Rafala & Debonay

FEDERAL CIRCUIT COURT OF AUSTRALIA
Rafala & Debonay [2021] FCCA 1509

File number(s): SYC 260 of 2018

Judgment of: JUDGE B SMITH

Date of judgment: 5 July 2021

Catchwords: PARENTING – family violence – whether father has history of anger and violence against former wife, in employment and in dealing with others – whether father committed coercive and controlling family violence against mother – whether father is victim of a campaign of unfounded allegations – whether father is an unacceptable risk for unsupervised time: Held. Father has history of violence and family violence. Risks to child –psychological and physical harm – exposure to coercive and controlling behaviour – exposure to physical abuse –exposure to high parental conflict – exposure to father’s extreme negative views of mother – ongoing litigation – risk to mother’s psychological and parenting capacity being impaired by her genuine and well-founded fears of father – Father is an unacceptable risk to child of spending unsupervised time.

Legislation:
Evidence Act 1995 (Cth) ss 69, 140

Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CA, 61DA, 64B, 65AA, 65D, 65DAA

Federal Circuit Court Rules 2001 Rule 15.7

Cases cited:
B and B (1993) FLC 92-357

Britt v Britt [2017] FamCAFC 27

Carlson & Fluvium[2012] FamCA 32

Fitzwater & Fitzwater [2019] FamCAFC 251

Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857

HG v R (1999) 197 CLR 414

In the Marriage of McEnearney [1980] FamCA 43; (1980) FLC 90-866

Irvine & Irvine (1995) FLC 92-62

Keane v Keane (2021) 62 FamLR 190

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mazorskiv Albright [2007] FamCA 520

M v M (1988) 166 CLR 69

McCall & Clark [2009] FamCAFC 92

Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505

Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR

R v Turner [1975] QB 834 at 840

Saliba & Saliba [2018] FamCA 210

Sedgley v Sedgley (1995) FLC 92-623

Stott and Holgar and Anor [2017] FamCAFC 152

Re W & W: (Abuse allegations; Expert evidence) [2001] FamCA 216, (2001) FLC 93-085, 28 Fam LR 45

Number of paragraphs: 657

Date of hearing: 5-7 February 2020, 28 February 2020 and 20 July 2020

Place: Sydney

Counsel for the Applicant: The Applicant appeared in person for 28 February 2020 and 20 July 2020

Solicitor for the Applicant: Mr Holmes

Counsel for the Respondent: Ms Loumis

Solicitor for the Respondent: Ms Santo

Counsel for the Independent Children’s Lawyer: Ms Conte-Mills

Independent Children’s Lawyer: Mr Wilkins
ORDERS

SYC 260 of 2018

BETWEEN:
MR RAFALA

Applicant

AND:
MS DEBONAY

Respondent

ORDER MADE BY:

JUDGE B SMITH

DATE OF ORDER:

5 JULY 2021

THE COURT ORDERS THAT:
1.The Mother (Ms Debonay born in 1972) have sole parental responsibility for X born in 2017 (‘the Child’) but when making any decision about any major long-term issue, the mother must inform the father (Mr Rafala born in 1971) in writing of the decision that has been made, within 28 days.
2.The Child live with the Mother.
3.The Father spend time with the Child for two (2) hours on four (4) occasions each year with such time to be supervised by B Contact Centre, or such other agency as agreed between the parties, at such times and days as agreed between the parties and the supervision agency, in accordance with Order 4 below.
4.For the purposes of Orders 3 herein, the Father advise the Mother as to the day and time he wishes to spend with the Child with as much notice as possible, and not less than thirty (30) days prior to the proposed supervised time, and the Mother to respond within seven (7) days. Failing agreement the Father shall spend time with the Child the first Sunday each May, August, September and December each year from 10.00am to midday.
5.The Father shall be responsible for all costs associated with the supervised time with the Child, including the provision of a report.
6.The Father’s time with the Child pursuant to Order 3 herein, shall take place at a location nominated by the Mother, within the Sydney Metropolitan region.
7.In the event that the Child is ill and is unable to spend time with the Father pursuant to Order 3 herein, then the Mother is to provide as much notice to the Father as possible and provide the Father with a medical certificate to evidence the Child’s illness on that occasion, with the visit to be rescheduled as soon as reasonably practicable.
8.The Father is restrained from attending at the Child’s residence or school or any other extracurricular activities which the Child attends.
9.The Father be permitted to forward to a postal address nominated by the Mother a birthday card for the Child, once per year for the Child’s birthday, and the Mother shall provide such birthday card to the Child within forty-eight (48) hours of receiving it, and should the Child wish to write a card or letter to the Father, the Mother shall assist the Child to write such correspondence and forward to the Father’s postal address, which he is to nominate.
10.For the purposes of Order 9 herein, the Father shall not:
(a)Denigrate or criticise the mother in the birthday card;
(b)Make any reference to the mother in the birthday card;
(c)Discuss any adult issues in the birthday card;
(d)Discuss the Federal Circuit Court proceedings in the birthday card; or
(e)Make any inappropriate comments in the birthday card.

11.In the event that the Father does not comply with Order 10 herein, the mother may dispose of the birthday card without showing the Child.
12.The Father is restrained from contacting or attempting to contact the Child through social media or through any other method, without the prior written consent of the Mother.
13.Upon the Child commencing school the Mother is to provide, or cause to be provided, to the Father the Child’s school reports twice per school year, at his postal address. The Mother may provide a copy of these Orders to any school or other similar establishment the Child attends.
14.The Mother be permitted to remove the Child from the Commonwealth of Australia for holidays and other periods as she deems appropriate, so long as the periods are not otherwise inconsistent with orders 3 and 4.
15.The Mother (Ms Debonay born in 1972) have sole parental responsibility in respect of the child (X born in 2017) in respect of any application for a passport and in any travel outside the Commonwealth of Australia.
16.The Mother be authorised to apply and forthwith obtain an Australian passport for the Child so as to enable her to travel in and out of the Commonwealth of Australia.
17.The consent of the Father (Mr Rafala born in 1971) to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
18.The Child be permitted to depart the Commonwealth of Australia.
19.The parties communicate with each other in relation to the Child only using the Talking Parents application, or such other similar parenting communication platform as agreed to between the parties, and the parties are restrained from communicating with each other in relation to the Child using any other means unless in the case of an emergency of through post where required by these orders.
20.The Mother shall not denigrate the Father to, or in the hearing of, the Child nor permit any other person to do so.
21.The Mother is restrained from changing the Child’s name unless such a change is with the express written permission of the Father.
22.Each party should notify the other and chambers within 14 days whether they wish to press or withdraw any outstanding applications.
23.If any party seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, otherwise each party shall bear their own costs.
24.The Application in a Case filed 10 June 2020 is dismissed.
25.The Application in a Case filed 25 June 2020 is dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A and those particulars are included in these orders.
B.These Orders have been amended pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (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 under the pseudonym Rafala & Debonay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
Overview

The Applicant Mr Rafala (‘the father’) and the Respondent Ms Debonay (‘the mother’) are both 49. They met in Sydney in about 2016 through an online dating Application called “Tinder”. They commenced dating. She was an allied health worker and part-time artist. He was a Sergeant in the Military.
The mother had been in a prior long term prior relationship where, after eight attempts at IVF, she had been unable to have a child. The father, it later turned out, was still married to Ms C, who was running their business in Darwin. The father’s marriage was, in his words, “toxic”. He told the mother about Ms C and explained that she was “crazy” and “bi-polar”. He returned to Darwin in 2016.
Commencing from about 2016 the mother received a series of electronic messages from Ms C. Ms C was angry about the mother’s involvement with the father. In those messages Ms C alleged against the father a serious and long term history of physical and emotional family violence. Ms C alleged, among other things, being “beaten” by the father with a shoe in an incident leaving her with substantial bruising, and in another incident being thrown into walls, dragged up stairs by her hair, kneed in her back and winded, and being asked how it felt to know she was going to die while the father’s forearm blocked her airways whilst her legs were dangling. Ms C sent pictures of her bruising and explained that she had been told the domestic violence she had suffered was her own fault, as was the father’s affair with the mother.
The mother travelled to Darwin see the father in 2016. She stayed with him in his apartment. She understood he had separated from Ms C. She had seen no signs of family violence herself. They conceived their child, X (‘X’). Their romantic relationship did not continue past this time.
During this time in Darwin the mother questioned the father about Ms C’s messages. The father told her, as he admitted in his oral evidence, that he had “only” hit Ms C with the shoe “8 times”.
The mother returned to Sydney and, eventually, so did the father. She was wary now, because of Ms C’s messages, which continued with warnings of the father’s history, but the mother thought that the father was “charming, warm and attentive” and he sought to persuade her that it would be best for their child if they were a family.
He “wooed” her across the start of 2017, and although they did not rekindle their romantic relationship, the mother allowed him to stay with her for a period from early 2017, until he again returned to Darwin.
The mother went into labour in 2017. She told the father. He arrived in 2017. X was born, premature, in 2017. X is now four years old.
The father spent time with the mother: in hospital; with her at her apartment while X was in hospital for seven weeks; and with the mother and X at her apartment until about 9 August 2018. He moved out, the mother says, due to escalating family violence characterised by aggression, including throwing things at her, and coercion and control including seeking to isolate her from family and friends, so that she was “walking on egg-shells” in her own apartment. The mother does not allege any physical contact.
The mother then facilitated time between X and the father on 17 occasions. She says she did this because she was frightened of his threats to take X away. She eventually insisted on professionally supervised visits in the context of the alleged history of violence against herself and Ms C.
The mother’s case is that the father has a “Jekyll and Hyde” like personality. He can be “charming and helpful” but then “snaps”. She describes him as an “unpredictable, volatile, controlling, angry, intimidating, threatening and abusive person” who “always has to be right, that he can’t take any criticism and that he twists everything”.
Her closing submission was that the evidence before the Court of his treatment of Ms C, of her, and of his behaviour towards a range of other people and organisations, shows a consistent pattern of behaviour of being “combative, aggressive and violent” which puts X at risk of physical violence and psychological abuse. On that basis she submitted that he is an unacceptable risk to X if she were to spend unsupervised time with the father, so that the Court should order only four supervised visits per year, for the purposes of X understanding her identity.
The father, in closing, submitted that he was “fighting against false allegations”. His submission was that the mother wants him out of her life and so is trying to exclude him from X’s life. He submitted that, in fact, it is he and X who have been the victims of the mother’s controlling and coercive behaviour. He submitted that there is no danger of violence from him and that X is at no risk when spending unsupervised time with him.
On that basis the father proposed shared parental responsibility moving through to an equal shared time arrangement.
The essential factual question was as to the father’s character as evidenced by his behaviours. In particular the question was whether he is, as the mother alleges, a man who is unrelentingly angry, hostile, aggressive, combative and violent, particularly when criticised or opposed in any way by anyone who does not submit to him, or as the father alleges, the victim of a campaign of false allegations and manipulation by a woman who wants to deny X time with her father just so she does not have to deal with him anymore.
At the date of hearing the mother and X lived with the maternal grandparents in the Region D of Sydney. The mother gave evidence that she was considering moving out to another location in Sydney, within reach of her family, but somewhere she could afford. The father’s evidence was that he would obtain appropriate accommodation for X to spend time with him upon receiving the Court’s decision.
These child related proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to determine the parenting orders that are in X’s best interests.
Procedural history
On 17 January 2018 the father filed an Initiating Application seeking orders for a paternity test. In February 2018 testing confirmed the father as X’s biological father. On 23 February 2018 he filed an Amended Initiating Application seeking equal parental responsibility, Family Law Airport Watchlist Orders and a parenting arrangement involving X spending incrementally increasing amounts of time with him up to equal shared care by 2020.
On 1 March 2018 the father lodged a further Amended Initiating Application seeking Orders for the parents to attend a parenting program and mediation.
On 14 March 2018 the mother filed a Response seeking sole parental responsibility, with X to live with her, and for supervised time to commence with the father for 1½ hours each Wednesday, increasing to unsupervised time on alternate weekends from after school Friday until 5pm Sunday by 30 May 2024. That proposal for unsupervised time by the mother was the focus of much attention during the hearing. On 19 March 2018 Orders were made that X spend supervised time with the father each Wednesday from 4.00pm until 5.30pm. On 23 May 2018 the father filed a further Amended Initiating Application seeking orders that the mother attend the Circle of Security Program, that the maternal grandparents undergo psychiatric and health examinations and attend parenting courses, and for a Family Report.
On 31 May 2018 Orders were made that X spend supervised time with the father each Thursday from 3.00pm until 5.00pm and the father was ordered to attend an anger management course.
On 16 July 2018 Orders were made that X spend supervised time with the father each Tuesday and Thursday from 2.30pm until 5.00pm, and from 16 August 2018, each Tuesday and Thursday from 2.00pm until 5.00pm.
The father filed contravention applications on 18 September 2018, 5 October 2018, and 15 October 2018. On 3 December 2018, Orders were made that X spend supervised time with the father each Tuesday and Thursday from 9.00am until 12.00pm. The father filed contravention applications on 8 January 2019, 18 January 2019 and 25 January 2019.
On 30 January 2019 the Court made a Notation, related to a dispute the parties were having about the foods the father was feeding X during supervised visits, that “3. The mother shall provide a list of foods that X is currently eating to the father prior to his next visit”.
The father filed a contravention application on 21 May 2019.
On 6 March 2019, Consent Orders were made that X spend additional supervised time with the father from 9.00am until 12.00pm on 23 March 2019, 6 April 2019 and 20 April 2019. On that day, by consent, orders were made “4. That all pending Applications – Contraventions filed by the father in these proceedings are dismissed”.
The Family Report dated 15 April 2019 was released at about that time. In June 2019 the father sought orders for the appointment of a further family consultant or “shadow expert” to prepare a further family report.
By Orders of 11 July 2019 it was noted that s 102NA apply to a cross-examination at any hearing. The father was self-represented until the hearing.
On 1 November 2019 the father filed a further contravention application.
Hearing, Witnesses and Evidence
The matter was listed for 3 days hearing commencing 5 February 2020 (Transcript T1.1-313). Both parties were legally represented. An Independent Children’s Lawyer (ICL) had been appointed to represent X’s interests.
The father relied upon a written case outline (MFI 1) which referenced his amended initiating application filed as at 3 October 2018. He sought the orders set out in his written outline. He consented to the withdrawal or dismissal of the contravention application filed 1 November 2019 and that was formally dismissed.
The father read without objection: his affidavit sworn and filed 20 December 2019; the affidavit of a former partner Ms E affirmed 3 December 2019 and filed 9 December 2019; and the affidavit of Ms C sworn 3 October 2018 and filed 5 October 2018. The father moved to read an affidavit of his qualified expert psychologist, Dr F affirmed 3 October 2019. The mother objected. Dr F’s affidavit was read over objection. The father, Ms C, Ms E and Dr F were required for cross examination. The father tendered a folder of supervised contact reports (Exhibit 2) and other documents during the hearing.
The mother relied upon a written case outline (MFI 2). The mother read her affidavit filed 17 December 2019, which included a bundle of 199 pages of documents annexed (or exhibited) to it, and the affidavit of her treating psychologist Dr G filed 17 December 2019. The mother relied upon her minute of order set out in her case outline and her notice of risk filed 14 March 2018. The mother and Dr G were required for cross examination. The mother tendered a variety of documents during the hearing.

The ICL tendered the Family Report of the Family Consultant Ms H dated 15 April 2019 (Exhibit ICL1). Ms H was required for cross-examination by all parties.
Although not witnesses, the mother’s mother, Ms J, and her stepfather, Mr K (jointly the maternal grandparents) were referred to throughout the evidence.
Prior to the commencement of evidence the father invited the ICL to provide a case outline and indicate to the Court the ICL’s position. In response the ICL stated they did not have a case outline and had no fixed position or draft minute of order. The ICL said they were not agreeable to either parties’ orders at that time.
The father then made an oral application to discharge the role of ICL. The Court was advised that the father had raised in his affidavits in June and October 2020 that he wanted the ICL to be discharged. The submission made for the father was that the ICL role was not required as: the father was now represented, and, the mother’s counsel would be cross-examining witnesses, and, as the ICL was not calling their own witnesses, and as the ICL had not met with X (which was said not to be a criticism, noting X’s age, merely a fact), and, as the ICL had not facilitated settlement discussions, and, as the ICL had not taken a position other than to wait to see the evidence tested, the ICL role should be discharged.
In reply the ICL submitted that it is ordinary in a case such as this that an ICL would be appointed, and that the role was not to assist the parties but to represent the interests of X in the context of a family report that was not conclusive and which involved criticisms of both parties. For short reasons, delivered orally at the time, I rejected the father’s application.
As the matter did not conclude in the three days allotted it was listed for oral submissions on 28 February 2020 (Transcript T2.1-68). The father represented himself for oral submissions. The mother and ICL remained legally represented. Judgment was reserved.
The parties sought to re-open the proceedings. I heard argument on 20 July 2020 (Transcript T3.1-8). For reasons briefly set out below it is neither necessary nor appropriate to further re-open this case before making a finding as to X’s best interests. The father had also filed a series of contravention applications post hearing which were not dealt with, and which therefore remain outstanding.
Structure of the Judgment
The father’s affidavit had 33 paragraphs over six pages. The mother’s 204 paragraphs over 42 pages. The father filed his affidavit on 20 December 2019, three days after the mother filed her affidavit on 17 December 2019.
The father said that he had “carefully” read the Family Report which detailed the many issues in the case. Nevertheless, the father gave only a two to three paragraph history of the parties’ relationship from 2016 to 5 August 2017 and did not touch on the mother’s many allegations of family violence of which he was clearly aware. The father made no reference to Ms C in his affidavit. Thus, while there is significant evidence in chief from the mother on many issues of which the father was on notice, he elected not to address most of them in his evidence in chief.
The mother was made aware of Ms C allegations early in the relationship. It is common ground that the mother was influenced by these messages in forming her view that the father poses an unacceptable risk to X. Ms C’s evidence was that the father told her that her messages to the mother “had caused undue fear and mistrust in the relationship, and subsequently Ms Debonay had developed a fear that Mr Rafala would harm her.” Ms C gave evidence in the father’s case to address these concerns. The truthfulness, or otherwise, of the contents of Ms C messages was therefore a significant issue in the proceedings.
In these circumstances, I will firstly deal with the evidence concerning Ms C, and then the evidence of the allegations about the father behaviours in his workplace in the months immediately prior to the parties meeting, before coming to the mother’s and father’s evidence concerning their relationship.
Given the delay in delivering this judgment, for which I apologise, I have taken out the transcript and re-read it together with all of the written material before me. I note that the hearing concluded in the period just before COVID-19 impacted the Court in various ways. This cannot and does not excuse the delay. However, it may provide the parties with some context around what has occurred.
MS C – THE FATHER’S EX-WIFE
I will first set out in order; the contents of some of the messages from Ms C to the mother; then Ms C’s affidavit evidence; then the father’s oral evidence in cross examination, as he was called prior to Ms C; then Ms C’s oral evidence; then the father’s closing oral submissions given that he made certain concessions.
Ms C’s Messages
The first message was sent via Facebook on 14 August 2016. The message (Mother’s Annexures page 5/8) read:
You do you realise he is my husband. I’m glad you’ve enjoyed destroying my marriage. Now I have to suffer the indignity of him returning. You both make me sick.
You might not believe .. but when it happens the first time youll remember and hopeful you’ll run. 7 years.
It took 2 years before he hit me. And he’s done it before.
These are only when I started documenting.
Accompanying this were a series of photos, (Mother’s annexures page 8), showing physical injuries Ms C had sustained. They showed bruising around Ms C’s buttock, thigh, shoulder and face. Clear colour copies of the photographs evidencing these injuries were admitted as Exhibit H.
An email from Ms C to the mother on 20 August 2016 (Mother’s Annexures page 3) said:
Please spare yourself the heartache Ms Debonay.
He has attempted to reconcile with me and we have slept together on Thursday (Stupid I know) – I have now found out that he was seeing you during our attempts to reconcile this year.
I’m told I’m to blame for his affair with you, just the same as I am to blame for the domestic violence.
He continues to communicate with you whilst he presumes me to forgive him for you.
He is already active and looking for girl number 3 on tinder after a friend of mine sent me a screen shot of his conversation with her.
He really is not a nice person and I can’t believe I have allowed him to stay here knowing what I know now.
I feel like a fool only 30 days ago I believed he loved me and was moving back to try and get together.
I know hes told you stories – I’ve read them. I’ve also endured the pocket dial where he told his twisted victim story.
I wasn’t given the opportunity to move on like he did.
If he didn’t love me he could have left me instead he chose deceit. Perhaps you can empathise with me for just a few moments and imagine the mental torture of finding out tis all been a lie.
Spare yourself the pain – he is a narcissist and only seeks his own gratification no matter what the cost.
Another email sent later that day by Ms C, in reply to one from the mother (Mother’s Annexures page 2) said:
I know the lies all to well. Trauma bonding from 8 yrs of hell with this man and even after this time I’m still caught.
Please don’t think I blame you. I guess given the physical, emotional and verbal abuse I’ve been through didn’t want anyone to endure what it has done to me.
You believe its all you in the end. I never thought for a second you too could be suffering.
I wish you all the best and your email will remain in confidence.
An email from Ms C to the mother sent on 25 August 2016, after the mother had raised Ms C’s communications with the father (Mother’s annexures page 5) said:
Hi Ms Debonay
Just let you know I was confronted by Mr Rafala about my contacted you not pleasant.
Perhaps your friends could be mindful that this man is living in my house and there are consequences for me now due to that disclosure.
My safety is involved.
Another email from Ms C to the mother sent on 28 October 2016 (Mother’s Annexures page 6) said amongst other things:
Perhaps now youll understand my confusion to all this. I believe him. He sent that txt less the 28 days before he arrived here. I thought he was going to be different.
Now I know he was with you that whole time. There’s more messages right up until the 30^th.
I wake up thinking about what is in store for you.
He taunts me at work about you. I see the glee in his eyes as he watches me get upset.
I’ve been through the idolisation phase with him..I understand the pull. But devaluation comes next.. then the most painful stage is the discard.
If only someone had been brave enough to tell me.
I hope you care enough for yourself to run.
You clearly don’t understand whats in store for you.
An email of 17 November 2016 (Mother’s Annexures page 13) said:
A man that denies the holocaust, hates certain religions, like Reclaim Australia.
You seriously need to take a long look at yourself and the holes that are exposed in your personality.. so needy you would expose a battered woman… Because your empathetic nature means you are blinded to his manipulations. Do you understand domestic violence?
Tell me how much do you think my 58kg frame was a match for being thrown it walls, dragged up the stairs by my hair, kneed in my back till I was winded.. “how does it feel bitch? Knowing you’re going to die?” Whilst his forearm blocked my airways pinning me with my legs dangling.
You know what I said?
“I’m not worth it Mr Rafala. I’m not worth it.”
His response
“No your not you stupid cunt, if you think I’d go to jail over you”.
Ive heard I’m bipolar .. that’s why he hit me. A depressed woman whose beaten by her husband.. you took that as a an excuse? You need to take a good long hard look in he mirror if you think a unwell woman needs a beating by her intimate partner. I needed help from a violent narcissist who was destroying me day by day.
You know I’ve been diagnosed with PTSD?
I’d have given anything to have had the head sup that you got 8 years ago.
Thank god for my amazing friends and family uniting behind me to get rid of this evil.
You deserved nothing of my empathy or compassion. My sense of obligation to spare another woman from this hell..you spat in my face.
Take a look in the mirror Ms Debonay. Blinded by your own neediness. Wake up. Once a Narc always a narc!
Ms C’s Affidavit Evidence
Ms C was a witness in the father’s case. In her affidavit filed 5 October 2018 she said she made her affidavit to [2] “supplement previous evidence provided by” the father.
Ms C said that she had known the father for 9 years and had found him to be [3] “incredibly dependable, hardworking, considerate and positive” and supportive of her through her battles with anxiety and depression. She said that towards the end of 2013 they embarked on opening and running their own business. She described long hours and minimal sleep without break for 3 years which was physically and mentally exhausting. A financial downturn in Darwin at the time added immense financial pressure. She said her mental health suffered causing her to avoid critical financial tasks. She said that had “caused more stress for Mr Rafala when they became known.” She said that [8]:
At this point the arguments started to escalate and became more volatile in nature. With neither of us possessing the skills to de-escalate they would sometimes lead to physical violence between us.
Ms C said that the parties sought counselling and decided that the father would leave the business and return to the military, and that this brought an end to the immediate issues between them but that [10] “sadly, it was too late.” She said that she had reflected upon the relationship and that [11] “despite the adversity we brought on ourselves I have a very strong affection for” the father. She said they had forgiven each other and that with hindsight and time she could [12] “see things far more clearly than I did when first making that unfortunate contact with” the mother.
She said that in the context of trying to reconnect with the father in August 2016 [14]:
[…] In a moment of desperation I contacted Ms Debonay and conveyed via email things that had happened between Mr Rafala and I. Whilst truthful, my motivation was to end their relationship so an attempt at reconciliation could be made; my correspondence to Ms Debonay had only one goal in mind and that was to remove her from the equation. [Emphasis added]
She said that when she learned that the mother had visited her business she was motivated to destroy the parties relationship, and so emailed the mother again. She said she considered that she had succeeded in her goal when the father’s relationship with the mother ended.
It is significant to note that Ms C’s sworn evidence, lead in the father’s case and of which he was aware before he gave his oral evidence, was that although motivated by jealousy, the contents of the messages she sent to the mother setting out the things that had happened between her and the father were “truthful”.
Ms C gave evidence about her email contact with the mother in February 2018 and the mother’s reply raising the father’s lack of financial support, and said that she was [20] “aware of the expenses and costs he was footing” and that [21]:
In addition to lying about Mr Rafala’s financial contributions Ms Debonay also made allegations and expressed broad opinions of Mr Rafala's character that I had never witnessed during my nine years with Mr Rafala. At this point it became clear in my mind that Ms Debonay’s intent was to not allow fact to interfere with her fabricated story so I ceased correspondence. It was evident in my mind that Ms Debonay’s sole intention was to ensure Mr Rafala never saw his Daughter, whatever the cost.
Ms C said that [23]:
I feel responsible for some of the inaccurate beliefs and opinions Ms Debonay holds of Mr Rafala and seek to accurately adjust based on fact through my nine years living and working with Mr Rafala.
I also feel compelled to express my dismay at the allegations made by Ms Debonay about the following:”
In the context of her “dismay”, under the heading “Violence” she said [26]:
It is true that violence did rear its head in our marriage. But I also had a relationship without any violence or harsh words for five years prior to the business. I had a partner that others envied. Helpful, loyal, supportive and capable. I am 100 percent comfortable and confident with the concept of Mr Rafala with his daughter and his capabilities to be an exceptional father.
Ms C stated that [25] “I know Mr Rafala to be held in the highest regard by his friends and colleagues including his superiors with whom he interacts with inside and outside of work.” She disputed the suggestion that the father does not like children.
Under the heading “Immoral and baseless allegations” Ms C said she was physically ill when she read words to the effect that with regards to changing X’s nappy the mother [30] “didn’t want him anywhere near her vagina”.
Ms C concluded her evidence in chief by stating [31]-[32]:
Mr Rafala supported me through the rough days I would have when dealing with my own abuse as a child. I found Mr Rafala to be upright morally in all respects to children and women and I’m appalled that his person has been called into question with such depravity by a woman who knows absolutely nothing about him.
In my nine years of knowing him he never sought to hide anything from me, and I have watched him interact with children of friends and held no reservation in raising a child with him. He will be an excellent father and X will be blessed to have him supporting her throughout life.
Father’s Evidence in Chief
The father made no reference to Ms C in his affidavit. The Family Consultant had the Affidavit of Ms C. The Family Consultant noted that the father “concedes to being physically violent to his former wife” (Exhibit ICL1). It is not clear what extent of physical violence he conceded.
Father’s Cross-examination
The father gave evidence prior to Ms C. He was cross examined on the factual content of her messages.
The father was questioned about the incident in which he had struck Ms C with a shoe. He was asked (T1.102.10):
That’s an incident of violence between you and Ms C?---Yes, and you’re going to hear about it. You’ve already read about it. Yes. It’s not being hidden.
It’s a serious incident, isn’t it, sir?---Well, it didn’t relate in any domestic violence orders or apprehended violence orders.
It’s a serious incident, isn’t it, sir?---Well, it depends how you look at it. Why don’t you wait until you hear from my ex-wife.
Striking a woman eight times with a shoe is a serious incident, isn’t it, sir?---There were circumstances. Said shoe had been thrown at my head prior, so - - -
So you had an excuse for what you did, did you?---I am saying there’s two sides to every story.
You’re getting - - -?---And that is an episode that – how is this relatable to this incident – this matter, anyway?
You’re giving your evidence in respect of Ms C having done, as I understand it, domestic violence courses, anger management courses, seen counsellors. That’s right, isn’t it?---Yeah.
And that’s your position today – the evidence that you’re satisfied will assist his Honour - - -?---Sorry, what?
- - - is the evidence you’ve just given about that incident?---What’s that?
At that point counsel for the mother ceased pressing this question.
This passage of evidence is worth considering in terms of the father’s approach to giving evidence, of which more is set out below, as well as his attitude to accepting responsibility for his conduct.
Having conceded the shoe incident happened and stating that it was not being hidden, and in the context of his case that he had undertaken courses about domestic violence and anger management, the father could not bring himself to admit the obvious fact that striking his then wife 8 times with a shoe and causing bruising across her body was “a serious incident”. Instead, he sought to deflect and avoid engaging with the question.
His first response sought to deflect the question as well as to minimise the seriousness of the incident, by pointing to the fact that it did not give rise to any domestic violence orders. However, on his admitted conduct, and the evidence of the bruising, the father would probably have been liable to criminal conviction as well as to the making of domestic violence orders.
His second, third and fourth responses, when pressed to admit the incident was “serious”, sought again to deflect the question, then to justify his behaviours and finally to blame Ms C. He said (T1.102.15-25) “[…] it depends how you look at it. Why don’t you wait until you hear from my ex-wife”, and there “were circumstances. Said shoe had been thrown at my head prior” and “there’s two sides to every story”.
In addition to the attempts at deflection, the father stated and, clearly believed, that because Ms C threw a shoe at him he was justified him in repeatedly striking her with it. He accepted no responsibility. He went further, and sought to shift blame Ms C, consistent with Ms C’s statements in her messages to the mother that the father had told her she as to blame for the domestic violence she had suffered.
His fifth response was to return to deflection. Still seeking to avoid having to answer the question, and either agree or disagree with the proposition that this was a “serious incident”, the father asked how the question of whether his striking of Ms C was a “serious incident” was “relatable”, by which he clearly meant relevant, to “this matter”. The father is an intelligent man. He called Ms C as a witness because he knew it was highly relevant. He obtained a report from Dr F to address the claims of a violent personality for the same reason. He was fully aware of the relevance of the issue when he asked his rhetorical question.
The father was taken to Ms C’s message where it said (Mother’s Annexures page 13):
Tell me how much do you think my 58kg frame was a match for being thrown it walls, dragged up the stairs by my hair, kneed in my back till I was winded.. “how does it feel bitch? Knowing you’re going to die?” Whilst his forearm blocked my airways pinning me with my legs dangling.
You know what I said?
“I’m not worth it Mr Rafala. I’m not worth it.”
His response
“No your not you stupid cunt, if you think I’d go to jail over you”.

The father agreed that Ms C was about 58kg. Otherwise he specifically denied each other aspect of the matters set out in her statement.
When asked whether the father called Ms C bipolar or depressed, the father replied that Ms C is bipolar and suffers with depression.
The father was also cross-examined on a Northern Territory police record where the police attended the business on 23 March 2015 (Exhibit D). It appears the police attended on information concerning a threat with a chair being lifted. When they arrived Ms C said that the father was verbally abusive only and “did not lift a chair only nudge one towards her”, that “as far as the couple were concerned the relationship is over” and she did not want to pursue further action as they were separating and he was going back to his Military career.
In the context of questioning about this event at T1.101.30 there was the following passage of evidence:
That was a pretty ugly incident, wasn’t it?---Well, you weren’t there and it wasn’t, no. Are you talking about an argument? An ugly argument? That was an ugly incident, was it? What were the repercussions Ms Loumis?
I’m sorry?---Well what was the outcome, enthrall me.
The father would not engage with the question of whether or not being “verbally abusive” was an “ugly incident”. He instead again relied upon the absence of police action, and also used sarcasm to deflect the question.
Ms C’s Cross-examination
Ms C was cross-examined by the mother. She confirmed that she wrote her affidavit and that the words were her own. She agreed that she was very careful in choosing her words and that they were true and correct. She confirmed that she prepared her affidavit to assist the father in his application in relation to X because she was worried that her emails and exchanges with the mother were not painting the father in a positive light. She said that she thought the mother (T1.264.10) “deserved to hear the side where I was less emotional about the situation”.
She was asked at T1.264.15:
You were very careful in your affidavit, though, to tell his Honour that the emails that you sent to Ms Debonay, while misconstrued and not taking into account the full situation between you and the father, contained the truth of the relationship between you and the father?---I have never – and Mr Rafala is aware of this – I have never once said that any of the contents that are in those emails is untruthful. I simply stated that the level of force that was used to describe those situations was me in a very highly emotional state. As you can imagine, when a woman enters into someone else’s marriage it’s not an easy situation to get through.
I do understand that, ma’am. But just to be clear, the statements that you made, taking away the emotional overlay – the things that you said happened between you and Mr Rafala, you ask his Honour to accept as being truthful - - -?---That is correct.
- - - because you’re a truthful person?---That is correct.
Ms C also confirmed that the series of photographs (Exhibit H) she sent to the mother in her first message depicted the injuries and bruising she sustained in an argument with the father at his hands.
Ms C confirmed that the shoe had caused the bruising to her in legs in the photos. She could not remember if there were 8 blows, as the father said, only that there were several blows or a few blows. She said that the other bruising would have been caused on the same occasion when she (T1.268.45) “fell or was pushed into something during that occasion.” She also said (T1.268.35) “I need to add that there had been – during that altercation, I had participated as well.”
Ms C was asked (T1.269.5):
Was that the only time that there was a physical altercation between you and Mr Rafala?---As Mr Rafala and I have reflected, I believe that there were three occasions where things got out of hand, and I cannot stand here and say that I didn’t start some of them – I did – and – but there were three occasions during this period of immense stress.
Ms C was directed to her statement (T1.270.5):
Tell me how much do you think my 58kg frame was a match for being thrown it walls, dragged up the stairs by my hair, kneed in my back till I was winded.. “how does it feel bitch? Knowing you’re going to die?” Whilst his forearm blocked my airways pinning me with my legs dangling. You know what I said? “I’m not worth it Mr Rafala. I’m not worth it.” His response. “No your not you stupid cunt, if you think I’d go to jail over you”.
Ms C was asked (T1.270.20):
You would say to his Honour that that is an accurate statement about one of the three incidents that occurred between you and Mr Rafala - - -?---Yes, I would.
- - - and that when you wrote that, that you were being truthful?---Yes, I would.
Ms C reference to there being three incidents or occasions on which “things got out of hand” included the shoe incident, the choking incident and the incident in the business to which the NT Police were called.
Ms C also said that the father was (T1.266.25) “fairly angry” when he found out Ms C had made contact with the mother, and that it made her life more difficult. When asked about her statement “my safety is involved” she said (T1.267.10):
I think the context of all of those emails reflect that this was a period of time where, yes, there were things going on that were not okay and that my safety was affected during that period. That – that’s not in question in any of those emails, and I’ve never denied that – any of the contents of those emails.
In respect of her statement in her messages that (T1.265.45) “I’m told I’m to blame for his affair with you, just the same as I’m to blame for the domestic violence.” Ms C said that the father had told her she was to blame for his affair and for the domestic violence.
The ICL did not cross-examine Ms C. The father did not seek to re-examine Ms C or to challenge as unfavourable any of her evidence.
Ms C – Closing Oral Submissions
For convenience, and given the father’s concessions, I will deal with the parties closing oral submissions on the truthfulness of Ms C’s evidence here. The ICL elected not to make any reference to Ms C in closing submissions. As the father was not legally represented during closing submissions counsel for the mother went before him. The submission was to Ms C was called in the father’s case, was there to help the father so much as she could, gave consistent evidence that the contents of her messages were true, was not challenged as to her truthfulness by any party, and would be believed on the factual occurrences set out in her messages and oral evidence.
The father submitted that (T2.58.15):
We now know through testimony that Ms Debonay had been sent emails in August of 2016 detailing the two – now three – instantly and utterly regrettable instances of domestic violence that had occurred in my marriage some 18 months prior to April 2016 when we met.
And (T2.59.35):
My ex-wife, with no other motive than to set the record straight, gave her account in affidavit in testimony. She said that – or words to the effect – I wanted her out of my marriage and my husband back – or words to the effect. Her affidavit spoke to my character before, during and after our marriage. She also stated on two instances – correction, she also stated on the two instances of – and again I say – instantly regrettable DV or words to the effect that she was an equal participant and, in fact, started some of them.
And (T2.60.35):
She was an active participant and she, in fact, started some of them. So we know that we’re only talking about three. And one of those was an argument in our business, no less. The other two – I’m on record now as saying, “Yes, they did occur.” My version of events to that of my ex-wife are different and we agree to disagree on what was said. But, your Honour, there was no repetition after the final occurrence or altercation and we sought help through a psychologist and a marriage counsellor at the time in Darwin. I also signed up to a Men’s Change program in Sydney during my six months here, during the time that I met Ms Debonay. Unfortunately, I couldn’t attend that program because the Military posted me back to Darwin in August. I have also completed anger management with L Counselling Service.
Now, I seek not to indemnify my role and – but seek an acknowledgement from the court that these interactions hurt us both physically and emotionally and they were isolated to a very brief snapshot in time. As a result of the stressful business, we would later divorce, lose our business and both enter into personal bankruptcy. We forgave. We accepted our roles and looked to regain and maintain a friendship
In the father’s closing submissions, after Ms C evidence, he conceded the truth of the choking incident which he had entirely denied under oath.
DEPARTMENT OF DEFENCE MATERIAL
The Department of Defence produced documents on subpoena. A number of documents were tendered (Exhibit C).
The first document was dated 4 April 2016, at about the same time the father and mother first met. It was a “Statement” prepared by Mr N a Warrant Officer Class One (WO1 Mr N) to “provide greater detail and evidence of why a Psych suitability assessment should be conducted” on the father. As background WO1 is a non-commissioned rank higher than that of Sergeant so that WO1 Mr N was the father’s superior non-commissioned officer. WO1 Mr N set out his reasons for requesting a “Mental Health/Psychological Assessment” of the father. The statement also refers to the “RSM” or Regimental Sergeant Major, the “CO” or Commanding Officer, and the Chief Clk or chief clerk. The body of the document read:
3. SGT Mr Rafala has not integrated well within the unit since marching in. The issue at the forefront is an application for categorisation as a Member with Dependants (Unaccompanied) or MWD(U). The initial application was agreed to and approved in principal; however, after information surfaced that SGT Mr Rafala and his wife were physically separated for greater than three months in the latter part of 2015, the Commanding Officer requested a DCO report be conducted in order to substantiate SGT Mr Rafala's marital situation. This appeared to trigger an adverse reaction in SGT Mr Rafala and his persona became more confrontational bordering on contempt for the establishment.
4. SGT Mr Rafala and the Chief Clk had an exchange of heated words in mid Feb and the Chief Clk reported this to the RSM. SGT Mr Rafala was called to the CO's office for counselling and SGT Mr Rafala initiated more heated words towards the CO and the RSM was forced to intervene to remind SGT Mr Rafala who he was addressing. It was from this moment on that SGT Mr Rafala would often air his frustration within the working area with random comments about his thoughts about the unit. He would say things like “this unit is a fucken joke”' or words to that effect.
5. On Friday 4 Mar at approx 1400, I approached SGT Mr Rafala to request that he provide greater detail on his application to work outside of normal working hours because he had indicated he was doing six hours work a week for his business. In a matter of less than a minute of requesting him to provide more details, SGT Mr Rafala launched into a tirade of statements filled with anger and frustration. SGT Mr Rafala struggled to contain his anger and displayed physical signs of clenching his fist, ranting and pacing. At one moment during the tirade, SGT Mr Rafala turned his back on me and refused to face me. Once he had calmed down, SGT Mr Rafala asked me to read an email he had drafted to the CO which he intended to send immediately. I read the email and considered the content inflammatory and strongly suggested he not send it and wait until Mon after he had time to calm down. Once he was provided this response, SGT Mr Rafala agreed and even went on to say “that’s why you are a Warrant Officer Sir, you provide good advise” or words to that effect. I departed work shortly after and made my way into town. At approx 1500, the CO called me and was incensed at an email SGT Mr Rafala had just sent to him. I assured the CO that l would take care of the matter on Monday 7 Mar 16.
6. On Monday 7 Mar at approx 0715, SGT Mr Rafala was already seated at his work station and I logged on and read the email. After reading the content of the email SGT Mr Rafala had sent to the CO, I asked SGT Mr Rafala why he decided to send the email after he agreed to wait until Monday. SGT Mr Rafala launched into what can described as a frenzy of anger and ranting. He came over to my desk and leaned forward towards my computer screen without warning or permission and said “what? what? what did I write that’s’ so bad?” or words to that effect, I moved back from my desk by pushing my chair back and told him in a loud tone to “get back!” SGT Mr Rafala, whilst still leaning forward at the computer screen, locked eyes with me and slowly stood up and moved back. I cannot recall the details of the words that followed due to the tension and haze of the moment. However, I recall his body language and openly aggressive 1ook on his face and clenching of his fists. I firmly believe that SGT Mr Rafala was at an edge of losing control and it was only through raising my voice and telling him to calm down that SGT Mr Rafala was able to regain his composure. This incident and the incident on Friday 4 Mar prompted me to conduct a formal counselling session and record it on a record of conversation.
7. Since the record of conversation on 7 Mar 16, SGT Mr Rafala has displayed complete contempt for almost all hierarchy within the unit. SGT Mr Rafala has very transparent displays of disrespect for key personnel which was displayed on 31 Mar 16 at approx 0915 when I walked past SGT Mr Rafala and said good morning when he was no more than two metres from me, he didn’t look at me and didn’t say good morning until I spoke to him in a louder tone and repeated good morning. It was when he was addressed again that he reluctantly said good morning.
8. There have been several other minor issues; however, a pattern in his behaviour is very evident. He is unable to accept advice when it doesn’t suit his particular situation and when he is given guidance, he will focus his attention on how to rebut the guidance rather than completing the task and moving forward. He appears to collect a grudge and will not let the matter go. The highest concern is the matter in which he reacts to advice or guidance, he shows no ability to absorb the information and formulate an appropriate response. His immediate action is to fight back and this type of behaviour is absolutely untenable in the military.
9. Recommendation. SGT Mr Rafala needs to be assessed for anger issues and pysch suitability to continue to serve.
The second document was headed “Mental Health / Psychological Report” and was said to be a “Mental health professional’s report” prepared by Major O on 3 May 2016. Major O’s qualifications are not provided. The reasons for referral were noted as “1. Suitability to be retained by the Military; and 2. anger management counselling” .
After noting the background the report stated that “The member is currently engaged in mental health treatment due to what he perceived as workplace stressors. His symptoms appear consistent with a mental health problem presently.” It noted the Military policy against making determinations on suitability while someone was engaged in mental health treatment, and on that basis suggested the father should be removed from the stressors. It concluded that:
SGT Mr Rafala does appear to have underlying and pre-existing personality traits suggestive of at times aggressive and combative style. These have been highlighted periodically in his PAR’s over the past 8 years, in the sense that they have been noted, with the overall appraisal being largely positive. The perpetuation of these traits are nonetheless of some concern however should be best managed via performance management and administrative action as required, noting that performance management and mental health treatment can occur in parallel. However, this may best be conducted when the member commences at a new posting/unit, if required, in the form of regular Commander's notebooks.
The third document was an email dated 12 May 2016 from Lieutenant Colonel Mr P, the Commanding Officer of the father’s command, providing additional information relevant to the request for an assessment. It stated that:
You will note from the attached documents we (unit) were addressing the anger issues thourgh performance counselling, however SGT Mr Rafala took this as bullying and harasment and submitted his complaint, which was subsequently withdrawn.
Lt Colonel Mr P concluded by noting that “My concern is that SGT Mr Rafala will reinstate the complaint once he has been posted.”
Father’s Evidence
The father had referred in his affidavit to paragraphs [101]-[103] of the Family Report, which had referred to these documents. The father said:
I was a victim of workplace bullying at the hands of the person noted therein. I made a complaint about that. I ended up, by agreement with the Military, being moved to a new unit in Darwin to resolve the matter. This all occurred at exactly the time I met Ms Debonay on Tinder. Unsurprisingly, because it was on my mind when we were together, I told her all about it, at that very time. Ms Debonay was very supportive of me in my workplace complaint. Our relationship was blossoming at the same time. She was not critical of me, or fearful of me, and that is why I then moved to Darwin, as referred to herein at paragraph 12 above. She knew all about it. I told her that I had had an argument with the person therein named. I explained to her why I was going to Darwin. That was then followed by her subsequent trip to Darwin, to be with me, and when she then fell pregnant.
The father was shown the statement by WO1 Mr N and asked if he recognised it and said “Yes. I do, strangely”.
In respect of paragraph [4] the father agreed that there was a meeting in the COs office for counselling. He said he could not attest “to having initiated more heated words” but agreed that the RSM had to intervene and remind him of who he was addressing.
The father denied, in respect of paragraph [5] of WO1 Mr N’s statement, that he “launched into a tirade of statements filled with anger and frustration” or that he “struggled to contain his anger and displayed physical signs of clenching his fists, ranting and pacing”. He said that was why he complained of workplace bullying and harassment, although agreed that he did turn his back.
The father also denied, in respect of paragraph [6] of WO1 Mr N’s statement that he “launched into what can be described as a frenzy of anger and ranting”, or any of the alleged behaviours set out there.
The father said that he remained in the unit for two months only, went back to Darwin, (T1.92.20) “saw a mental health psych support person” who gave him “a clean bill of health” and suggested he wasn’t the right fit for that unit and moved him elsewhere.
The father again stated that there was (T1.59.25) “an unacceptable behaviour workplace claim that I had made against my entire chain of command at that time.”
Dr F was called to support the father’s case that he does not have anger management issues. After his evidence was concluded she gave evidence that (T1.166.10):
You say that those results didn’t reveal any areas of concern. Did you speak to Mr Rafala about any areas where he has – where he’s said to have been angry or violent?---Mr Rafala did disclose one episode at work in which he said that he had difficulty controlling his anger. It was a workplace issue, and I think the situation was an interpersonal issue, that something had occurred that had upset him extremely.
It is not clear how it would be possible reconcile Dr F’s statement that the father told her there was a workplace situation where he was extremely upset and “had difficulty controlling his anger” with the father’s evidence denying the history in WO1 Mr N’s statement.

The father’s submission is that he was the innocent victim of bullying by WO1 Mr N, and by his entire chain of command, so that these documents would be given no weight.
The mother’s submission is that this material, from a wholly independent and reliable source, sets out similar pattern of behaviour, in the workplace, to that experienced by Ms C, and to a lesser extent by the mother, in the domestic sphere. She also submitted it was evidence that when in the wrong the father cloaks himself with victim status, while also countering by threatening and filing formal complaints against people who opposed him.
The ICL did not make reference to this evidence in submissions.
PARTIES’ RELATIONSHIP
For convenience I will break up the parties’ involvement into periods, being the period from when the mother found out she was pregnant until X came home on about mid 2017, the period while the parties and X were in the mother’s apartment until the father left on about 7 August 2017, and the parties’ co-parenting relationship from then to the hearing.
As noted earlier, the mother provided extensive evidence about her complaints of family violence. Although aware of them the father did not address them in his affidavit evidence. Accordingly, the evidence set out below includes much of the mother’s affidavit evidence in chief, such evidence in chief as the father lead about the parties’ relationship, and the parties’ evidence in cross examination, noting that the father was far more extensively cross-examined than the mother because of the way in which the issues were framed and unfolded.
Pregnancy to Taking X Home
Pregnancy
The mother’s evidence was that in 2016 she found out she was pregnant. The parties ended their relationship in 2016. In 2016 she told the father she was pregnant. They were not in a romantic relationship after 2016.
The father asked to stay for three weeks over Christmas. She said she was wary, in part because of Ms C’s messages, but also about his reaction if she said no. She said that she told him she was too busy with work, and too ill with morning sickness, for visitors.
The mother said she then started receiving flowers and cards with loving messages from the father. She said that early 2017 he told her he would be in Sydney the following day to surprise her for the weekend. The father stayed in a hotel that weekend and they saw each other frequently. She said he was “very sweet and attentive” and “charming” and told her that “It will be better for the baby if we were together as a family” and “We can work this out.” On his last night in Sydney she let him stay at her apartment. They were not intimate.
She said that in 2017 the father again came to Sydney and she allowed him to stay at her apartment. She said he was “charming, warm and attentive”. He drove her to work and picked her up every night. They did not have a sexual relationship, but she said that he made sexual advances towards her. She said that these advances eventually made her uncomfortable and that, in 2017, she asked him to move out of her apartment, which he did.
She said that the father continued to contact her, telling her that it was uncomfortable living in the barracks and he wished he was living with her. She said she felt sorry for him, and ashamed for asking him to move out because he had been so helpful, and that she allowed him to move back into her apartment where he stayed until 2017. She said that he was “attentive to” her during that time. However, she said that he said that if the child was a boy he would not allow her to have him circumcised as it was barbaric, and she was upset about this comment because of the role of circumcision in her culture, but did not respond to this comment as she did not want an argument about something that might not eventuate. She said the father returned to Darwin in 2017.
The mother told the father she was having X early and he arrived at the hospital in 2017. X was born premature, at only 30 weeks, in 2017. X was only 1.5 kilograms, unable to breathe on her own and suffering from jaundice. She was placed in an incubator with a blue lamp.
The mother went home, with the father. X spent approximately seven weeks in hospitals and was finally released on in 2017.
Hospital
The mother set out at paragraphs [42] to [71] of her affidavit the incidents she said had occurred between the period when the father arrived at the hospital and when he left her apartment on 7 August 2017.
She said that during that period she observed that the father’s “demeanour changed” and that he became “irritable, aggressive, critical and abusive”. At no stage did she suggest that there was any physical violence, although the incidents described below involving the charger, the drill and the slamming of doors in her face involved elements of physical intimidation.
The mother said that whilst in hospital she observed the father raising his voice in the hospital staff’s presence. She said that he complained of being “micromanaged” by the hospital staff when they directed him to properly support X’s neck and about not carrying her across the room.
She described an incident when she said she was sleep deprived after X’s birth, and she asked him to explain some questions on the form to register X’s birth. She said he: called her a “moron”, told her that he couldn’t believe that she went to a private school, and said that she needed to “work on [her] listening skills”. She said she felt frustrated, and silly that she could not complete the forms. In cross-examination the father denied these allegations.
The mother also said that X’s birth certificates were sent to the father’s address in Darwin and she later had to request one from the father.
She described an incident in hospital when she found her sister crying after speaking with the father and asked him to apologise, which he would not do.
Car charger incident
The mother said that while X was still in hospital she observed that the father “began reacting to innocuous things I said or did with explosive anger”. She gave an example when the father was driving her car, and she was in the passenger seat, and she noticed that he had unplugged her car charger and replaced it with his own. She asked where her charger was. He said it was under his feet. She asked if it was possible for him to put it somewhere safer if he was not using it. She said that he replied “I won’t use your fucking charger again, okay!” then pulled his charger out and threw it. She said it landed at her feet, and did not strike her, but that she was shocked. She said she was tired following X’s birth and stressed about her health issues and believed the father was also tired, causing him to lose his temper.
In cross-examination the father said (T1.56.25) “I didn’t throw it at the mother. I threw it into the well of the seat where her feet were”. He subsequently moderated this answer by saying he (T1.56.35) “Threw. Dropped” the charger. He agreed that he had said to the mother words to the effect of (T1.56.40) “I won’t use your fucking charger again.” When asked to agree that it was “pretty hostile” the father said (T1.56.45) “It depends on how I said it.”
Power Drill Incident – 4 June 2017
The mother said that on 4 June 2017 she had made herself a bath. The father asked how long she would be and she said she did not know. She said she was standing at the door of the bathroom and the father “came over and slammed the bathroom door in my face.” The door did not hit her, but she felt his action was abrupt and violent and she was shaken.
She said that after her bath she walked past the father as he was using a power drill to repair a cupboard in her bedroom. He told her that she should be doing the work. She said she laughed at what she thought was his joke. She said he “then threw the power drill at me and it narrowly missed my face. The drill landed on the bed behind me. I was so shocked that I was unable to say anything”.
She said that later the father said to her words to the effect that he was only handing her the drill because he wanted to include her in the job, but that she threw a tantrum.
The mother said that afternoon she said sent the father a text message (Exhibit E) stating:
Was it worth it this morning? Another day of misery. Did u really need to slam the door and throw the tools all because I couldn’t tell u how long I would be in the bath and because I decided to clean the filthy bathroom? If this is a sign of what’s to come well I don’t like our chances. I won’t tolerate you yelling and slamming doors and leaving without saying goodbye. If it happens again you have your welcome in my apartment and he won’t be living with me and X. (sic) We are both very tired and we do not need to argue about stupid things. It is going the way more difficult and stressful when X comes home we are going to need to communicate calmly always. Don’t let Ms C be right.
The father denied in cross-examination that he threw the drill at the mother.
I note that at page 14 of the mother’s tender bundle the father’s reply to the text message said, amongst other things:
Suggest you refresh your memory.
I remember YOU throwing a tanty at me giving you the drill. My thinking being that it might be a nice inclusive job for you. Expand on a pre drilled hole. No, you took it as me either telling you what to do or that I was shitty and couldn't be arsed myself. I was neither and until your tanty today never would have developed.
When the father was asked in cross-examination whether, around that point in time of June 2017, he was (T1.96.45) “yelling and slamming doors” at the mother, he said “that’s subjective”. It was suggested to him that it was not “subjective” to which he replied “well it is”. In terms of slamming doors he said (T1.97.5) “A door, what constitutes a slamming door? A door can close forcefully in a wind. What’s a slamming of a door.” Eventually the father answered that he did not consider he was yelling or slamming doors. He agreed that he left without saying goodbye.
The father was then asked at T1.97.35:
The reality is sir, do you want to answer my question sir - - -?---Well I think I have.
The reality is that you slammed doors, including wardrobe doors, in the short period that you were living with the mother?---Well I wasn’t living with the mother I was staying with the mother. Let’s establish that and let’s clear that up right now.
The father later answered a question in cross examination about his knowledge of the mother by stating (T1.112.30) “I did live with her.”
First Threat to Remove X – 5 July 2017
The mother said she believes the father returned to Darwin from about 9-25 June 2017. In 2017 X was released from hospital. The night before that the mother said she observed the father to be more irritable than usual, with the father “snapping” at almost everything she said to him. She said she asked him to leave as she did not want him to yell like that when X came home, and that he replied:
Yes, I should go home to Ms C. Ms C will be X’s stepmother. I will have a child with her. Our baby will be X’s brother or sister. I will take X to Darwin. I only got you pregnant initially to get away from Ms C!
The mother said she panicked and became anxious about bringing a newborn baby home by herself and said “Please don’t go. Sorry I made you angry.”
In cross-examination on this evidence the father said (T1.106.5):
Do you recall saying to the mother that Ms C would be X’s stepmother?---Well, yeah. I did say that, yeah. And I did say that I would – I would commence legal action, because she had just called me an unfit parent for leaving X on a change table.
Return Home on 6 July 2017 to Father Leaving Apartment on 7 August 2017
General Behaviour
The mother said that in the weeks following X’s return home she was careful not to anger the father as she did not want him to yell around the baby. She said he told her the plans for the day, never asked how she felt or what she felt like doing, and insisted on a lot of walks. She said she was exhausted. She also said that she would not let the father spend time alone with X as she was scared for X’s safety.
She said the father took paternity leave for about for two weeks in 2017, and that during that time he would not let her have any friends or family visit her apartment. She said they had a conversation in which she said she was going to ask her parents to come around and help out and told him that her friends wanted to visit X. She said the father said that they did not need help and that he did not want her friends around. She said she was exhausted and did not want to deal with the father’s anger, so she did not press the issue. She did not ask her family or friends to come visit her and X. She said that each time after that when she asked to invite someone over he appeared agitated and said “No. This is ‘my’ time”.
She said that during his paternity leave the father was very critical of her, telling her, “You don’t know what you are doing”. She said she felt that the father was “incredibly intimidating” and that she was “scared of him” but felt that she “had no options”. She said that the father demanded that she stop breastfeeding so that he could feed X expressed milk. The mother said she expressed some milk so the father could feed X, but she otherwise continued breastfeeding.
She said that the father did not assist with feeding or resettling X to sleep, but often criticised her, telling her that she was not feeding X properly, was not bathing her correctly, nor putting her to sleep properly.
She said in mid July 2017 the father was changing X’s nappy and she saw him leave the room while X was on the change table. She said she told him that he could not leave X unattended on a change table as it was very dangerous. She said she was standing in the doorway and the father came to the door and said “What would you know? You’re a terrible mother. X isn’t putting on any weight and you’re not feeding her properly” and then slammed the door in her face.
In cross-examination the father said that he walked two metres to the sink and that X was not in danger. He denied that he reacted with hostility or told the mother that she was a terrible mother. He said there was “no door in the mother’s kitchen” to slam in her face. He denied he was denigrating the mother.
Erection Comment – 25 July 2017
The mother said that on 25 July 2017 the father said to her “I want to take X for a walk. I get an erection at the thought of taking her.”
She said she told the father that she objected because she had separation anxiety, but in truth she says she was worried about the erection comment and that he might not return X.
She said he called someone and she heard him say “she’s crazy”, which she thought was a reference to her. She said that they did not speak for the rest of that day as she did not want to risk angering the father after their disagreement. She said he went out and came home late and passed out on the bed. She said she slept in a separate room and spent the next day at her mothers. She saw the next day that he had vomited on the bed.
Maternal Grandmother - August 2017
The mother gave evidence that in about August 2017 she spent time with the father at the maternal grandmother’s house. The maternal grandmother also had friends over. She said that the father ignored her, her mother and the friends, and that when spoken to he gave monosyllabic answers. She said on the way home he told her that he did not want to have to see her family, did not like his in-laws, did not want them coming to her apartment, and did not want them bringing X any gifts.
The mother said in 2017 the father came home very late and drunk, and after stumbling into X’s bassinet and almost knocking it over he said words to the effect of “Your mother is a Clayton’s religious person. I have no respect for her. She’s so annoying. She’s a loose cannon. She should watch her mouth. No wonder your father left her!” The mother said she was shocked and angry and did not respond as she did not want to have an argument and wake X up. She said the following morning they had a discussion about this and she was so angry she spent the day at her mother’s house even though it was the father’s birthday.
Father Leaving Mother’s Home - 7 August 2017
The mother said in her affidavit at [68] that:
As a result of the escalating violent and abusive behavior I was witnessing from Mr Rafala I began fearing for X’s safety with Mr Rafala. I was also worried about his explosive anger hurting X. I wanted to ask Mr Rafala to leave but was still unsure how to approach it. I was worried about how he would react. Mr Rafala had begun saying to me in the previous weeks, without any reason or provocation, words to the following effect:
“If anything happens, I will get 100% custody of X. I will be a thorn in your side for the rest of your life!”
And that she believed:
that it would be better to keep Mr Rafala close to watch over X when Mr Rafala was with her, rather than if we split up and Mr Rafala spent time alone with X. At the time, I was sleep deprived, tired, stressed, and scared, and I couldn't think straight. It was hard for me to decide what to do.
She said that on Saturday 5 August 2017 the father said words the effect [69] “I don’t want to live here anymore. I don’t want to be with you. You’re crazy. I’m going to move out on Monday and have booked to live at the barracks before going back to Darwin.”
She said that at 9.00pm on Monday, 7 August 2019 the father was still in her apartment. He asked why she was being so hostile. She said she wasn’t, but thought he was moving back to the barracks.
She said he then raised his voice and yelled at her “For fucks sake! If that is what you want, I will move out and call a hotel!”. She said he began packing his bags and yelled at her in a loud voice [70]:
“You’re a racist half-hearted religious person! I can’t wait to go back to my wife! You have the loosest vagina I’ve ever fucked. You’re a selfish bitch like your mum. Ms Q was too thick to be able to help me in hospital that day. And guess what? Ms C will be X’s stepmother and we will take her away from you, have more kids, and you will have fuck all time with her.”
When asked whether he said these things to the mother in cross-examination the father said he did not recall saying anything like that to the mother.
Later in cross-examination he said at T1.106.20:
And you said that you will take her away from you and have more kids and, “You will have fuck all time with her”. You said that to the mother, didn’t you?---Maybe.
That’s threatening the mother, wasn’t it?---No.
No?---No.
Don’t believe the mother would have seen that as a threat?---Well, when did she think it was going to occur?
I didn’t ask you that, sir. I asked you - - -?---Okay. So – so how do you know that I’m going to – I can’t – I can’t perceive what she thinks is threatening and what she doesn’t. Maybe I said it with a smile on my face, who knows. I don’t know.
The father left her apartment that night and did not return. The father said in his affidavit that:
The time spent as a guest of Ms Debonay on the two periods pre and post birth of X was approximately 78 nights.
And that:
It was at this time I had realised that Ms Debonay sought not to co-parent or resume the relationship we had briefly enjoyed 12 months earlier.
Parenting between 7 August 2017 and the Proceedings
The father gave short evidence in his affidavit that between August 2017 and December 2017 “when our relationship as parents then deteriorated” he spent a week at a time on three occasions in Sydney. He said that during those occasions he would meet with the mother and child at a café or other public location for a few hours. There were 17 separate visits of that nature during those periods. He said those visits “were happy occasions”. He stated that since then he has only spent time with X by Court order.

I find that some of the mother’s behaviours around supervised time, whilst not entirely rational given the presence of supervisors, were not malicious, but were driven by her genuine fears of the father and her extreme anxiety and hypervigilance.
While the father appears to have difficulty controlling his emotions, as demonstrated by his presentation in Court where he knew he was under close observation, I find that the father can control his behaviours, but chooses to act in the manner described. I make this finding because of the calculated way in which he moderates the use of different strategies in different situations, as disclosed in the evidence.
He was willing to use coercive and controlling tactics, through verbal abuse up to and including physical battery on Ms C, because she allowed him to, in what she called “trauma bonding”, and because she could not physically defend herself, and would not report him to police. This is no criticism of Ms C.
However, when his intimation of physical violence against WO1 Mr N did not work he did not physically assault a superior solider. He would clearly have been aware of the risks involved, including the fact that the person he was threatening was also an experienced soldier who would not be easily harmed, dismissal and possibly Court Martial, and so he restrained himself. Instead he then made a formal complaint of bullying against WO1 Mr N, and then the whole chain of command, as a defensive measure, and most likely to punish them by making them deal with his complaint.
Nor did the father threaten physical violence against the mother’s first solicitor or the ICL, which again would have had serious legal ramifications. Instead he sought to intimidate them with threats of complaints, and with the mother’s first solicitor then imposed a cost on her for supporting the mother by making a formal complaint, to which she would then have probably had to spend time responding.
The father’s repeated references throughout his evidence to the absence of any domestic violence orders or criminal convictions, despite admitting to conduct which would justify both, shows how aware he is of the importance of modulating his level of aggression.
The fact that the father is consciously moderating behaviours is significant to the question of whether he will ever change. This is not a case of a person who loses control, then acts out, and then feels regret. That behaviour might be amenable to anger management courses. I find that the father has difficulty managing his anger but has a degree of control over his conduct, and that he justified in his actions. In these circumstances I am not persuaded by the father’s evidence that he has any intention of changing.
I also find that the father has used complaints as a way his conduct and to impose a cost on those who oppose him.
The father’s co-opting of a sequence of new partners to actively help prosecute his case also shows that he is, as the mother said, exceptionally charming when he wants to be, and well able to gather allies which he uses strategically.
The Family Consultant gave her opinion in the alternative. She was not challenged on the substance of her opinions. Her view of what was in X’s best interests was dependent on the determination of the factual disputes by the Court. I set out her opinions relevant to the facts as I have found them.
The Family Consultant said that the father’s “coercive controlling family violence […] can have a detrimental impact on the safety and wellbeing of children. Coercive controlling family violence can be associated with limited parenting capacity of parents in their ability to meet a child’s needs, separating a child’s needs from their own needs, tolerating and managing age appropriate behaviour and inappropriate use of authority or discipline methods which can escalate to physical abuse.” She further said that “significant coercive control or family violence […] would be a significant risk for X”. Further, she said that if the court was to find that the father had anger issues that were not addressed then “X might be at risk of physical or psychological harm as well.”
The Family Consultant also gave the opinion that “children who are exposed to prolonged parental conflict may experience difficulties such as anxiety, depression, sleep problems, low self-esteem and school problems” and that awareness of “significant high parental conflict” undermines a child’s sense of safety and stability in their relationships with their parents and in the parenting arrangement.
The Family Consultant also considered that if X is exposed to denigration by either parent of the other that this would have “significant implications for her psychological wellbeing”, and that if “X is exposed to Mr Rafala’s views about Ms Debonay and the maternal family, then X may be at risk of developing a troubled relationship with her mother and maternal family”.
The Family Consultant gave an opinion that the mother “presented as highly distraught by her alleged experience of Mr Rafala, and of being entangled in a dysfunctional and debilitating co-parenting relationship with him” and that her “[…] distress appeared to such an extent that the Family Consultant holds concerns about the emotional wellbeing of Ms Debonay and her ability to emotionally cope with the current circumstances.”
She said that should there be Orders for unsupervised time she held serious concerns about the level of distress the mother might experience and about the mother’s capacity to not expose the child to this distress. The Family Consultant stated that this could compromise the mother’s overall parental capacity, and that if the mother’s “parenting capacity were to diminish to the point that she would be unable to appropriately meet X’s needs” then it would not be in X’s best interests to have unsupervised time with the father as “it is important that X have a parenting arrangement that does not compromise the parenting capacity and functioning of her primary carer.”
In summary, the Family Consultant said that an unacceptable risk of harm to X could arise on different grounds, including the risk of exposure to family violence, the psychological impact of transitioning between parents in high conflict, exposure to denigration by one parent of the other, or from an impact on the mother’s mental health having an impact on the mother’s parenting capacity and the care X receives.
The Family Consultant’s opinion was that the father’s behaviours, as I find them, were indicative of a lack of capacity and/or motivation to change, that the co-parenting relationship was “unlikely to ever improve”, that seeking to minimise or explain away family violence and taking no responsibility for it meant he was unlikely to change, and that further courses would not assist. She stated that “this would in turn raise concerns about his parenting capacity and the safety of X if she were to spend unsupervised and substantial time with him”. She also considered that past patterns of behaviour were a good indicator of likely future patterns of behaviour.
The Family Consultant also gave evidence that the mother’s proposed orders may result in X experiencing difficulties with her identity, potential loss of connection with her paternal family and significant extended family relationships. This might reduce X’s future family networks and support in the absence of having any relationships with them. Additionally, there is the risk that when she is older X may question her mother’s decision making. These risks and potential losses must also be taken into account in assessing X’s best interests.
I accept and agree with these opinions as stated by the Family Consultant on the basis of the findings I have made.
The mother gave evidence of her subjective perception of her own mental state. That evidence was challenged on the basis of the mother’s conduct in a number of regards. The expert opinions of the Family Consultant and Dr G did not support that challenge. I am satisfied that there is no necessary inconsistency between the mother’s stated fears, and her willingness to facilitate time in 2017, her filing of the response of March 2018 anticipating unsupervised time, her general compliance with Court orders for supervised time, or her ability to reply with equal condescension and sarcasm to the father’s messages. Her fears were expressed to both police and community nursing personnel in 2017, and the expert evidence supported the mother’s case that as a victim of domestic violence she was acting to placate the father in the hope of a better long term relationship post-separation.
The mother’s view of herself that she would not be able to comply with Court orders for unsupervised time was also challenged. The mother made the reasonable concession that she would, or would try to, comply even with orders for unsupervised time. That was despite her genuine view of the father as representing a risk to X, which the mother characterises as being akin to being in a cage petting a “lion”. Whilst that was a dramatic and emotional characterisation, I am satisfied that it is how the mother feels. Given my findings about the father’s behaviours, and what he did to Ms C and to the mother, whilst it involves a degree of hyperbole, it is not entirely inaccurate.
The Family Consultant noted her concerns about the mother’s mental health and considered that, even in the absence of risk, X’s ability to have a meaningful relationship with the father was largely dependent on the mother’s capacity to support that relationship.
Dr G’s opinion was that the mother met the DSM-V diagnostic criterion for Adjustment Disorder with Mixed Anxiety and Depressed Mood, based on the mother’s high levels of preoccupation, intrusive thoughts as well as intermittent panic symptoms, high levels of worry and rumination, hypervigilance around communications, insomnia, reduced work productivity, associated periods of low mood, motivation and reduced pleasure, all of which were affecting her everyday functioning. Despite all of this the mother has continued to manage to comply with Court orders for supervised visits and to her credit been consistently emotionally available to X and able to meet her needs.
Dr G did not consider that the end of this case would end the mother’s psychological distress because the stimulus would remain. That stimulus is the risk the mother perceives the father presents to X. Given the mother’s view that X would continue to be at risk, and indeed if there were unsupervised time a significantly increased risk, Dr G did not think the mother would be able to habituate to the risk. The mother’s diagnosis would likely continue and, with the increased risk of unsupervised time and the gradual wearing effect of stress over time, there is a risk her psychological state would deteriorate to the point where it would impact on her parenting capacity.
On the findings I have made, if there is unsupervised time the stress on the mother from that time, as well as the parties increased need to communicate, is likely to increase. That will add to the mother’s stress and the likelihood that her mental health will be further impacted and her parental capacity be adversely affected, with the risk that it will decrease to a point where it negatively impacts X.
The expert evidence did not purport to make the finding about whether or not the mother’s mental fortitude would allow her to continue adequately parenting X under this increased load. That is a finding which I will have to make, taking into account the fact that I accept the mother’s subjective view that she will not be able to withstand that increased load, and Dr G’s evidence about the impact of even supervised time on the mother.
The Full Court said, in Sedgley v Sedgley (1995) FLC 92-623, amongst other things, at 82,259 that:
Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquillity in the custodial parent's household may be a more compelling need for the child.
Their Honours also observed, however, at 82,260 that:
The decision to cut the relationship between a parent and child is one which ordinarily the Court takes only with considerable hesitation.
In Irvine & Irvine (1995) FLC 92-624 the Full Court, dealing with a father who had engaged in extremely serious family violence, said at 82,273 :
Given the extreme seriousness of the matters established against the husband in this case, and given that the children’s custodial parent wholly opposed access, this seems to us to be a case where an access order ought only be made where there was compelling evidence that the welfare of the children required such an order be made.
In deciding whether it would be in the interests of the children to grant such access, the Court had to bear in mind the obvious effect the respondent's conduct must have had upon the custodial parent.
This is a case in which the mother’s fears are genuinely held and grounded in the father’s behaviours. However, as the Full Court recently pointed out in Keane v Keane (2021) 62 Fam LR 190, not every case in which a parent is concerned about the safety of their child when spending time with the other parent will necessarily give rise to an unacceptable risk. Every case depends upon an assessment of the child’s best interests.
Legislative Pathway
The legislation requires the Court to take into consideration a range of Considerations (s 60CC of the Act). Each party is seeks parenting orders for X as defined in Part VII of the Act (and note ss 64B and 65D of the Act). The paramount consideration in determining what parenting orders to make are X’s best interests (ss 60CA and 65AA of the Act).
“Family violence” is defined by s 4AB of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.” The definition of family violence is, by clear statutory design, broad and inclusive. It includes, but is not confined to, conduct which would attract a criminal sanction. It encompasses behaviours such as: assault, sexual assault or other sexually abusive behaviours, deprivation of liberty, stalking, repeated derogatory taunts, intentionally damaging property or injuring animals, unreasonably denying financial autonomy or withholding financial support, preventing the making or keeping of connections with family, friends or culture.
The presumption of equal shared parental decision making (s 61DA and note s 65DAB of the Act) is rebutted by my finding of family violence as defined in the Act (s 4AB) by the father against the mother. Consequently, I am not required to consider X spending equal time or substantial and significant time with the father (s 65DAA of the Act).
The two primary considerations, in order of weight, are firstly the need to protect X from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to X of having a meaningful relationship with both parents. These are the “twin pillars” on which a decision as to X’s best interests are founded. Mazorskiv Albright [2007] FamCA 520 Brown J at [3].
The question of risk to X is to be determined by reference to the principles set out in the leading case of M v M (1988) 166 CLR 69, where the High Court said at [25]:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In B and B (1993) FLC 92-357 at 79,778, the Full Court of the Family Court of Australia considering the issue said:
[…] In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In Stott and Holgar and Anor [2017] FamCAFC 152 the Court said, at [37];
As an eminent former judge of this Court has said (citation omitted):
[…] unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ […]
The concept of a meaningful relationship involves one which is “important, significant and valuable to the child.” There is no presumption at law that a child will benefit from a relationship with a parent. The Court must evaluate on a prospective basis “the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”. (see Saliba & Saliba [2018] FamCA 210, and McCall & Clark [2009] FamCAFC 92.)
As noted above, I accept the evidence of the Family Consultant on the question of the likely negative impacts to X if she is exposed to the types of behaviours which I have found the father consistently engages in. I also accept her evidence concerning the risks to X from the loss of her relationship with the father that the mother’s proposal entails.
Given my findings as to the father’s long term behaviours, I find that if X spends unsupervised time with the father there is a substantial risk that she will be subjected to long term family violence by the father, including through coercion and control, and with a possibility of escalation to physical violence.
I also find that there is a substantial risk that X will be exposed to the high conflict between the parents, and to the father’s very negative view of the mother and the maternal family.
I also find that there is a risk that, as a consequence of unsupervised time, the mother’s mental health will deteriorate, and impact on her parenting capacity with a consequential negative impact on X.
The mother raised a number of issues in her evidence going to risk of sexual abuse which can be dealt with shortly. Having considered the evidence the mother relies upon, and the gravity of such a finding, I am satisfied that there is no reliable evidence that the father poses any risk of sexual harm to X.
I find that it would be preferable, if otherwise appropriate, to make the order which would be least likely to lead to the institution of further proceedings. Those would be orders as proposed by the mother. Given the history of the case and my findings, I find if there are orders for unsupervised time X is likely to be the subject of ongoing litigation. Of course, even with identity visits, in this case, there is still the risk of further litigation.
I accept the Family Consultant’s opinion that this would not be in X’s best interests and also note what was said in In the Marriage of McEnearney [1980] FamCA 43; (1980) FLC 90-866 at 75,499 by Justice Nygh that:
The last thing, of course, that this court would wish to see would be a perennial football match between parents, who, because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
The same sentiment was expressed in Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 at 76,470–71 where it was said that:
Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely.

X has a good relationship with and loves both parents, to the extent to which she has been able to form a relationship with the father under supervision. She also appears to have a good relationship with the maternal grandparents. A large part of the father’s case was that X had a clear view that she loves and wants to spend time with him. I am required to consider X’s views, subject to her maturity and level of understanding. X is a pre-school infant and her views, to the extent to which they may be said to have been expressed by her displays of love for the father, can have little if any weight in an assessment of her best interests.
Each parent has taken the opportunity to participate in decision making, in spending time with and communicating with X to the extent they have been able to. The mother raises the father’s failure to pay child support, but given the financial burden of long term supervised visits that does not weigh against the father here. There is no doubt that having formed an attachment or bond with the father a decision to restrict time with the father to four supervised visits per year gives rise to a substantial risk of a negative impact on X by reason of a change of circumstances. There is no issue in this case of expense or practical difficulty of any proposal.
There was no evidence that the mother did not have the capacity to provide for X’s needs, including her physical, emotional and intellectual needs. Dr G agreed in cross-examination that she had shown good capacity to date despite her psychological issues. The Family Consultant also indicated that the only issue of capacity regarding the mother related to her conduct around supervised time. However, I find that if there is unsupervised time the mother’s parenting capacity is at a risk of suffering, but if there are only four supervised identity visits the mother is likely to regain her psychological well-being and have a basically unimpaired capacity to meet X’s needs.
There are substantial issues with the father’s capacity to provide for X’s needs as set out above. Whilst the father loves X, it appears likely that he will prioritise his own over hers. The father has not demonstrated a capacity to provide an environment in which X’s emotional needs could be safely met. There is also a serious question as to whether he has the capacity to provide for her physical need for an environment free from physical abuse.
The father’s attitude to X appears to be focussed on his own needs rather than hers. There is no issue with the mother’s attitude towards X or her role as parent.
There are no other relevant factors around the maturity, sex, lifestyle or background of the parents that are not dealt with above. The child is neither Aboriginal nor Torres Strait Islander.
The issue of family violence has been dealt with at length above. I also note that pursuant to s 60CG of the Act, when considering what parenting order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence. There is also a real risk that unsupervised time will expose the mother to ongoing family violence by way of coercion and control through conflict over X including by ongoing litigation.
Weighing all of these factors by reference to the requirements set out in the authorities above, including the risks to X of making orders only for identity visits, I am comfortably satisfied that the substantial risk of detriment to X of unsupervised time with father outweighs the risks to X arising from the loss of a meaningful relationship with the father. Given the assessed level of risk and the seriousness of the consequences for X, I find that allowing X to spend unsupervised time with the father would constitute an unacceptable risk to X.
I note that there were no proposals other than the mother’s proposals for four identity visits and the ICL’s and father’s proposal of unsupervised, substantial and significant time. I do not consider on the evidence that any such intermediate option was available or required consideration.
Orders
If follows from these findings that the mother should have sole parental responsibility for X, X should live with the mother, and the only time the father is to have with X is to be the four supervised identity contact visits proposed by the mother.
The mother’s formulation of orders seems sensible and no submissions were made against them if the mother’s case was accepted.
I will amend the proposed orders to state that the supervised identity visits are to occur within the Sydney Metropolitan region, where the father resides and the mother said she intended to continue living. I will add “residence” to the order concerning the obligation on the father not to approach X. I will add to the orders the capacity to give these orders to X’s school. I will add to order for holidays a caveat, for the avoidance of uncertainty, that holidays and other time overseas must not interfere with the identity visits.
I will make the restraint on the change of X’s surname proposed by the ICL and supported by the father to which the mother agreed.
Given that the risk to X of denigration of a parent runs both ways I will add an order that the mother not denigrate the father to X, or so far as possible allow any other person to do so.
There are outstanding applications which were filed after the conclusion of the hearing. Each party should notify the other and chambers within 14 days whether they wish to press any of these applications or to withdraw them. If they are pressed it will not be appropriate for me to hear them, given the credit findings I have made concerning the father, and those matters will be referred to the Case Management Judge for allocation.
The ICL did not seek costs. The usual order is for each party to bear their own costs, however, if a party seeks costs they are to file an application and evidence in support within 28 days. Otherwise, there will be no order as to costs.

I certify that the preceding six hundred and fifty-seven (657) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.
Associate:
Dated: 5 July 2021

[2021] FCCA 1509

5 July 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Procedural Fairness

Consent

Remedies

File number(s):	SYC 260 of 2018
Judgment of:	JUDGE B SMITH
Date of judgment:	5 July 2021
Catchwords:	PARENTING – family violence – whether father has history of anger and violence against former wife, in employment and in dealing with others – whether father committed coercive and controlling family violence against mother – whether father is victim of a campaign of unfounded allegations – whether father is an unacceptable risk for unsupervised time: Held. Father has history of violence and family violence. Risks to child –psychological and physical harm – exposure to coercive and controlling behaviour – exposure to physical abuse –exposure to high parental conflict – exposure to father’s extreme negative views of mother – ongoing litigation – risk to mother’s psychological and parenting capacity being impaired by her genuine and well-founded fears of father – Father is an unacceptable risk to child of spending unsupervised time.
Legislation:	Evidence Act 1995 (Cth) ss 69, 140 Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CA, 61DA, 64B, 65AA, 65D, 65DAA Federal Circuit Court Rules 2001 Rule 15.7
Cases cited:	B and B (1993) FLC 92-357 Britt v Britt [2017] FamCAFC 27 Carlson & Fluvium[2012] FamCA 32 Fitzwater & Fitzwater [2019] FamCAFC 251 Freeman and Freeman [1986] FamCA 23; (1987) FLC 91-857 HG v R (1999) 197 CLR 414 In the Marriage of McEnearney [1980] FamCA 43; (1980) FLC 90-866 Irvine & Irvine (1995) FLC 92-62 Keane v Keane (2021) 62 FamLR 190 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mazorskiv Albright [2007] FamCA 520 M v M (1988) 166 CLR 69 McCall & Clark [2009] FamCAFC 92 Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR R v Turner [1975] QB 834 at 840 Saliba & Saliba [2018] FamCA 210 Sedgley v Sedgley (1995) FLC 92-623 Stott and Holgar and Anor [2017] FamCAFC 152 Re W & W: (Abuse allegations; Expert evidence) [2001] FamCA 216, (2001) FLC 93-085, 28 Fam LR 45
Number of paragraphs:	657
Date of hearing:	5-7 February 2020, 28 February 2020 and 20 July 2020
Place:	Sydney
Counsel for the Applicant:	The Applicant appeared in person for 28 February 2020 and 20 July 2020
Solicitor for the Applicant:	Mr Holmes
Counsel for the Respondent:	Ms Loumis
Solicitor for the Respondent:	Ms Santo
Counsel for the Independent Children’s Lawyer:	Ms Conte-Mills
Independent Children’s Lawyer:	Mr Wilkins

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	5 JULY 2021