Rinakis & Rinakis (No 2) - [2023] FedCFamC2F 795

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rinakis & Rinakis (No 2) [2023] FedCFamC2F 795

File number(s): PAC 3364 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 29 June 2023

Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68B, 68C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.06, 7.09, 12.31

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 207

Date of hearing: 27–30 March 2023

Place: Parramatta

Counsel for the Applicant: Mr Anthill

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Ms Mahony

Solicitor for the Respondent: Matthews Folbigg Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Kalimnios

Solicitor for the Independent Children's Lawyer: Shedden & Associates
ORDERS

PAC 3364 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RINAKIS

Applicant

AND:
MS RINAKIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

30 JUNE 2023

THE COURT ORDERS THAT:
1.All prior parenting orders be discharged.
2.The mother have sole parental responsibility for the care, welfare, and development of X born in 2012 and Y born in 2014 (“the children”).
3.The children live with the mother.
4.The children or either of them are permitted to:
(a)Travel internationally with the mother;
(b)Have an Australian travel document issued to them, without the need for the consent of the father, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth).

5.The father shall be permitted to communicate with the children as follows:
(a)By letter once each month;
(b)The father shall be permitted, on no more than four occasions each year, to provide photographs and gifts to the children by mail, and within 14 days of the date of this Order the mother is to provide the father with an address to send such items;
(c)The mother shall consider the content of any correspondence, the nature of any photograph, and the appropriateness of any gift. The decision to pass these items to the children will be at the mother’s sole discretion and any item not appropriate shall be returned to the father at the father’s cost.

6.The father be restrained from attending upon:
(a)Within 200 metres of where the mother resides from time to time;
(b)The mother’s workplace.

7.The father be restrained by injunction from assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother.
8.The father be restrained from approaching the mother in any public place.
9.Except as permitted elsewhere in these Orders, the father be restrained from communicating with the mother.
10.Except as permitted elsewhere in these Orders, the father be restrained from communicating with the children or either of them.
11.The father be restrained from approaching the children in any public place.
12.The father be restrained from attending:
(a)The school attended by the children or either of them;
(b)The venue of any extra-curricular activity attended by the children or either of them.

13.Orders 6 to 9 hereof are made pursuant to s 68B of the Family Law Act 1975 (Cth) being injunctions for the protection of the mother.
14.Orders 10 to 12 hereof are made pursuant to s 68B of the Family Law Act 1975 (Cth) being injunctions for the protection of the children.
15.Pursuant to s 68C of the Family Law Act 1975 (Cth), Orders 6 to 12 hereof empower a police officer to arrest the father without warrant in the event that the police officer forms the view that s 68C(1) of the Family Law Act 1975 (Cth) is made out.
16.The Independent Children’s Lawyer is to file and serve written submissions on the issue of costs, of no more than three pages and two annexures, within seven days of the date of these Orders.
17.The Applicant and Respondent are to file and serve written submissions on the issue of costs, of no more than three pages and two annexures, within 14 days of the date of these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
INTRODUCTION

This final parenting hearing relates to the children X born in 2012 and Y born in 2014 (“the children”); X is aged 11 years and Y is aged 8 years. Final property orders were made by consent on 24 March 2023.
The father is aged 58 years. The mother is aged 49 years.
The father has two adult children from a previous marriage who reside in Melbourne.
The parties married in 2007. They separated in about January 2019.
The father was admitted to R Clinic with depression from early 2019 and was discharged two months later. He initially spent unsupervised time with the children. The father then had supervised time with the children between August 2019 and December 2019.
The father was incarcerated from early 2020 to mid-2020 and then from mid-2020 until late 2020 by reason of, inter alia, breaches of Apprehended Domestic Violence Orders (“ADVO”).
Interim parenting orders were made on 27 January 2022 for the children to live with the mother and spend supervised time with the father each fortnight for two hours. The supervised time commenced in May 2022 and continued until September 2022. Supervised visits recommenced in December 2022.
PROPOSALS
The father initially sought orders as set out in his Amended Initiating Application filed 25 February 2021 that the parties have equal shared parental responsibility and that the children live with the mother and father on a week about basis.
In his final proposed Minute of Order sent to the Court on 28 March 2023 the father seeks, inter alia, orders that the mother have sole parental responsibility and that the children live with the mother. In relation to time spent with the children, the father proposes that he spend unsupervised time with the children each alternate Saturday for a period of three months, followed by each alternate Saturday to Sunday for a period of three months, followed by each alternate Friday to Sunday. The father also seeks time with the children during half of the term school holidays from 2024 and special occasion time.
The mother had previously sought orders as set out her Amended Response filed 27 February 2023 that, inter alia, she have sole parental responsibility, the children live with the mother and spend supervised time with the father each fortnight for two hours.
In her final proposed Minute of Order she sought orders, inter alia, that the mother have sole parental responsibility for the children, various restraints against the father attending upon the mother and the children including places where they worked or went to school, and no orders relating to the children spending time with the father.
The Independent Children’s Lawyer (“the ICL”) seeks orders as set out in a proposed Minute of Final Order providing, inter alia, that the mother have sole parental responsibility for the children, that each of the parties attend a parenting orders program, that the father engage in reportable therapy with a suitably qualified child and family therapist “in order to assist the therapist to assist the father to develop strategies for difficult parenting relationships, anger management and the parenting of young children with whom the father spends time”.
A further order was sought by the ICL that the mother is to receive counselling from a psychologist “to assist the mother with difficult parenting relationships and to accept the decision for the children to develop a relationship with the father and spend time with the father.” The ICL sought an order that the children live with the mother, that there be no order for the father to spend time with the children, and that the father be permitted to forthwith communicate with the children in particular ways including by telephone (or Zoom, FaceTime) each Wednesday commencing 5.30 pm for a duration of 30 minutes, subject to the children’s wishes which may be less.
MATERIAL RELIED UPON
The father relied upon the following documents:
(a)His case outline filed 24 March 2023;
(b)His Amended Initiating Application filed 25 February 2021;
(c)His affidavit filed 17 March 2023;
(d)Affidavit of Ms CC filed 18 December 2019;
(e)Family Report of Ms DD dated 9 September 2022.
The mother relied upon the following documents:
(a)Her case outline filed 24 March 2023;
(b)Her Amended Response filed 27 February 2023;
(c)Her affidavit filed 3 March 2023;
(d)Affidavit of Ms EE filed 2 March 2023;
(e)Affidavit of Mr FF filed 2 March 2023;
(f)Affidavit of Dr GG filed 9 March 2023;
(g)Single Expert Report of Dr H dated 28 October 2021(see Exhibit E);
(h)Family Report of Ms DD dated 9 September 2022.
The ICL relied upon the following documents:
(a)Case outline filed 27 March 2023;
(b)Family Report of Ms DD dated 9 September 2022;
(c)Child Inclusive Conference Memorandum dated 17 December 2019.
The following documents became exhibits:
(a)Exhibit A: M Contact Centre Contact Report dated 8 December 2019;
(b)Exhibit B: NSW Police COPS Event Record dated late 2022;
(c)Exhibit C: HH Contact Centre Contact Reports dated 25 February 2023 and 11 March 2023;
(d)Exhibit D: HH Contact Centre Case Notes containing phone record dated 28 February 2023 and email dated 4 March 2023;
(e)Exhibit E: Single Expert Report of Dr H dated 28 October 2021;
(f)Exhibit F: JJ Corrections Centre Case Note Report dated 9 December 2020;
(g)Exhibit G: NSW Department of Corrective Services Custodial Case Note Report dated 26 October 2020;
(h)Exhibit H: R Clinic Records of father’s medical history;
(i)Exhibit I: Father’s Court Attendance Notice regarding incident in mid-2019;
(j)Exhibit J: Father’s complete criminal history;
(k)Exhibit K: COPS record of police dated mid-2019;
(l)Exhibit L: Combined Corrective Services records;
(m)Exhibit M: Letter from father dated 28 November 2021;
(n)Exhibit N: Report of Dr V dated 13 December 2019;
(o)Exhibit O: HH Contact Centre Supervised Contact Summaries dated 3 December 2022, 17 December 2022, and 14 January 2023;
(p)Exhibit P: Family Report of Ms DD dated 9 September 2022;
(q)Exhibit Q: Child Inclusive Conference Memorandum dated 17 December 2019.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence of the parties relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (i.e. section 60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
As to the Court’s impression of the mother and father when giving their oral evidence, the Court found the mother to be a truthful, consistent and reliable witness, who gave responsive answers to questions asked of her. Her demeanour was calm.
As to the father, he presented with a strong personality and was articulate in his answers. He usually sought to give responsive answers to questions asked of him. He presented as an aggrieved person, and with hostility towards the mother as revealed by his verbal statements to his brother in law in the courtroom (during a short adjournment) that she was fabricating her crying in the courtroom.
Oral evidence of the father
The Court does not propose to set out the entirety of the father’s oral evidence.
The father stated he was presently unemployed and that he lives at KK Street, Suburb LL.
The father has not paid child support since 12 June 2019.
The father was questioned in relation to a supervised visit on 25 February 2023.
The father denied that during the visit he had put his hand under the table and passed X a jewellery box. He stated that he had handed this box to the child but it was not done under the table and that he had told this to the supervisor. However, he agreed that he had given this box to the child knowing he did not have permission to do so.
The father was asked whether he was surprised by the child X reporting to HH Contact Centre that she had been upset with the above visit, to which the father responded that he did not believe that the child did that on her own.
The father agreed that the next supervised visit was on 11 March 2023. The father stated that the outset of this visit the children had come running to him and they had the best visit.
It was related to the father that the child X, prior to the commencement of the visit on 11 March 2023, had told contact centre staff that she was really nervous because on the last visit the father had become really angry. It was related to the father that this child had stated that when the father had spoken with the supervisor (on the previous visit), she was worried that the father was going to choke her like the father did to the mother. With this information, the father was asked to reflect on his conduct at the supervised visit on 25 February 2023 to which the father responded that he denied that conduct and that someone had coached the child.
The father stated that all of his extended family reside in Melbourne, including his two children from a previous marriage.
The father was then asked certain questions on the assumption that the Court was to make a final parenting order that the children’s time with the father continued to be supervised, as sought by the mother. The father stated that he did not think that the children would have a relationship with either himself or his other children if there was continued supervision. He stated that his family did not feel comfortable within the confines of supervised visits, and this was certainly the case for the elderly paternal grandmother.
The father recalled reporting to the clinic experiencing a short fuse. The father commenced his treatment at the clinic with Dr V.
The father stated that in early 2013 he was a “full-blown drug addict” and there was not much he could recall during the time of his early admission to the clinic.
The father agreed that he had suffered from depressive episodes for many years prior to 2018.
The father stated that his normal personality included being very outgoing.
The father stated that his initial prescription medication was from Dr MM at R Clinic.
At R Clinic, Dr V treated the father for his addiction, and Dr MM had treated him for depression.
The father stated his treating GP was Dr G and he had been seeing her for at least the last ten years. Dr G now issues the father with prescriptions for medication, namely antidepressants; he stated that he takes antidepressants daily to help with stability of mood. He stated that the he takes medication for sleep issues. The father does not have sleep issues anymore, and he stated that this medication makes him feel bad the next day. He stated that, accordingly, he does not take sleep medications. He stated that his GP had told him there was no need to use this medication, particularly at a low dosage.
The father stated that he is presently not engaged with any treating psychiatrist. He had no engagement with a treating psychiatrist in 2021 or 2022. He stated that he had had no referrals from his GP to a psychiatrist.
The father stated he was not aware that the records of Dr V indicated that that doctor had previously diagnosed him with bipolar disorder since 2018. He stated that this doctor had diagnosed him in 2013 with bipolar disorder when he was a full-blown drug addict. He stated that the psychiatrist Dr MM would be best to make a diagnosis on this particular disorder (in light of his treatment with that doctor at the R Clinic). He stated that he had last seen this doctor in early 2019 during his admission to R Clinic. He stated that this doctor’s records would have been supplied to his GP, Dr G.
The father stated that from December 2019 he has had no psychiatric treatment. He stated that he regularly sees his psychologists, and in this context referred to Mr E and D Counselling.
The father stated that he last consulted with Dr V in February 2019. He stated that he used to see Dr V weekly and then monthly from 2013 to 2020. He stated that the prescription by Dr MM of antidepressants works well. His GP Dr G had been re-prescribing him antidepressants, and now his mood is stable.
The father agreed that following his engagement with R Clinic in 2013 he continued to attend day group sessions in 2014 and 2015. He confirmed that Ms U, psychotherapist, conducted therapeutic group sessions. In a session in early 2015 the father had reported that he had exploded in an incident with the mother and he acknowledged it was over the top. The father could not recall the specific incident.
The father stated that his weekly day group sessions at the R Clinic continued through 2016. The father stated he could not recall discussing anger outbursts at a session in September 2016.
The father confirmed reporting to Ms U in November 2016 that he was experiencing depression. In this context, the father stated that when suffering a depressive episode he would lock himself in his room and speak to no one.
The father stated that he never had problems with alcohol. He stated that with his drug addiction, he stopped drinking alcohol. He stated that he refers to himself as an alcoholic and as a drug addict.
The father confirmed that he attended group sessions at R Clinic through 2018.
The father acknowledged being admitted to R Clinic between early 2019 and mid-2019. He stated that he was very sick at the time of his admission. He had been isolating in his room and had not been engaging with anyone and he was not in a good place. He agreed that prior to his admission he had told the mother he had had suicidal thoughts. In this context he stated there had been no self-harm attempts by him.
During the above admission to the R Clinic the father agreed that his medication had been transitioned to an antidepressant and his dosage has been increased. He stated that Dr MM had managed his six-week admission. He stated that this doctor had prescribed medication to help the father sleep.

The father agreed that after mid-2019 he ceased his engagement with Dr MM. He had ceased his engagement with Dr V in late 2019.
The father stated that Dr MM was an expert in mood disorders and that he had not diagnosed the father with bipolar disorder. He stated that his GP does not think he suffers from this disorder.
The father agreed to having made or shared various posts on his social media but denied that they were directed towards the mother. He stated that this post was directed at “the wider community of mothers who would not let fathers see their children.”
The father agreed that he was witnessed scratching the mother’s car at Y’s day care centre in mid-2019. The father stated that he did that out of frustration on not seeing the child.
The father stated that he had defended the charge relating to the scratching of the car in the Local Court.
The father was asked, reflecting now on his behaviour, whether he appreciated why the mother asserts that she is too fearful of having any contact with him, to which the father responded that the mother was lying.
It was put to the father that shortly after the Court adjourned for a brief period at about 3.12pm on Tuesday, 28 March 2023, the father had stood at the end of the witness box and made a comment to his brother-in-law to the effect that the mother had fake tears. The father disputed these alleged words and stated that he had said to his brother-in-law, “I can’t see any tears.” It was put to the father that he made those remarks to cause the mother fear, to which the father responded that he would not have imagined the mother would have heard his words. The father explained that his words to his brother-in-law (in the courtroom during the adjournment) were intended for his brother-in-law alone and were not intended for the mother to hear. The father acknowledged that he had been indicating by his words to his brother-in-law that the mother was fabricating her (earlier) distress and was not upset by the (oral) evidence.
The father was asked if he accepted that his behaviour in the witness box during the adjournment was inappropriate. The father responded by stating that it was a conversation with his brother-in-law that was not intended to go further. He stated that he had seen this type of behaviour (of the mother) for the last 15 years and this was no different. The father was asked whether the mother was fabricating her fear of him, to which the father responded that the mother had fabricated many things and not just her fear. The father was asked to assume that the mother had heard his comments to his brother-in-law and whether he could reflect on how that might make the mother feel. The father responded that he did not propose to know how the mother feels and he could not understand that.
The father was asked whether he took responsibility for his past behaviour, including denigratory behaviour and other actions. The father stated that the parties’ behaviour had been equally (at fault).
The father stated that in 2019 he had completed a six week parenting course, face-to-face in a group setting.
The father stated that if the Court ordered only supervised time between the children and the father then he would respectfully decline doing that, and that he would move and get on with his life. He stated that he would not comply with an order for supervision.
In re-examination, the father’s attention was drawn to the records of R Clinic referring to “regular psychiatric reviews” and the father’s earlier evidence that there were good reasons why those reviews do not occur. The father stated that the reasons were strictly financial. He had spoken to his GP and spoken to Dr MM who had referred to fees of $300 per hour. He could not afford such fees. Dr MM had told him that he would be under the care of his GP and that if his mental health deteriorated (and it hasn’t) he would be referred to him. He stated that he has a counsellor, Mr E.
Oral evidence of the mother
The Court does not propose to set out the entirety of the mother’s oral evidence.
The mother confirmed that she worked as a retail assistant.
The mother confirmed that since the parties’ separation most of the children’s time with the father has been supervised. She stated that the children’s time with the father was unsupervised up until June 2019, and thereafter it was supervised.
The mother stated that during the parties’ marriage, there was not much contact between the children and the father’s extended family in Melbourne. She stated there were a couple of visits. On the children’s birthdays there was FaceTime contact.
The mother stated that it was a concern to her that the father would denigrate her if he was spending unsupervised time with the children but it was not her main concern.
Counsel for the ICL cross-examined the mother.
The mother’s attention was drawn to earlier evidence she had given in relation to denigration (by the father). She was asked whether she had any other concerns (in relation to the children spending time with the father). The mother replied that she had huge concerns for the children’s safety in the father’s care. She was afraid that the father might neglect the children if he was depressed or not getting proper psychiatric treatment. She was asked whether she had any other concerns and she stated that she was afraid the father could be violent to himself or others and in this context she referred to the evidence of Dr H.
The mother was asked what concern she had regarding co-parenting at any level, whether the children were spending unsupervised or supervised time with the father. The mother stated she had huge concerns for her safety. She stated that she is terrified to look at the father. She stated that the father had threatened herself and her family. She stated the father has assaulted her and damaged the home and her car. She stated that she was petrified of the father. She stated that she could not see herself dealing with him as she is scared of him.
The mother was asked whether looking forward she could see it is possible that she could facilitate a relationship between the children and the father. The mother responded in the negative stating that she was terrified to deal with the father.
The maternal grandmother
The maternal grandmother swore an affidavit filed 2 March 2023. She gave oral evidence.
The maternal grandmother stated in paragraphs 7 and 8 of her affidavit:
7.I can recall that on one occasion my husband and I were at the [Suburb NN] home. [Ms Rinakis] [the mother] and [Mr Rinakis] [the father] were having problems. My husband said to [Mr Rinakis] “Don't take drugs.”
8.I saw that when my husband told him [Mr Rinakis] that, [Mr Rinakis] became very angry. I observed [Mr Rinakis] to then hit the dining room table with his hand, and then stand up and kick [X]'s enclosure. [X] was at the time upstairs in her bedroom. [Mr Rinakis] then told my husband and I to leave. This occurred before [Y] was born.
The maternal grandmother stated that she had, with her husband, gone a holiday with the parties in 2019. She stated that while there, she saw the father become angry and she saw the mother on the floor. She stated that the children were present and they were sad and quiet, and the mother was on the floor crying. The maternal grandfather went to the father’s room and spoke to him about his behaviour. She then observed that the father came back to the room where the mother was and apologised to her.
The maternal grandmother stated that there have been other times when she has seen the father get angry. She referred to an occasion around the time of the parties’ separation when she was at the parties’ family home. She stated that she was with the mother for about ten minutes in a bedroom. She stated that she did not see the mother hurt the front of the father’s head.
In paragraph 14 of her affidavit the maternal grandmother stated:
14.After [Ms Rinakis] and [Mr Rinakis] separated in 2019 [Ms Rinakis] was staying at our home with the children. [Mr Rinakis] dropped the children to our home. After he dropped the children, [Mr Rinakis] said to my husband, in my presence “I am going to burn your house and kill you.” He said this as he left the home. The girls were not present.
The maternal grandmother referred to an incident at their church Sunday service. The service had finished. The maternal grandmother stated in paragraphs 16–20:
16.I saw [Mr Rinakis] come and speak to my husband but I did not initially hear what was said. They were in the Church. I was very worried because of the threat that [Mr Rinakis] had made to us, when he came to our home. I could see that [Mr Rinakis] wanted to give my husband a paper.
17.Around 5 to 10 minutes later, I heard [Mr Rinakis] say to my husband, in [Country OO language], "what happened to me is my your fault and “I will kill you and your wife and your son and your daughter’, and “I will punch you and will I strangle you”. He also said to my husband “I will burn your house down”.
18.I saw that [Mr Rinakis] was aggressive. I saw that he grabbed my husband by his clothes.
19. The priest and another man came to help us.
20.My husband then made a complaint to the police. I was very scared and my husband was very scared. The police arrested [Mr Rinakis].
(As per original)
The maternal grandmother gave oral evidence.
When questioned in relation to paragraph 12 of her affidavit, the maternal grandmother denied that the mother had slammed a door in the father’s face. She stated that she had not seen the injury to his head; she ascertained that the father had suffered an injury to his head (later) at the police station.
In relation to paragraph 14 of her affidavit, the maternal grandmother stated that the words stated by the father to the maternal grandfather were expressed by the father in the Country OO language. It was put to the maternal grandmother that the father said to the maternal grandfather that he needed to get his house in order, to which she replied that the father had said, “Put your wife and daughter in place.” It was then suggested that the father had told the maternal grandfather that his role was to put maternal grandmother and the mother “in order”, to which she agreed.
In relation to paragraph 17 of her affidavit, the maternal grandmother stated that she was nearby to where the father spoke to the maternal grandfather and she could hear what was going on. She maintained the truth of paragraph 17 and she maintained that she saw that the father grab the maternal grandfather by his clothes (paragraph 18 of her affidavit).
The Court accepts the evidence of the maternal grandmother subject to any finding of the Court to the contrary whether express or implied.
The maternal grandfather
The maternal grandfather swore an affidavit filed 2 March 2023. He gave oral evidence.
In the affidavit of the maternal grandfather he essentially refers to two separate alleged incidents. Firstly, he refers to an alleged incident in early 2020, being a Sunday, at his church. He alleges that the father physically assaulted him after the church service had concluded and verbally threatened him.
He alleges that the father had grabbed his arm with force whilst the father was very aggressive. The father had handed him a two-page letter and had insisted that the maternal grandfather read the letter there and then. He formed the view that the letter was very insulting to himself and his family and that the contents of the letter were untrue. He then alleges the father spoke to him very loudly and aggressively, telling him that it was the fault of the maternal grandfather that he could not see the children. He alleges in paragraphs 14–18 as follows:
14.[Mr Rinakis] then forcibly and aggressively grabbed my left chest area and yelled at me in a loud voice: “Sit here you are not going anywhere, I will choke you, I will punch you to death and kill you.”
15.[Mr Rinakis’] face was twisted and he looked very angry and aggressive. I felt very scared for my life and went silent and sat there in fear. [Mr Rinakis] continued to yell aggressively “I will kill you all, first you and it's your fault for everything, then your wife, then your son and lastly your daughter. I will also burn your house and I will go to jail.”
16.I was scared and I did not say anything. At this time my wife [Ms EE] and another person named [Mr EE] approached [Mr Rinakis] and I. I said to [Mr EE] and my wife “Stay here, he is dangerous as he is going to kill me”.
17.The priest then approached me and I said to the priest “[Mr Rinakis] said he will kill me and my family”.
[Mr Rinakis] said “That's lies.” I said “That's not a lie that's the truth”.
18.[Ms EE] and I then started to walk away from [Mr Rinakis]. At this time I heard [Mr Rinakis] insulting me to the priest. My wife and I walked to the car. At this time it was around 11:15am. I rang the Police, whilst sitting in the car. I saw that [Mr Rinakis] had got into his car and was leaving.
Secondly, the maternal grandfather stated that the father had also previously threatened him. He referred to an incident in mid-2019 when the father had dropped the children at his home and when the father came to the door, he aggressively said to him words to the effect, “You better put your wife and daughter in order, your family is disgraceful, your house will burn and I will take you to the courts.”
The maternal grandfather gave oral evidence.
He stated that when he had gone outside the church with the father and read the father’s letter there were not people where he and the father were. They were a bit to the front and they didn’t hear himself and the father.
The maternal grandfather maintained the truth of his affidavit relating to his assertions regarding the father’s conduct at the church. He maintained the truth of his assertions regarding the father’s conduct in mid-2019.
The Court accepts the evidence of the maternal grandfather subject to any finding of the Court to the contrary whether express or implied.
Dr H, consultant forensic psychiatrist
This doctor prepared a medico-legal report in relation to the father following the Court ordering him to attend upon this doctor for the purpose of a psychiatric assessment and report as to his current mental health. The doctor’s written report is dated 28 October 2021.
The doctor’s report states that he was requested to assess the father for any possible mental health diagnoses and should any such diagnoses be given, the impact on the father’s functioning, any recommended treatment, and/or the likely impact of non-compliance with any treatment if recommended.
The doctor interviewed the father on 15 October 2021 via audio-visual link to the father’s place of residence. The doctor also reviewed certain documents set out in his report, including notes and documents from D Counselling Anti-Violence Movement.
In the doctor’s written report, he stated, inter alia, under the heading “Psychiatric History” that the father had told the doctor that his depression started about 2011 or 2012. He had treatment for a medical condition which had caused a deterioration in his depressed mood. He was hospitalised at R Clinic, a private psychiatric facility. He was commenced on antidepressant medication which stabilised his mood. He had seen a psychiatrist but was unable to continue attending due to financial constraints. The father had continued to see a psychologist from an organisation called D Counselling as well as a spiritual counsellor. He has also continued to attend Narcotics Anonymous and Alcoholics Anonymous meetings.
Under the heading “Medications”, Dr H states that the father takes an antidepressant daily and sleep medication but does not take it as it makes him feel sedated.
The doctor, under the heading “Review of Documents”, stated, inter alia, that he had reviewed the BB Health clinical notes. The doctor had noted a prescription for antidepressant medication dated 23 July 2020.
The doctor had reviewed the notes from D Counselling. He noted psychology sessions from July 2020 to July 2021. Assessment notes included the father’s history of depression including hospitalisation and treatment with antidepressants. Clinical entry on 10 June 2021 indicated that the father had been preparing for a trade license and had been journaling as well as participating in Alcoholics Anonymous meetings and, at the sessions, focused on maintaining positive coping strategies. Previous clinical entries indicated ongoing stressors for the father particularly around not having access to his children and the coping strategies that he had been utilising.
The doctor referred to the father’s admission to R Clinic in Suburb S in 2013 and outpatient follow-up on discharge. A description of the outpatient note from R Clinic indicated that in late 2013 he remained stable, drug and alcohol free for the last nine months and compliant with antidepressant medication. It states that his progress is good based on his commitment to treatment and maintenance of abstinence. A note from 2015 indicated that the father feels depressed, cannot sleep and attended psychiatrist, Dr V at R Clinic. There was a note that the father would not emerge from his room for at least two weekends of every month between 2016 and 2019 and copies of unsigned group progress notes from this period indicated that he had felt depression coming on in periods. He reported periodically feeling depressed. Ongoing depressive symptoms are noted in 2018 and an incident is noted in early 2018 when the father pulled the handbrake causing the car to stop abruptly. Ongoing mood instability and relationship issues are noted from 2018 through 2019. There is an admission to R Clinic in 2019.
Under the heading “Summary and Opinion”, the doctor stated, inter alia, that based on the account presented by the father, his presentation and review of associated documents, he meets the diagnostic criteria for recurrent Major Depressive Disorder currently in remission as per DSM–5. The doctor stated that the father also has a history of Cannabis Use Disorder which has been in remission for years now. The father continues to undertake outpatient treatment specifically attending Narcotics Anonymous and Alcoholics Anonymous groups. He continues to see a psychologist for psychological therapy and takes antidepressant medication.
The doctor stated that the father’s depressive disorder appears to have initially been precipitated by his diagnosis of a medical condition and subsequent treatment. This condition has been perpetuated by ongoing relationship problems with his wife eventually leading to their separation and further exacerbated by multiple charges, convictions and jail terms as well as the father losing his employment.
The doctor stated that it is apparent that the father has reached a degree of stability in terms of his mental health and is engaging in regular sessions of therapy, compliant with his medications as prescribed and continues to abstain from illicit substance use. His current treatment regime should be continued to ensure enduring stable mental state. No further treatment is recommended currently; however, if the father was to become unwell with significant depressive symptoms, a referral to a psychiatrist for outpatient and/or inpatient treatment would be recommended.
The doctor stated that when the father is psychiatrically unwell his functioning is impaired but occupationally and socially and his risk of violence, particularly towards his wife, is increased.
The doctor stated that if the father was to become non-compliant with his treatment, there is a high risk that he will relapse into his depressive illness and possibly relapse back into substance use with the associated risks to himself and others. If he continues with his prescribed treatment and develops effective strategies to manage external stressors, then he is more likely to remain well functioning in all aspects of his life, as well as maintaining healthy relationships which will significantly reduce his risk of coming in contact with the criminal justice system.

Dr H gave oral evidence.
The doctor, in his written report had stated, inter alia, under the heading Summary and Opinion the following:
[The father’s] history of verbal abuse and physical assaults against his wife are likely partially related to his depression as well as substance use and partially constitutional, however it is certain that when [Mr Rinakis] is abstinent from substances and is well and stable in his mental state, his propensity to be verbally abusive and physically violent behaviour is significantly mitigated.
The doctor then gave the following evidence in relation to the above opinion:
[Counsel]Now, noting that you assessed [Mr Rinakis] in October 2021, just assume for the purposes of this question that the court will have evidence before it firstly, that [Mr Rinakis] has been described as aggressive and conflictual towards New South Wales Police and some family support workers who have been supervising his contact with the children since the time that you’ve assessed him. Does that lead you to have any concerns about, firstly, whether his behaviour that you identified as problematic is more consistent with it being part of his constitution, that’s one of the terms that you use, rather than his substance use if it is accepted by the court that his substance use has remained abstinent, that is he has not used since 2013 as [Mr Rinakis] indicates?
[Witness]... yes. So if we assume that he hasn’t used substances and, you know, his assertions are true, then obviously substance use is sort of out of the picture so then it’s not related to his substance use. Then the next question is, well, is it due to his, you know, constitution or, I suppose, personality structure or due to his mental illness. So then the question is, well, if his mental illness is optimally treated, then – and, you know, he’s not using substances, then, you know, it just leaves us with his, you know, constitutional factors, that is his personality factors, and how he responds to, you know, things that are going on around him in the world, basically.
The doctor gave the following evidence, in relation to whether there was a specific treatment that the father would be assisted with, on the basis of an assumption that the Court finds that the father has remained abstinent from substance abuse, his mental health was being treated properly, and that the father’s constitutional or behavioural personality factors continue to present a problem:
[Witness]Look, I mean – well, long-term psychological therapy can be effective and can be – can – can amend and mitigate people’s personalities, particularly if there’s no severe personality disorder which – you know, [Mr Rinakis] doesn’t have a severe personality disorder, so meaning that if individuals are psychologically minded and they have a degree of insight and they engage with a psychologist – I mean, we’re talking about periods of years. Yes. You know, obviously, then there can be some changes made, but they – they are unpredictable as to – yes. With some people, that – you know, it’s not, sort of, like, treating someone with [antidepressants] for a major depressive disorder and they become more depressed. It’s not as – it’s not going to be as straightforward as that. It’s going to be a long process, and whether it works or not is – is questionable. So – and especially at [Mr Rinakis’] age, being in his 50s, I believe, it's going to be pretty unlikely as opposed to someone who’s younger.
[Counsel]And when you’re talking about that long-term psychological therapeutic intervention, are you talking about a dialectical behavioural therapy-type model?
[Witness]No. I mean dialectical behaviour therapy is more for – specifically for individuals with borderline personality disorder and self-harm. It’s not really what I’m – I was referring to. It’s more – basically examining someone’s personality in a sort of a psychodynamic model. It’s, sort of, more to do – you know, if you’ve been back to Freudian or... you know, this is going back, obviously, and this is just – so a psychoanalysis – you know, we’re talking about seeing a psychotherapist at least a couple of times a week over long periods of time in order to examine the underlying reasons in their psyche as to why they’re behaving the way they are or why they are feeling their emotions the way they are and then kind of bringing it out into the consciousness and then trying to – trying to resolve some sort of conflict – subconscious conflict that they might have. So this is what I’m saying – is it’s not a – it’s not just straightforward, sort of, like, “Okay. We will give him, you know, 10 sessions and then he will become this much better.” It’s not going to be like that. No.
The Court accepts the evidence of Dr H, subject to any finding of the Court to the contrary whether express or implied.
Family Report
The Family Report was prepared by Ms DD, Court Child Expert, and is dated 9 September 2022.
The Court Child Expert interviewed the parties and the children in July 2022.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Family Violence”, the Court Child Expert said:
18.[Ms Rinakis] alleged that [Mr Rinakis] was physically and verbally abusive of her during their relationship, including choking her. She alleged that [Mr Rinakis] continued to harass her via text messages, by stalking her and causing property damage following their separation.
19.[Mr Rinakis] denied ever threatening or physically assaulting [Ms Rinakis], or calling her names.
20.[Mr Rinakis] acknowledged he had approached the maternal grandfather in December 2019 but denied that he had assaulted or threatened him.
Under the heading “Child Safety and Wellbeing”, the Court Child Expert said:
22.[Ms Rinakis] alleged that the children were exposed to [Mr Rinakis’] abusive behaviours towards her during their relationship. The children described witnessing the incident leading to the initial ADVO against [Mr Rinakis].
Under the heading “Mental Health”, the Court Child Expert said:
27.[Mr Rinakis] stated that he has previously accessed psychiatric support and has ongoing counselling, and that his mental health is currently stable. …
28. Each parent reported that the mother suffers from anxiety.
Under the heading “Adults” the Court Child Expert said:
44.[Ms Rinakis] said that she believes supervised visits between the children and [Mr Rinakis] have been going well, and that this has provided the children with the opportunity to begin forming a bond with [Mr Rinakis] again. …
45.[Ms Rinakis] said that the children were initially somewhat anxious to begin spending time with their father again, but that she reassured them that he is their Daddy and that he loves them. She said that after they saw him they were happy. She also said that they like the supervisors at the centre. …
46.[Ms Rinakis] said that she feels supervised contact is safe, physically and psychologically for the children at present. She believes that if she was reassured that [Ms Rinakis] was receiving consistent psychiatric care, and that there was no risk that he would behave violently, the children should definitely spend time with him. She expressed concern that [Mr Rinakis] does not have the capacity to care for the children for long periods of time and said that such time should include regular daytime visits only.
47.[Ms Rinakis] said that she does not discuss the children’s preferences in regards to their parenting arrangements with them, but that she believes that they would like to continue living with her and spending time [Mr Rinakis], as they have been. …
…
56.[Ms Rinakis] said that [Mr Rinakis] was not controlling of her, but was emotionally and verbally intimidating.
57.[Ms Rinakis] said that [Mr Rinakis] was physically abusive towards her on a few occasions. She said that the worst instance was on a [holiday] towards the end of their relationship, and she alleged he had pushed her into a railing causing injuries to her back. She said that he had choked her twice, once when she challenged him regarding his drug use, and a second time when he was trying to take her phone from her, causing her to feel breathless. She said that he removed his hands when she released her phone.
…
59.[Mr Rinakis] said that he is unaware of what caused the ADVO to be made. He said that the incident which occurred prior to the ADVO involved him trying to take [Mr Rinakis’] phone off her, because he realised she was recording him, after he had challenged her about having an affair. He said that he was charged with common assault because he placed his arms around her to try to get to the phone. He acknowledged that [Ms Rinakis] may have felt intimidated on occasion when he raised his voice, but denied ever physically harming [Ms Rinakis], denied calling her names and threatening her.
60.[Ms Rinakis] alleged that [Mr Rinakis] physically assaulted the maternal grandfather at his church and threatened to kill her and the maternal grandparents, leading to incarceration and a further ADVO. She said that after he was released from jail, he was again arrested after driving past [X]’s school and talking with her.
61.[Mr Rinakis] said that he has participated in counselling with “[D Counselling]”, a violence prevention organisation. [Mr Rinakis] said that he takes “one hundred percent” responsibility for his actions leading to his incarceration, saying that he should not have attended the maternal grandparents’ church. However, he did not acknowledge physically or verbally abusing the maternal grandfather. He also said that he should not have driven past [X]’s school, however, he said that this was incidental, and that he was in the area for a doctor’s appointment, and that he had not intended to have contact with [X] at the time.
…
65.[Ms Rinakis] expressed concern that [Mr Rinakis] will use his contact with the children to undermine her relationship with them. For instance, she said that he has made the children drawings, of him as a “knight in shining armour” coming to rescue the children, and has written to them that “mean people” are preventing them from seeing him. She said [Y] has stated that [Mr Rinakis] told her that “Mummy is trying to put him in jail”. She said that he has told the children that [Ms Rinakis] is a “…” (her maiden name) and that he and the children are [Rinakis].
66.[Ms Rinakis] alleged that [X] had witnessed [Mr Rinakis’] violence and abuse of her. She said that after separation, [X] had expressed concern that [Ms Rinakis] might be harmed. She said that whilst he was not directly abusive towards the children he verbally abused her in front of the children, and would tell them to shut up if they become scared or distressed. She also said that he exposed the children to risk when angry, such as pulling the handbrake on abruptly when driving.
…
73.[Mr Rinakis] said that he has ongoing contact with a counsellor, [Mr E], and that he sought psychiatric support. He said that he currently maintains counselling, and that he maintains strategies to assist him with his mental health, including exercising, participating in charity work and participating in substance use support programs. He stated that his mental health is currently good.
…
77.[Ms Rinakis] reported experiencing anxiety, but said that this does not impact generally on her functioning or care of the children. She said that her anxiety was exacerbated by the violence and conflict that she experienced during her relationship with [Mr Rinakis]. …
78.[Ms Rinakis] said that when she is experiencing heightened anxiety she may appear upset and become quieter. She said that she is conscious of not exposing the children to her anxieties and that she has learned to self-sooth by contacting her supports, meditating and exercising.
The children had a positive observation session with the father. For example, both children expressed excitement at seeing the father and happily ran to greet him, chatting to him about sports. They chatted comfortably.
The children had a positive observation session with the mother.
The Court Child Expert provided her evaluation:
120.[Ms Rinakis] described serious and ongoing family violence perpetrated towards her and her family by [Mr Rinakis], including physical and verbal abuse, and serious threats. Whilst she did not report any other controlling behaviours during their relationship, her allegations of stalking and property damage following their separation suggest a coercive element to this violence. It appears that [Mr Rinakis’] substance use and mental health difficulties may also have played a significant role in exacerbating his behaviours. The veracity of this account may be a matter for Court determination.
121.[Ms Rinakis] expressed concern that as part of his ongoing coercive behaviours, [Mr Rinakis] may use his time with the children to undermine her relationship with the children. Her reports that he has characterised himself as a “hero” rescuing the children, and has suggested that he and the children are victims of “mean people” keeping them apart support this concern. In this context, his comments during the observations that “things are getting better”, and questioning as to whether the dog misses him may be seen as further manipulation, characterising himself as a helpless victim and encouraging the children to feel sorry for him. Such interactions place undue pressure on the children to take responsibility for a parent’s emotional needs and can cause them stress and confusion. Such sentiments, particularly in the context of previous alleged comments that [Ms Rinakis] was to blame for his incarceration suggest a significant risk that [Mr Rinakis] may use his time with the children to recruit them into his conflict with [Ms Rinakis] and into the viewpoint that he has been victimised by [Ms Rinakis] and “the system”.
122.Whilst [Mr Rinakis] stated that he takes full responsibility for the actions that resulted in his incarceration, he in fact denied nearly all of the allegations made against him. The only wrongdoing he acknowledged was attending the church where the maternal grandparents were, and driving past the children’s school, which he implied was unintentional. If allegations that [Mr Rinakis] has perpetrated family violence against [Ms Rinakis] and [Mr FF] are found to have veracity, his denial of the same is indicative that, despite counselling and participation in anti-violence programs, he is unwilling to take responsibility for his actions. This would significantly increase the risk that he will continue to perpetrate a coercive dynamic, and may use ongoing contact with [Ms Rinakis] and the children to do so. In this case, it is recommended that contact between the parents be minimised, and that [Mr Rinakis’] time with the children be limited.
126.… It is likely to be important, particularly if the children are to continue to spend time with [Mr Rinakis], that [Ms Rinakis] manage her anxieties, as well as providing reassurance to the children that they are not responsible for supporting her emotionally. It appears that [Ms Rinakis] has sought appropriate mental health support in the past when needed, and it may be beneficial to her, and to the children, if she seeks psychological support to assist her whilst Court proceedings are ongoing.
127.… It is also likely that increased contact with [Mr Rinakis], leading to an increase in anxiety, would ultimately detrimentally impact on the children’s relationship with [Mr Rinakis], as they reflected on their mother’s responses to contact with him. … It may be beneficial to the children’s relationship with [Mr Rinakis], if [Mr Rinakis] were able to have access to information regarding the children’s education, such as school reports and school photos, as well as any significant information regarding their health and wellbeing. Given [Mr Rinakis’] previous history of breaching ADVO orders, it is recommended that strict boundaries be put in place regarding any contact between [Mr Rinakis] and the children, and therefore it is not recommended that [Mr Rinakis] attend the children’s school or extracurricular events.
128.[Mr Rinakis] proposed that the children spend alternate weekends with him and extra time in the school holidays. This proposal would allow the children to enjoy their relationship, and to reconnect with members of the extended paternal family, including their older siblings. However, given concerns raised regarding alleged family violence and [Mr Rinakis’] anxiety in regards to the children’s time with [Mr Rinakis], it is likely extended time in [Mr Rinakis’] care may increase [Mr Rinakis’] anxiety, and may provide [Mr Rinakis] with the opportunity to use such time to recruit the children into conflict with [Ms Rinakis] and involve them in his own mental health concerns. This may ultimately be detrimental to their relationship with one or both of their parents and detrimental to their wellbeing.
129.[Ms Rinakis] proposed that the children spend time with [Mr Rinakis] each alternate Saturday during the day only, on the proviso that his mental health is stable and adequately monitored. Such an arrangement would allow for the children to maintain a relationship with [Mr Rinakis], whilst mitigating some of the concerns regarding the children’s safety and wellbeing in his care. Such an arrangement would necessarily limit the ability of the children to have contact with, and be involved with their extended paternal family, as well as seriously limiting [Mr Rinakis’] role in their lives. However, in this case, it is considered that the children’s safety and wellbeing must be prioritised. If the Court finds that [Mr Rinakis] has perpetrated family violence generally consistent with [Mr Rinakis’] account, [Ms Rinakis’] proposal is recommended. It is recommended that changeovers occur in a neutral, public venue and that the parents develop an appropriate method of communication, such as email or a parenting application to discuss arrangements and the children’s needs.
130.The children clearly value their relationship with [Mr Rinakis]. It may be that if [Mr Rinakis’] mental health remains stable over an extended period of time and he is able to rebuild a close, positive relationship with the children, it will be appropriate to increase the children’s time with him as they mature and are able to make more independent decisions regarding their relationships. …
Under the heading “Recommendations”, the Court Child Expert stated:
132.It is recommended that [Ms Rinakis] have sole parental responsibility for the children.
133. It is recommended that the children live with [Ms Rinakis].
134.If the Court finds veracity to [Ms Rinakis’] account of family violence and that the children would be at increased risk of harm if they were to spend extended periods of time with their father, it is recommended that the children spend day time only with [Mr Rinakis], each alternate Saturday.
135.If the Court finds veracity to [Mr Rinakis’] account of family violence and that the children would not be at an increased risk of harm, it is recommended that the children spend alternate weekends with [Mr Rinakis] from Saturday morning to Sunday afternoon.
The Court Child Expert gave oral evidence. The Court does not propose to set out such evidence in its entirety.
Counsel for the ICL asked this question to the Court Child Expert:
[Counsel]For the benefit of the court, I can identify the documents that were provided to this witness as being exhibit A, exhibit B, exhibit C, exhibit J, as well as the documents that now have been tendered and form a part of exhibit O. Now, [Ms DD], upon considering that documentation, do you have any amendment to the recommendations that you’ve made?
[Witness]So upon considering the documentation that I was provided, my – my concern regarding the persistence and the pervasiveness of some of the problematic behaviours by the father has increased, such that in the event that the court finds the – the veracity to those accounts, that I – I would have to recommend that the children have no contact with their father at this time.

Counsel for the father then sought to question the Court Child Expert as to why she had changed her recommendation in paragraph 134 of her Family Report (children spend daytime only with the father each alternate Saturday if the Court finds veracity to the mother’s account of family violence and the children would be at increased risk of harm if they were to spend extended periods of time with the father) and this evidence was given:
[Counsel]And the extra material that you’ve been provided – would you accept that the extra material that you’ve been provided in relation to [Mr Rinakis’] behaviour principally centres around the [HH Contact Centre] contact reports dated 25 February and 11 March?
[Witness]Yes.
…
[Counsel]So is it principally on the basis of that report that you’ve changed your recommendation to no contact?
[Witness]        That was one of the major considerations yes.
[Counsel]What was the other major considerations?
[Witness]The other major consideration was that I was provided some information about criminal matters not relating to – or issues not relating to Family Court matters, but some – some incidences of aggression that appear to have occurred in public.
[Counsel]        And what was the context of those incidences in public?
[Witness]So I think there was a traffic incident where it was alleged that [Mr Rinakis] had dodged a barrier and driven dangerously along a footpath. There was, I think, one other incident where it appeared he had been in an altercation with another motorist on the road, leading to some accident.
The Court Child Expert, a short time later, explained that her concerns in relation to the above traffic incident (where it was alleged that the father had dodged a barrier and driven dangerously along a footpath) were whether the father’s behaviour was aggressive and whether he was disregarding reasonable rules and boundaries and directions that he was provided with authority.
A short time later, after discussion with the parties’ legal representatives and counsel for the ICL, the Court was informed that no reliance would be placed on the second page of Exhibit B relating to an alleged altercation by the father with another motorist, and referred to above. Then this evidence was given:
[Counsel]So if, as your Honour has suggested, you ignore the second traffic incident and if you assume that [Mr Rinakis] has given an explanation in court as we’ve discussed, that he was abiding by directions and - - -?
[Witness]        Yes.
[Counsel]- - - he was not aggressive, does that change your change in recommendation?
[Witness]No. There’s still sufficient concerns raised by the [HH Contact Centre] notes to cause me to believe that contact with their father is not in the children’s best interests at this time.
[Counsel]Okay. So let’s talk about what’s in the [HH Contact Centre] notes. The [HH Contact Centre] notes, I would suggest to you – and you can say that they go further, but I would suggest to you they disclose the following inappropriate behaviour, that is, that the father gave a gift to the child in breach of the service agreement?
[Witness]Yes.
[Counsel]He is alleged to have had a surreptitious conversation with [Y] regarding living arrangements?
[Witness]Yes.
[Counsel]And that he challenged staff – and there’s a description of his behaviour as being aggressive. He challenged the staff and is alleged to have been aggressive in relation to the question of whether he was in breach of the service agreement?
[Witness]Yes.
[Counsel]And you say that those three – is there anything else that you gleaned from the contact reports that was of concern?
[Witness]They were the primary concerns.
[Counsel]And you say that those three concerns standing alone cause you to change your recommendation from daytime only – unsupervised daytime only - - -?
[Witness]Yes.
[Counsel]        - - - to no contact?
[Witness]        Yes.
[Counsel]        Why?
[Witness]The – the – those behaviours that you described show an ongoing lack of insight and ongoing ability to abide by boundaries and rules and regulations, even when there is another person present supervising; even when there has been explicit discussion about those rules and boundaries immediately before these incidents occurred. And it shows – it appears that there has been no – no increase in insight around those concerns, despite having had some contact with the children over recent times. So that – that leaves me concerned that contact with their father will expose the children to increased anxiety. It will cause them to be exposed to – to a situation where they’re requested to take on responsibility for their father’s emotional state. It – it concerns me that inappropriate things may be said to him – said to them while – while with him, which leads to the conclusion that unsupervised time will be detrimental to them, which – which leaves, I guess, few options in terms of contact. Obviously, ongoing supervised time is a potential option, but there are significant concerns about ongoing supervised time, apart from pragmatic concerns about costs and being able to – to find someone who’s willing to – to do that, but the other concerns are that it creates quite an artificial environment where it’s difficult for the children to form a meaningful relationship with their father. It – it also shows that even in a supervised context, they’re still likely to be exposed to a certain amount of inappropriate and anxiety inducing behaviour. And so all of those factors together lead me to believe that it’s – it’s not in their best interests to have that time.
In relation to Exhibit C, in particular the HH Contact Centre contact notes of a supervised visit on 25 February 2023 and a conversation between the youngest child Y and the father, this evidence was given:
[Counsel]So [Y] said, “When can I come to your house”, and he responded, “Do you want it to be supervised, or unsupervised?” So assuming the court accepts that evidence, would you still hold views that that was inappropriate behaviour?
[Witness]Yes. That’s not a conversation for that forum, and I guess a neutral reply such as, you know, “Let’s not talk about this now”, or, you know, some distraction would have been an appropriate response.
[Counsel]Yes. But was it so inappropriate as to form part of a fairly radical change in recommendation?
[Witness]To form part of it, yes. Not in and of itself, but as part of the whole picture that has been described, yes.
The Court Child Expert, in this context, then clarified her evidence as follows:
If – if the court accepts that there was no aggression; if the court accepts that there was no surreptitious attempts to break the rules; if the court accepts that he – he did not initiate inappropriate conversations with the children, then I – I would not change my recommendations.
Counsel for the mother then questioned the Court Child Expert.
The Court Child Expert was questioned in relation to the issue of the father’s insight into his behaviour towards the mother and this evidence was given:
[Counsel]Assume from me that the father also gave evidence, and his Honour will find that the father’s evidence was that the mother has fabricated her fear of him, and that the mother fabricates her distress in response to the father, what, if anything, does that view currently held by the father, do to your concerns about risks to the children?
[Witness]It – it increases my concern. It makes me worried that the father does not understand the impacts of his behaviour on the mother. But also it would make concerned that he doesn’t the impacts – how those impacts might flow on to the children. And it makes me believe that it’s unlikely that he will change his behaviours, because he doesn’t view them as problematic.
[Counsel]And if his Honour accepts evidence that the father has given – and that is that he has been engaged in ongoing group therapy, firstly, from 2013 to 2019, and thereafter, therapy with a psychologist through [D Counselling], it would heighten your concerns, wouldn’t it, if the father continued to hold that attitude despite that lengthy of therapeutic intervention?
[Witness]Yes.
[Counsel]And that would lead you to hold greater concerns, would it not, using your professional experience, that the father is unlikely to change, firstly, his attitude? Sorry, you have to give a verbal answer for the transcript?
[Witness]Yes. Sorry.
[Counsel]        And, secondly, his behaviour - - -?
[Witness]        Yes.
[Counsel]        - - - that flows from the attitude - - -?
[Witness]        Yes.
[Counsel]        - - - that he demonstrates.
The Court Child Expert was then questioned in relation to the father’s verbal remarks to his brother-in-law in the courtroom, after the mother had requested a break from proceedings as she was upset, and this evidence was given:
[Counsel]Now, assume, for the purposes of this next question, that the following events have occurred during the course of these proceedings. That is, that during the course of the father’s cross-examination, the mother requested a break from proceedings as she was upset – well, she indicated that she was upset, and that his Honour adjourned the court to allow the mother that break, and that as the mother exited the courtroom that the father concedes that he stood from the witness chair where you’re sitting, leaned over the bench - - -?
[Witness]Yes.
[Counsel]        - - - and said, “I can’t see any tears”?
[Witness]        Yes.
[Counsel]That would cause you concern, would it not, about the father’s ability, firstly, to conduct himself in even a contained environment - - -?
[Witness]Yes.
[Counsel]- - - like the court. It would give you concerns, wouldn’t it, about the father’s lack of insight into the effects of his behaviour, on the mother?
[Witness]Yes.
[Counsel]        It demonstrates a lack of even basic empathy?
[Witness]        Yes.
[Counsel]And that would be a concern of yours, would it not, even if the court were accept the father’s evidence that he was making that comment to his brother-in-law who was seated in court?
[Witness]Yes.
[Counsel]And it wasn’t intended for the mother to hear?
[Witness]Yes. That would still be concern.
[Counsel]The fact that that was the father’s response to the mother exhibiting distress is the issue of concern, isn’t it?
[Witness]Yes. It is.
…
[Counsel]And, again, even if his Honour were to accept – assume for a moment that his Honour will accept the father’s evidence that he has been engaged in long term therapeutic intervention - - -?
[Witness]Yes.
[Counsel]- - - and if his Honour were accept the father’s evidence that he has been compliant with his mental health treatment - - -?
[Witness]        Yes.
[Counsel]- - - that type of example of behaviour demonstrated by the father, does it surprise you that he would behave that way given that therapeutic intervention?
[Witness]Yes. I would expect that if the therapeutic intervention were effective, that he would understand that that behaviour was not appropriate.
[Counsel]And that would be the case even if the father genuinely thought that the mother was fabricating her distress, you would expect, would you not, that the father would understand that that type of behaviour was problematic?
[Witness]Yes.
The Court Child Expert was questioned in relation to the effects upon the mother of being exposed to continuing behaviour by the father that would be consistent with coercive and controlling violence, or any form of family violence, and this evidence was given:
[Counsel]And what is likely to be the long term effects on the mother, firstly, in terms of her parenting capacity, of being exposed to continuing behaviour by the father that would be consistent with coercive and controlling violence, or any form of family violence?
[Witness]So in terms of parenting capacity, the increase of anxiety that’s caused by ongoing exposure to coercive tactics makes it very difficult to focus in a calm and child-focused manner on the decisions that you make. It – it can mean that you react in a way as to avoid that anxiety or to – to manage that situation, rather than being able to look at the long term benefits for the children, and the long term needs of the children. So it causes very reactive parenting. It causes very anxious parenting. It can – it – it’s overall detrimental, I guess, to parenting capacity.
[Counsel]And the flow on effect for the children if they are exposed to that reactive, anxious parenting style, can you describe what the short and long term implications for children of being exposed to that?
[Witness]Yes. So it causes children also to be reactive, and causes them to make decisions that around looking out for and avoiding danger, and looking out for and avoiding anxiety – anxiety provoking situations, rather than them being able to freely explore and develop as a child should. It can lead to them being very conscious of the parent who is anxious, and feeling the need to protect and look after them, which, once again, is not an appropriate task for a child. It can lead to them being very cautious towards the parent who is – who is using those tactics, which may lead to overly affectionate or overly compliant behaviour, or alternatively, could lead to avoidant behaviour, or a little bit of both. So it impacts pretty seriously on their relationship with both of their parents. And the cumulative long term effect is that it impacts on their mental health.
[Counsel]And when you did your assessment of the children last year, it is fair to say, isn’t it, that you were already concerned about [X]’s [sic] responses, particularly, in terms of her need to act protectively towards the mother?
[Witness]Yes.
[Counsel]And you already identified that both children, but more so, [X] [sic], were showing some nervousness about their interactions with the father?
[Witness]        Yes.
[Counsel]And you assessed the children’s behaviour to be consistent with their experience rather than coaching?
[Witness]Yes.
[Counsel]You did not have a concern, did you, that the mother had coached the children into saying certain things to you, or behaving in a certain way?
[Witness]No.
[Counsel]And that assessment was based, firstly, on your observation of the personality features of the children?
[Witness]Yes.
[Counsel]You would describe them as intuitive children, from your observations?
[Witness]Yes.
[Counsel]        And you would describe them as intelligent children?
[Witness]        Yes.
[Counsel]        Both intellectually and emotionally - - -?
[Witness]        Yes.
The Court Child Expert was questioned in relation to the children’s interactions with the father during supervised visits with HH Contact Centre in February and March 2023 and this evidence was given:
[Counsel]… And you would have observed that during the March 2023 visit, that the family support workers at [HH Contact Centre], observed there to be nervousness by [X] [sic], particularly, in her interaction with the father?
[Witness]Yes.
[Counsel]And that was the visit that occurred immediately after the 25 February 2023 visit, where it said that there were issues with the father’s behaviour?
[Witness]Yes.
[Counsel]You’re aware of that. And the workers at [HH Contact Centre] described the children, in that visit, as showing emotional dysregulation?
[Witness] Yes.
[Counsel]Do you recall reading that? And that [X] [sic] was taking steps to separate herself physically from the proximity of the father?
[Witness]Yes.
[Counsel]And do you recall reading, in that report, that the workers describe the children’s – particularly [X]’s [sic] presentation on that date – and both children in terms of their emotional dysregulation, as quite different from the other observations?
[Witness]Yes.
[Counsel]And would you agree with me that the behaviour reported by the family support workers at [HH Contact Centre], of the children, is consistent with what you’re describing is a way that the children might react to the exposure to concerning behaviour by their father?
[Witness]Yes.
[Counsel]And so it is the case, isn’t it, that based on your assessment, and what you’ve read in the [HH Contact Centre] records, that the children themselves are already showing signs of the emotional impact of their behaviour, or of exposure to their father?
[Witness]Yes.
[Counsel]And is it likely that with continued exposure to the father’s conduct that those emotional difficulties for the children will continue to elevate?
[Witness]Yes.
The Court Child Expert was questioned in relation to prospective mitigation of risk if the children would spend time with the father and this evidence was given:
[Counsel]It is the case, isn’t it, that you would have difficulty identifying matters now, that might mitigate the risk to the children into the future, having regard to what you have described as the father’s continued persistent and pervasive behaviours?
[Witness]Yes. The usual mitigating things that we put in place, well, don’t appear to have been effective so far. And so I – I don’t imagine any of those things would be effective once – once, I guess, the spectre of court and the involvement of these other people is removed. I – I would imagine that any of the mitigating factors that we would put in would be not very effective.
[Counsel]And even if supervision were a way to protect the children’s immediate physical needs, from what you have seen from the [HH Contact Centre] records, and, in particular, I will ask you to consider two matters, the first is the children’s expressions of fear to the workers about the father’s behaviour in the February visit?
[Witness]Yes.
[Counsel]        You recall reading that?
[Witness]        Yes.
[Counsel]And you would recall that [X], particularly, indicated that she was worried that her father was going to assault the worker?
[Witness]Yes.
[Counsel]        And she expressed a concern of how that made her feel personally?
[Witness]        Yes.
[Counsel]        And she expressed that she was fearful of her father?
[Witness]        Yes.
[Counsel]And [Y] also reported that she felt nervous about her father trying to speak to her when she knew that wasn’t the - - -?
[Witness]Yes.
[Counsel]- - - right thing. So knowing those matters, even if supervision were to give them an immediate physical protection, supervision would not, in your mind, protect the children from emotional or psychological harm into the future, would it?
[Witness]No. No.
[Counsel]It would be necessary, wouldn’t it, in order to mitigate some of the risks that we’ve discussed today, for his Honour to be satisfied, firstly, that the father had an acceptance of his own family violence perpetration upon the mother?
[Witness]Yes.
[Counsel]His Honour would need to be satisfied that the father was not blaming the mother, or holding her responsible, for his behaviour?
[Witness]Yes.
[Counsel]His Honour would need to be satisfied, wouldn’t he, in terms of your assessment, that the father had demonstrated a deep insight into the effect of his behaviour on the mother and the children?
[Witness]Yes.
[Counsel]And in order to mitigate the risks, in your mind, it would also be necessary for the father to have shown an understanding, not at a superficial level, but a cognitive understanding of the mother’s fear of him?
[Witness]Yes.
[Counsel]And, finally, the risk to the children into the future is also exacerbated, isn’t it, if the court is satisfied that the father has a history in which he demonstrates an inability to follow reasonable directions?
[Witness]Yes.
[Counsel]And the concern about that, is it not, is that, particularly as the children develop into their own independence in adolescence, that he will have no respect for their boundaries?
[Witness]Yes.
[Counsel]And part of the concern about that – correct me if I’m wrong – is the father’s breaches of the apprehended domestic violence orders?
[Witness]Yes.
[Counsel]        The father’s behaviour at [HH Contact Centre]?
[Witness]        Yes.
[Counsel]The incident that you’ve become aware of August with the report, the traffic - - -?
[Witness]Yes.
[Counsel]- - - bollard, and also I’m going to suggest to you, one of the elements of that is if his Honour accepts the father’s behaviour in this court room, that would be another example of that?
[Witness]Yes.
[Counsel]And it would also be the case, wouldn’t it, that his Honour were to find that the father agreed, in evidence, that during arguments, if the mother said to him, “I don’t want to talk to you” that he persisted in insisting that conversation happening, that that would be another example of risk to the children if they were to challenge the father in the future, in that he wouldn’t respect their boundaries about that?
[Witness]Quite potentially, yes.

The Court is not persuaded on the balance of probabilities as to the balance of allegations made by the mother against the father relating to other alleged adverse behaviour by the father including other instances of car scratching, damage to her home, other phone communications and messages, and surveillance at a club.
The Court is not persuaded on the balance of probabilities as to the father’s allegations of violence and other alleged adverse behaviour allegedly perpetrated by the mother against him.
The father lacks adequate insight into the emotional effects upon the mother and children of the above family violence and adverse behaviour perpetrated by him. The father continues, to a significant extent, to blame the mother for his offending behaviour including the behaviour that led to his incarcerations in 2020. In this regard, the Court refers to, inter alia:
(a)The evidence of the Court Child Expert relating to her interview with the father;
(b)Exhibit L, being a series of case note reports from NSW Department of Corrective Services relating to interviews between the father and corrective services officers in mid-2020 and late 2020;
(c)The father, in the courtroom during the final hearing, whilst the Court was briefly adjourned, had verbally remarked to his brother-in-law, but within the hearing of other persons present in court, words to the effect that the mother’s crying in court was fabricated. In this context, the Court Child Expert stated that such behaviour suggests the father does not understand the impacts of his behaviour upon the mother and how those impacts may flow-on to the children;
(d)The father’s oral evidence.
The Court Child Expert had stated that if the children spend time with the father, and are exposed to a narrative from the father that the mother is significantly to blame for his past adverse behaviour, there is a significant risk that the children will experience confusion and distress with a related increase in anxiety, and this will negatively impact on their relationship with both parents including an inability to trust both themselves and others.
The above lack of insight by the father persists despite the father having engaged in counselling and therapy with a psychologist over significant periods.
In the view of the Court, there is an unacceptable risk of psychological harm posed to the children spending time with the father for at least the following reasons:
(a)The father has perpetrated significant family violence and other adverse behaviour (see the Court’s findings above) to which the children have been exposed on occasion, and in relation to which he lacks adequate insight;
(b)There is a significant risk, if not a likelihood, that the father will denigrate the mother in the presence of the children if spending time with them;
(c)The father suffers from inadequate impulse control and experiences emotional dysregulation (typified by anger), in particular in relation to situations in which he cannot get his own way. In this context, the father has shown an unwillingness to obey Court orders, rules, and to comply with behavioural boundaries. There is a significant risk that the father will act in a dysregulated manner, including potential verbally abusive, intimidatory and/or and dangerous behaviour (e.g. the father’s impermissible driving through a traffic barrier in mid-2022 at Suburb SS) towards third parties in the presence of the children. Of significant concern is that such inadequate impulse control and emotional dysregulation continues despite past psychological treatment and attendance upon a course;
The father’s difficulties with impulse control and emotional dysregulation date back to at least about early 2015 (see e.g. the clinical records of R Clinic (Exhibit H) wherein it is stated that the father had described a situation with the mother in which he exploded;
(d)There is a significant risk that the father will perpetrate significant verbal abuse and/or intimidatory behaviour, with anger, towards the children, as they mature and exhibit potentially challenging behaviours. In this context, the father’s concerning thought pattern about the role of women may well exacerbate this risk;
(e)The mother’s mental health would likely be adversely affected with resultant detrimental effects upon her parenting capacity which would negatively affect the children. The Court accepts the mother’s evidence relating to her significant fear of the father and anxiety experienced in relation thereto, both past and present. The Court would assess that the mother has no significant capacity to co-parent with the father in view of her fear of the father and related anxiety. The father lacks insight in relation to the mother’s fear of him. The Court accepts the evidence of Dr GG, psychiatrist, in relation to the mother’s mental health.
The Court has considered whether some form of unsupervised time between the children and the father might minimise the above risks however it has concluded that any unsupervised time would still pose a significant risk of harm to the children.
In this context, the Court Child Expert stated her concern, with which the Court respectfully agrees, that the father’s adverse behaviours towards the mother and her extended family (e.g. the father’s assault upon the maternal grandfather at the church service), as well as towards third parties, are not predictable and do not appear to have a pattern to them. She stated that there had been instances where the father had acted adversely in the context of his distress around not seeing the children or parental conflict, however at other times and in other contexts, he had acted adversely in public (e.g. the father impermissibly driving through a traffic barrier).
Further, and in this context, the Court has no confidence that an injunction restraining the father from denigrating the mother would be complied with by the father; he has denigrated the mother in the presence of the children during supervised time and in the courtroom.
Despite the father attending upon counselling and psychological therapy for a significant period, the father continues to lack adequate insight into his previously perpetrated family violence and adverse behaviour, lacks insight in relation to the mother’s fear of him, and continues to suffer from inadequate impulse control and experiences emotional dysregulation (e.g. with third parties, including the supervisory services and police).
The father has perpetrated certain family violence and adverse behaviour at a time when it appears that his mental health was not parlous, suggesting that such family violence and adverse behaviour may well be linked to constitutional or personality factors in the father.
In this regard, the Court observes that the father had been diagnosed with Major Depressive Disorder at R Clinic following his admission there in early 2019, and that he had made a good recovery overall and was discharged in a stable condition in early 2019.
The Court accepts the evidence of Dr V in his report dated 13 December 2019 in which he states that he has been the father’s treating psychiatrist since his admission under his care to R Clinic in early 2013. He had stated that, inter alia, as far as he is aware, the father has been abstinent from all drugs of addiction, including alcohol, for the last six years. He stated that the father has also suffered with depression but that this has been treated successfully with antidepressant medication.
The Court accepts the evidence of Dr H, inter alia, that having interviewed and assessed the father on 15 October 2021, he had found that the father met the diagnostic criteria for recurrent Major Depressive Disorder currently in remission as per DSM–5. The father had told Dr H on 15 October 2021 that he feels generally stable in his mood and was taking an antidepressant medication.
The Court does not accept that the father suffers from bipolar disorder. The R Clinic clinical records relating to the father (Exhibit H) contain a clinical note entry for early 2013 referring to Dr V, psychiatrist, stating that the father’s synthetic cannabis habit and symptoms are merely “suggestive” of bipolar (disorder). The Court observes that the discharge summary from the R Clinic dated early 2019 states the father’s principal diagnosis at discharge being MDD (Major Depressive Disorder) and does not refer to bipolar disorder.
The Court observes that the discharge summary under the heading “Progress and Management” states, inter alia, that during the father’s treatment at the clinic (he had been admitted on 25 February 2019) he had been commenced on antidepressants with the dose gradually titrated which the father tolerated well, and that the father “made a good recovery overall and discharged in stable condition”. The medications prescribed for the father on discharge included antidepressant and sleep medications and the Court finds, on the balance of probabilities, that the latter drug was prescribed for the father to assist with sleeping issues and not bipolar disorder (for example, see the clinical note entry for 7 March 2019 referring to the father “sleeping with sleeping medication”).
The Court is of the view that even supervised time would pose an unacceptable risk of psychological harm to the children. The father continues to act inappropriately during supervised visits including disobeying rules, exhibiting anger towards supervisory staff and in relation to which the eldest child has responded in an emotionally dysregulated manner (e.g. see Exhibit C in respect to the 11 March 2023 visit when X stated, “I’m really nervous because last time (the father) got really angry”). Long-term supervised time would not be in the best interests of the children and the Court refers to the evidence of the Court Child Expert in this regard. In any event, the father in his oral evidence ultimately indicated that he would not participate in prospective ongoing supervised time.
The ICL proposes final parenting orders, inter alia, that the father engage in reportable therapy with a suitably qualified child and family therapist “to assist the father to develop strategies for difficult parenting relationships; anger management and the parenting of young children with whom the father spends time”. The ICL proposes that the mother is to receive counselling from a psychologist “to assist the mother with difficult parenting relationships and to accept the decision for the children to develop a relationship with the father and spend time with the father”.
In relation to the ICL’s above proposed orders relating to the father engaging in reportable therapy, the Court presently has no confidence that such proposed therapy would assist the father to develop necessary attitudinal change relating to his past found family violence and adverse behaviour towards the mother and others. Again, the father lacks adequate insight in relation to such past found family violence and adverse behaviour and the Court refers to its discussions above in this context. Certain found adverse behaviour of the father occurred after the father had already received psychological treatment and attended a course. The Court refers to the oral evidence of Dr H relating to therapy in this context.
In relation to the ICL’s above proposed orders in relation to the mother, the Court refers to its discussions above relating to its findings that an unacceptable risk of harm is posed to the children in spending time with the father.
In relation to the ICL’s proposed orders relating to the father spending time and communicating with the children (see the ICL’s proposed Orders 11 to 14), the Court is of the view that the ICL’s proposed Order 12(d) relating to telephone or electronic contact between the father and the children would pose an unacceptable risk of psychological harm to the children because there would exist a significant risk that the father would act and/or speak inappropriately and in this regard the Court refers to its discussions above in relation to the father’s lack of impulse control and emotional dysregulation. Further, there would exist a significant risk that the mother would experience adverse effects in relation to her mental health (e.g. an exacerbation of her anxiety) through having to facilitate such direct communication, noting her fear of the father. The Court would similarly be of the view that the father’s proposed Order 11 relating to Zoom or FaceTime contact with the children on a weekly basis would pose an unacceptable risk of harm to the children and a significant risk that the mother would experience adverse effects in relation to her mental health.
The Court is of the view that the ICL’s proposed Orders 12(a) and (b) relating to the father providing photographs and gifts to the children will be orders in the best interests of the children because they will potentially facilitate the children maintaining some connection with the father, provided letters from the father are restricted to once each month and the provision of photographs and gifts by the Father is restricted to no more than four occasions each year. Such four occasions could relate to the children’s birthdays, Orthodox Easter and Christmas. In the view of the court such restrictions are necessary to minimise the risk of the mother experiencing adverse effects upon her mental health when considering whether to pass on such items to the children.
In relation to the father’s proposed orders relating to communication (proposed Orders 10 to 14) such proposed orders will not be in the best interests of the children because they would necessitate the mother having to communicate with the father, which would carry the significant risk that the mother would experience adverse effects upon her mental health, noting her fear of the father, potentially leading to a reduction in her parenting capacity.
In relation to the father’s proposed Order 15 relating to the parties receiving copies of all school reports, newsletters, notices, information and photographs in relation to the children directly, such order will not be in the best interests of the children because, in the view of the Court, there is a real risk that the mother will experience adverse effects upon her mental health in the knowledge that the father is capable of obtaining information in relation to, for example, the venue of extracurricular activities to be attended by the children. The Court has no confidence that if the father was to obtain such information he would not seek to attend and/or observe such extracurricular activity even in the face of a Court injunction restraining him from doing so.
The Court considers that it will be appropriate for the welfare of the children that the mother’s proposed orders relating to restraints for the protection of the mother and children be made. In this regard, the Court refers to its discussions above under this need to protect primary consideration including the Court’s findings relating to family violence and other adverse behaviour by the father, and relating to the mother’s fear of the father and related mental health.
The above views of the Court are consistent with the evidence of the Court Child Expert.
The Court acknowledges that making no order for the children to spend time with the father is a very serious matter. The Court acknowledges that the children have been spending supervised time with the father and they have a positive relationship with him subject to the qualifications to those relationships as discussed above. However, as discussed above under this need to protect primary consideration (which primary consideration in its application is to be given greater weight than the meaningful relationship primary consideration: s 60CC(2A)), an unacceptable risk of harm is posed to the children in spending time with the father.
Prospectively, should the father seek fresh parenting orders in relation to the children, without being prescriptive, he would need to at least adduce appropriate evidence demonstrating that he had developed adequate insight in relation to the Court’s found family violence and adverse behaviour previously perpetrated by him including in relation to the effect upon the mother and children of such past behaviour. In this context, the following oral evidence of the Court Child Expert is relevant:
It would be important that [Mr Rinakis] was able to acknowledge that some of his behaviours had been problematic, and understand how they have been problematic, and how they have impacted on the children and [Ms Rinakis], and also be able to, I guess, identify how to behave differently. Part of that behaving differently would be being able to demonstrate that he can respect boundaries, whether they be boundaries of rules that are given by outside institutions or whether they be personal boundaries of, you know, people sort of telling him how – how they need him to behave to keep them safe. So, you know, recognizing when – when somebody says they don’t want to continue a conversation, being able to – to walk away, recognizing that when he is told that it’s – it’s not appropriate to, perhaps, continually tell a child that their mother is mean, that he is able to recognise that “I need to stop that now.” Recognising that if somebody says your words are hurtful, “I need to change the way I speak.”
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) additional considerations
(3)(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 eldest child, X, told the Court Child Expert, inter alia, that she did not see the father for a period of time. She described feeling nervous and happy when she commenced spending time with him again. She referred to the supervised contact. She stated that she was happy when she saw the father because she missed him. She stated that the current arrangements for her to spend time with the father are fine for now. She stated that she was worried that if they have contact outside of the contact centre, the father will ask questions about the mother, or tell her that the mother is rude or does not want X to spend time with him. She said that this would make her feel sad, as this is not her experience of the mother. The Court would attach some weight to this child’s views.
The youngest child, Y, told the Court Child Expert, inter alia, that her family included the mother and the father and others. She described the father as like a normal Dad and said that they draw and play together. She said that she sees the father every second Saturday and that this is fun, and that the current arrangements are fine. She described feeling a bit good when she commenced spending time with the father and said that she likes playing with him. The Court would attach limited weight to this child’s views, given her age.
(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration. The children enjoy positive relationships with the maternal grandparents.
The Court acknowledges that should the Court make no orders for the children to spend time with the father it will effectively preclude the children from maintaining or developing relationships with the extended paternal family, including their half-siblings, who reside in Melbourne.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The mother has taken such opportunities.
The father has taken such opportunities when available to him.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has fulfilled her obligations in this regard. The father has been unemployed for a significant period of time and has thereby not paid significant child support.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; 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 refers to its discussions above under the above primary considerations, including under the above additional consideration relating to the views of the children.
(3)(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.
(3)(f) The capacity of each of the child’s parents; and 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 father probably has capacity to meet the children’s intellectual needs. The father’s ability to provide for the emotional needs of the children are significantly compromised by reason of the matters discussed above in relation to the father under the need to protect primary consideration.
(3)(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
As to the father, the Court refers to its discussions above in relation to the father under the need to protect primary consideration.
(3)(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.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother has demonstrated appropriate attitudes to the children and to the responsibilities of parenthood. As to the father, the Court refers to its discussions above in relation to the father under the need to protect primary consideration.
(3)(j) Any family violence involving the child or a member of the child’s family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(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.
The Court refers to Exhibit J, being the father’s criminal history.
An ADVO was made in early 2019 for the protection of the mother against the father. An ADVO was made in early 2020 for the protection of the maternal grandfather against the father.
Breaches by the father of the above ADVOs occurred in mid-2019, and in early and mid-2020. By reason of, inter alia, these breaches, the father was incarcerated from early 2020 until mid-2020, and again from mid-2020 until late 2020.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In the view of the Court, the mother’s proposed orders together with the ICL’s proposed orders 12(a) and (b) (with amendment as discussed above by the Court) would be least likely to lead to the institution of further proceedings in relation to the children as compared to the father’s proposed orders and ICL’s proposed orders relating to time between the children and the father or communication between the children the father respectively. In this regard the Court refers to its discussions above under the need to protect primary consideration in particular.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
Not applicable.
PARENTAL RESPONSIBILITY
It will be in the best interests of the children that the mother have sole parental responsibility for them. The mother remains significantly fearful of the father by reason of the father’s family violence and adverse behaviour discussed above under the need to protect primary consideration. The mother should not be required to communicate with the father relating to her proposed major decisions for the children because such potential communication will carry the significant risk that the mother will experience adverse effects upon her mental health including increased anxiety with resulting detrimental effects upon her parenting capacity.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the children to make the following final parenting orders:
1.All prior parenting orders be discharged.
2.The mother have sole parental responsibility for the care, welfare, and development of X born in 2012 and Y born in 2014 (“the children”).
3.The children live with the mother.
4.The children or either of them are permitted to:
(a)Travel internationally with the mother;
(b)Have an Australian travel document issued to them, without the need for the consent of the father, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth).
5.The father shall be permitted to communicate with the children as follows:
(a)By letter once each month;
(b)The father shall be permitted, on no more than four occasions each year, to provide photographs and gifts to the children by mail, and within 14 days of the date of this Order the mother is to provide the father with an address to send such items;
(c)The mother shall consider the content of any correspondence, the nature of any photograph, and the appropriateness of any gift. The decision to pass these items to the children will be at the mother’s sole discretion and any item not appropriate shall be returned to the father at the father’s cost.
6.The father be restrained from attending upon:
(a)Within 200 metres of where the mother resides from time to time;
(b)The mother’s workplace.
7.The father be restrained by injunction from assaulting, molesting, harassing, threatening, stalking, intimidating, or otherwise interfering with the mother.
8.The father be restrained from approaching the mother in any public place.
9.Except as permitted elsewhere in these Orders, the father be restrained from communicating with the mother.
10.Except as permitted elsewhere in these Orders, the father be restrained from communicating with the children or either of them.
11.The father be restrained from approaching the children in any public place.
12.The father be restrained from attending:
(a)The school attended by the children or either of them;
(b)The venue of any extra-curricular activity attended by the children or either of them.
13.Orders 6 to 9 hereof are made pursuant to s 68B of the Family Law Act 1975 (Cth) being injunctions for the protection of the mother.
14.Orders 10 to 12 hereof are made pursuant to s 68B of the Family Law Act 1975 (Cth) being injunctions for the protection of the children.
15.Pursuant to s 68C of the Family Law Act 1975 (Cth), Orders 6 to 12 hereof empower a police officer to arrest the father without warrant in the event that the police officer forms the view that s 68C(1) of the Family Law Act 1975 (Cth) is made out.
COSTS
Firstly, the ICL seeks costs and in this regard the Court refers to the ICL’s proposed orders 43 and 45. These proposed orders are to the effect that in the event that a party is not successful in obtaining a waiver of his/her share of the ICL’s costs then, within a further six months of a party being notified by Legal Aid NSW of the refusal to give them a waiver, such parties to pay to Legal Aid NSW, for the father, $8,217, and the same amount by the mother.
Secondly, costs are sought for the attendance at court and related reading of material by Dr H in the sum of $4,455; the Court observes that this psychiatrist did, inter alia, attend court and gave oral evidence. In relation to these proposed costs, the Court observes that the Court made Orders on 22 September 2021 that the husband attend upon this psychiatrist for the purpose of an assessment and report as to his current mental health on 15 October 2021. The psychiatrist, in respect to his oral evidence at court, gave examination in chief through the ICL and was cross-examined by both the father’s counsel and the mother’s counsel.
In relation to the above application for costs in relation to the psychiatrist, the parties had referred the Court to Rule 7.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), however that rule relates to a single expert witness’ reasonable fees and expenses incurred in preparing a report. Rule 7.09(3) provides:
(3)Unless the court otherwise orders, a party who requires a single expert witness to attend court for cross-examination must pay the reasonable fees and expenses of the single expert witnesses attendance.
The Note to Rule 7.09 provides that Rule 12.31 sets out the circumstances in which an amount paid for attendance by an expert at a hearing is a disbursement properly incurred in a proceeding.
Presently, the Court has insufficient information in relation to, in particular, the matters referred to in Rule 7.09(3), and the Court will make directions requiring the parties to provide to it further information, in a timely fashion, to enable the Court to consider the above costs applications.

I certify that the preceding two hundred and seven (207) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Deputy Associate:
Dated: 30 June 2023

File number(s):	PAC 3364 of 2019
Judgment of:	JUDGE NEWBRUN
Date of judgment:	29 June 2023
Catchwords:	FAMILY LAW – PARENTING – Best interests of children – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 68B, 68C Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.06, 7.09, 12.31
Cases cited:	Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	207
Date of hearing:	27–30 March 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Anthill
Solicitor for the Applicant:	Ark Law Lawyers
Counsel for the Respondent:	Ms Mahony
Solicitor for the Respondent:	Matthews Folbigg Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Kalimnios
Solicitor for the Independent Children's Lawyer:	Shedden & Associates

PAC 3364 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RINAKIS Applicant
AND:	MS RINAKIS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	30 JUNE 2023