RANDELL & ADLER

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDELL & ADLER

[2020] FCCA 767

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicant:

MR RANDELL

Respondent:

MS ADLER

File Number:

PAC 707 of 2016

Judgment of:

Judge Newbrun

Hearing dates:

10, 11, 12 February 2020

Date of Last Submission:

12 February 2020

Delivered at:

Parramatta

Delivered on:

7 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Cairns of Counsel

Counsel for the Respondent:

Ms Windsor

Counsel for the Independent Children's Lawyer:

Mr Ladopoulos of Counsel

ORDERS

That the mother have sole parental responsibility for the child, X, born … 2014 (the child).
That the Mother:
(a)Notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b)Take into consideration any views expressed by the Father about the proposed decision.
That the child live with the Mother.
That subject to Orders 5 and 6 below, the child spend time with the Father as provided for in Order 3 of the Father’s Second Further Amended Initiating Application (the Father’s Proposed Orders), except that the supervised time provided for in Order 3(a) of the Father’s Proposed Orders shall be supervised by Town B Children’s Contact Centre or, if the Centre is unable to facilitate such supervision, by an accredited professional supervising agency nominated by the Father.
That the child’s time with the Father (including supervised time) shall not commence unless the Father has:
(a)Completed an Anger Management Course of at least six (6) weeks duration; and
(b)Provided a copy of a certificate of completion of such course to
a. the Mother; and
b. the Contact Centre
That the child shall not commence unsupervised time with the Father unless the Father has:
(a)Provided the Mother with a letter from his treating psychologist or psychiatrist (as provided for in Order 7 below) confirming that he has:
a.   Consistently attended sessions with the treating psychologist/psychiatrist as recommended by that psychologist/psychiatrist;
b.   Followed any recommendations made by the psychologist/psychiatrist; and
c.   In the event that the psychologist/psychiatrist considers that further sessions are no longer considered necessary, confirming that that is the case.
That the Father forthwith approach his General Practitioner for the purpose of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 8, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.
That the Father engage with the psychologist/psychiatrist referred to in the preceding Order for the purposes set out in that Order.
That the Father have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to his General Practitioner and to his treating psychologists and/or psychiatrists.
That the Mother forthwith approach her General Practitioner for the purposes of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 7, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.
That the Mother engage with the psychologist or psychiatrist referred to in the preceding Order for that purposes set out in that Order.
That the Mother have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to her General Practitioner and to her treating psychologists and/or psychiatrists.

(12A)That the mother and the father each request their respective psychologists/psychiatrists, as referred to in orders 8 and 11 above, to confer for the purposes of jointly recommending a child psychologist to assist the mother and the father with informing the child of his paternity.

That the Mother and the Father forthwith contact and the Town B Children’s Contact Centre and:
(a)Arrange an appointment for assessment for suitability;
(b)Attend the assessment;
(c)Comply with any appointment made by the centre;
(d)Comply with all reasonable rules of the Centre;
(e)Comply with all reasonable request or directions of the staff of the Centre;
(f)The parties shall each pay the fees nominated by the Centre for the provision of its service.
That the Father shall ensure that the Mother is notified as soon as practicable if, while in his care:
(a)The child is admitted to hospital; and or/
(b)The child is involved in a medical emergency
That the Mother shall ensure that the Father is notified as soon as practicable if, while in her care:
(a)The child is admitted to hospital; and/or
(b)The child is involved in a medical emergency
That these Orders authorise any school which the child is attending from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to the child.
That the Mother and the Father:
(a)Forthwith advise each other of:
a. An email address which can be used by each of them to communicate about matters relating to the child; and
b. A telephone contact number to be used to only for emergencies in respect of the child; and
(b)Notify each other of any change to such email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
That the Mother and the Father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
Neither party shall denigrate the other party to or in the presence of the child and shall take all reasonable steps to ensure that no other person denigrates the other party to or in the presence of the child.
The parties are restrained from consuming any illegal drugs or alcohol whilst the child is in their care.
Each party is restrained from using any physical punishment upon the child.
Each party shall continue to follow all reasonable directions of their medical, psychiatric and psychological consultants and engage in such therapies as may be recommended by such consultants.
The parties shall forthwith advise the other party of any illness or injury suffered by the child which requires medical treatment whilst the child is in their care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 707 of 2016

MR RANDELL

Applicant

And

MS ADLER

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the male child X born … 2014.
The father commenced proceedings in this Court on 17 February 2016.

Proposals

The father in his Second Further Amended Initiating Application filed 4 February 2020 (and in his proposed Minute of Orders) sought final parenting orders, inter alia, that the child live with the mother; the parties have equal shared parental responsibility for the child; and that the father spend time with the child on a graduating basis over a period of 2 ½ years during the daytime (he proposes that the child’s time with the father for the first 12 months would be either supervised by the maternal grandfather or if she is not available then at a contact centre), progressing to fortnightly overnight time and Christmas day time.
The mother in her Amended Response filed 20 January 2020 sought final parenting orders, inter alia, that she have sole parental responsibility for the child; that the child live with her; and that the father spend no time with the child. In the alternative, the mother sought parenting orders that the child merely have “identity contact” with the father.
The ICL sought final parenting orders as set out in exhibit F; inter alia, that the mother have sole parental responsibility for the child; that the child live with the mother; and that the child spend time with the father (initially supervised) but subject to completing an anger management course and obtaining certain psychological/psychiatric treatment.

Material relied upon

The mother relied upon the following documents:
a)Amended Response filed 20 January 2020;
b)Notice of Risk filed 11 August 2016;
c)Affidavit of mother filed 5 February 2020;
d)Affidavit of Mr C filed5 February 2020.
The father relied upon the following documents:
a)Second Further Amended Initiating Application filed 4 February 2020
b)Notice of Risk filed 17 February 2016;
c)Affidavit of father filed 20 January 2020;
d)Affidavit of Ms D filed 20 January 2020.
The following exhibits were relied upon by the parties and ICL:
a)Exhibit A: Report of Dr A dated 7 July 2018
b)Exhibit B: Child Dispute Conference Memorandum dated 31 March 2017;
c)Exhibit C: Handwritten letters from the mother to the father;
d)Exhibit D: Facebook entry of the mother;
e)Exhibit E: Subpoenaed documents, tagged, from Department of Family and Community Services, Sleeve 1;
f)Exhibit F: Independent Children’s Lawyer’s Minute of Proposed Orders;
g)Exhibit G: Subpoenaed documents, tagged blue, from Ms E Counsellor, Sleeve 9; F Psychologists, Sleeve 20; Psychological Solutions, Sleeve 21.
The Court has had regard to all of the evidentiary material relied upon, along with the documents tendered into evidence and the oral evidence taken. The court has also considered the submissions set out in the outlines of case documents and oral submissions.

Evidence

Throughout these reasons (including the Court’s discussions under s.60CC of the Family Law Act 1975) the Court will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
The father is aged 29 years, and the mother is aged 35 years.
The parties commenced cohabitation in late 2010/December 2011. They separated in about April 2014.
The mother has always been the child’s primary carer. From the child’s birth until separation, a short period, the father assisted the mother with childcare.
From separation to October 2014 the father only saw the child about four times.
A short time following separation, the mother told the father that she was leaving her residence for another. She told the father that it was for her own well-being and that she didn’t know where she was going to live.
The father has not spent any time with the child since October 2014. The child does not have any relationship with the father. The child does not know what the father looks like. The child does not have a relationship with the paternal family.
The father has made three payments (a few hundred dollars each time) towards child support since separation to date.
The father has a history of adverse mental health. He asserts he has been diagnosed with depression and anxiety. He also asserts he suffers from post traumatic stress disorder which arose by reason of family violence which occurred in his family when he was a child. He asserts that in addition, when he was a child, he spent periods of time living in Country G and witnessed public violence there.
The father has been seeing counsellors and psychologists since he was 15 or 16 years old. Initially he was taken to see a psychiatrist on referral by the Department of Community Services.
The father engaged in self-destructive behaviour as a teenager. These included placing himself in dangerous situations. He began doing martial arts in his late teens. He believes that martial arts has taught him discipline, made him feel more grounded, and has increased his confidence and reduced his anxiety. He spends daily time in martial arts.
The father currently sees two therapists, Ms H, who he sees every week or 14 days, and Mr I, who sees him every 2 to 4 weeks. He is currently undergoing rapid eye movement (REM) therapy to help him deal with his anxiety and depression. He does not take any medication and prefers to deal with his mental health through therapy rather than medication.
The father admits to a lot of arguments and shouting in his relationship with the mother.
The father has a new partner, Ms D. She is aged 25 years. He has been living with Ms D since May 2015. They have two children together, two daughters aged 4 years and almost 2 years. He currently lives in a rented house in Town J.
The father is not presently employed. He receives a Newstart allowance. Ms D has not been in paid employment since 2017 when she became pregnant with their youngest child. She receives a Parenting Allowance.
The father asserts that he would welcome the opportunity to have the child spend time with him and his new partner and provide him the opportunity of being able to form a relationship with his two sisters whom he has not met.
The mother is in a relationship with Mr C. Mr C has a child from a previous relationship, K, born … 2015. He spends overnight time on a weekly basis for several nights per week with the mother and Mr C. The child calls K his brother.
The child does not know that Mr C is not his biological father. The child calls Mr C “Dad” and has a loving relationship with him. Mr C treats the child like his own son.
The mother has a strong family support network consisting of her father, her sister, her two brothers and her mother. She sees them often and they are a big part of the child’s life.
The child has been previously diagnosed by a paediatrician with global developmental delay, autism spectrum disorder, and attention deficit hyperactivity disorder.
The father has not had any involvement in the medical decisions that have been made for the child.
The mother is very worried that the father would not be able to regulate his anger when the child makes him angry if the child is having a meltdown or was not coping as a result of his autism or ADHD.
The child is having speech pathology treatment.
The mother has concerns that the child will not be able to cope with spending time with the father. She asserts the child has his little routines and the mother has gone to a lot of effort to provide a safe and secure world for the child. The mother asserts the child does not cope well with change and requires a lot of support to transition from one activity to another or from one place to another.
The mother completed her secondary education through TAFE.
The mother has suffered some spinal injuries and takes pain medication which she is endeavouring to reduce.
The mother has experienced traumatic incidents that occurred to her when she was younger and prior to her relationship with the father. She was diagnosed with depression and anxiety when she was a young teenager. She voluntarily admitted herself, when she was under 18 years, to a mental health facility. She began self harming when she was about 14 years old and prior to any mental health intervention. She had one incident after the child was born when she self-harmed and prior to the relationship ending with the father.
The mother sought mental health treatment after separation. She commenced counselling. The mother has not had any ongoing counselling for the period of 2018 to 2020. She has had one-off sessions with other counsellors, besides her usual counsellor, Ms E. She now has a new counsellor Ms L, who she has just begun to see. The mother proposes to have weekly consultations with her. She also manages her anxiety and depression with medication. She has a treating psychiatrist and GP.
The mother is worried that should the court make any orders for the child to spend time with the father, her mental health will deteriorate. She is worried that it would impact on her parenting capacity. She asserts she is fearful of the father and when she thinks of him she becomes very anxious.
The child commenced kindergarten in February 2020. He is in a classroom with a special needs teacher, and an aide in a limited classroom for only 6 children. An occupational therapist will see the child at his school.
The mother has no confidence in the father’s ability to regulate his emotions and she believes that the child would be at risk if he was to spend time with the father. The mother has no confidence in the father’s ability to cope with the child’s autism, such as his triggers or when he is having a meltdown. She has no confidence that the father holds any capacity to communicate with the mother regarding issues relating to the child.
The father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The father stated that he has had a social worker since he was aged 15 or 16 years. He stated this was because of his “history and upbringing”. He did not have a strong support network. He was sometimes homeless as a teenager.
The father stated that since the child was born, he has been having psychological and psychiatric support. This was to deal with his PTSD. He now sees Ms H in Town M. He has been seeing her for the last two months. He has seen her for not less than 8 to 9 consultations. He sees her every week or 14 days. He stated that her treatment is trying to reprogram the father’s brain, through rapid eye movement. He stated that he also consults with a general psychologist Mr I, and he sees that psychologist every 3 to 4 weeks. He has seen this psychologist on four occasions.
He has had no substantial prior psychological treatment; in this context he stated that he had had on and off consultations with practitioners. He stated that he had been diagnosed with PTSD from a psychiatrist. He declined to take prescribed medications.
The father stated he had not done an anger management course since separation.
He did a Parenting after Separation course after the parties’ first mediation in 2015/2016.
The father stated that relations between himself and the mother became heated during their 3 ½ years together. He stated that this led to him leaving their residence every month or two. He stated that if it was “really bad” he would leave overnight and this occurred on several occasions. He stated that he would usually leave their residence for three hours to clear his head.
The father stated that he has an extended large family in Country G. He holds citizenship for Country G and he speaks Language N.
The father stated that he disciplines his own two daughters by giving a lot of time outs appropriate to their ages. He states that he can get frustrated with his daughters. He does raise his voice, using a stricter tone to indicate that there is a serious conversation. He might give the eldest child a timeout of about five minutes, which would involve her sitting on a chair sitting still being asked to think of what she had done or going to her bedroom. After his time out, he will then apologise to the child for upsetting them.
The father told the court that he had not read any material regarding global developmental delay, autism spectrum disorder or attention deficit hyperactivity disorder. He had not spoken to any health professional about those conditions.
The father was asked whether he had ever hit his own father. He stated that he had not but had attempted to on two separate occasions; the first when he was 13 years of age, and the second when he was 17 or 18 years of age.

The father agreed that he had become upset with a nurse at O Hospital on 13 December 2019. He was verbally critical of her.
The father agreed that on 9 September 2019 he had told a practitioner at F Psychologists practice that he had had suicidal thoughts. The father stated that these thoughts related to his PTSD which was ongoing.
The father agreed that he had told a therapist on 11 October 2019 that he had smoked marijuana when he was 26 years of age. He said that that was a lie and that he had been trying to look normal.
The father stated that he had seen a psychotherapist called Ms P at Medical Centre Q for about three months. He found the treatment helpful which address anxiety, depression and PTSD. He agreed that he had returned to the practice by September 2019.
On 22 August 2018 the father had told the therapist that his main stressors were the care of the children.
On 11 March 2019 he told Dr R that he tries to act rationally but that his emotions can get the better of him.
In about early June 2019 he told Dr S that he had a worsened depressed mood as a result of an acute stress mood.
The father stated that he and his present partner are both polyamorous; they can have romantic and/or sexual relationships with others outside of their relationship. The father stated that he was bisexual. He stated that in the past two years he has tried to have romantic relationships with men.
The father agreed that on 20 February 2015 he had told Ms P that he had anger management issues.
The father stated that the child knowing him would help the child know himself in the future. The father stated that his issue was that the child knows who is real father is, so that the child knows where his idiosyncrasies came from.
The father accepted that dealing with his own mental health was a work in progress. In this context he referred to his PTSD, depression and anxiety. He agreed that it was only in the last two months that he had had regular counselling intervention. Previously he had on and off counselling.
The father stated that it was possible in six months time he may not be mentally well. He stated that since he was a child he has been fighting his past, his trauma and he is still fighting. He stated that he still falls down from time to time. However he picks himself up. He stated that he has never let that get in the way of caring for his children. It would not let that get in the way of the child.
The father agreed that he struggles with anger. He has not done an anger management course. He stated that he has not had an outburst since he was a child. He stated that he did not believe he needed to attend an anger management course. However, if his present REM treatment did not assist him, then he will attend an anger management class if it was recommended.
The father had only just read the report relating to the child’s disabilities annexed to the mother’s trial affidavit. He agreed that he did not have an accurate strategy (presently) in relation to what he would do with the child if spending time with him. He stated that his approach would depend on what information he obtained from the child’s doctors.
The father stated, if he was to begin spending time with the child and the child became confused, he would take efforts to calm the child down; he would have someone that the child trusts and cares for being present; and he would be happy to end the session early if there was a need to. He had not spoken to any person yet in relation to being present with him when spending time with the child.
As to the prospect of professional supervision of his future time with the child, the father stated that he would find a way to pay for the cost of such supervision such as getting a job.
The father was asked what he would say to the child if the child asked him, “why are you my dad and [Mr C] isn’t my dad?”.
The father agreed that he had not yet sought professional guidance as to how to answer questions the child might ask him when spending time with him, apart from being given a pamphlet by a professional two years ago.
The father was questioned about his recent suicidal ideation. The father stated that he had not acted out on such thoughts since being young. He stated that between the ages of 9 and 15 years he would have those thoughts and try to act out on them. He stated that he had not tried to self-harm since the age of 15 years.
The father stated that the triggers for his PTSD symptoms and suicidal thoughts include smells, similar scenarios, and turn of events.
The father stated that when he has suicidal ideation he might experience a slump in his mental health and that such slump could last from a couple of hours to a few weeks.
The father’s new partner, Ms D gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The father’s new partner stated that she is currently medicated for complex PTSD and anxiety. She has not seen a psychotherapist for a few months.
She stated that if the child was able to spend unsupervised time with the father then she felt that the child could bring a lot of richness to their daughters’ lives.
The ICL asked Ms D if there had been occasions where the father had felt so low emotionally that he could not deal with his daughters and had to walk away. Ms D responded by stating that this had not occurred recently. She stated that two years ago the father told her that he needed a few minutes away. She stated that the father had recently had to walk away. She stated that after the last court appearance in these proceedings, being a few weeks to a few months ago, she had observed an emotional slump in the father.
Ms D stated that she would not label father an angry person. She had never seen the father lash out in anger. She stated that when the father is overwhelmed by his emotions, he would leave the house, or do martial arts training, or play music. She had seen the father take those steps 2 or 3 times in total and 2 of those occasions were prior to the last two years.
The mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The mother stated that she would have extreme difficulties having contact with the father and communicating with him. She stated that she could, in writing, provide detail to the father as to the child’s likes, if the Court ordered time between the child and the father.
The mother stated that if supervised time occurred between the child and the father, providing for her arrival and departure from the contact centre without having to make contact with the father, that would provide some comfort to her but would not alleviate her concerns.
The mother was shown her two letters handed to the father in about September 2014: exhibit C. The mother stated that at this time she had given a food box to the father which contained his own food.
The mother stated that when the child was much older and if the child wanted to see the father, she would consider the child spending time with the father, but presently he was not ready to spend time with the father.
The mother stated that when the child was much older, when he was a teenager, and when it looked like he could handle it, she would tell the child about the father. She stated that if the child does not ask, she will not tell him and there would be no medical need to do so.
The mother was asked whether, if the court ordered the child spend time with the father, the mother would continue to consult her counsellors as to how she would deal with the child spending time with the father. The mother stated that she definitely would continue to see her counsellors in this context. She stated that she had recently started consultations with Ms L from U Organisation.
The mother stated that she accepted that it was good for the child that the father be kept in the picture of what was happening in the child’s life. She would be happy with a court order that she communicated with the father in relation to her proposed major decisions for the child and to ask the father’s advice.
The mother stated that she would not be prepared to send a photo of the child once per year to the father in view of her concerns that such photos could be disseminated globally in view of the father’s extended family.
The mother referred to the father’s extended family and stated that it was a large part of why she was scared of the father.
The mother stated that the last few days she has been very stressed. She stated that the child had not noticed such stress.
The mother’s new partner, Mr C, gave oral evidence. The Court does not propose to set out the entirety of such evidence.
He stated that he was considering adopting the child if it was possible.
He stated that he would do whatever was necessary, if the court ordered time between the child and the father, to facilitate such time occurring.

The child inclusive conference held on 30 March 2017

Ms V, family consultant, conducted this conference.
The father told the family consultant that he did experience “night terrors” and had caused the mother injuries in his sleep, such as her fractured shoulder, for which she took her to hospital.
The mother told the family consultant that shortly after separation, she changed her residential address and phone number, because she was concerned for her safety and did not trust the father.
The father said that he recognised that the child would likely not know who he was. He said that he planned to introduce himself slowly to the child but would introduce himself as his father.
The family consultant stated that if supervised time does occur, it was suggested that the father not introduce himself to the child as his father immediately, as this is likely to be confusing for the child, particularly if he has the special needs that the mother had reported.
The family consultant stated that both parties and the child have significant mental health issues, and the father indicated that he also has an undiagnosed sleep disorder.

The family report

Dr A, psychiatrist, prepared a family report. He interviewed the parties, the father’s partner Ms D, the maternal grandfather and the child, on 10 April 2018.
The family report writer referred to a report from Ms P, psychologist, regarding the father dated 10 February 2015. The father was referred under the ATAPS scheme. The family report writer referred to the DASS showing extreme anxiety, depression and stress at the time. “[Mr Randell] (the father) spoke about a history of violence, crime and war trauma particular in relation to his father and other family members… He also said that he experienced depression for as long as he can remember as well as currently having nightmares. [Mr Randell] presents as someone with post-traumatic stress disorder. He also was suffering from grief and not being able to see his son and ongoing domestic dispute.”
The family report writer asked if he could interview the mother alone, however the mother indicated that the child would not be able to separate from her. She attempted to leave the child with the maternal grandfather in the waiting area. However, the child began to get distressed. Accordingly, the family report writer conducted the interview with the child and the mother together.
The family report writer observed that the child was very clingy to the mother. His social interaction was odd. The family report writer stated that the child did have an autistic manner in the way that he would not interact with anyone else except the mother. The mother remained calm and relaxed throughout the interview with the child.
The family report writer stated that the mother’s perception was that she had suffered trauma and that she needed to be protected.
The family report writer stated that the mother has had panic attacks; sometimes late at night when the mother is worried about her future and the child. She was also fearful of interacting with the father.
The mother asserted to the family report writer that the father, during the relationship, had also expressed a wish to teach the child how to fight so he would be able to defend himself. The mother was alarmed that the father was talking about teaching a newborn child how to fight.
The mother told the family report writer that after separation, and prior to October 2014, she allowed the father to stay at her residence for two nights. On the occasions that the father spent time with the child post separation and prior to October 2014, the father saw the child at the mother’s residence.
The mother told the family report writer that her main hope was for no contact at all between the child and the father, but if it was determined that there needs to be some contact, it needs to be done in a safe way with supervision. She stated that the only contact that she would be happy with is when the child is old enough to be able to talk to her. The mother indicated that the child did not understand the issues about the father.
The father told the family report writer that he had an extremely violent and traumatic childhood. His father was very violent. The father has no ongoing contact with his father. He does not have any contact with his mother either. His stepmother lives in Town W with his younger sister.
The father described an extremely unhappy, violent and angry childhood. He was born overseas and brought to Australia as a young child. His father was never able to take responsibility, he was Muslim and was oppressive and intimidating towards the two mothers and the 6 children. The father stated, “We ran away at 14.” He stated that Community Services did not seem to know what to do with the 6 children. He stated that his whole life has been traumatic. He stated that his father always “hurt us but said it was for a reason.” He stated that his primary school in Town Y was difficult. The father was bullied because of his family. There was a lot of prejudice against him. In high school there were many fights with other students. In order to protect himself the father undertook martial arts training.
The father attended TAFE in year 10. The father has not had a license or any money. He has not been able to undertake any apprenticeship or be able to sustain any employment for any significant length of time. The longest job he had was for 3 months. He’s done some labouring jobs with friends. Currently he is unemployed and relies on Centrelink.
The father referred to a lot of conflict, DACS were involved, and he was threatened with Juvenile Justice if he continually ran away.
The family report writer stated that the father has had counselling from the age of 18. He saw several counsellors through Town Y counselling service. The father currently sees a psychologist in Town B, Ms Z whom he has seen on about five occasions and would like to continue seeing. The counselling has been helpful. The father denied any drug or alcohol problems. The father was not currently on any medication.
As to current symptoms, the family report writer stated that the father sleeps poorly. His concentration is poor and he is constantly anxious. His main interest is bodybuilding and training.
The father told the family report writer that he is anxious and he has been persistently depressed from the age of 16 with a lot of anger and high stress. The most traumatic experiences were however in Country G. He was exposed to traumatic events when he was in that country at the age of 4, 13 and 18. There were a lot of fighting, beatings and deaths and assaults. The father experienced beatings and assaults from his father and uncles.
The family report writer stated that as a teenager the father had some suicidal feelings but his behaviour was more self-destructive. The father would put himself into situations where he may not survive, such as trying to have a brawl with 30 people. “I had a lot of anger.” The father’s self value and self-worth were very low. “I hated myself.”
The family report writer stated that the martial arts have been helpful to try and improve the father’s self-confidence. At times the father would have rage and this would lead to major problems at school. Sometimes the father felt that he was reliving some traumatic experiences. He has had nightmares. He has had a sense of hopelessness and helplessness. His overwhelming feeling is one of nihilism. He was taken by the idea of active nihilism as “the world is shit”. There are some panic attacks and fearfulness.
The family report writer stated that from the father’s history he has suggested there is evidence of post-traumatic stress disorder, persistent depression and at times major depression.
The report writer stated that the child appeared to have a very close attachment to the mother. The child did not appear interested in any other adult figure. He was not interested in the maternal grandfather and nor did he show any interest in the father. He stated that he had concerns about the child’s development and there appeared to be possibly insecure anxious attachment between the child and the mother.
The family report writer stated that the mother has developed dependent and borderline personality features. Features suggesting dependency included the mother’s chronic pain disorder and reliance on pain relief and opiates. Nevertheless he stated that the mother does have strengths. She was intelligent and was able to eventually complete her HSC despite her traumas and was accepted into an engineering degree. She was now focused understandably on the child’s developmental difficulties. The family report writer believed on balance there was a personality disorder which would make it difficult for the mother to be able to cope in the long-term with stress.
The family report writer stated that the mother feels that she has been victimised and badly treated by the father. He stated that it was difficult for the mother to promote a relationship between the child and the father, however, he believed that the mother would follow the directions of the court if instructed that there should be some contact with the father.
The family report writer stated that he had some concerns about the mother’s ability to cope with the stress of having a disabled child and also dealing with the father with whom she still has significant ambivalent feelings. (line 998, p27)
The family report writer observed that the parties’ relationship was good initially as they were able to support each other. However, with the pregnancy, the relationship began to become fractured. After the child was born there were major differences in opinion about appropriate care of the child. The mother felt that the father was a danger to the child and was reckless. The father was alarmed when the mother threatened to self-harm and to protect himself and the child, he decided to separate.
The family report writer stated that he believes that the father is capable of developing a significant bond and relationship with a young child. He stated that there has been no opportunity for the father to form a relationship with the child. With the child’s developmental difficulties, the family report writer stated that he was also unsure as to how easy it would be for the father to form a strong bond with the child at this time.
The family report writer stated that the father has suffered anxiety and depression from his early childhood and particular from his adolescent years. The father does have ongoing and existing mild persistent depressive disorder. The father has engaged in counselling from the age of 18.
The family report writer stated that overall, he formed the view that the father’s trauma history has significantly impacted on his self-image and overall perspective on life. He talked about having a view of life of “active nihilism”. The family report writer stated that it would probably be difficult for the father to be able to work in full-time employment. He believed that there were features suggestive of borderline personality difficulties with significant anger and poor self-image, poor identity, the need to change his name.

As to the parenting capacity of the father, the family report writer stated that he believes that the father could provide for the physical needs of his children. He wants to promote their well-being. He understands the importance of relationships. The father’s extreme trauma history was likely to impact on his ability to focus on the well-being of children. It did appear that the father was capable of caring for others.
The family report writer formed the view that on balance the father was a capable caring parent. In relation to being unsafe or violent towards the children, he did not find that there was any significant evidence to suggest that he would be unsafe with the children. There did not appear to be a picture of antisocial behaviour activities by the father that was outside what was reported by the mother.
The family report writer stated that at present it was still unclear as to whether there may be significant developmental difficulties for the child. The family report writer formed the view that the child’s developmental difficulties at this point were dominating the child’s mental environment.
The family report writer formed the view that he was not able to determine that physical or sexual violence was a dominant issue in the matter. He formed the view that the father could provide some input to the parenting of the child.
The family report writer stated that should contact be introduced (between the child and the father) in a restricted way with familiar company or for brief periods he believed that this would probably be a good outcome. It would be helpful for the child to gradually develop some knowledge and familiarity with the father and his half siblings.
The family report writer gave oral evidence. The court does not propose to set out the entirety of such oral evidence.
The family report writer stated that in his view the father was a valuable person, was experiencing high stress, including depression, but overall he was functioning reasonably well. However he would have liked that the father had had more intense mental health treatment. The family report writer stated that in his view the father did not pose a risk of injury to the child by reason of his mental health.
In the context of the child potentially spending time with the father in the mother’s coping capacity,, the family report writer stated that the mother will use her resources to manage and she will put the child’s needs above her own.
The family report writer stated that if the mother was to see the child coping with the process of spending time with the father, and the child was not suffering through such process, he could not see the mother becoming more stressed.
The family report writer was asked about the child’s capacity to cope with spending time with the father. He stated that the picture of the child’s development had changed significantly. He observed that the child was coping much better, his language had improved together with his motor development. Overall the child’s intelligence was pretty good. The child’s intellectual capacity was within the normal range. The child’s earlier difficulties had been ameliorated. The child was (now) older.
The family report writer considered the neuropsychological report of the child, annexed to the mother’s trial affidavit, relating to an assessment of the child on 2 November 2019, the author being Dr BB.
The family report writer stated that although there now appear to be features of ADHD in the child, it did not appear that the child was now suffering from global developmental delay, and autism symptomatology did not appear to be clear, for example the child was playing well with others.
The family report writer believed the child could manage being reintroduced to the father.
The family report writer stated that if the child is told much later than the age of seven or eight years that he had another father, the child could be shocked, feel betrayed, and his self-concept and sense of identity could be adversely affected.
The family report writer stated that the father could step up and do a better job with the treatment of his mental health. He could undertake anger management therapy, dialectical behavioural therapy, psychotherapy, and see a psychiatrist. He stated that he would have a concern if the father, by the time the father’s proposed supervised time had concluded, had not so stepped-up.
The Court accepts the evidence of the family report writer.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The mother has been the primary carer of the child from birth to date. During the parties’ relationship, the father assisted the mother with the care of the child.
The child has a meaningful relationship with the mother and will benefit from a continuance of that relationship.
The child has not spent time with the father since about April 2014. The child has no present relationship with the father.
The court is of the view that the child would benefit from having a meaningful relationship with the father.
The father and his new partner presented as thoughtful people who had satisfactorily raised two young daughters to date. They were mindful of the needs of the child. The father had demonstrated his willingness to put someone else’s needs ahead of his own. Should the child proceed to spend unsupervised time with the father, there is a real prospect that the child will benefit from developing a positive relationship with her stepsiblings.
Should the court make the ICL’s proposed orders in exhibit F relating to parental responsibility, resulting in, inter alia, the father being aware of proposed decisions by the mother relating to major decisions for the child, the prospect of the child developing a meaningful relationship with the father will be enhanced.
There would be little prospect of the child proceeding to develop a meaningful relationship with the father by merely having identity contact with him on an annual basis (comprising, for example, several visits with the father per year), by reference to the mother’s alternative parenting proposal.
The evidence of the family report writer is consistent with the Court’s above views.
The court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The mother makes serious allegations against the father of family violence perpetrated by him against her during the relationship, including serious alleged physical violence. These allegations are denied by the father.
The court is not satisfied on the balance of probabilities that the father perpetrated family violence against the mother as alleged by her.
Exhibit C, were two handwritten letters by the mother to the father probably prepared by her post separation and prior to Father’s Day, September 2014. Their contents, parts of which were significantly complementary of the father, are inconsistent with the mother’s family violence allegations. The court does not accept that the mother wrote these letters out of fear of the father. The court has not overlooked that the mother was unmedicated when she provided these letters to the father.
The Court has not overlooked that the mother reported the alleged family violence to her treatment providers from about September 2014 onwards, however the court is not persuaded that such reporting by the mother significantly assists the court in finding that such violence occurred on the balance of probabilities.
As to the father’s mental health, the court is not satisfied that the father’s mental health diagnoses, including depression and anxiety, post traumatic stress disorder, and the symptomatology arising from such diagnoses, pose an unacceptable risk of harm to the child if spending time with the father pursuant to the ICL’s proposed orders in exhibit F.
The father has a not insignificant insight into his mental health diagnoses and symptomatology arising therefrom, including anger issues. Historically he has engaged mental health practitioners for treatment, albeit that he has only recently engaged such practitioners on a regular basis. The court takes into account in this context that the father has not abused drugs or alcohol or had criminal charges against him. It takes into account the evidence relating to his relationship with his new partner, their raising two young daughters satisfactorily, and his new partner’s evidence relating to the father’s management of his anger issues. Despite the father’s suicidal ideation in late 2019, he had taken no steps to realise such ideation, and he had raised this issue with his then treating mental health practitioner. The father, whilst conceding that he had not taken part in a formal anger management course, had sought to deal with this issue with his treating mental health practitioners.
In any event, acting cautiously and conservatively, the court will make the ICL’s proposed orders 4, 5 and 6 in exhibit F, relating to the child’s time with the father being supervised for the first 12 months; a precondition to the child’s time with the father commencing shall be the completion by the father of an anger management course of at least six weeks duration; and the child not commencing unsupervised time with the father unless the father has undertaken regular treatment from a psychologist or psychiatrist and that he has followed the recommendations of such mental health practitioners. The making of such orders will also assist in allaying the mother’s concerns relating to the child spending time with the father. The Court is of the view that there is a significant prospect that the father will comply with the above proposed orders of the ICL.
The mother contends that she will not cope psychologically should the child begin to spend time with the father, whether supervised or unsupervised; she contends that she will experience further significant stress such that her parenting capacity of the child will be adversely compromised. The court does not accept these contentions.
The court observes that there is no health professional evidence, adduced by the mother, indicating the real prospect that the mother will not cope psychologically should the child begin to spend time with the father. Again, the court refers to the exhibit C letters provided by the mother to the father post separation in 2014.
There is a significant prospect that the mother will be assisted in managing any further stress experienced by her (acknowledging her mental health vulnerabilities as referred to by the family report writer), in respect to the child beginning to spend time with the father, should she engage the psychological or psychiatric treatment referred to in the ICL’s proposed order 10 in exhibit F, and which order the court proposes to make. The mother’s past engagement of mental health practitioners indicates she is likely to comply with such order.
The court is not satisfied that any further stress experienced by the mother, by the child beginning to spend time with the father, will be such as to significantly adversely affect her parenting capacity of the child. The court observes, in passing, that the mother has successfully reared the child post separation to date, having endured what she contended was significant stress from these proceedings.
There is a significant prospect that the mother’s concerns, in relation to the child spending time with the father, will be allayed, at least to a not insignificant extent, by the child initially spending only supervised time with the father for 12 months, and particularly if such supervised time proceeds positively.
The court is of the view that there is a significant prospect that the child will psychologically cope with being reintroduced to the father and spending time with him. As to the child’s health issues in this context, the court refers to the evidence of the family report writer, in particular his evidence relating to the contents of the neuropsychological report of Dr BB (relating to the child assessment on 2 November 2019).
The mother contended that the polyamorous and sexual practices of the father and his new partner did not bode well for the maintenance of a stable relationship between the father and his new partner. The court does not accept this submission. There was no significant evidence ultimately before the court to make out this contention.
The court is of the view that there is no unacceptable risk of harm posed to the child in spending time with the father pursuant to the ICL’s proposed parenting orders in exhibit F.
The evidence of the family report writer is consistent with the court’s above views.

Section 60CC(3) - Additional Considerations

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

The child is too young to express a relevant view.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The child has a positive relationship with the mother’s new partner, Mr C. The child identifies the mother’s new partner, Mr C, as his father.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother has taken such opportunities. The father has sought to take such opportunities, post separation, including through these proceedings.

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

The mother has maintained the child from birth to date. The father has made no significant financial contribution towards the child’s maintenance since separation, with the Court observing the father’s lack of employment post separation to date.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The court is of the view that the child should cope emotionally with being re-introduced to the father and spending time with him in accordance with the ICL’s proposed orders, and the court refers to its discussion above in this context.
The court is of the view that the mother’s parenting capacity of the child should not be adversely affected by the child spending time with the father as proposed by the ICL in exhibit F.
The child will remain living with the mother and her new partner.
The evidence of the family report writer is consistent with the Court’s above views.

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

Not applicable.

(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

The mother has such capacities. The Court refers to its discussion above under the meaningful relationship primary consideration relating to the father and the family report writer’s positive evidence relating to the father.

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

The Court refers to the family report writer’s evidence relating to the child’s positive development. The Court also refers to the discussion above under the need to protect primary consideration in relation to the parents.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

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

Subject to the Court’s discussion above under the need to protect primary consideration, the mother has demonstrated appropriate attitudes.
As to the father, the Court refers to its discussions above, in particular under the primary considerations.

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

The Court refers to its discussion above under the need to protect primary consideration.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

Not applicable

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

The final parenting orders sought by the ICL and father would be least likely to lead to the institution of further proceedings in relation to the child.

m) Any other fact or circumstance that the Court thinks is relevant

The ICL and mother did not oppose the making of the father’s proposed orders for 4 to 8 inclusive of his Second Further Amended Initiating Application relating to, inter alia, non-denigration and non-physical punishment of the child.

Parental responsibility

The father consents to an order that the mother have sole parental responsibility for the child. The ICL’s proposed parental responsibility orders in exhibit F will be in the best interests of the child.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)   That the mother have sole parental responsibility for the child, X, born … 2014 (the child).
(2)    That the Mother:
a) Notify the father of any proposed decision relating to the long term care and welfare of the child and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
b) Take into consideration any views expressed by the Father about the proposed decision.
(3)    That the child live with the Mother.
(4)    That subject to Orders 5 and 6 below, the child spend time with the Father as provided for in Order 3 of the Father’s Second Further Amended Initiating Application (the Father’s Proposed Orders), except that the supervised time provided for in Order 3(a) of the Father’s Proposed Orders shall be supervised by Town B Children’s Contact Centre or, if the Centre is unable to facilitate such supervision, by an accredited professional supervising agency nominated by the Father.
(5)    That the child’s time with the Father (including supervised time) shall not commence unless the Father has:
a) Completed an Anger Management Course of at least six (6) weeks duration; and
b) Provided a copy of a certificate of completion of such course to
a. the Mother; and
b. the Contact Centre
(6)    That the child shall not commence unsupervised time with the Father unless the Father has:
a) Provided the Mother with a letter from his treating psychologist or psychiatrist (as provided for in Order 7 below) confirming that he has:
a. Consistently attended sessions with the treating psychologist/psychiatrist as recommended by that psychologist/psychiatrist;
b. Followed any recommendations made by the psychologist/psychiatrist; and
c. In the event that the psychologist/psychiatrist considers that further sessions are no longer considered necessary, confirming that that is the case.
(7)    That the Father forthwith approach his General Practitioner for the purpose of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 8, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.
(8)    That the Father engage with the psychologist/psychiatrist referred to in the preceding Order for the purposes set out in that Order.
(9)    That the Father have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to his General Practitioner and to his treating psychologists and/or psychiatrists.
(10) That the Mother forthwith approach her General Practitioner for the purposes of obtaining a Mental Health Plan and referral to a psychologist or psychiatrist for the purpose of engaging in treatment/therapy and receiving assistance for the matters identified in paragraphs 7, 9 and 10 of the recommendations contained in the Expert Report of Dr A dated 7 July 2018.
(11) That the Mother engage with the psychologist or psychiatrist referred to in the preceding Order for that purposes set out in that Order.
(12) That the Mother have leave to provide a copy of the Expert Report of Dr A dated 7 July 2018 to her General Practitioner and to her treating psychologists and/or psychiatrists.
(12A) That the mother and the father each request their respective psychologists/psychiatrists, as referred to in orders 8 and 11 above, to confer for the purposes of jointly recommending a child psychologist to assist the mother and the father with informing the child of his paternity.
(13) That the Mother and the Father forthwith contact and the Town B Children’s Contact Centre and:
a) Arrange an appointment for assessment for suitability;
b) Attend the assessment;
c) Comply with any appointment made by the centre;
d) Comply with all reasonable rules of the Centre;
e) Comply with all reasonable request or directions of the staff of the Centre;
f) The parties shall each pay the fees nominated by the Centre for the provision of its service.
(14) That the Father shall ensure that the Mother is notified as soon as practicable if, while in his care:
a) The child is admitted to hospital; and or/
b) The child is involved in a medical emergency
(15) That the Mother shall ensure that the Father is notified as soon as practicable if, while in her care:
a) The child is admitted to hospital; and/or
b) The child is involved in a medical emergency
(16) That these Orders authorise any school which the child is attending from time to time to provide both the Mother and the Father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to the child.
(17) That the Mother and the Father:
a) Forthwith advise each other of:
a. An email address which can be used by each of them to communicate about matters relating to the child; and
b. A telephone contact number to be used to only for emergencies in respect of the child; and
b) Notify each other of any change to such email address and/or telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
(18) That the Mother and the Father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
(19) Neither party shall denigrate the other party to or in the presence of the child and shall take all reasonable steps to ensure that no other person denigrates the other party to or in the presence of the child.
(20) The parties are restrained from consuming any illegal drugs or alcohol whilst the child is in their care.
(21) Each party is restrained from using any physical punishment upon the child.
(22) Each party shall continue to follow all reasonable directions of their medical, psychiatric and psychological consultants and engage in such therapies as may be recommended by such consultants.
(23) The parties shall forthwith advise the other party of any illness or injury suffered by the child which requires medical treatment whilst the child is in their care.

I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 7 April 2020

[2020] FCCA 767

7 April 2020

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Expert Evidence

Procedural Fairness