Stockdale & Nowak - [2022] FedCFamC1F 460

Federal Circuit and Family Court of Australia
(DIVISION 1)
Stockdale & Nowak [2022] FedCFamC1F 460

File number(s): ADC 3653 of 2018

Judgment of: BERMAN J

Date of judgment: 11 July 2022

Catchwords:
FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the parties are not able to communicate at any level – Where there is ongoing dislike and distrust between the parties – Consideration of the best interests of the child – Where the presumption should not apply – Order for sole parental responsibility.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Family violence – Where the father seeks a gradual increase in time to equal shared care – Where the mother opposes the child spending any time with the father - Where the child is currently in the mother’s primary care – Where the father’s time was suspended due to an incident which is now the subject of criminal proceedings - Where the father has not spent time with the child in two years – Where there are allegations of family violence – Whether the father presents as a risk to the child – Where the Family Consultant recommends a cautious approach until the criminal proceedings have concluded - Where there is a lack of evidence before the Court to determine any significant change to the child’s living arrangements – Where the child should remain in the primary care of the mother – Where the ability to maintain a meaningful relationship with the father should be preserved – Where the father should spend some supervised time with the child pursuant to s 65L of the Family Law Act 1975 (Cth).

Legislation:
Evidence Act 1995 (Cth) ss 128, 135, 136

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L, 69ZN, 69ZT

Family Law Rules 2004 (Cth) r 15.13

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.18

Cases cited:
Baglio & Baglio [2013] FamCA 105

Champness & Hanson (2009) FLC 93-407

Cotton & Cotton (1983) FLC 91-330

Dennison & Wang [2010] Fam CAFC 182

Harridge & Harridge [2010] FamCA 445

Mazorski v Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Sigley v Evor (2011) 44 Fam LR 439

St Claire & St Clair and Ors [2013] FamCA 108

Wang & Dennison(No 2) [2009] FamCA 125

Division: Division 1 First Instance

Number of paragraphs: 278

Date of hearing: 7 – 11 March 2022

Place: City W

Counsel for the Applicant: Mr Childs

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent: Ms Pyke QC

Solicitor for the Respondent: Stanley & Co Lawyers

Counsel for the Independent Children's Lawyer: Ms Horvat

Solicitor for the Independent Children's Lawyer: Georgina Parker Lawyers
ORDERS

ADC 3653 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR STOCKDALE

Applicant

AND:
MS NOWAK

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

BERMAN J

DATE OF ORDER:

11 July 2022

THE COURT ORDERS:
1.That the current parenting orders be discharged.
2.That the mother have sole parental responsibility for X (“the child”) born 2016.
3.That the mother keep the father informed of any decision made by her in respect of major issues affecting the child.
4.That the child live with the mother.
5.That pursuant to s 65L of the Family Law Act 1975 (Cth) the child spend time with the father on two (2) occasions on dates and times to be appointed by the Director of Child Dispute Services of the City W Registry with such time to be supervised by a Court Child Expert.
6.That at the conclusion of the supervised time pursuant to order 5 herein, the Court Child Expert shall prepare a short form report directed to whether the father’s time with the child should continue and if so then the parties will do all things necessary and sign all documents as may be required for the enrolment of the child and the parties at a Children’s Contact Service as may be nominated by the Independent Children’s Lawyer to the intent that there shall be not more than six (6) periods of supervised time of no more than two (2) hours duration for each period at a frequency of no more than one (1) period each week and no less than one (1) period each fortnight on such date and time and with such frequency as may be determined by the Director of the nominated Children’s Contact Service.
7.That the father be at liberty to send the child, via an address or a PO Box address nominated by the mother, an Easter card, a birthday card and a Christmas card and gift each year.
8.That the father be at liberty to obtain from the child’s school, school photographs of the child at the father’s sole expense.
9.That the mother do keep the father informed as to the school the child is attending and any changes of school.
10.That the father be restrained and an injunction is granted restraining him from approaching the child, the child’s place of residence, any child care attended by the child or any school attended by the child other than as may be provided by these orders.
11.That either party or the Independent Children’s Lawyer have liberty to relist the proceedings at short notice for consent orders or further trial directions either after the s 65L supervised time sessions should the Court Child Expert recommend that there be no further time spent between the father and the child or at the conclusion of the supervised time at a Children’s Contact Service.

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

The proceedings between Mr Stockdale (“the father”) and Ms Nowak (“the mother”) concern the future parenting arrangements for X born in 2016 (“the child”). The trial commenced on 7 March 2022 with judgment being reserved on 11 March 2022.
Each of the parties were represented by counsel, in the case of the mother by Queen’s Counsel. The independent children’s lawyer (“ICL”) was represented by counsel.
Background
The parties met in early 2016. The child was born in 2016 and is now five years of age.
Whilst there is some disagreement as to the nature of the relationship between the parties, it is conceded that the relationship was short and that the parties’ relationship broke down in July 2017.
Following separation, the parties attempted to agree the basis upon which the child would spend time with the father.
For his part, the father contends that post-separation he saw the child on a regular basis and in particular between one and two nights each week to accommodate the mother’s employment in allied health.
The mother does not agree with the father’s assessment of the extent of time that the child spent with him but rather that whilst there had been a few overnight periods, the father’s time with the child was not regular.
From their separate perspectives, each of the parties considered that there should have been a consistent parenting routine rather than the uncertain and irregular basis upon which the child spent time with the father.
A significant incident occurred in August 2017 when the mother alleges that the father unilaterally took the child to Q Town in New South Wales for a couple of days to spend time with his family and to coincide with Father’s Day.
The father contends that the mother agreed to the child travelling and that there was to be a trade-off, namely that the father would agree to the mother taking the child to New Zealand.
The mother’s position is that she did not give her consent to the father taking the child to Q Town. Each of the parties provides evidence of a different scenario. The father considers that the mother was aware of his travel plans for the child and that they regularly messaged each other which included text messages expressing mutual affection.
The father highlights that on 4 September 2017, the mother met the father and the child at the airport and greeted him with an affectionate embrace. The father spent overnight time with the child on at least four occasions between 26 September 2017 and 27 October 2017.
Thereafter, the focus was on the father signing the necessary application for a passport to issue for the child. There appears to have been a disagreement between the parties. The father alleges that he became concerned that the mother would not return the child to Australia and that there was a distinct possibility that the mother may reconcile with a previous New Zealand based boyfriend. The father states that he filed a travel alert request in order to prevent the mother from applying for a passport for the child without his knowledge.
According to the father, a possible catalyst for the events that followed centres upon his allegation that consequent upon his refusal to sign the child’s passport application, the mother threatened that he would not see the child again.
Following various arrangements put in place for the child to spend time with the father, in January 2018 the parties attended mediation and reached an interim agreement. There was no objection by either party to the Court being told of the agreement but essentially from January to May 2018, the father’s time with the child was supervised by the maternal grandmother.
There were difficulties with the continued involvement of the maternal grandmother. The father alleges that the maternal grandmother made her dislike of him known and referred to him in derogatory terms in the presence of the child. For the mother’s part, she considered that the father was aggressive and hostile which made the continuation of supervision untenable.
The mother supervised the father’s time on 19 May 2018 however the interaction between the parties resulted in high conflict and the time spent with the child being terminated.
The father did not spend time with the child again until the orders made by Judge Cole on 30 October 2018 in the following terms:
2.        The father will spend time with the child:
a.From 5 November 2018, each Monday and Wednesday between 2.00pm and 4.00pm for four (4) consecutive weeks; and then
b.        From 2 December 2018:
i.        Each Sunday between 11.00am and 3.00pm.
ii.        Each Wednesday between 2.00pm and 4.00pm.
c.        On Christmas Day from 8.00am until 12.00pm.
The parties are not agreed as to the extent of time that the father spent with the child and each of them have a different view as to the level of hostility and aggression displayed by the other.
It is likely that there was broad compliance with the orders made by Judge Cole which provided for a graduated increase in the father’s time with the child together with overnight time as and from orders made 16 April 2019.
On 15 April 2020, the Department of Child Protection (“DCP”) became involved following a report made by the mother that the child had made disclosures to a doctor that suggested she may have been subjected to sexual abuse by the father. The principle allegations were that the child presented to the mother and then to a doctor complaining of a sore and inflamed vagina together with a record made by the doctor that the child said “ʻ[m]y Daddy touches my vee vee like this.’ [The child] then produced her index finger on her right hand and moved it up and down on her vagina, over her shorts.”[1]
[1] Trial affidavit of the mother filed 15 October 2021, paragraph 55(f).
A report was made to DCP and also to the police. The mother did not allow the child to spend time with the father pursuant to the orders and concedes that when asked by the father to see the child he was told that the child was unwell.
The mother summarises her position in the following terms:
I did not wish to cause harm to [the child’s] relationship with the [f]ather. My concern is only with [the child’s] safety. I took the decision to suspend [the child’s] time with the [f]ather very seriously, and above all else, I wanted to protect [the child] from any risk of child abuse or harm. I therefore withheld [the child] from the [f]ather until the DCP and/or the Police carried out their investigation or further decision by the Court.[2]
[2] Trial affidavit of the mother filed 15 October 2021, paragraph 55(m).
The mother conceded that a full and proper investigation has been conducted and no finding was made that the child had been the subject of sexual abuse by the father or that he presented as a risk to her.
On 15 June 2020, Judge Cole made orders enabling the father’s time with the child to be resumed which provided for the child to spend time with the father on various days in June 2020 with overnight time to resume on 18 June 2020, being a resumption of time pursuant to orders made 12 November 2019.
In mid-2020, the father, whilst driving his car, collided with the child’s child care centre.
On the father’s version of events, he states that there had been an earlier unpleasant interaction with Ms C (“Ms C”), the manager of the centre.
The father had words with Ms C arising out of a difference of opinion as to whether he was five minutes early and therefore would have to wait before he could collect the child from the child care centre at the designated time of 8.30 am or whether Ms C was being unreasonable in circumstances where a minute or two before the time for collection, the child was with the father and ready to leave.
The father concedes that Ms C was not offensive nor impolite in her interaction with him and whilst he accepts that Ms C may well have sensed his irritation, he denies that his behaviour was aggressive or abusive.
At paragraph 70 of his trial affidavit filed 20 August 2021, the father does admit that he considered the stance adopted by Ms C to be “ridiculous” and “petty”.
Later in the day, the father received a copy of correspondence from the solicitor of the mother to the ICL which accused him of having “acted aggressively and abusively toward staff at the Centre”.[3]
[3] Exhibit “2”.
The correspondence also accused the father of acting aggressively at an informal settlement conference on 11 June 2020.
The specific allegation was as follows:
6.We note that the Father also became agitated at the recent Informal Conference at which his Counsel, [Mr U], was required to ask that [the father] vacate his office before concluding the conference. Such a pattern is, understandably, a cause for concern for our client.[4]
(As per the original)
[4] Ibid.
The father’s evidence is that he ruminated on the events of the day and decided that he would make a silent but peaceful protest at the child care centre.
His intention was to park his car across the entrance to the child care centre parking area with a view to inconveniencing parents dropping off their children in the morning, with the hope that somebody would bring his actions to the attention of the media thereby highlighting his concerns.
The father drove to the centre and set up some of the child’s toys on the footpath.
The father’s partner and a friend attended at the centre and persuaded him to abandon his protest in case his actions might impact adversely on his ability to spend time with the child.
The father reluctantly accepted the wise counsel of his partner, packed up the protest items and then attempted to exit the centre by executing a U-turn in the centre’s car park.
The father concedes that as part of that manoeuvre he lost control of the vehicle which caused it then to collide with the building.
As matters transpired, the incident was videoed by a neighbour of the centre.
The father attended a police station, was arrested, charged with multiple offences and was released on bail.
The father is contesting the major indictable charge and whilst there remains some uncertainty, the father understands that his criminal trial will not be heard until later in 2022.
The mother was not present and is not able to present any separate evidence of the incident but states that as a result of the father’s conduct generally with the child’s child care centre and his actions in particular on that day, the child has been expelled.
The father last saw the child on the day of the accident.
Documents relied upon
The father relies upon the following documents:
(1)Trial affidavit of the father filed 20 August 2021;
(2)Affidavit in reply filed 8 March 2022;
(3)Report of Dr F dated 7 September 2020 (as annexed to the affidavit of the ICL filed 15 January 2021); and
(4)Case Outline document.
The mother relies upon the following documents:
(1)Amended Response to Initiating Application filed 24 May 2021;
(2)Trial affidavit of the mother filed 15 October 2021;
(3)Affidavit of Mr E filed 15 October 2021;
(4)Affidavit of Ms B filed 15 October 2021; and
(5)Case Outline document.
The ICL relies upon the following documents:
(1)Updated Family Report of Ms G dated 26 October 2021 (annexed to affidavit of the ICL filed 14 February 2022); and
(2)Affidavit of Mr H filed 24 February 2022.
By consent, the reports of Dr F, Mr H and Mr E were read into evidence without the need for either of the deponents to be called for cross-examination.
Orders sought
The father seeks orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the child.
(2)That the child live with the father:
(a)Each alternate Saturday from 9.00 am to 12 noon on four occasions;
(b)Then each alternate Saturday from 9.00 am until 5.00 pm on four occasions;
(c)Then each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday on four occasions;
(d)Then each alternate weekend from the conclusion of school Friday (or 3.00 pm if a non-school day) to the commencement of school Monday (or 5.00 pm if a non-school day) for three months;
(e)Then during each alternate week from the conclusion of school Friday (or 3.00 pm if a non-school day) to the commencement of school Monday (or 5.00 pm if a non-school day) and from the conclusion of school Thursday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 5.00 pm if non-school day) for three months;
(f)Then during each alternate week from the conclusion of school Friday (or 3.00 pm if a non-school day) to the commencement of school Monday (or 5.00 pm if a non-school day) and from the conclusion of school Wednesday (or 3.00 pm if a non-school day) until the commencement of school Friday (or 5.00 pm if a non-school day) for three months; and
(g)Then each alternate week from the conclusion of school Friday (or 3.00 pm if a non-school day) to the commencement of school the following Friday (or 3.00 pm if a non-school day).
(3)That the child live with the mother at all other times.
(4)That the child spend time with each of the parties on special occasions being the Christmas period, Easter, Father’s Day and Mother’s Day.
(5)That handovers which do not occur at the child’s school shall take place at the Suburb D Police Station or at such other location as may be agreed between the parties.
(6)That the parties will exchange information as to their contact details.
(7)That the parties will keep each other informed about serious medical issues affecting the child.
(8)That each of the parties are at liberty to obtain at their own cost copies of reports, notices, photographs and any other material provided to parents by any school, educational institution, sporting body or extracurricular organisation which the child may be enrolled or attend.
(9)Each party is at liberty to attend all school and extracurricular activities and events to which parents are ordinarily invited to participate and/or attend, including but not limited to sports days, sporting events, school concerts, school plays, quiz nights, school fundraisers, classroom visits, parent/teacher interviews and school excursions.
(10)Each party is restrained from assaulting, harassing or denigrating the other or any member of the other party’s family to the child or in the presence of the child.

The mother seeks the following orders:
(1)That the mother have sole parental responsibility for the child.
(2)That the child live with her.
(3)That there be no orders as to time spent by the child with the father or any communication with him.
(4)That there be injunctive orders restraining the father from approaching within 200 metres of:
(a)The mother;
(b)The child;
(c)The child’s place of residence;
(d)The maternal grandparents’ place of residence;
(e)The mother’s place of employment;
(f)Any child care facility attended by the child; and
(g)Any school attended by the child.
The orders sought by the ICL mirror the orders sought by the mother other than the ICL considers the father should be at liberty to send the child via an address or PO Box nominated by the mother, cards and gifts for Easter, Christmas and the child’s birthday and that he should be able to obtain at his expense a copy of the child’s school report and photograph of the child.
In the case outline document of the ICL, the issues in dispute are identified as follows:
(1)The mother seeks sole parental responsibility whereas the father seeks equal shared parental responsibility.
(2)The mother seeks there should be no time spending or communication between the child and the father. The father seeks week about time whereas the ICL supports the orders sought by the mother but considers that the child’s interests would be served by preserving the ability of the father to provide gifts and cards to the child so that she could know who her father is.
(3)That the mother alleges family violence perpetrated by the father.
(4)That the parties have a complete inability to engage in any level of communication or co-parenting.
(5)The father does not recognise or acknowledge his aggressive behaviour generally but of greater moment, the adverse impact on the mother and the child.
The ICL considers that the father may present an unacceptable risk of harm to the child both physically and psychologically with such a view underpinned by the assessment of the ICL that the father drove his motor vehicle either deliberately or recklessly, causing it to crash into the child’s child care centre.
The evidence
At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Family Law Act1975 (Cth) (“the Act”) and in particular whether the Court should dispense with the provisions of s 69ZT of the Act and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party spoke against the application of the provisions of s 69ZT of the Act. I considered that the principles pursuant to s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it was contentious.
I do not consider that ss 69ZN and 69ZT of the Act removes the ability or the desirability to consider objections to affidavit evidence particularly where it would be inadmissible if the provisions of the Evidence Act were applied and its utility limited if rendered inadmissible by the application of the provisions of s 69ZT.
Rule 8.18 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides as follows:
(1)Subject to section 69ZT of the Family Law Act, the court may order material to be struck out of an affidavit at any stage in a proceeding if the material:
(a)is inadmissible, unnecessary, irrelevant, prolix, scandalous or argumentative; or
(b) contains opinions of persons not qualified to give them.
The rule differs from r 15.13 of the Family Law Rules (2004) in that r 8.18 provides for the ability to strike material out of an affidavit subject to s 69ZT of the Act. Whilst I do not consider that the current rule is without application if the provisions of s 69ZT are applied, the section does not exclude a consideration of ss 135 and 136 of the Evidence Act.
Objection was taken to significant portions of the mother’s trial affidavit filed 15 October 2021. The objections that were upheld represent a significant proportion of the entirety of the mother’s trial affidavit. The objectionable material was struck out on the basis that it was unfairly prejudicial to a party and of limited or no probative value. It is unlikely that the mother’s trial affidavit had been settled by counsel.
Whilst a similar objection process was not undertaken in respect of the father’s trial affidavit, it was also replete with examples of argument, submission, rank hearsay or without probative value.
As discussed, there was significant focus on the incident which resulted in the father’s car colliding with the child care centre.
The father has been charged and it appears likely that there will be a trial heard in the District Court in late 2022. An application was made for a certificate pursuant to s 128 of the Evidence Act. There was no opposition.
A certificate was issued.
The father
In examination in chief, the father was shown a two page document which set out a text message exchange between the parties between 30 October 2017 and 26 November 2017. The purpose of the document was to corroborate the father’s case that the mother did not have a fundamental opposition to the child spending time with him. Rather the issue of the absence of a commitment by the father to reconcile with the mother and enter into a familial relationship was the basis why she would not support the child spending time with the father.
Exhibit “2” is a letter from the mother’s solicitors to the ICL. The father’s solicitors were copied into the correspondence.
The importance of the letter is to notify the ICL of the incident at the child’s child care centre. It alleges that the father had exposed the child to aggressive and/or abusive behaviour in his interaction with the child care centre staff.
The father places considerable importance on the letter received as part of the explanation for his conduct later that day and the incident at the child care centre that evening.
Mr U was not called. The father did not deny that he was agitated or that he was asked by counsel to calm down.
The father’s criminal trial in relation to the primary charge is listed for hearing in late 2022. Given that there was likely to be significant focus on the events leading to the damage caused to the child care centre, I considered that a certificate pursuant to s 128 of the Evidence Act should be granted. Before granting the certificate, I drew a distinction between the voluntary evidence provided by the father in his trial affidavit material and the focus of the proposed certificate, namely the questions that he was likely to be asked in cross-examination.
The father was appropriately distressed that there had been an allegation of sexual abuse. The father conceded that by the date of the accident the allegations had been investigated with the result that there was no finding. The father was emphatic in his denial that he had not sexually abused the child.
It is an important consideration in the father’s presentation that allegations of sexual abuse were raised which resulted in his time with the child being suspended. The mother’s case is that she accepts there is no evidence consistent with an allegation of sexual abuse and accordingly, a court would not be able to find that the father presented as an unacceptable risk.
An issue for the father is that the mother does not necessarily accept that he did not abuse the child but rather that there is no evidence to sustain such a finding. The mother’s position is set out in her Queen’s Counsel’s exchange with the father:
[Counsel]:Yes. So by the time the incident took place […], the allegations had been investigated by the Child Protection Service, of sexual abuse? ---
[The father]     Sorry, is that a question or ‑ ‑ ‑
[Counsel]Yes. By the time you – the incident […], the sexual abuse allegations had been investigated by the Child Protection Service? ---
[The father]:     Yes, state ... DCP and CPS.
[Counsel]:       Yes? ---
[The father]:     Yes.
[Counsel]:       There was no finding ---? ---
[The father]:     Yes.
[Counsel]:       ‑ ‑ ‑ that you had sexually abused your daughter? ---
[The father]:     I had not. Yes.
[Counsel]:Yes, well there was no finding that you had. Did you understand the difference. It was not a positive finding that you had not. But rather, it was a finding that in essence the allegation of abuse was not established? ---
[Father]:         Correct. [5]
[5] Transcript 7 March 2022, p.55 lines 26 - 41
I considered that counsel’s questioning of the father enables a finding that the mother does not accept that the father had not abused the child but rather that the evidence was insufficient to substantiate abuse.
The father was challenged as to his contention that the mother had made a false allegation of sexual abuse. It was put to the father that the original allegation commenced by way of a mandatory report from the child’s general practitioner. Thereafter, a report was made by the mother to Child Protection Services. The father was also upset about a letter that had passed between the solicitors questioning why the child presented with a red or inflamed vagina.
The father did not resile from his assertion contained in his trial affidavit filed 20 August 2021 at paragraph 155 that he considered the mother had made a false and malicious allegation.
The father agreed that he considered that the allegations, the subsequent investigation and the suspension of his time caused him distress and humiliation.
Whilst the mother’s counsel sought to portray the father’s upset and distress at the allegation of sexual abuse as unreasonable, I am satisfied the father’s presentation was not confected.
The father was challenged as to his conduct at the child’s child care centre and in particular his interaction with Ms C.
It appears that the father arrived early on the day of the incident to collect the child. Ms C noted that the time ordered for collection was 8:30 am and accordingly she did not allow the father to leave with the child until the nominated time had passed.
The father considered that Ms C was acting unreasonable and it was his view that she may have taken a set against him and accordingly was not prepared to offer him the accommodation of what turned out to be only a few minutes prior to the nominated time.
The father’s presentation was summarised by the following passage from his trial affidavit filed 20 August 2021:
170.[Ms C] was not offensive nor impolite to me. I was irritated and she probably sensed this, but I deny that I spoke to her in an aggressive or abusive way. I admit that I said that I thought her request that I wait in the foyer was ‘ridiculous’ and later said that in my view she was being ‘petty’ in terms of compliance with the Order.
(Emphasis in original)
The father denied that his tone of conversation with Ms C was aggressive or abusive. The father’s contention was that his tone was “low”[6] and whilst not friendly he did not seek to intimidate Ms C.
[6] Transcript 7 March 2022, p.66 line 18.
Accordingly, the father did not consider that the description of his interaction with Ms C as set out in the letter comprising in exhibit “2” was justified.
The father also considered that the letter contained a threat that he would be denied time with the child. The father was asked to read the letter and conceded that upon closer consideration, there was no suggestion that his time with the child would be restricted or ceased.
The father sought to minimise the extent to which his interaction with the staff of the child care centre could be categorised as aggressive. It appears that there has been prior issue taken with the insistence by the child care centre that the father could not collect the child earlier than the ordered time.
I am left in little doubt that the father considered the stance adopted by Ms C as being petty and unnecessary given that his arrival at the child care centre was only a few minutes early. The father’s evidence was unimpressive. He lacked insight into the requirements of the child care centre in abiding by the terms of orders made and his denial that his conduct was aggressive is not consistent with the evidence. The father was reluctant to accept that his conduct at the child care centre could be the basis for the child’s continuing enrolment to be placed at risk.
The father was asked to consider the period leading up to the date of the incident. The father’s position was summarised in paragraph 15 of his affidavit filed 24 July 2020:
I was struggling with a culmination of things at that time, including [the child] being withheld from me for Easter and my 40^th birthday despite my solicitor’s attempts to negotiate some time spending for those special occasions, which the mother would not agree to, being harassed and abused by the maternal grandmother at handover on 10 April 2020, the mother withholding [the child] from me and ceasing her day care attendances on the basis of COVID-19 concerns whilst the mother continued to attend her employment in an elder care facility, the false sexual abuse allegations and lack of time spent with [the child] as a result, together with the accrual of a significant legal bill. The receipt of the letter added to my ongoing distress.
The father considered the extract from his affidavit and agreed that his decision to stage a silent protest at the child care centre was as a result of the difficulties he was experiencing in seeking to spend time with the child.
Whilst it was inevitable that there would be significant focus on the extent of the father’s involvement and motivation in the collision with the child care centre, it was conceded the Court would not be in a position to determine the father’s guilt or innocence in respect to the various charges pending.
To a significant degree, the focus by counsel on the minutiae of the father’s actions on the date of the incident is of little assistance.
The father’s evidence is uncontroversial. He attended the premises of the child care centre with the intention of making a silent protest. He parked his car across the entrance to the car parking area and then set up a number of the child’s toys. The father’s intention at that time was to remain overnight and block entry to the car park by parents seeking to drop off their children in the morning. It was as unwise as it was inexplicable.
The father decided to terminate his protest following the sensible intervention by his partner and her friend. Their advice that he should not go ahead with the protest in case it adversely affected his ability to spend time with the child represented a common sense approach.
I am able to find on the father’s evidence that he then sought to enter the car park in order to undertake a U-turn and leave the child care centre. Whether the father developed an intention to collide with the child care centre or whether he lost control of his vehicle and was not able to avoid collision is immaterial for the purposes of these proceedings.
I find that the father was frustrated by his acceptance of advice that the discontinuation of his silent protest was the only proper course. His frustration manifested itself by the father driving aggressively. If the father did not have the necessary intention to collide with the centre then at the very least he showed a significant lack of control and a high level of immaturity in his subsequent conduct. The father asserts that he did not drive aggressively but that he hit the raised concrete curb which caused his vehicle to become airborne thereby losing control of the vehicle’s trajectory.
There is little doubt that if the father had conducted a sedate U-turn manoeuvre in the car park the incident would not have occurred.
There is more to the incident than the eventual collision. The father’s conduct leading up to the accident was filmed by a nearby neighbour who observed the father’s actions from a neighbouring building.
The father was aggressive in his conduct. He was angry in his interaction with his partner and he was seen to walk away from the child care centre with no particular focus or destination intended. The father admitted that he intended to gain maximum attention by his protest even though it might result in the child’s enrolment being suspended or terminated.
The father agreed that he was emotional, was crying and upset. Whilst he disagreed with the proposition, I find that he was in part motivated by anger in his intention to disrupt the day-to-day operation of the child care centre.
The father lacked insight as to how his actions would impact upon the child and be seen by others but in particular the mother.
The father’s conduct is made all the more curious by the observation that at the time, he knew that the suspended orders providing him with significant time with the child would be reinstated.
The father admitted that he was prone to being loud and short tempered, evidenced by his interaction with his partner and the manner in which he spoke to his mother on the phone. The father admitted that he yelled at his partner and her friend. The father would not describe his conduct as aggressive. The father failed to convince me that his behaviour was anything other than motivated by anger manifesting in aggressive conduct.
The father was asked to confirm his occupation as a professional. The father agreed that the term “professional” properly described his occupation however, he was not working. The father conceded that he was employed by a number of companies including J Company and the K Group but in particular the V Company. The father denied that he was a shareholder and said that he did a couple of hours work a week. The father disavowed any financial interest in the companies and his continued involvement was only as a result of personal guarantees that he had given pre-COVID and arising from significant disruption to the business, there currently remains significant residual debt.
On further questioning, the father revealed that there are family trusts which hold shares in the K Group but that the trusts are held or controlled by his mother and his now ex-partner. Whilst of little relevance to the orders sought by each of the parties, the father’s evidence could be considered as wholly unreliable in respect of his involvement in the K Group. The questioning of the father and his unresponsive and evasive answers are relevant as to credit.
The hostility and mistrust between the parties is deep-seated.
The father concedes that in February 2017 he sent text messages to the mother which stated that “I hope she has more morals and respect than you and you piece of shit mother”.[7] In response to the mother asking whether he understood what he had done by sending the previous text message, the father’s response is informative:
I don’t care, things can’t get worse…..!!! I totally see why Dads [die] with their kids
It’s the cheapest and most love filled outcome…..High five to you and your cunt mother[8]
[7] Exhibit “14”.
[8] Ibid.
On reflection, the father now regretted the sentiment expressed and denied that it was anything other than an ill-considered spontaneous remark without any intention to threaten or frighten the mother.
The father’s explanation was that he had been struggling to spend time with the child and it was in a moment of frustration that the remarks were made.
The father’s position was summarised in the following exchange:
[His Honour]: But you said – but why did you say you understand it if you didn’t understand it? ---
[The father]:     I’m unsure, your Honour. I regret it.
[His Honour]: Well, it’s your words. That’s the difficulty about sending ---? ---
[The father]:     Yes.
[His Honour]: --- text messages with those sorts of words in them? ---
[The father]:     Yes.
[His Honour]: Either you do it because you want to frighten, upset, distress or put someone at – put them on warning or notice that they better tow the line or there will be a problem, or you actually do genuinely understand it. There’s only one or two alternatives, isn’t there? Either you wanted to upset the mother and bring home a point to her, or you genuinely understand how that can happen, how children can ---? ---
[The father]:     I don’t genuinely understand.
[His Honour]: --- die at the hands of their father’s? ---
[The father]:     Your Honour, I don’t understand.[9]
[9] Transcript 8 March 2022, p.177 lines 5–19.

The father’s response demonstrated a significant lack of insight on his part. Whilst I am not satisfied that the father held an intention to harm the mother or the child, his remarks were intemperate and if not designed to frighten or intimidate the mother, the father was recklessly indifferent to the consequences of his conduct.
The father’s evidence is that he separated from his former partner in or about September 2021 and has now formed a new relationship with Ms L. They became engaged in late 2021 and they now cohabit. If the Court makes the orders as sought by the father, Ms L is going to be a part of the father’s household. Ms L has not filed an affidavit and little is known of her circumstances.
An indication as to the extent of the hostility between the parties is evident from the father’s response to the matters raised in paragraph 41 of the mother’s trial affidavit filed 15 October 2021.
The parties argued over the child’s health and the appropriateness of the child’s clothing when she came into the father’s care in January 2019. On 18 February 2019, the mother received a telephone call from the father as described in paragraph 41 of her trial affidavit:
a.From the moment I answered the call, he was screaming at me, calling me and my mother appalling names because apparently as he informed me, the day prior, the bank had repossessed his home in New South Wales. I was shocked and frightened. One minute he was screaming profanities and the next minute he was crying. Just about every second word was him calling me a “fucking cunt”. I asked him not to speak to me that way and he said he could speak to me however he wanted to, and called me a “a piece of shit”.
b.He accused me of being “on crack” and “off my head”. I say that I do not take any drugs or drink alcohol (at all). He said that he had seen [the child] with my mother the day before and said that he followed them to see what they were doing. He further threatened to take my house, and said that he was going to have me “taken care of”, which I took to mean that he was going to have me killed.
c. …
(Emphasis in original)
The father was asked to consider the accuracy of the mother’s summary of the telephone call. The father admitted that there was a phone call and that he used language which was inappropriate but not the phrase “fucking cunt”. Whilst the father denied this language, he did admit that generally his language in speaking to the mother was at times highly offensive.
The father also admitted he was in the habit of recording both the mother and the maternal grandmother. The father admitted that he recorded everything and had ignored the request not to do so. Ultimately, the only remedy available to the mother was to resort to an order that restrained the father’s propensity to record interaction.
The mother alleges in February 2017 the father made a threat to kill both her and another woman who was the mother of a child called S. Apparently there was some initial belief that S was the father’s child but that did not eventuate. The belief however was such that the father’s father had the name “S” tattooed under the names of his other grandchildren. It may be that S’s name has now been removed.
The mother alleges the following in her trial affidavit:
69.… The Father sent a text message to me indicating that he would speak to “[Mr R]” about us, someone that the Father had previously spoken to me about being able “to get rid of people.” In the subsequent text message, the Father indicated that it would cost $20,000 for each of us, meaning me and the other mother and that seemed “reasonable”.
(As per the original)
Whilst the father admitted that he sent the message, he denied that it was anything other than a joke. The mother’s concern as conveyed by her counsel was that it was said in order to frighten the mother by the father making it clear that he had connections with a person who could hurt or kill her.
The father maintained his position that when the text message is placed in context it does not reveal an intension to threaten the mother.
The father’s lack of insight is displayed by the following exchange:
[His Honour]: --- the father was referring to not just your client and I can imagine that in some odd way your client and [the father] may have had some odd sense of humour about the potential for someone to be hired to kill one or other of them but we’re talking about [Ms M] who is not a party to this. So how would there be any fun involved in talking about someone killing [Ms M]? ---
[The father]:     [Ms Nowak] didn’t like it at all. So there was always – there was that ‑ ‑ ‑
[His Honour]: The mother wanted to kill her? ---
[The father]:     No, there was – it was just [Ms Nowak] and [Ms M] did not sort of get – it’s messy, your Honour.
[His Honour]: Messy? ---
[The father]:     Yes, your Honour.
[His Honour]: Threats to kill people? ---
[The father]:     Like the – the – the relationship of – of ---
[His Honour]: I can understand messy relationships, [the father], but I don’t understand - - -? ---
[The father]:     As a ---
[His Honour:]: I don’t understand discussions relating to the hiring of a fellow called [Mr R] who apparently was understood to be a person who would undertake a contract? ---
[The father]:     It wouldn’t happen. Your Honour, it wouldn’t happen. It’s ‑ ‑ ‑
[His Honour]: If I’m using a term from the Godfather I think that’s probably right, a contract? ---
[The father]:     That’s what it – it wouldn’t happen, your Honour. It’s just ‑ ‑ ‑
[His Honour]: No? ---
[The father]:     No. It was just ---
[His Honour]: It’s pretty ordinary stuff, isn’t it, [the father]? ---
[The father]:     And that’s why I regret saying it. That’s why I regret saying it.[10]
[10] Transcript 8 March 2022, p.202 lines 10-37.
The mother alleged that the father had attended at her house on various occasions and pressured her to engage in sexual relations. The father denied each and every allegation set out in paragraphs 76(d) to (g) of her trial affidavit.
There were also allegations that the father may have retained photos of the mother naked.
The father also admitted that on 5 January 2019 he showed the mother a picture of herself naked.
It was apparent from a perusal of the father’s trial affidavit that there is little set out as to his personal circumstances involving accommodation and his living arrangements.
The father advised that he lived at Suburb P in rented premises. He was not able to set out the rent but acknowledged that there were a few people who shared the accommodation with him. On closer questioning, the father revealed that Ms L and her daughter lived at the premises and that Ms L was the lessee. The tenant however was revealed to be V Company which pays for the utilities. The father then confirmed that the Suburb P premises was in reality the office for V Company but was not a formal place of business but rather a residence. The tenancy finishes in August or September. The father was not able to provide any better detail.
The father’s evidence in respect of his personal circumstances was evasive. There remains significant uncertainty as to his domestic arrangements and in particular the true extent of his relationship and/or involvement with V Company. In circumstances where there was no apparent reason for the father’s reluctance to be open and transparent as to his employment and domestic arrangements, the inevitable consequence is that his evidence on these topics is at best unreliable.
The father conceded that he had a discussion with the mother’s solicitor in which a proposal was canvassed that the father would walk away from the litigation if the mother dropped the Apprehended Violence Order (“AVO”). The father was not prepared to accept that it was a formal proposal but did concede that it was an “off the record” conversation with the mother’s solicitor. Apparently the proposal was canvassed with the mother who agreed. The father’s evidence is that he never intended that there be formality to the proposal and it was rather an attempt to show the mother’s solicitor that his client was not serious about the AVO and that there was no substance to the underlying allegations. As was put to the father, it was a trick and a strategy.
The circumstances of the fake proposal were fleshed out in the following exchange:
[His Honour]: So then in the last sentence:
He further added that he never intended to agree to it and her lawyer fudged the shit out of it.
[The father]:     ? --- Yes. So then ---
[His Honour]: What does that mean? ---
[The father]:     So – so his – so I’m – she’s using the same law firm for both the cases so it wasn’t even the lawyer I spoke to then all of a sudden some other lawyer from Stanley & Co come through with this childcare arrangement which had other things in it. We didn’t even – it was just – it was just nonsense and fudged and it wasn’t even what we had even spoken about with the criminal or – or – I think it’s criminal or civil lawyer from the intervention order. So – so that side of the law firm just ran with whatever they wanted to anyway.
[His Honour]: But what does “fudge the shit out of it” mean? That’s – I don’t understand that? ---
[The father]:     They just put in all different clauses and weird – I can’t remember, your Honour. I don’t have it in front of me but it was all ‑ ‑ ‑
[His Honour]: This is the written proposal that came back? ---
[The father]:     Yes, yes. And it had like things that we hadn’t even discussed.
[His Honour]: And you were surprised about that? ---
[The father]:     Yes, your Honour.
[His Honour]: Because you had a counter proposal for something that you didn’t intend would ever go very much further?---
[The father]:     Yes. It was just a discussion between the criminal lawyer and myself ‑ ‑ ‑
[His Honour]: The criminal lawyer now?‑‑‑
[The father]:     - - - or whoever he is. The – the – the lawyer handling the intervention order.
[His Honour]: And did you think that because you were having a discussion with the mother’s lawyer there was a process whereby you and he could keep something secret?---
[The father]:     Yes, just with ‑ ‑ ‑
[His Honour]: Off the record?---
[The father]:     Well, I didn’t know how – yes, I thought if you say “off the record” I was expecting it to stay off the record.[11]
(Emphasis in original)
[11] Transcript 8 March 2022, p.235 line 37 to p.236 line 26.
The father’s evidence amounted to high farce.
The father attended Dr F, psychiatrist and Mr H, psychologist as to whether he presented with conduct or behaviour that would satisfy a criteria for a mental health issue. The attendance on Mr H was in respect of anger management and family violence. The report of Dr F dated 7 September 2020 is annexure “B” to the affidavit of Ms O filed 15 January 2021. The report of Mr H dated 3 March 2021 is annexure “MH2” to Mr H’s affidavit filed 24 February 2022.
The unequivocal position of the father is that whilst he attended on both experts, he did not consider that it was necessary.
In Dr F’s report, the following appears at page 18:
In [the father’s] case I noted that [the father] denied a number of assertions made by [the mother] and in particular he denied verbally, physically or sexually perpetrating violence against her. He denied threatening to kill her.
Consequently the following appears on page 5 of Mr H’s report:
[The father] made it clear, at his fifth meeting with me, that he felt he had complied sufficiently with the Court Orders and that he was not wanting to pursue further psychological intervention in relation to this matter.
The father considered that he sought professional intervention not because he perceived there were any aspects of his behaviour that needed to be addressed but rather because he was compelled to do so by the proceedings generally and court orders in particular.
The father did not consider that he presented with any mental illness and whilst he admitted that he had acted poorly on 16 June 2020, he did not have an issue with anger management.
The following exchange with counsel highlights the extent to which the father has insight into his own conduct:
[Counsel]:Well, are you telling me, having read the report, it continues to remain your view that there’s no need, nor reason for you to continue to see [Mr H] or anyone of like? Well, can I just read something that [Mr H] said:
That said, it must be acknowledged that [the father] has made considerable effort and with some success in addressing his emotional reactivity in the past. He has clearly been resourceful in his recovery from earlier mental health difficulties. However, his confidence in an ability to manage and regulate feelings of perceived threat and loss did appear to exceed his actual capacity to achieve this in practice.
When you read that, did it cause you to think that maybe you needed some help?---
[The father]: I think it’s ..... lesson was learned, like, and that’s what I regret. It wasn’t the correct way to – to act.[12]
(Emphasis in original)
[12] Transcript 8 March 2022, p.242 lines 1-14
In effect, the father did not accept that there was any ongoing need for counselling or therapeutic support.
A significant issue in the proceedings was whether the mother had given her consent to the father taking the child to Q Town to visit members of his family from 29 August 2017 to 4 September 2017. At the time the child was under one year of age. The father contends that it was a Father’s Day weekend and he used the opportunity to go to Q Town.
Circumstances of the purported agreement were made more complex by the father acknowledging the mother’s consent was conditional on the father signing the child’s passport, enabling the mother to take the child to New Zealand.
It is not controversial that the father did not sign the passport application and further, took steps to ensure that the child was placed on a child travel alert list thereby preventing departure.
Following detailed questioning, the father conceded that whilst he did send an itinerary to the mother it was after the event and it informed the mother when he and the child would be returning rather than giving the mother travel information prior to the trip.
The father’s evidence was unconvincing and I find that the mother did not consent to the child’s travel to Q Town. Moreover, whatever the merits may have been of the mother’s intended travel with the child to New Zealand, the father’s refusal to facilitate the travel and indeed steps that he took to prevent the child leaving Australia was high handed and without reasonable basis.
Dr F
Neither party nor the ICL sought to call Dr F for cross-examination. His report was received into evidence.
Dr F was asked to undertake a psychiatric assessment of the father.
Dr F was provided with a brief history of the background to the proposed assessment as set out in the following extract from the letter of instruction dated 2 September 2020:
[The child] resides with her mother and was spending time with her father.
There had been an interruption in the relationship between [the child] and her father but that was ultimately resolved and an Order was made for [the father] to resume spending time with [the child].
Unfortunately, almost immediately after the resumption of time, there was an incident at [the child’s] childcare as a result of which, [the father] has now been charged with a number of criminal offences. [The father] says he will defend the charges and they are back before the criminal Court [in late] 2020.
His time with [the child] has now been suspended.[13]
[13] Affidavit of Ms O filed 15 January 2021, annexure “A”, page 6.
There was no challenge to the expertise of Dr F and it is well known that he has provided psychiatric reports in a number of family law cases.
Given that Dr F was not required for cross-examination, it is only necessary to record the nature of the psychiatric tests undertaken and the extensive material provided to Dr F as set out in paragraph 24 of his report. In particular, Dr F was made aware of the allegation that the father had sexually interfered with the child as being one of the matters that ultimately caused the father to protest on the premises of the child care centre.
I am satisfied that Dr F was properly informed of the issues in the proceedings.
Dr F formed a clinical opinion that the father was not suffering from any significant psychiatric disorder. He may have been suffering from a personality disorder and undertook to review his opinion if a court found that the father intended to drive into the child care centre on purpose.
As was made clear to the parties, given the case had not been conducted with a focus of securing a determination of the father’s intention, the matter is not able to be taken further.
Mr H
Orders were made on 1 July 2020 which noted that the father would attend upon Mr H from T Services for anger management counselling.
The parties and the ICL did not require Mr H for cross-examination. His report dated 11 December 2020 was admitted in to evidence without challenge.
Mr H was provided with a comprehensive suite of court documents and an adequate background history as provided by the ICL.
The father attended Mr H on five occasions between July 2020 and October 2020.
Mr H recorded that the father initially presented in an agitated manner and expressed a deep level of frustration, exasperation and injustice.
The therapeutic focus of Mr H is set out in the following extract from his report:
Over the five meetings with [the father], I attempted to assist him to find a way that might be acceptable to him to understand and address some of the concerns that have been raised about his behaviour and that have led to statutory intervention. He clearly has taken offence at being accused of wilful or intentional aggression and violence and has vigorously defended himself against these allegations. It did appear likely that [the father] does not want or intend to cause harm to others and that he is strongly invested in striving to address problems in a calm and rational manner. However, he did appear to underestimate the potentially threatening and intimidating impact of his own feelings and reactions when he himself is experiencing criticism, challenge or a sense of social threat.[14]
[14] Affidavit of Mr H filed 24 February 2022, annexure “MH2”, page 12.
Mr H accurately determined that the father was reactive to social threat and judgment and as a result experienced feelings of deep humiliation.
Consistent with the father’s evidence, Mr H accepted that the allegations of violence and sexual abuse caused the father deep distress and may well have contributed to his conduct on the day of the incident.
Mr H observed the disconnect in the father’s presentation in that whilst he was able to better reflect upon his actions and to recognise that others may feel offended or intimidated by his conduct, his own sense of victimisation significantly lessened his insight into how others perceive him.
The unchallenged evidence of Mr H is as set out in the closing paragraphs of his report as follows:
[The father] is unlikely to intentionally behave in a way that might cause harm or distress to his daughter, [the child]. He is convinced that he is able to conduct himself in a reasonable and rational manner, even when challenged or feeling a sense of threat. However, there is potential for [the child’s] well-being and sense of security to be compromised in a context of ongoing parental dispute and disrespect.
That said, it must be acknowledged that [the father] has made considerable effort and with some success, in addressing his emotional reactivity in the past. He has clearly been resourceful in his recovery from earlier mental health difficulties. However, his confidence in an ability to manage and regulate feelings of perceived threat and loss did appear to exceed his actual capacity to achieve this in practice. It is likely that the criminal charges that he is facing and possible adverse consequences, as a result of the Child Care Centre incident, also serve to create a context which makes it difficult for him to reflect upon any sense of culpability regarding his own behaviour and reactions. He would be well served to engage in some deeper reflection upon his own reactivity and behaviour and its impact upon others once this criminal matter is resolved.[15]
[15] Affidavit of Mr H filed 24 February 2022, annexure “MH2”, page 15.
The mother

At the commencement of the mother’s evidence, Queen’s Counsel tendered a joint agreement between the parties dated 30 January 2018.
The agreement provided for the child to live with the mother and to spend time with the father supervised by the maternal grandmother.
The agreement required each party to enrol and participate in various parenting programs and in particular, the father was to provide correspondence from his general practitioner in respect of his mental health.
The parties were also restrained from denigrating, harassing or abusing each other and from consuming alcohol to excess or illicit substances during any time that the child was in their separate care.
At paragraph 66 of the mother’s trial affidavit, the mother alleged that after she had become pregnant, the father became verbally and physically abusive. Various generalised examples were set out in paragraph 67 however, there is more detail commencing at paragraph 68.
The mother asserted that the father was aggressive in the way that he interacted with her but that his behaviour escalated in 2017 to include a threat to kill the mother and another person. This was conveyed via a text message that referred to a person called “[Mr R]”[16] who purportedly is able to “get rid of people”.[17]
[16] Affidavit of the mother filed 15 October 2021, paragraph 69.
[17] Ibid.
The mother also referred to an argument in April 2017 which resulted in the father putting the mother in a headlock in order to make her release his phone but of greater significance is an allegation that the father raped the mother on two occasions in the first half of 2017.
The mother refers to the sexual assault in paragraph 76 of her trial affidavit:
After separation, the [f]ather has come to my house and either had intercourse with me despite me telling him that I did not want to, or pressured me to have intercourse with him…
The mother described the sexual assault in the following exchange:
[Counsel]:Now, is it your case that in or about early to mid-2017, he had forced sexual intercourse with you?---
[The mother]:   Yes. Around that time.
[Counsel]:And just to not mix words, you say he raped you on two occasions in early to mid-2017?---
[The mother]:   Non-consensual.
[Counsel]:       Forced sexual intercourse. You’ve used those words before .....?---
[The mother]:   Yes.
[Counsel]:       Right. On two occasions?---
[The mother]:   About that. Yes.
[Counsel]:And that’s a nonsense, isn’t it? You and him – you and [the father] were in an on and off, casual relationship and you would spend time together in the first few months of 2017 and have consensual sexual intercourse with each other, wouldn’t you?---
[The mother]:   In the beginning, yes.
[Counsel]:       In the beginning?---
[The mother]:   Of our relationship, yes.
[Counsel]:       Well I am talking about the period in the first half of 2017?---
[The mother]:   Yes.
[Counsel]:You had – his case is – I will go back a step. His case is that you had sexual relations in the first half of 2017 and they were all consensual with you?---
[The mother]:   Those ones were, but when – “no” means no. Like, if I said “no” then it’s no.[18]
[18] Transcript 9 March 2022, p.311 lines 23-44
The allegation of sexual assault or forced sexual intercourse was not the subject of further evidence.
The mother was asked to consider the status of her relationship with the father following his return from Q Town and the withdrawal of trespass charges brought against him following a dispute as to the basis upon which the father attended the mother’s premises in April 2017.
The focus of the mother’s cross examination was to better understand the extent of time that the father was spending with the child and whether it was supported by the mother. It is not controversial that from June 2017 the parties spent time together. The father contends that there were attempts to reconcile his relationship with the mother. The mother does not accept the parties had resumed cohabitation or were looking to reconcile but rather they were spending time together so that the child could have a relationship with the father.
There is a dispute between the parties as to the extent of time that the father spent with the child out of the presence of the mother. It is the mother’s evidence that the father was spending significant time with the child both in and away from her home but in company of the mother. The issue was the extent to which the mother was concerned for the child’s safety. The mother concedes that provided she was present she did not consider that the child was at risk.
The following exchange appears to place the mother’s position in some context:
[Counsel]:Yes. I took your evidence to be that there were these – there were times being spent together; attempts on your case to get the relationship back on track. That was correct, wasn’t it?---
[The mother]:   No.
[Counsel]:There wasn’t? Is that why you had him over for the barbecue in May or June ‑ ‑ ‑?‑‑‑That relationship?
[The mother]:   Yes.
[Counsel]:       Right. All right?---
[The mother]:   I just wanted to get along.
[Counsel]:       See, I don’t understand why you would do that?---
[The mother]:   He was [the child’s] father. I wanted [the child] to – I wanted him at that time to be involved with [the child]. I wanted them to spend time together so I tried.
[Counsel]:Why would you do that though, given what you’ve said he was doing to you repeatedly- - - ?---
[The mother]:   Because I was – like I’ve said previously, I was scared of the repercussions if I – if I didn’t.
[Counsel]:Right. Right. Now, in about August 2017 he – you let him – you let him have a couple of overnight periods with your daughter, didn’t you?---
[The mother]:   Around August, yes.[19]
[19] Transcript 9 March 2022, p.319 lines 15-33
The mother conceded that the child would spend two nights a week with the father. There is some dispute as to the regularity of the arrangement and the mother agrees that there were two individual nights in or about August 2017.
It appears that the arrangement with the father to care for the child may well have been intended to allow the mother to work. The following exchange highlights what appears to have been the mother’s motivation for the care arrangements with the father in 2017:
[Counsel]:All I am putting to you is that you agreed on your own case for at least a two night block from Tuesday to Thursday, unsupervised with [the father]?---
[The mother]:   Yes. I think – yes.
[Counsel]:       All right. While you were off at work?---
[The mother]:   I was at work. Yes.
[Counsel]:So – all right. Not – I suggest you weren’t fearful of him yourself. That is, you being – having any fear of [the father] at that point. Correct?---
[The mother]:   Sorry. Can you please repeat that?
[Counsel]:I suggest that at that time in late August 2017, you didn’t have any fear of [the father] ‑ ‑ ‑?‑‑‑
[The mother]:   The ‑ ‑ ‑
[Counsel]:‑ ‑ ‑ as you offered up [the child] for unsupervised time?---
[The mother]:   The fear was always there. Yes.[20]
[20] Transcript 9 March 2022, p.322 lines 11-24
Against the backdrop of the mother’s evidence of ongoing fear of the father and any interaction with him, the mother was asked to consider a text message exchange between the parties. The mother conceded that she sent the following text message to the father on 30 October 2017:
I have Tuesday off, so no go then. Until we have a proper chat it’s not happening. It’s entirely up to you. Otherwise I will go through Family Court and you can have supervised visits once a fortnight. Some family that is for [the child].[21]
(Emphasis in original)
[21] Transcript 9 March 2022, p.328 lines 38-41
The focus of the cross-examination of the mother was to explore whether her attitude towards the father regarding her fear of him was confected and was motivated not by fear but by spite, in circumstances where the father would not reconcile with the mother.
On 31 October 2017, the parties engaged in the following text message exchange:
[The father]: Once again you used [the child] as your weapon. Just because I don’t want to be with you, you won’t let me see [the child]. That’s disgusting. How about put [the child] first instead of you getting kicks out of hurting me. [22]
[The mother]: I want [the child] to have a proper family, someone who is going to be there all the time. If I was to find someone, that would be on them. You would see [the child] on your scheduled time or every second weekend. She won’t even know you as her father.[23]
(Emphasis in originals)
[22] Transcript 9 March 2022, p.329 lines 38-40
[23] Transcript 9 March 2022, p.329 lines 44-47.
The mother conceded that on the same day she withdrew permission for the father to collect the child from the child care premises.
Thereafter, the communication between the parties became more volatile with a focus on the father’s alleged new relationship. It culminated in the mother advising the father by text on 25 November 2017 that he would no longer spend time with the child other than by court order.
The mother accepted that over and above any fear that she had of the father, she was also angry at what she considered amounted to his infidelity.
The mother acknowledged the strength of her upset was reflected in the following text message she sent to the father:
Fuck off with your games. Like I said, until we go to court next year that’s it. No more [the child]. Get it? You’ve got yourself to blame for this one. Go thank your friend. You’re only interested in one thing and that’s clearly not your daughter. So go be with that thing. [24]
(Emphasis in original)
[24] Transcript 9 March 2022, p.332 lines 12-15
After the father responded, the mother sent a further message as follows:
Go tell someone who actually gives a fuck you idiot. I told you that’s it. Like I said, I really feel sorry for your parents.[25]
(Emphasis in original)
[25] Transcript 9 March 2022, p.332 lines 19-20
The mother admitted that she had threatened to take the child and leave. The threat was empty in that the mother agreed she had no intention to move given that she owns her own home, her family are close and she remains in secure employment.
When asked whether a text message was sent with the sole intention to “wind him up”[26] the mother agreed that the purpose of her message to the father was simply to create upset.
[26] Transcript 9 March 2022, p.337 line 1
It was shortly after the mother sent the text message threatening to leave with the child that in April 2018 she attended at her local Police Station to raise the possibility that the father had engaged in the sexual abuse of the child.
In response to the father’s Initiating Application filed in 2018, the mother sought final orders that the child live with her and spend time with the father such that upon the child turning five years of age, the child would spend each alternate weekend from the conclusion of school Friday until 5.00 pm Sunday and each intervening week, on a day to be agreed between the parties, from the conclusion of school until 7.30 pm.
The mother agreed that the final orders she originally sought in 2018 did not require supervision however supervision was a provision of the interim orders sought. In her interim orders, the mother contemplated the father would obtain a report from his treating psychologist or psychiatrist, enrol and complete a parenting course and be subject to certain orders of restraint in respect of using illicit drugs or consuming alcohol to excess, taking the child from the care of the mother other than as provided by orders and from video recording the mother and any supervisors.
At the time of filing her response, the mother agreed that the father didn’t present a risk and that the future parenting arrangements proposed by the mother would be in the child’s best interests.
Ms G
Ms G holds tertiary qualifications in allied health. Ms G was employed by Y Service between 2000 and 2003, Z Service from 2003 to 2005, AA Service from 2005 to 2006 and thereafter as a consultant. Ms G has given evidence on many cases involving parenting disputes. Her involvement with this matter commenced by order made 16 April 2019. Her first report canvassed the parenting concerns in particular the allegations of family violence, the allegation of forced sexual intercourse and the alleged threat to hire someone named “[Mr R]” to kill the mother.
At the time of the assessment the child was aged two and a half years. Each party impressed with their attachment and ability to engage with the child. Ms G noted that the father was able to genuinely empathise with the child and respond with sensitivity and care.
The child was able to engage easily with each of the parties.
Ms G considered that at that time, the child was well adjusted and happy but for the lack of effective communication which was likely to adversely impact upon the child.
Ms G was not able to determine the veracity of each of the parties’ allegations of violence but building upon the foundation that in Ms G’s opinion the father had developed a secure and dual primary attachment base for the child, it was her recommendation that the father’s time with the child should gradually build up such that when the child reaches four years of age it would be appropriate for the child to spend each alternate weekend and some time in the intervening week with the father.
It is a reasonable observation to note that the orders sought by the mother are not dissimilar to the recommendations of Ms G in her first report.
Following orders made on 26 May 2021, Ms G prepared an update report dated 22 October 2021 (“the second report”). The second report is annexure “MN1” to the affidavit of Ms N filed 14 February 2022.
Ms G noted that the father’s time with the child had been suspended whilst the Child Protection Service investigated child abuse concerns but that then time had resumed in mid-2020. Ms G noted that the father’s time was suspended following the incident at the child’s child care centre.
Ms G had the advantage of the report of Dr F in which there was no diagnosis of a personality disorder and the report from Mr H that the father did not want or intend to cause harm to others.
Ms G specifically recorded a concern of Mr H that the father “has not been inclined towards personal accountability for his own behaviour and his ability to reflect upon the nature and effects of his own reactivity is quite limited”.[27]
[27] Update Family Report dated 26 October 2021, paragraph 11.
Ms G did not consider that there should be observed interaction given that the child had not seen the father for over 12 months at the time of the assessment and was concerned that a one off contact might be traumatic for the child.
Ms G was strongly in support of the Court taking a cautious approach to time spending. It is fortunate that Ms G observed the child was not actively grieving the loss of her time with the father. The difficulty is that Ms G considers that the incident in mid-2020 was pivotal. If it was determined that the father acted with intent and rammed his car into the child care centre then this would speak against commencing a reintroduction process.
Ms G was not able to promote any time spending beyond a recommencement involving supervision by a professional third party such as a Children’s Contact Service or Family Therapist. Thereafter, there may well be a gradual shift to limited but meaningful day time spending.
Ms G favoured an order for sole parental responsibility given the dysfunctional relationship that exists between the parties.
It was apparent that Ms G struggled to reconcile her positive observations of interaction and relationship between the child and the father as reported upon in her first report with the circumstances of the father not having seen the child for more than a year and still being the subject of unresolved criminal proceedings.
Principles relating to parenting
I consider it necessary that I adopt the approach that considers the practical reality of the separate parenting proposals of the parties. I bring to account the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
Parenting considerations
The parties are not agreed as to parental responsibility.
The separate proposals of the parties even at their most basic represents an outcome that on the mother’s case would see there being no relationship with the father going forward or on the father’s case, the graduated reintroduction of time such that the child’s care would be shared between the parties.
Whilst the father’s proposal contemplates shared care, it was apparent that his immediate focus was to resume time with the child on some basis.
The mother does not consider that the father should have a meaningful relationship with the child and that attempts to renew or restore a relationship would not ultimately be in the child’s best interests.
A careful consideration of the evidence would suggest that despite the protestations of the mother, the child enjoyed a close attachment and beneficial relationship with the father.
Whilst the parties are not agreed as to the parenting arrangements following separation and up to and including the commencement of court proceedings, it is uncontroversial that the child spent time with the father both in the presence of the mother but also by arrangement unsupervised, thereby enabling the mother to attend to her employment.
The extent of the relationship with the father was observed by Ms G in her first report. It is obvious that in subsequent court proceedings the first report was of assistance and formed at least part of the justification for an increase in the father’s time.
I do not accept the mother’s denial that she only facilitated time because she was fearful of the father if she did not do so.
It is likely that part of the mother’s motivation from 2017 to 2019 was in the hope that the parties may be able to reconcile their differences. The tenor and content of the text messages forwarded by the mother to the father invite a finding that whatever other concerns the mother may have had about the father, part of her motivation in ceasing the father’s time with the child was her concern that the father had commenced a new relationship.
The history of orders made in the Court would suggest that certainly during the period up to the incident, a determination had been made that it was in the child’s best interests to spend time with the father.
Whilst the mother would now assert that the time that the child spent with the father should be seen against the background of family violence comprising of physical and sexual assault and controlling behaviour that engendered fear in the mother, the reality is that the father’s time was suspended as a result of the incident involving the collision with the child care centre.

The parental conflict between the parties is currently at its highest.
In Mazorski v Albright (2007) 37 Fam LR 518 Brown J commented on the definition of “meaningful” and said:
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”… when considering the primary considerations and the application of the object and principles, a meaningful relationships or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark (2009) FLC 93-405, the Full Court said:
119.We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationship between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
I must therefore consider orders that serve the best interests of the child and must weigh up the competing primary considerations, namely the benefit to the child of having a meaningful relationship with both parents but also the need to protect them from physical or psychological harm.
The latter consideration therefore requires a focus on whether the child is at risk of being subjected to physical or psychological harm or being exposed to abuse, neglect or family violence.
The mother would argue that the father’s conduct on the day of the incident demonstrated the father was not able to control his temper, has little or no insight into his conduct and if the Court determines that he intentionally drove his car into the child care centre then the child is at significant risk if left in his care.
In Cotton & Cotton (1983) FLC 91-330 Nygh J at 78,252 considered that whilst it was generally desirable for a child to maintain a meaningful relationship with both parents:
that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even if not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. …
In Sigley v Evor (2011) 44 Fam LR 439 in the context of a relocation case, the Full Court undertook a review of the authorities with a view to defining “meaningful relationship” and in doing so at [136] quoted the following from the decision of Champness & Hanson (2009) FLC 93-407 (“Champness”) at 83,502:
103.The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all the other relevant factors. …
(Emphasis in original)
At [136], the Full Court then went on to further cite the following observations of the Full Court in Champness (supra) at 83,513:
191.The first and very important observation we would make about this complaint is that the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship”.
In St Claire & St Clair and Ors [2013] FamCA 108 Cronin J was confronted with a seven year old child who had not had any contact with their father for three years. The child’s 13 year old sibling had an entrenched negative view of the father and any contact that was to occur between that child and the father was subject to the child’s consent. The final orders provided for the younger child to spend time with the father in accordance with a strict therapeutic regime conducted over a period of 12 months. His Honour said:
209.It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.
(Emphasis in original)
His Honour recognised that it was difficult to determine the extent of the benefit that may come to the child for a meaningful relationship with the father in the following terms:
211.Just what benefit [the child] will receive in a limited and controlled environment is hard to know. The husband strongly resisted what he described as the prison-like environment of a contact centre. His view about [the child] just treating him as a normal father was unrealistic. Having said that, properly prepared, he could explain to [the child] just who he is and how important it is for her to know that if she needed a father, he could be available to her.
In Wang & Dennison(No 2) [2009] FamCA 1251 Bennett J made final orders that the children live with the mother but declined to make any orders for them to spend time with the father. This was based on the reluctance of both children, aged almost 10 and 12, to re-establish a relationship with their father and his inability to see the children’s “need for peace”.[28] Her Honour had previously tried therapeutic intervention which was considered unsuccessful. There was evidence before her Honour that the continuation of reunification therapy would place the children at an unacceptable level of emotional and physical risk. The following paragraphs of the judgment are apposite:
76.… [The father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of any bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
77.It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, at least to the extent of any conflict. …
[28] Wang & Dennison (No 2) [2009] FamCA 1251 at [76].
The Full Court in Dennison & Wang [2010] FamCAFC 182 at [5], when considering the father’s appeal against her Honour’s orders, recognised that at the heart of the father’s appeal was an inability to:
understand how, at the end of a lengthy trial where the trial judge made strong and adverse comments about the mother, and no comments of a serious nature against the father, that the orders provide him with no physical contact ...
Implicit in the disposal of the appeal is clear support for the objects of the Act, namely that the best interests of the child or children should be the paramount concern. Importantly, the Court recognised at [142] that:
The “reality of the situation of the parents and the child” (MRR v GR (2010) 263 ALR 368 at 372) was clearly a significant part of the trial judge’s reasons for making no orders, as opposed to the desirability for a parent having a “meaningful relationship” with his children.
In Baglio & Baglio [2013] FamCA 105 Murphy J had to consider the father’s application to spend time with an almost six year old child who he had not seen for almost three years. The mother was opposed to the child spending time with the father and she freely admitted that she would not encourage a meaningful relationship. She said that she lived in constant fear of the father and it was clear that she had intentionally alienated the child from the father.
At [111] his Honour found that there was a “chance of a meaningful relationship…which is beneficial to the child” and that the absence of such a relationship may well cause harm in the long-term. At [121], following a finding of no unacceptable risk, his Honour said “if there is no unacceptable risk of harm to her, the child should have the opportunity to know, and have an image of, a father who did not hit her.”
At [148] the following appears:
I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child’s rights, enshrined in Part VII Objects and Principles, pertain. I am also concerned by the mother’s repeated assertions that she will not encourage a relationship between the child and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
There is significant uncertainty as to the child’s current relationship with the father. Ms G assessed the child for the purposes of the second report and determined that whilst there was reluctance on the part of the child to see the father, she did not present with any overt fear or distress at the prospect. She was able to remember some aspects of their time together and the child’s presentation was such that Ms G considered she had been affectively quarantined from the conflict between the parties.
In the circumstances of this case, I consider that a meaningful relationship did exist between the child and the father and that certainly before the incident there was nothing to suggest that it was not in the child’s best interests to suspend the father’s time.
The difficulty is that there is a paucity of evidence that would enable the Court to determine an appropriate way forward.
I consider that the father has much to offer the child however the contention of the mother is that the father presents as an unacceptable risk by reason of his conduct, either impulsive at its most generous or deliberately destructive at its most serious.
Is the child at risk
As discussed, I do not consider that the evidence of the father’s involvement with the child up to the date of the incidentsupports a finding that he presents as a physical risk to the child.
The issue is whether the evidence consequent upon the incident alters that finding.
In Harridge & Harridge [2010] FamCA 445 at [73], Murphy J adopted the following list of enquiries with respect to the risk assessment and analysis:
(1)      What harmful outcome is potentially present in this situation?
(2)      What is the probability of this outcome coming about?
(3)      What risks are probable in this situation in the short, medium and long term?
(4)      What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
For reasons that are best understood by the legal representatives of the parties and the ICL, Dr F, the psychiatrist who undertook an assessment of the father was not called. Accordingly, his report was before the Court and is unequivocal in the opinion of the psychiatrist that the father does not present with a diagnosed mental illness. There may be personality traits which impact upon his behaviour and choices that he makes, but in the absence of any evidence little more can be understood than the finding that the father does not present with a mental health diagnosis.
To the extent that the father attended upon Mr H for counselling and therapeutic assistance, whilst the father terminated the engagement after five sessions, there is nothing in the report prepared by Mr H that would suggest the father presents as an ongoing risk. It may well be that the father was found to minimise his conduct but I find that he presented to Mr H with genuine regret for his conduct.
I do not ignore the stressors that the father was labouring under.
Whilst it may be that his deteriorating relationship with the child’s child care centre administration was as a result of the father’s own poor conduct and choices, the same cannot be said for the allegation that the father may have engaged in sexual abuse of the child with the consequence that his time was suspended.
It is apparent from the father’s engagement with Dr F, Mr H and Ms G that he harboured ongoing distress and resentment at the ill-founded allegations of sexual abuse. Moreover, whilst the father’s conduct was irrational and lacked insight, I accept that in his frame of mind, the receipt of the letter passing between the mother’s solicitors and the ICL had an adverse impact on the father even though the contents were not as egregious as the father considered.
I consider that the father is invested in re-establishing a relationship with the child however there is little evidence that would assist the Court in determining future orders. The second report of Ms G suggests a cautious approach, in particular until the criminal proceedings have been determined, in case there is a finding of guilt which would be indicative of the father having formed an intention to drive his car into the child care centre.
The approach promoted by Ms G is one of caution but not that there should be a cessation of the father’s relationship with the child for all time.
It is regrettable that there is a paucity of evidence to assist the Court. In circumstances where there is an ICL appointed, I do not consider that the Court has been properly assisted.
Wishes of the child
The most recent indication of the child’s wishes are to be found in the second report of Ms G. As considered, whilst the child did not express a desire to see the father, no weight can be placed upon the child’s remarks. If anything, there is some strength to the opinion of Ms G that the child has a recollection of spending happy times with the father and has been largely quarantined from the dispute.
The nature and relationship of the child with each of the child’s parents and other persons
The child is strongly bonded to the mother. The father currently does not have a relationship with the child given that he has not seen the child since mid-2020. Ms G declined to conduct observed interaction.
The primary order sought by the father is that there be equal shared parental responsibility and after a period of graduated increase in time, the child’s care would be shared by the parties. The mother contends that there is no current relationship with the child and nor should there be into the future by reason of her fear of the father and the risk he presents to the child by his unpredictable and irrational behaviour.
Noting that the second family report was prepared in 2021, it was Ms G’s view that there was no relationship between the child and the father. The child remembered the father and was able to consider her experience with him prior to time ceasing.
The child expressed a view that she did not want to see the father but as considered, little weight can be attached to the child’s statement. More weight can be given to the observation of Ms G that the child appeared to be unaffected by the litigation and ongoing conflict. Simply put, the child was not fearful of the father but was likely reacting to the fact that she had not seen the father for over one year at the date of interview.
The reality of the father’s extended absence from the child’s life cannot be ignored. Irrespective of whether the cessation of the father’s time with the child was justified, I am obliged to consider what is in the child’s best interests and as best as I can to view the child’s predicament from her own perspective.
It may be that providing it is safe to do so the child and the father could readily reinstate their relationship. It is also possible that the process of a fulsome reinstatement may be too traumatic for the child.
A decision must be made on the evidence and any discretion exercised must be within the evidential matrix. I do not propose to embark upon a flight of fancy. Whilst I do not ignore the evidence of each of the parties, in particular in respect of the mother’s allegation that the father is a perpetrator of family violence and presents as a risk to the child as opposed to the father’s contention that but for the incident he would currently be maintaining a close relationship with the child, the only evidence of the child’s current level of functioning, resilience to change and her maturity is to be found in the evidence of Ms G. Her recommendations are that the Court should move forward with a high level of caution until the circumstances of the parties, the fate of the father’s criminal proceedings and the potential for the child to be adversely impacted by a reintroduction of a relationship with the father can be further assessed.
The likely effect of any change in the child’s circumstances
The father seeks an immediate resumption of unsupervised time with the child leading to equal time and shared care. The mother opposes the father’s proposal.
Any consideration of a significant change in the current living arrangements for the child by either the early introduction of unsupervised time with a transition to significant and substantial time and then equal time is not supported by the evidence of the report writer. As considered, there is no other evidence that would assist the Court.
It is appropriate however for the Court to find that the child should remain in the primary care of the mother. There is no doubt as to the strength of that attachment and whilst the father may argue that the mother will embark upon a process of further alienating the child from him, such a contention is not supported by the evidence of Ms G in terms of the child’s presentation. There is some force in the father’s concerns that led to the mother ceasing to facilitate the child spending time with the father as the precursor to proceedings being filed. Thereafter, there is no evidence of noncompliance with court orders by the mother and she properly points to the orders made on 15 June 2020 that reinstated orders for overnight unsupervised time. It was the father’s conduct on the following day that likely brings him to the position in which he now finds himself.
Family violence

I have found that the father displays an unnecessarily aggressive and confrontational stance whenever he perceives that there is a challenge to his position.
The relationship between the parties was demonstrably volatile and neither are without fault when the tenor of their communication and text messaging is considered.
The father’s interaction with the child’s day care centre was unacceptable and in that respect I prefer the mother’s evidence as to the father’s unnecessarily confrontational presentation than the father’s denials of same. On reflection and possibly with the wisdom of hindsight, the father acknowledged that if he had the option to do so, his behaviour would have been different.
What is apparent is that the Court on a number of occasions when confronted with the overt behaviour of each of the parties determined that the best interests of the child were served by her spending time with the father. I do not dismiss lightly any allegation of family violence whether it be physical in description or coercive and controlling by nature. In particular, I have carefully considered the mother’s evidence as to what she refers to as non-consensual intercourse. Whilst that evidence refers to a period in 2017, I do not diminish the potential weight that should be given to such evidence simply because it occurred a number of years ago. In the circumstances in this case, I do not consider that on the balance of probabilities I am persuaded to accept the mother’s assertion that she was the subject of physical assault. The evidence is scant and was not pursued with any determination in cross-examination of the father.
In attempting to balance up all of the relevant factors necessary to determine what is in the child’s best interests, the most significant issues from the child’s perspective is the lack of relationship with the father for now nearly two years, the extent to which there may be evidence accepted by the criminal court that the father intended to drive his car into the child care centre which if established would properly necessitate a further consideration of the father’s psychiatric functioning and his impulse control and level of aggression.
Future litigation
I am not able to determine what arrangements for the child spending time with the father may be warranted in the future.
I am satisfied that the evidence as presented supports orders that until the father’s criminal proceedings have been resolved and his fate and status thereafter are known, the child should spend time with the father but under strict supervision. It is a delicate balance. I am obliged to consider that the interests of the child are best served by maintaining a meaningful relationship with each of the child’s parents providing that it is safe to do so.
I consider that the ability of the child to maintain a meaningful relationship with the father should be preserved. It would not be appropriate for the efflux of time to become a self-fulfilling prophecy that would thereafter make it difficult, if not impossible for a relationship to resume.
Even so, the evidence of the report writer is that the Court must move forward albeit with caution.
Ongoing litigation is rarely to be considered as in the best interests of a child. It should be avoided wherever it is reasonable to do so. In this case, I consider that I have not been presented with sufficient evidence that would enable me to make an informed decision either in terms of the proposal of the mother or in terms of the proposal of the father save and except that I propose to resolve the issue of primary care with finality. I propose to make an order pursuant to s 65L of the Act which will see the child spend time with the father under the strict supervision of a Court Child Expert. Such a process will ensure that there is no physical risk to the child and the expertise that is brought to bear by a Court Child Expert will ensure as best as is possible, that the child’s emotional needs are protected.
If the Court Child Expert determines by report that it is appropriate for the child to continue to spend time with the father then there should be six periods of time spent supervised either by an expert agreed by the parties or in the absence of agreement by a Children’s Contact Service. Thereafter, it is anticipated that the father’s criminal proceedings will have been resolved and it will be a matter for either of the parties or the ICL to relist the matter for consent orders or trial directions.
Parental responsibility
Parental responsibility is to be informed by what is in the best interest of the child. The parties are not in agreement as to parental responsibility however for the reasons as discussed there is no utility or benefit to the child of requiring the parties to discuss and/or reach a consensus to major issues affecting the child. The reality is that the father has not been in the child’s life now for nearly two years and the evidence supports a finding that the mother has exercised her parental responsibility with care.
The parties are not able to communicate at any level and each of them harbour and maintain ongoing dislike and distrust of the other.
There is no advantage to this child of seeking to bring together the parties when they are clearly unable and are unwilling to do so by their own decision.
Given that parental responsibility is informed by the best interests of the child and taking into account the evidence, the presumption that the parties should have equal shared parental responsibility for the child is rejected and I propose to order that the mother have sole parental responsibility albeit with an obligation to keep the father informed.
Conclusion
I propose to order that the mother have sole parental responsibility and that the child live with her. The father will resume spending time with the child, initially under the supervision of a Court Child Expert appointed pursuant to s 65L of the Act and then if supported, for a further six periods of time, supervised by an appropriate expert or in default by a Children’s Contact Service.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 11 July 2022

File number(s):	ADC 3653 of 2018
Judgment of:	BERMAN J
Date of judgment:	11 July 2022
Catchwords:	FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the parties are not able to communicate at any level – Where there is ongoing dislike and distrust between the parties – Consideration of the best interests of the child – Where the presumption should not apply – Order for sole parental responsibility. FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Best interests of the child – Family violence – Where the father seeks a gradual increase in time to equal shared care – Where the mother opposes the child spending any time with the father - Where the child is currently in the mother’s primary care – Where the father’s time was suspended due to an incident which is now the subject of criminal proceedings - Where the father has not spent time with the child in two years – Where there are allegations of family violence – Whether the father presents as a risk to the child – Where the Family Consultant recommends a cautious approach until the criminal proceedings have concluded - Where there is a lack of evidence before the Court to determine any significant change to the child’s living arrangements – Where the child should remain in the primary care of the mother – Where the ability to maintain a meaningful relationship with the father should be preserved – Where the father should spend some supervised time with the child pursuant to s 65L of the Family Law Act 1975 (Cth).
Legislation:	Evidence Act 1995 (Cth) ss 128, 135, 136 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65L, 69ZN, 69ZT Family Law Rules 2004 (Cth) r 15.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.18
Cases cited:	Baglio & Baglio [2013] FamCA 105 Champness & Hanson (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Dennison & Wang [2010] Fam CAFC 182 Harridge & Harridge [2010] FamCA 445 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Sigley v Evor (2011) 44 Fam LR 439 St Claire & St Clair and Ors [2013] FamCA 108 Wang & Dennison(No 2) [2009] FamCA 125
Division:	Division 1 First Instance
Number of paragraphs:	278
Date of hearing:	7 – 11 March 2022
Place:	City W
Counsel for the Applicant:	Mr Childs
Solicitor for the Applicant:	Daniel John Lawyers
Counsel for the Respondent:	Ms Pyke QC
Solicitor for the Respondent:	Stanley & Co Lawyers
Counsel for the Independent Children's Lawyer:	Ms Horvat
Solicitor for the Independent Children's Lawyer:	Georgina Parker Lawyers

ADC 3653 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR STOCKDALE Applicant
AND:	MS NOWAK Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

order made by:	BERMAN J
DATE OF ORDER:	11 July 2022