a relationship with his father. I accept the evidence of the Family Report Writer that a means of the mother being equipped to enable that relationship is to explore initially with her General Practitioner options including medication to deal with her anxiety, and properly directed treatment through an experienced psychologist to assist the mother. It is hoped that given the evidence given by Ms B at trial that the mother has commenced accessing those treatment options.
I endorse the approach that Ms B be involved to explain to the child that he will be seeing his father and that a subsequent Family Report be prepared following the supervised time arrangements as proposed by the orders. The orders provide for a progression of time which leads to the father spending every second Saturday for four hours to allow a longer time, but less frequently. When time progresses to the father spending four hours each alternate weekend, it is anticipated that the child will know his father and will have met Ms H and her daughter.
As with any parenting orders involving arrangements for parents to spend time with their children, these orders assume that each party will co-operate to ensure that the orders are complied with. The mother has moved to an undisclosed location with the child. If that location is some distance from the father’s residence, then the mother will have to co-operate in delivering the child to a location that is reasonably convenient to both parties.
The matter will be fixed for a final hearing on 16 October 2023 with trial directions to be made following a mention to be fixed upon delivery of an updated Family Report.
I certify that the preceding two hundred and eight (208) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab. Associate:
Dated:27 June 2023
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